then the lawgiver infringe all the ties and privileges of humanity? Shall he point the sword of justice against the bosom of fidelity? To such a lawgiver I would say, "consult your own heart, and inflict not chastisement on actions, which a good mind cannot disapprove!" 7 I say nothing of bastinadoes, mutilations, and a variety of other modes of corporal punishment, equally inconsistent with decency and humanity: such refinements of cruelty put the whole species, rather than the criminal, to disgrace. Artaxerxes moderated the severity of the laws of Persia, by enacting *; that the nobility who debased themselves, instead of being lashed, which had been the practice, should be stripped, and the whipping be given to their vestments; and that instead of having the hair plucked off, they should only be deprived of their high-crowned tiara. The English constitution, ever anxious to preserve the vir tuous pride of the people, hath used this branch of the penal code with a reserve so scrupulous, that it may almost be doubted, whether more attention hath not been shewn to the protec tion of this principle, than to the preservation of life: for corporal pains might certainly with good effect be substituted, in some cases, in the room of capital judgments. The Roman law permitted the murderer to remain on the gibbet after execution, as a comfortable sight to the friends and relations of the deceased +. * Plutarch. + Ut et conspectu deterreantur alii, et Solatio sit cognatis interemptorum. ff. 48. 19, 28. § 15.-A. D. 1741, when the English regency made an order to hang the murderer of Mr. Penny in chains, they inserted therein, " that it was on the petition of the relations of the deceased." St. Tr. vol. x. 39. Nec furtum feci, nec fugi, si mihi dicat Non hominem occidi: Non pasces in cruce corvos* The Mosaical law directed the body of the criminal to be buried on the day of his death, "that the land might not be defiled +." It cannot with any propriety be said, that there is inhumanity, but it may be doubted, whether there be wisdom, in the adoption, which the laws of England have made on this point, of the rescripts of the emperors, in preference to the command of Moses. We leave each other to rot, like scare-crows in the hedges; and our gibbets are crowded with human carcases. May it not be doubted, whether a forced familiarity with such ob jects can have any other effect, than to blunt the sentiments, and destroy the benevolent prejudices of the people ? Even England, the seat of national liberty and benevolence, became the bloody scene of intolerance and persecution; the ministers of peace and christianity were the active dispensers of death and desolation; and the perpetrators of the most malignant murders were clad in the pure mantle of religion. The accomplised and sentimental Sir Thomas Moore caused Lutherans to be whipt, tortured and burnt alive in his presence. Cranmer led Arians and Anabaptists to the stake. *Horat. Epist. 1. I. ep. xvi. 46. + Deuteron. xxi. 23. It seems almost necessary to produce some instance in sup port of this assertion; and therefore I transcribe the following from Bishop Burnet, on whose historical fidelity we may rely as to all transactions except those of which he believed himself to have Bonner, Bishop of London, tore off the beard of a weaver, who refused to relinquish his tenets; in another instance of the same kind, he scourged a man until his arm ached with the exercise; and held the hand of a third to the candle, to give him a specimen of burning, till the sinews and veins shrunk and burst. Even Wriothesly, the chancellor of England, directed a young and beautiful woman to be stretched on the rack, for having differed with him on the real presence; with his own arm he tore her body almost asunder, and caused her afterwards to be committed to the flames. In fine, infants, born at the stake, were thrown into the fire with their parents, as partaking of the same heresy. Human nature appears detestable under such representations; which (as they are well described by a philosophical writer) sink men below infernal spirits in wickedness, and below beasts in folly. Henry the eighth, whose caprice was the bloody standard of the national faith*, ruled all sects by turns with a rod of iron his scholastic subtlety was equal to his cruelty; and we are told, that, in one instance, he found sufficient reasons for : been an eye-witness.-The clergy now resolved to make an example of one James Bainham a gentleman of the temple: he was carried to the Lord Chancellor's house, where much pains were taken to persuade him to discover such as he knew in the temple who favored the new opinions; but, fair means not prevailing, More made him be whipped in his presence, and after that he sent him to the tower, where he looked on, and saw him put to the rack.' Bainham was afterwards burnt. Hist. of the Reform. vol. I. p. 165. *It was made high-treason to believe this Prince to have been married to Anne of Cleves. сс sending three papists, with three protestants, their companions, in the same procession to the stake. His daughter, Mary, with less ingenuity, possessed the same rancorous and implacable zeal. And we accordingly learn, that in the space of three years, under the auspices of Bishop Gardiner, she committed two hundred and seventy seven protestants to the flames. Human sacrifices were at this period more frequent in the metropolis of England, than they had ever been in either Carthage or Mexico: and in all these instances, the future damnation of the heretic was believed to be the inevitable consequence of his death. Ye rev'rend fathers, Whose beards the silver hand of time had touch'd, Out of the speech of peace, that bears such grace, And civil massacre? who shall believe This frenzy had subsisted here for more than a century‡: I find the following account of the execution of Lord Cobham, A. D. 1418. * Deorum numen prætenditur sceleribus. Liv. xxxix c. 16. + Shakespeare. But it appears, from Godfridus Coloniensis, who wrote A. D. 1234, to have prevailed much earlier on the continent. "Eodem die, quo quis accusatus est, seu juste, seu injuste, nullius appella "Than was he layd upon an hurdle, as though he had bcen a moost heynouse traytoure to the crowne, and so drawne forth into Sainct Gyles Felde, wheere as they had set up a new paire of galowes. Than he was hung up in a chayne of yron and so consumed alyve in the fyre, and so he deparied hence moost christenly. How the priestes that tymefared and cursed, requiring the people not to pray for hym, but to judge hym dampned in hell, for that he departed not in the obedience of the pope, it were too long to wryte. And thy was done in the yeare of our Lord, MCCCC and XVIII *. I have given this detail of historical facts, merely as a subject of curious speculation. The banners of pious cruelty seem now to be for ever laid aside. Philosophy and benevolence are become the companions of religion. If stealing furniture, above the value of twelve-pence, from lodgings, require the punishment of death †; the plundering of wrecks, aggravated as it is by the unfeeling neglect of that sacred respect which is due to the unfortunate, certainly is not entitled to mercy. But arguments from analogy, lead to bloody consequences in the framing of penal laws. By the code of the Visigoths, he, who took the opportunity of fire or shipwreck to steal goods, was obliged to restore four-fold ‡. tionis, nullius defensionis refugio proficiente, damnatur, et flammis injicitur." This was founded on the following constitution of the emperor Frederic: Damnati per ecclesiam judici sæculari relinquentur, animadversione debità puniendi clericis a suis ordinibus primo degradatis." See also Matt. Paris, p. 429. and Hales Hist. P. C. i. 383. * See the trial and examination of Sir John Oldcastle collected by John Bale. + 3 and 4 W. and M. c. 9. ‡ L. vii. tit. 2. § 18. |
