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death for murder, are, in my opinion, as unchristian as those which justify or tolerate revenge; for the obligations of christianity upon individuals, to promote repentance, to forgive injuries, and to discharge the duties of universal benevolence, are equally binding upon states.
The power over human life, is the sole prerogative of him who gave it. Human laws, therefore, rise in rebellion against this prerogative, when they transfer it to human hands.
If society can be secured from violence, by confining the murderer, so as to prevent a repetition of his crime, the end of extirpation will be answered. In confinement, he may be reformed : and if this should prove impracticable, he may be restrained for a term of years, that will, probably, be coeval with his life.
There was a time, when the punishments of captives with death or servitude, and the indiscriminate destruction of peaceable husbandmen, women, and children, were thought to be essential to the success of war, and the safety of states. But experience has taught us, that this is not the case. And in proportion as humanity has triumphed over these maxims of false policy, wars have been less frequent and terrible, and nations have enjoyed longer inte, vals of internal tranquillity. The virtues are all parts of a circle. Whatever is humane, is wise—whatever is wise, is just—and whatever is wise, just, and humane, will be found to be the true interest of states, whether criminals or foreign enemies are the objects of their legislation,
A worthy prelate of the church of England once said upon seeing a criminal led to execution, “There goes my wicked self.” Considering the vices to which the frailty of human nature exposes whole families of every rank and class in life, it becomes us, whenever we see a fellow creature led to public infamy and pain, to add further : “ There goes my unhappy
father, my unhappy brother, or my unhappy son," and afterwards to ask ourselves, whether private punishments are not to be preferred to public.
For the honour of humanity it can be said, that in every age and country, there have been found persons in whom uncorrupted nature has triumphed over custom and law. Else, why do we hear of houses being abandoned near to places of public execution ? Why do we see doors and windows shut on the days or hours of criminal exhibitions? Why do we hear of aid being secretly afforded to criminals to mitigate or elude the severity of their punishments ? Why is the public executioner of the law an object of such general detestation? These things are latent struggles of reason, or rather the secret voice of God himself, speaking in the human heart, against the folly and crụelty of public punishment.
I shall conclude this inquiry by observing, that the same false religion and philosophy, which once kindled the fire on the alter of persecution, now doom the criminal to public ignominy and death. In proportion as the principles of philosophy and christianity are understood, they will agree in extinguishing the one, and destroying the other. If these principles continue to extend their influence upon government, as they have done for some years past, I cannot help entertaining a hope, that the time is not very distant, when the gallows, the pillory, the stocks, the whipping-post and the wheel-barrow, (the usual engines of public punishments) will be connected with the history of the rack and the stake, as marks of the barbarity of ages and countries, and as melancholy proofs of the feeble operation of reason and religion upon the buman mind.
LITERARY AND PHILOSOPHICAL SOCIETY
(Vol. II. p. 293.)
EXTRACT FROM An Essay on CRIMES AND PUNISHMENTS,
BY THE Rev. WILLIAM TURNER. READ MARCH 24, 1785.
1. As human punishments cannot rise beyond a certain height, if the severer ones begin to be inflicted too low in the scale of offences, the highest punishments will be brought into use long before we reach the highest offence; the necessary consequence of which must be, that crimes of different degrees of enormity will be punished equally. From hence it will as necessarily follow, that such crimes will be looked upon as indifferent with respect to each other. Habitual offenders are accustomed to estimate crimes by their consequences, and not by their moral turpitude; whenever, therefore, the civil magistrate makes no difference between the punishment, they will be apt to make as little difference between the commisson of one, two, or more of them ; according as it may suit their present convenience, or occasion less danger of detection *.
* Can there be a better reason given, why footpads more frequently accompany their depredations with cruelty, than highway. men on horseback, than that, as they are more easily pursued, it is their business to render the sufferers incapable of pursuit.
Thus if both robbery and murder are punished equally, the highwayman will naturally argue with himself thus: “I shall be liable to the same punishment whether I rob this man, or whether I rob and murder him too; but if I rob him only, I leave an informer, wbo will endeavour to bring me to justice; my safest way, therefore, is to put an end to him at once, and so place an effectual bar to all information, at least from that quarter.” This is the reason which Judge Blackstone assigns, though there may probably be others, why in France they seldom rob but they murder also ; whereas in China, where murderers are only cut to pieces, they often rob, but never murder *. And he at the same time answers the question,
why does not this principle operate in England, as well as in other countries ?” by shewing, that though the same punishment is provided both for robbery and murder, yet the robber has many chances of escaping, while the murderer is almost sure of having his sentence strictly executed ; besides that, a difference is made, both in the expedition and solemnity of the execution, and in the subsequent disposal of the body.
2. Again, if the same punishment must serve for different crimes, and the highest punishment is an inadequate satisfac. tion for the highest crime, for many crimes it must be more than a satisfaction, and therefore, worse; that is, more detrimental to society than the crime itself. The laws of Draco, we are told, were made on a different principle ; he conceived that the least offences merited death, and he could find no greater punishment for the highest. But however those divines may determine on this subject, who contend, that every sin, being an offence against an infinite being, is deserving of an infinite and eternal punishment, yet certainly no
politician will admit this lawgiver's principle. And we need not wonder that his dreadful code, emphatically, but properly said to have been written in blood, was not suffered to continue long in force.
But this evil is of still greater consequence, as it leads to another of much more fatal tendency-for,
3. The too great severity of punishments hinders the exe. cution of the laws, especially of those which have for their object crimes of a less atrocious nature. In this case, either the party injured is incluced to neglect a prosecution, rather than cause the delinquents to be so heavily punished; or if he be brought to a trial, the jury are led to violate their oath and perjure themselves to procure his acquittal : and if all this is not sufficient to save him, the Judge contrives to avail himself of some palliative circumstance which may justify a respite ; so that it is a pretty certain fact, that of all the criminals convicted in England upon capital indictments, scarcely one in three really suffers the punishment appointed by the laws t.
Now it is wisely observed by one who well understood human nature I, and the observation is confirmed by constant ex. perience, that crimes are more effectually prevented by the certainty, than by the severity of their punishment. For || every
* See the table of executions at the end of Howard on Prisons.
+ Blackstone, B. iv. c. 1. p. 19.
# Beccaria, c. vii. U Blackstone has expressed this sentiment so much better, that I cannot resist the temptation to copy his words.
Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer : be boldly engages in