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I believe every thief will confess, that he has been more thax once seized, and dismissed; and that he has sometimes yentured upon capital crimes, because he knew, that those whom he injured would rather connive at his escape, than cloud their minds with the horrors of his death,
All laws against wickedness are ineffectual, unless some will inform, and some will prosecute; but till we mitigate the penalties for mere violations of property, information will always be hated, and prosecution dreaded. The heart of a good man cannot but recoil at the thought of punishing a slight injury with death; especially when he remembers, that the thief might have procured safety by another crime, from which he was restrained only by his remaining virtue *.
* About five years since, the county of York were deeply interested in the trial of the father of a large family, who, when living in the greatest respectability, was accused of highway robbery.
The trial was in York Castle; the prosecutor was a youth of about 20 years of age, the son of a banker, and the prisoner a stout athletic man, of 50.
The prosecutor had transacted his business as usual at the Market-town ; he had received several sums of money in the presence of the prisoner ; bad dined, and about five o'clock had set out on his return home: it was a fine evening in summer, and he rode gently on: in a solitary lane he was overtaken by the prisoner, who seized him and demanded his pocket-book : in the first agony of surprise and fear, the prosecutor gave him a violent blow with his whip; but the prisoner, who was a very powerful man, dragged him from his horse, knelt down upon him, and took from him bis money and account books. In this situation the prosecutor begged very earnestly for his life. As he laid under the prisoner, he watched his countenance, and saw that he was much agitated; he desisted, arose, mounted his horse, and rode away. It was then about seven o'clock in the evening ; but the young man was so much exhausted, that he did not reach home till late at night. He immediately stated these circumstances ; but the improbability of his having been robbed in open day-light, on a public road, and of his having lost various memorandums, which a robber would scarcely have taken, excited some suspicion respecting the truth of this statement.
The obligations to assist the exercise of public justice arc indeed strong ; but they will certainly be overpowered by tenderness for life. What is punished with severity contrary to our ideas of adequate retribution, will be seldom discovered; and inultitudes will be suffered to advance from crime to crime till they deserve death, because, if they had been sooner prosecuted, they would have suffered death before they had deserved it.
This scheme of invigorating the laws by relaxation, and extirpating wickedness by lenity, is so remote from common practice, that I might reasonably fear to expose it to the public, could it be supported only by my own observations: I shall therefore, by ascribing it to its author, Sir Thomas More,
As the Jury were leaving the Box, the young man who had been robbed begged to be heard. He was so much agitated, that he could scarcely speak; when he recovered himself he said, “I stand here to plead for your mercy towards a man, who listened to my voice when I begged for mercy from him. If he could have been deaf to my cry, I should now be in my grave, and he in the bosom of a respectable family, with the wife who believed him virtuous, and the children who loved him. It has been proved to you that his connections, his character, his religious persuasion, would all have united to shelter him from suspicion; it has also been proved that I was lame from my birth; that I am feeble; that I had exasperated him by a blow which almost fractured his skull; and that he knew I could identify him ; but the kind. ness of his nature preponderated, it overcame the fear of disgrace; and he suffered me to depart, that I might be the cause of his death. If you do not pity his momentary lapse, if you do not respect his return to virtue, it would have been well for me if I had died ! It is me that you will condemn, I shall be the victim of the law, and he gave me my life io vain !"
He was frequently interrupted, during this affecting appeal, by the tears of the Jury, and the general distress of the Court.-The prisoner was found Guilty, and was executed. The story is well known in the county of York. The name is suppressed from respect to his friends.
endeavour to procure it that attention which I wish always paid to prudence, to justice, and to mercy.
Rambler, No. 114, April 20th, 175].
SIR W. BLACKSTONE.
PUBLISHED IN THE Year 1765.
In proportion to the importance of the criminal law, ought also to be the care and attention of the legislature in properly forming and enforcing it. It should be founded upon principles that are permanent, uniform, and universal; and always conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind: though it sometimes (provided there be no transgression of these eternal boundaries) may be modified, narrowed, or enlarged, according to the local or occasional necessities of the state which it is meant to govern. And yet, either from a want of attention to these principles in the first concoction of the laws, and adopting in their stead the impetuous dictates of avarice, ambition, and revenge; from retaining the discordant political regulations which successive conquerors or factions have established, in the various revolutions of government; from giving a lasting efficacy to sanctions that were intended to be temporary, and made (as Lord Bacon expresses it) merely upon the spur of the occasion; or from, lastly, too hastily employing such means as
are greatly disproportionate to their end, in order to check the
Baron Montesquieu, Marquis Beccaria, &c.
dual, without first referring it to some of the learned judges, and hearing their report thereon *. And surely equal precaution is necessary, when laws are to be established, which may affect the property, the liberty, and perhaps even the lives, of thousands. Had such a reference taken place, it is impossible that in the eighteenth century it could ever have been made a capital crime, to break down (however maliciously) the mound of a fish pond, whereby any fish shall escape; or to cut down a cherry-tree in an orchard t. Were even a committee appointed but once in an hundred years to revise the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be seen for one month in the company of persons who call themselves, or are called, Egyptians I.
It is true, that these outrageous penalties, being seldom or never inflicted, are hardly known to be law by the public: but that rather aggravates the mischief, by laying a snare for the unwary. Yet they cannot but occur to the observation of any one, who hath undertaken the task of examining the great outlines of the English law, and tracing them up to their principles : and it is the duty of such a one to bint them with decency to those whose abilities and stations enable them to apply the remedy.
As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penaltics for crimes and misdemesnor $, it is clear, that the right of punishing crimes against the law of nature, as murder and the like, is in a
* See Vol. II. p. 345.
§ See Grotius, de j. b. & p. l. 2. c. 20. Puffendorf. L. of Nat. & N. b. 8. c. 3.