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109. Captains who detain, or, suffer any thing to be taken from vessels belonging to the king's subjects, or allies, who lower their sails and produce their charterparties and policies.

110. Sinking captured vessels.

111. Putting prisoners on shore, in an island, or. distant country, to conceal the prize.

112 Robbery of cordage, or shipping utensils, and cutting or stealing cables, if it occasion the loss of the ship, or the death of a man.

113. To place false lights upon the sea shore, and in dangerous places, for the purpose of misleading and wrecking the vessels.

114. To attempt the life or goods of persons shipwrecked. 115. Foot or horse soldiers who run after shipwrecks.

One hundred and fifteen crimes punished by death*.

THOUGHTS ON EXECUTIVE
JUSTICE.

PUBLISHED in the Year 1785.

THIS work may, as it seems, be divided into five parts, or propositions:-1st. That punishment to be effectual, should be certain. 2dly. That there are more crimes in England

* Notwithstanding this catalogue, it seems that the executions in France were not so numerous as in England. When Mirabeau was in England, he asked a friend, with whom he was dining, if it were true that twenty young men had been executed that morning at Newgate? upon being answered that, if the daily papers asserted it, there was no reason to doubt the assertion; he replied, with great warmth and surprize, "The English are the most merciless people I ever heard or read of in my life." See Remarks on the General Orders, &c. by Gilbert Wakefield. Mirabeau did not live to witness the atrocities commit ted by his own countrymen.

than in any other civilized country. 3dly. That this frequency of crime in England is occasioned by the uncertainty of punishment. 4thly. That this uncertainty of punishment is occasioned by the improper lenity of the judges and juries. 5thly. The laws of England are not severe.

1st. Punishment to be effectual should be certain. CERTAINTY of punishment carries a terror to the heart, which is not easily overcome; but when that certainty decreases, the terror will decrease in the same proportion. (a)

All writers on the subject of laws, that I have ever met with, as Plato, Cicero, &c. among the ancients; Montesquieu, the Marquis of Beccaria, &c. among the moderns; all contend for the certainty of punishment, in order to render laws respected and efficacious. The same reason for which a law is enacted, must certainly call for the certainty of its execution; for to enact a law, and not to inforce the execution of it, is against all reason. (b)

2dly. There are more crimes in England than in any other country.

No civilized nation, that I know of, has to lament, as we have, the daily commission of the most dangerous and atro. cious crimes, insomuch that we cannot travel the roads, or sleep* in our houses, or turn our cattle into our fields, without

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* An house at Paris, a few years ago, was supposed to have been attempted in the night time;-the matter ended in the family being disturbed, and whatever occasioned this, soon ceased; but the master of the house said, that he thought his house had been attacked "par des rossignols Anglois :"-which droll expression sufficiently shews, that the frequency of burglaries in this country, are so far from being unnoticed by our neighbours on the continent, as to have become in a manner proverbial.

the most imminent danger of thieves and robbers. These are increased to such a degree in numbers, as well as audaciousness, that the day is now little less dangerous than the night to travel in; and we are not without fatal instances of the most wanton cruelty and barbarity, exercised on many of those unfortunate persons, who have fallen into the hands of these plunderers of the public. (c)

Highway-robberies threaten the traveller, whether by night or by day-the lurking foodpad lies, like a dangerous adder, in our roads and streets-the horrid burglar, like an evil spirit, haunts our dwellings, "making night hideous."-The farmer loses his sheep from the fold, the ox from his stall, and all sorts of people their horses from their fields, and even from their stables. These are but a part of that dreadful catalogue of offences, with which every Old Bailey, and every Assize Calendar is filled, and with which this country is disgraced and insulted and for which it has become a taunt and a proverb in the mouths of foreigners. (d)

It is a very great scandal and reproach to a country, which pretends to civilization, that we are not more secure in our property of every kind, than if we were savages. Perhaps we are, upon the whole, less so; for I much question whether there is to be found a people upon earth, who suffer in the invasion of their properties as we do. (e)

In France, capital offences seldom, if ever, meet with a relaxation of the laws,-robberies and burglaries especially;" and therefore they are very seldom heard of. I believe, in

(d) Page 14.

(e) Page 44.

(c) Page 4. *In the days of Queen Anne, during the war in Flanders, when the Duke of Marlborough and Prince Eugene commanded the allied army, a soldier, under the immediate department of Prince Eugene, was condemned to be hanged for marauding. The

no country but this, are felons safe from the law; and there fore there are ten times the number of felons among us, than in any other country. (f)

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man happened to be a favourite with his officers, who took great pains to save his life; and for this purpose interceded with the Prince, who rufused absolutely to grant their request. They then applied to the Duke of Marlborough, begging his Grace to interfere he accordingly went to Prince Eugene ; who said, he " did, and never would, consent to the pardon of a marauder,”(6 Why," ," said the Duke, "at this rate, weshall hang half the army, I pardon a great many." "That is the reason, replied the Prince, that so much mischief is done by your people, and that so many suffer for it. I never pardon any, and therefore there are very few to be punished in my department." The Duke still urged his request; on which the Prince said, "let the matter be inquired into, and if your Grace has not executed more than I have done, I will consent to the pardon of this fellow." The proper inquiries were accordingly made, and the numbers turned out very highly in favour of Prince Eugene; on which he said to the Duke, 66 there, my Lord, you see the benefit of example. You pardon many, and therefore you are forced to execute many; I never pardon one, therefore few dare to offend, and, of course, but few suffer."

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The reasoning, which may be drawn from the above, on the side of strict discipline, is not only applicable to fleets and armies, but to all government whatsoever : the civil interest of society can no otherwise be protected, than by a due and certain execution of the laws. The Marquis of Beccaria observes, very truly, that— "a less punishment, which is certain, will do more good than a greater, which is uncertain."

The above anecdote may also serve as an illustration of those seeming paradoxes

Crudelitas parcens, Lenitas puniens:

and is exceedingly applicable to our proceedings, with respect to punitive justice, as administered in this kingdom; where so many wretches suffer for crimes, which they have been tempted to com. mit through hope of impunity.

(f) Page 60.

How shocking is it to consider, that in a trading country like this, where persons are obliged to travel at all hours, no man can stir out a mile from his house, without an apprehension of being robbed, and perhaps murdered! For of late, we have had instances of the most savage barbarity exercised on the persons of his Majesty's subjects, whose fate it has been to be met by robbers. (g)

As to the metropolis, we may say of every part of it, as Juvenal says of Rome, in its worst estate: (h)

-Qui spoliet te

Non deerit, clausis domibus postquam omnis ubique
Fixa catenata siluit compago tabernæ.

Interdum et ferro subitus grassator agit rem,
Armato quoties tutæ custode tenentur
Et Pomptiana palus, & Gillinaria pinus.
Sic inde huc omnes tanquam ad vivaria currunt.
Qua fornace graves, qua non incude catènæ ?
Maximus in vinclis ferri modus, ut timeas, ne
Vomer deficiat, ne marræ & sarcula desint.
Felices proavorum atavos, felicia dicas

Secula, quæ quondam, sub regibus atque tribunis,
Vidêrunt uno contentum carcere Romam.

SAT. iii. 1. 302-314.

Thus excellently imitated by Dr. Johnson.

In vain, these dangers past, your doors you close,
And hope the balmy blessings of repose;

Cruel with guilt, and daring with despair,
'The midnight murd'rer bursts the faithless bar;
Invades the sacred hour of silent rest,

And plants, unseen, a dagger in your breast.

Scarce can our fields, such crouds at Tyburn die,
With hemp the gallows and the fleet supply.

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