labour, after an escape; and, also, on the second conviction, if the offender was pardoned for the first. A similar provision is found in the laws of Denmark, where robbery is not in the first instance a capital offence, and where (Mr. Howard assures us) night robberies are never heard of *. ·

It is evident from this examination, that the principle of the new system, properly modified, coincides with the public safety as much as with the dictates of humanity. The happy result of this experiment is an encouragement to proceed still further. I have already observed, that no offenders

2dly, that the confession was the immediate consequence of those improper means.

By the Court.-The fact of the arson is established; and it only remains to decide, whether it was committed by the prisoner? The proof against him, depends upon his own confession, slightly corroborated by the testimony of two witnesses. The confession was freely and voluntarily made, was fairly and openly received, beforc the mayor; and, therefore, it was regularly read in evidence. But still, it has been urged, that it was thus apparently well made before the mayor, in consequence of improper measures previously pursued by the boy. The interference of the inspectors of the prison was certainly irregular; though the public anxiety, in which they participated, upon this extraordinary occasion, may be admitted as an excuse. The manner in which he was urged, though not threatened, by the citizens who visited him, may likewise be objec tionable. But is it reasonable to infer, that all the prisoner's confessions were falsely made under the influence of those occurrences? Consider the nature of the offence. It cannot be openly perpetrated; for, it would be instantly prevented; and if it is secretly perpetrated, how, generally speaking, can the offender be detected, but by his own declarations? If such declarations are

2

* Howard on Prisons, p. 76,- Williams on the North. Gov. v. i. p. 353.

are so incorrigible as robbers and burglars, and on few crimes could the experiment have been made with so little prospect of success as on these I have been considering. Succeeding in this, there is little to apprehend from extending it to other crimes, which, though still capital, are not of the deepest dye.'

COUNTERFEITING THE COIN.

The monstrous folly of considering this offence as an usur. pation of sovereignty, and therefore a species of high treason, is past and it may now be safely ranked with other base

voluntarily made, all the world will agree, that they furnish the strongest evidence of imputed guilt. The hope of mercy actuates almost every criminal, who confesses his crime; and merely that he cherishes the hope, is no reason, in morality, nor in law, to disbelieve him. The true point for consideration therefore is, whether the prisoner has falsely declared himself guilty of a capital offence? If there is ground even to suspect, that he has done so, God forbid, that his life should be the sacrifice! while, therefore, on the one hand, it is remarked, that all the stables set on fire, were in the neighbourhood of his master's house; that he has, in part, communicated the facts to another boy; that his conduct had excited the suspicion of a girl who knew him; and that he expressed no wish to retract the statement, which he had given the jury will, on the other hand, remember, that if any entertain a doubt upon the subject, it is their duty to pronounce an acquittal. Though it is their province to administer justice, and 1:ot to bestow mercy; and though it is better not to err at all; yet, in a doubtful case, an error on the side of mercy is safer, is more venial, than error on the side of rigid justice.Verdict, Not Guilty.

The humanity of the jury being gratified by an acquittal of the prisoner from the capital charge: he was indicted and convicted on the same facts, for a misdemeanor. By the reform of our penúl code, arson is no longer a capital crime.

frauds against individuals. The edict of the Duke of Tuscany considers the coining of false money as grand larceny, and punishes it as such. This crime is not capital in Massachusetts, nor in Connecticut, nor in Maryland, nor in North Carolina, as far as relates to foreign coin; and to every reflecting mind, which is not still enslaved by ancient errors, the punishment of death must appear to be far beyond the demerits of the offence. Is it wise, or is it just, to confound together dissimilar crimes, and to involve him who debases' a piece of money, in the same punishment with him who is guilty of deliberate murder?

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There is no substantial reason for making this crime capital which does not equally apply to that of forgery. In the present state of society paper negotiations require as much protection as the coin. The latter offence, in general, is more easily committed; and a single act of forgery may be more injurious to the individual than many acts of counterfeiting the coin. Yet, we find, the paper of the banks, promissory notes, and bills of exchange, sufficiently safe under the mild system of our laws. It is true, various acts of assembly made it a felony of death to counterfeit and utter the continental bills of credit: but it has been already stated, that no beneficial consequences resulted from this severity.

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76

RAPE DÁT

William Penn considered imprisonment, stripes and hard labour as a punishment adequate to this crime, and sufficient to check the commission of it. The grand Duke of Tuscany prescribes imprisonment at labour, varied as the circumstances may require. The legislature of Vermont, so late as the year 1791, has followed the humane example, and in that state, death is no longer inflicted on this offence.

If any one, mistaking the end of punishment, and more intent on vengeance than the prevention of the crime, deems this chastisement too light, a visit to the penitentiary house lately erected as part of the gaol of Philadelphia, will correct the opinion. When he looks into the narrow cells prepared for the more atrocious offenders--When he realizes what it is to subsist on coarse fare; to languish in the solitude of a prison; to wear out his tedious days and long nights in feverish anxiety; to be cut off from his family, from his friends, from society, from all that makes life dear to the heart; when he realizes this, he will no longer think the punishment inadequate to the offence.

ARSON.

This offence may be committed so secretly, that it is seldom possible to collect proof sufficient on a charge that is capital. Other crimes are committed in the presence of witnesses, or are attended with circumstances which point out the cri minal: but in arson there are no eye witnesses; the presumptive proof will seldom be violent, and confessions are only to be expected from the ignorance of slaves and children. These confessions (too generally extorted by promises or threats) come before the jury in so questionable a shape, that they are often disregarded.

Hence the severity of the punishment, in this case, leads in a peculiar manner to impunity. The proof is so difficult that juries are justified in acquitting, and the objects convicted are such as the executive is prompt to pardon. Of five persons convicted of this crime only one was executed.--This was a negro woman in a distant county.

The crime of arson extends only to the wilful burning of a dwelling-house, certain public buildings, or a barn having hay or corn therein. Every other species of property may be

maliciously destroyed by fire, without incurring the forfeiture of life. Hence, ships and other vessels in harbour or on the stocks, hay and grain in stack or barrack, magazines of arms and provisions, store-houses of every description, mills, theatres, and distilleries, are not protected by these high terrors of the law and to burn them is considered merely as a misdemeanor at common law. Here then is a fair opportunity for comparison. Has the milder punishment encouraged these malicious crimes; or, has the terror of death, hung up on high, deterred offenders from the crime of arson? The following fact will answer the question. Since the revolution twelve persons have been indicted for the crime of arson; and only two for any other species of malicious burning!

In New Hampshire and Massachusetts this crime is not capital if committed in the day time: nor in Connecticut, "if no prejudice or hazard to the life of any person happen therefrom." To burn public vessels or magazines of provision, in time of war, being a species of treason, is indeed capital in that state but it is not so if the same offence be committed in time of peace. I cannot learn that these distinctions have any effect, or that the less offence is more frequent than the greater.

Upon the whole, it seems that solitude and hard labour will be a punishment for this crime, as efficacious and more advantageous to the public, than death. The offender may be reformed and become a useful citizen,

and he may be com

pelled to repair, by his estate or his labour, the injury he has done. This was formerly required in most cases, by the laws of William Penn; but, at present, is swallowed up by the legal maxim, which merges the private in the public wrong: a maxim, invented by fiscal or feudal ingenuity, to prevent the claims of the injured party from interfering with the for feiture to the crown and the escheat to the lord.