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offender, when he reflects upon the very small proportion of convicts that really suffer for their offences, naturally encourages himself with the reflection, “why should not I escape as well as others ?" And if, contrary to his own expectations, and to general probability, the punishment should, in the end, fall upon him, he does not so much consider it as the just recompence of his crimes, as lament his misfortune, in being marked out as the victim of an unjust and unreasonably severe institution.
4. Further, the severity of punishment retards its execution, even in the case of those who actually suffer.
Nulla unquam de morte hominis cunctatio longa est, is a wise sentiment of the Poet * which may be extended to all severe institutions, and ought to have its due influence, as long as they continue in force ; though if it were merely on this account, all such institutions stand greatly in need of a reform. For the minds of the common people cannot easily, at such a distance of time, connect the punishment with the action that has occasioned it, and are tempted to consider an execution, when it takes place long after the offence committed by the sufferer, rather in the light of a cruel and terrible exhibition, than as the just consequence of a particular violation of the laws of society t.
some desperate attempt, to relieve his wants, or supply his vices ; and, if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate, in falling at last a sacrifice to those laws, which long impunity has taught him to contemn. Vol. iv.
+ Blackstone B. iv, c. 31. Vol. iv, p. 397.
These observations are intended to have a particular reference to capital punishments; which, however defended by some politicians, appear to have been opposed of late by all the most respectable writers on government* ; and indeed are certainly in most cases, if not universally, absurd and impolitic.
Every wise and benevolent man will consider with himself, that as life is a blessing which he cannot give, so it behoves him carefully to ex'ımine his right to take it away. He will consider, that when mankind entered into society, they only gave up such a portion of their natural liberty, and submitted to only sach a measure of restraint, as was essentially necessary to secure to its members the a lvantages of society : and therefore, that if this important end can be answered without having recourse to the punishment of death, there is no right belonging to the magistrate of inflicting such a punishmentt. Now that, so far from being necessary to answer this end, capital punishments are exceedingly impolitic, and as far as they operats, te:ad frequently to prevent it, the observations already made on severe punishments, in general, might be sufficient to show.
* Sir Thomas More, Grotius, Coke, Beccaria, Montesquieu, Blackstone, Voltaire.
+ This seems to be a better argument than the excellent Mar. quis Beccaria's upon the subject, viz, “ that no man has a right to take away
his own life in a state of nature, and therefore cannot give up any such right to the Magistrate.” (And considerations on Crim. Law, p. 186.) For adinitting that no man has such a right, it must be observed, that his right over himself, in a state of nature is not what he gives up, but his right over others, when he enters into society. And it will bear a dispute, whether a man, entirely free from controal, has not a right to estimate his loss by an illjury, at what value he plenses.
But to these we may add, further, that the use of capital punishments argues a want of capacity in the legislature. It is rather an expedient to get rid of certain inconveniences in society, than an attempt to remedy them. It is casy enough, indeed, for the magistrate to extirpate mankind, but it is his buisness to amend them, and make them happy. “It is quackery in government,” says Blackstone, “ to apply too frequently the same universal remedy, the ultimum supplicium--and that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence, he will not attempt to cure*.”
The idea of capital punishments would naturally suggest itself in the infancy of a state. When any one had committed an offence, and disturbed the peace of society, the question would then first arise, “ How shall we prevent these things ?" And the answer most likely to occur to a set of barbarians would be, “ Extirpate the offender, and give yourselves no further trouble about him t.” But as civil. ization increased, it would soon be found a wiser method, to provide such expedients as might effectually induce the offender himself not to repeat his offence, deler others from its future commission, and at the same time, preserve an useful member to society. And though I will not undertake to determine universally, that in proportion as political governments have advanced to perfection, substitutes for capital
* Blackstone, B. iv. c. 1. p. 17. 18.
of So the Hottentots have no fixed laws to direct them in the distribution of justice, and consequently, when any offence has been committed, there is no form of trial, or proportion of punishments to offences, but the Kraul (village) is called together, the delinquent is placed in the midst, and without further ceremooy, demolished with their clubs, the chief striking the first blow.
punishments have been more frequently intro:luced *; yet I think it may be asserted with perfect safety, that government will never arrive at the perfection of which it is capable, till some very essential reform is obtained in our treatment of criminals.
And as freqnent capital punishment is an argnment of the want of a regular police, and a relict of barbarism in the constitution of any society, so its being still obstinately continued in use among us, tends to retain
the common people thosc barbarons manners, from which this kind of punishiment originally took its rise, and to check the progress of that humanity of spirit, which, happily for mankind, has of late been making such rapid advances in our part of the
* Feudal times will furnish us with a striking exception. Every onc will acknowledge the imperfection of this form of government; and yet, under it, alınost all crimes were restrained, (or more properly licenced) by pecuniary mulcts: and few capital punishments were in use, except, most absurdly, for brcaches of the forest law. The legislators of those days seem injudiciously to have followed, in regulating a society, of which they were properly the governors, the example of that cotemporary hierarchy, which succeeded in its attempts to persuade mankind, that it could controul the distribution of punishments under a constitution of government, of which its chief directors were likely to be ranked among the most unworthy members. As these held forth a regular bill of indemnity for sins, with prices proportioned to their enormity; so those published a similar list of prices for licences to commit crimes : and whereas, spiritually, you might blaspheme against the Almighty for a trifle; so politically, for a stated price, you might purchase the life of the king. A curious constitution, it must be confessed, where the supreme magistrate might be murdered with safety; but where it was death to shoot a partridge !
world. Let then the spirit of our punishments correspond with the spirit of the times, in order that we may sooner attain that perfection of universal charity, which ought to be the governing principle of the human mind.
Indeed the advocates for capital punishments seem now in general to be aware of the weakness of their ground, and at present seldom attempt to maintain it, except in cases of murder and high treason. Perhaps in the latter case it may sometimes be necessary: and in tlic former, scripture is brought in upon us, and requires, it is asserted, the rigorous infliction of death. Now wiih respect to the institutions of Moses, it is to be considered, that they were maile for the regulation of a very peculiar peopie, for very particular pur. poses. Their whole civil constitution seems to have been admirably adapted to the progress then made in political advancement: but to have been at the same time so contrived, as to keep them where they were, till the opening of a more perfect dispensation. All, therefore, that we can fairly conclude from the instances of capital punishments, prescribed by the law of Moses, seems to be, that such punishments are not, in their own nature, absolutely and universally, unjustifiable; for the God of nature, we may be assured, would never contradict and overthrow the established laws of nature. But I can no more conceive that we are obliged, in this instance, to copy the Jewish code, than that we ought to have retained the law of retaliation*, or that we are wrong in 'not adopting the whole scheme, without alteration, reserve or addition.
But the punishment of murder by death, it is said, does not appear to have deduced its origin or obligation, from the law of Moses alone, but to have been required by the precept