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What must men think, when they see wise magistrates and grave ministers of justice, with indifference and tranquillity, dragging a criminal to death, and whilst a wretch trembles with agony, expecting the fatal stroke, the judge, who has condemned him, with the coldest insensibility, and perhaps with no small gratification from the exertion of his authority, quits his tribunal to enjoy the comforts and pleasures of life? They will say, “Ah ! those cruel formalities of justice area cloak to tyranny ; “they are a secret language, a solemn veil, intended to conceal - the sword by which we are sacrificed to the insatiable idol of “despotism. Murder, which they would represent to us as an “ horrible crime, we see practised by them without repugnance,
Let us follow their example. A violent death appeared terrible in their description, but we see that it is the “ affair of a moment. It will be still less terrible to him, who not “expecting it, escapes almost all the pain.” Such is the fatal, tlongh absurd reasoning of men who are disposed to commit crimes; on whom, the abuse of religion has more influence than religion itself.
$ If it be objected, that almost all nations in all ages have punished certain crimes with death, I answer, that the force of these examples vanishes, when opposed to truth, against which prescription is urged in vain. The history of mankind is an immense sea of errors, in which a few obscure truths may here and there be found.
But human sacrifices have also been common in almost all nations. That some societies only, either few in number, or for a very short time, abstained from the punishment of death, is rather favourable to my argument, for such is the fate of great truths, that their duration is only as a flash of lightning in the long and dark night of error. The happy time is not yet arrived, when truth, as fulshood has been hitherto, shall be the portion of the greatest number.
I am sensible that the voice of one philosopher is too weak to be heard amidst the clamours of a multitude, blindly infiuenced by custom ; but there is a small number of sages, scattered on the face of the earth, who will echo to me from the bottom of their hearts ; and if these truths should happily force their way to the thrones of princes, be it known to them, that they come attended with the secret wishes of all mankind; and tell the king who deigns them a gracious reception, that his fame shall outshine the glory of conquerors, and that equitable posterity will exalt his peaceful trophies above those of a Titus, an Antoninus, or a Trajan.
How happy were mankind, if laws were now to be first fornied; now that we see on the thrones of Europe, benevolent monarchs, friends to the virtues of peace, to the arts and sciences, fathers of their people, though crowned yet citizens; the increase of whose authority augments the happiness of their subjects, by destroying that intermediate despotism which intercepts the prayers of the people to the throne. If these humane princes have suffered the old laws to subsist, it is doubtless because they are deterred by the numberless obstacles which oppose the subversion of errors established by the sanction of many ages; and therefore every wise citizen will wish for the increase of their authority.
PUBLISHED IN THE YEAR 1785.
There are two methods of administering penal justice.
The first method assigns capital punishments to few offences, and inflicts it invariably. The second method assigns capital
punishments to many kinds of offences, but inflicts it only upon
The latter of these two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten are executed; and the preference of this to the former method seems to be founded in the consideration, that the selection of proper objects for capital punishment, principally depends upon circumstances, which, however easy to perceive in each particular case after the crime has been committed, it is impossible to communicate or define beforehand; or to ascertain however with that exactness, which is requisite in legal descriptions. Hence, although it be necessary to fix by precise rules of law, the boundary on one side, that is, the limit to which the punishments may be extended ; and also that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules ; yet the mitigation of punishment, the exercise of lenity, may without danger be entrusted to the executive magistrate, whose discretion will operate upon those numerous unforeseen, mutable, and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. Without the power of relaxation lodged in a living authority, either some offenders would escape capital punishment, whom the public safety required to suffer; or some would undergo this punishme nt
where it was neither deserved or necessary. For if judgment hath to
of death were reserved for one or two species of crimes only,
ed to be executed without exception; crimes might occur of vions of the most dangerous example, and accompanied with circumle faitoutte stances of heinous aggravation, which did not fall within any timu, description of offences that the laws had made capital, and
which consequently could not receive the punishment their own
mitted without danger to the offender's life. On the other hand, if, to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting thris severity remain any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security.
The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime, which under any possible circumstances may merit the punishment of death; but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes render them fit examples of public justice. By this expedient few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared, as far as the necessity of restraint and intimidation permits ; yet no one will adventure upon the commission of any enormous crime, from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries, The charge of cruelty is answered by observing, that these laws were never meant to be carried into indiscriminate execution; that the legislature, when it establishes its last and highest sanctions, trusts to the benignity of the Crown to relax their severity, as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are wanting, which rendered this rigorous interposition necessary. Upon this plan is it enough to vindicate the lenity of the laws, that some instances are to be found in each class of capital crimes, which require the restraint of capital punishment;
and that this restraint could not be applied, without subject ing the whole class to the same condemnation ?
There is however one species of crimes the making of which capital, can hardly, I think be defended, even upon the comprehensive principle just now stated ; I mean that of privately stealing from the person. As every degree of force is excluded by the description of the crime, it will be difficult to assign an example, where either the amount or circumstances of the theft place it upon a level with those dangerous attempts
to which the punishment of death should be confined. It aliiatle so will be still more difficult to shew, that without gross and cul
singly pable negligence on the part of the sufferer, such examples Engen.
can ever become so frequent, as to make it necessary to constitute a class of capital offences, of very wide and large extent.
Doe che non sans
The frequency of capital executions in this country owes its
necessity to three causes :-Much liberty, great cities, and the oma katawant of a punishment, short of death, possessing a sufficient mulusta Ir, degree of terror. And if the taking away the life of malefactors Last w witrybe more rare in other countries than in ours, the reason will be The meat found in some difference in these articles. The liberties of a
free people, and still more the jealousy with which these liber- harta
ties are watched, and by which they are preserved, permit not h
those précautions, and restraints, that inspection, scrutiny, and control, which are exercised with success in arbitrary governments. For example, neither the spirit of the laws or of the people, will suffer the detention or confinement of suspected persons, without proofs of their guilt, which it is often impossible to obtain ; nor will they allow that masters of families be obliged to record, and render up a description of the strangers
or inmates whom they entertain ; nor that an account be de galu
manded, at the pleasure of the magistrate, of each man's time, maple . Yngrung employment, and means of subsistence ; nor securities to be
required when these accounts appear unsatisfactory or dubious;