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defect either in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind; yet that man 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. It has been therefore ingeniously proposed t, that, in every state, a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least : but, if that be too romantic an idea, yet at least a wise legislator will mark the principal divisions, and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus, in France, the punishment of robbery, either with or without murder, is the same g: hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder. In China, murderers are cut to pieces, and robbers not : hence, in that country, they never murder on the highway, though they often rob. And in England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which is seldom extended to murderers. This has the same effect here as in China; in preventing frequent assassination and slaughter.
Yet, though, in this instance, we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein ; inflicted (perhaps inattentively) by a multitude of successive independent
# Beccar. c. 6.
& Sp. L. b. 6. c. 16.
statutes, upon crimes very different in their natures. It is a melancholy truth, that, among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared, by act of parliament $, to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compassion, will often forbear to prosecute; juries, through compassion, will soinetimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence; and judges, through compassion, will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer; he boldly engages in 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.
See Ruffhead's index to the statutes, (tit. felony), and the acts which have since been made.
He course of my ideas has carried me away from my subject, tothèelucidation of which I now return. Crimes are more effectually prevented by the certainty, than the severity of punishment Hence in a magistrate, the necessity of vigilance, and in a judge of implacability, which, that it may become an useful virtue, should be joined to a mild legislation. The certainty of a small punishment will make a stronger impression, than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of heaven, hath the power of dispelling the apprehension of a greater ; especially if supported by examples of impunity, which weakness or avarice too frequently afford.
If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. The countries and times most notorious for severity of punishments, were always those in which the most bloody and inhuman actions and the most atrocious crimes were committed; for the hand of the legislator and the assassin were direcíed by the same spirit of ferocity; which on the throne, dictate laws of iron to slaves and savages, and in private, instigatod the subject to sacrifice one tyrant to make room for another.
In proportion as punishments became more cruel, the minds of men, as a fluid rises to the same height as that which surrounds it, grow hardened and insensible; and the force of the passions still continuing, in the space of an hundred years, the wheel terrifies no more than formerly the prison. That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime; including in the calculation, the certainty of the punishment, and the privation of the expected advantage. All severity beyond this is superfluous, and therefore tyrannical.
Men regulate their conduct by the repeated impression of evils they know, and not by those with which they are unacquainted. Let us, for example, suppose two nations, in one of which the greatest punishment is perpetual slavery, and in the other the wheel. I say, that both will inspire the same degree of terror ; and that there can be no reasons for increasing the punishments of the first; which are not equally valid for augmenting those of the second to more lasting and more ingenious modes of tormenting; and so on, to the most exquisite refinements of a science too well known to tyrants.
There are yet two other consequences of cruel punishments, which counteract the purpose of their institution, which was to prevent crimes. The first arises from the impossibility of establishing an exact proportion between the crime and punishment; for though ingenious cruelty hath greatly multiplied the variety of torments, yet the human frame can suffer only to a certain degree, beyond which it is impossible to proceed, be the enormity of the crime ever so great. The second consequence is impunity. Human nature is limited no less in evil than in good. Excessive barbarity can never be more than temporary; it being impossible that it should be supported by a permanent system of legislation ; for if the laws be too cruel they must be altered, or anarchy and impunity will succeed.
Is it possible, without shuddering with horror, to read in history of the barbarous and useless torments that were coolly invented and executed by men who were called sages? Who does not tremble at the thoughts of thousands of wretches, whom their misery, either caused or tolerated by the laws, which favoured the few and outraged the many, had forced in despair to return to a state of nature; or accused of impossible crimes, the fabric of ignorance and superstition ; or guilty only of having been faithful to their own principles; who, I say, can, without horror, think of their being torn to pieces with slow and studied barbarity, by men endowed with the same passions and the same feelings ? A delightful spectacle to a fanatic multitude!
2nd. OF TIIE PUNISHMENT OF DEATH.
The useless profusion of punishments, which as they never made inen better, induces me to inquire, whether the punishment of death be really just or useful in a well governed state ? What right, I ask, hace men to cut the throats of their fellow creatures ? Certainly not that on which the sovereignty and laws are founded. The laws, as I have said before, are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggregate of that of · each individual. Did any one ever give to others the right of taking away his life? Is it possible, that in the smallest portions of the liberty of each, sacrificed to the good of the public, can be contained the grcatest of all good, life? If it were so, how shall it be reconciled to the maxim which tells us, that a man has no right to kill himself? Which he certainly must have, if he could give it away to another.