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hopes of impunity, that the less punishment seems a curb as strong as the greater. The prospect of escaping detection, and the hopes of an acquittal or pardon, blunt its operation, and defeat the expectations of the legislature. Experience proves that these hopes are wonderfully strong, and they often give birth to the most fatal rashness *. Through the violence of the temptation the offender overlooks the punishment, or sees it “ in distant obscurity." Few, who contemplate the commission of a crime, deliberately count the cost.
These circumstances make it doubtful, whether capital punishments are beneficial in any cases, except in such as exclude the hopes of pardon. It is the universal opinion of the best writers on this subject, and many of them are among the most enlightened men of Europe, that the imagination is soon accustomed to over-look or despise the degree of the penalty, and that the certainty of it is the only effectual restraint. They contend, that capital punishments are prejudical to society from the example of barbarity tbey furnish, and that! they multiply crimes instead of preventing them. In sup. port of this opinion, they appeal to the experience of all ages. They affirm, it has been proved, in many instances, that the increase of punishment, though it may suddenly check, does
* Soon after the act to amend the penal laws was passed, two persons were convicted, one of robbery, the other of burglary, committed previous to it. These had the privilege of accepting the new punishment instead of the old; but they obstinately refused to pray the benefit of the act, and submitted to the sentence of death in expectation of a pardon. The hopes of one were realized; but the other was miserably disappointed. The unavailing regret he ex. pressed when his death warrant was announced, and the horrors which seized him when he was led to execution, proved, at once, how terrible is the punishment of death, and how strong are the hopes of pardon!
not, in the end, diminish the number of offenders *. They appeal to the example of the Romans, who during the most prosperous ages of the commonwealth, punished with death none but their slaves. They appeal to the East Indians, that mild and soft people, where the gentlest punishments are said to be a curb as effectual as the most bloody code in other countries t. They appeal to the experience of Modern Europe, to the feeble operation of the increased severity against robbers and deserters in France, and to the situation of England, where, amidst a multitude of sanguinary and atrocious laws, the number of crimes is greater than in any part of Europe. They cite the example of Russia I, where the introduction of a milder system has promoted civilization, and been productive of the happiest effects : and they applaud the bolder policy of Leopold, which has actually lessened the number of crimes in Tuscany, by the total abolition of all capital punishments. This instructive fact is not only authenticated by discerning travel
* This principle is well illustrated by Montesquieu. To the facts adduced by him in support of it, the following may be added. In 1752, the British parliament passed an act for the better preventing the horrid crime of murder ; by which, in order to add further terror to the punishment of death,” it was directed that the body of the criminal should be delivered at Surgeons Hall, to be dissected and anatomized. This expedient, it is said, carried some terror with it at first, but we are assured, that this prejudice is now pretty well worn off.--Vol, i. Wendeb. View, p. 78. This is confirmed by sir S. T. Jansen, who, on comparing the annual average of convictions for 23 years previous and subsequent to that statute, found that the number of murders had not at all decrease:). See his table in Howard's Lazar.
+ Montesq. B. 14. c. 15. There is a note in Bradford explain. ing this mistaké as to the mildness of the Eastern laws. # Beccaria.
Voltaire, 4. Black. Com. p. 10.
lers, but is announced by the celebrated edict of the grand duke, issued so lately as 1786. To these might be added the example of Sweden and Denmark : and indeed the more closely we examine the effects of the different criminal codes in Europe, the more proofs we shall find to confirm this great truth, That the source of all human corruption lies in the impunity of the criminal, not in the moderation of punishment.
Hereafter there may be occasion further to illustrate this part of the subject : yet, even these facts incline us to suspect, that, in most cases to which it is applied, the terror of death (lessened as it is by the hopes of impunity) is neither neces. sary nor useful. May not milder penalties, strictly enforced, have as great an effect? Is there not sound wisdom in establishing a species of punishment in which the grade of criminality may be marked by a correspondent degree of severity ? May we not be allowed to suspect, that any apparent necessity results rather from the indolence and inattention of governments than from the nature of things? and, may we not infer, that a legislature would be warranted to abolish this dreadful punishment in all cases (except in the higher degrees of treason and murder) and to make, in this country, a fair experiment in favor of the rights of human nature.
It is from the ignorance, wretchedness, or corrupted man. ners of a people that crimes proceed. In a country where these do not prevail, moderate punishments, strictly enforced, will be a curb as effectual as the greatest severity.
A mitigation of punishment ought, therefore, to be accompanied, as far as possible, by a diffusion of knowledge and a strict execution of the laws. The former not only contributes to enlighten, but to meliorate the manners and improve the happiness of a people.
The celebrated Beccaria is of opinion, that no government has a right to punish its subjects, unless it has previously
taken care to instruct them in the knowledge of tlıę laws and the duties of public and private life. The strong mind of William Penn grasped at both these objects, and provisions to secure them, were interwoven with his system of punishments. The laws enjoined all parents and guardians to instruct the children under their care, so as to enable them to write and read the scriptures by the time they attained to twelve years of age : and directed, that a copy of the laws, (at that time few, simple and concise) should be used as a school book*. Similar provisions were introduced into the laws of Connecticut, and the select men are directed to see
none suffer so much barbarism in their families as to want such learning and instruction.” The children were to be“ taught the laws against capital offences †,” as those at Rome were accustomed to commit the twelve tables to memory. These were regulations in the pure spirit of a republic, which, considering the youth as the property of the state, does not permit a parent to bring up his children in ignorance and vice.
The policy of the Eastern states, in the establishment of public schools, aided by the convenient size and incorporation of their townships, deserves attention and imitation. It is, doubtless, in a great measure, owing to the diffusion of knowledge which these produce, that executions have been so rare in New England ; and, for the same reason, they are comparatively few in Scotland 1. Early education prevents more crimes than the severity of the criminal code.
* Laws, 1682. c. lx. 112.
+ Laws, Conn. p. 20. #Scotland is nearly twice as populous as London; yet, by the tables referred to already, it appears, that about thirty crimi. nals are executed, yearly, in London, while not quite four is the yearly average in Scotland. The difference between those capitally convicted, in two places, is much greater.---Hlow. p. 9, 483-5.
The constitution of Pennsylvania contemplates this great object and directs, that “Schools shall be established, by law, throughout this state.” Although there are real difficulties which oppose themselves to the perfect exocution of the plan, yet, the advantages of it are so manifest that an enlightened legislator will, no doubt, cheerfully encounter, and, in the end, be able to surmount them.
Secondly-Laws which prescribe hard labour as a punishment should be strictly executed. The criminals ought, as far as possible, to be collected in one place, easily accessible to those who have the inspection of it. When they are together their management will be less expensive, more systematic and beneficial. Their treatment ought to be such as to make their confinement an actual punisbment, and the remembrance of it a terror in future. The labour, in most cases, should be real hard labour; the food, though wholesome, should be coarse; the confinement sufficiently long to break down a disposition to vice; and the salutary rigour of perfect solitude, invariably inflicted on the greater offenders. Escapes should be industriously guarded against, pardons should be rarely, very rarely granted, and the punishment of those who are guilty of a second offence should be sufficiently
The reformation of offenders is declared to be one of the objects of the legislature in reducing the punishment; but time, and in some cases, much time, must be allowed for this. It is easy to counterfeit contrition ; but it is impossible to have faith in the sudden conversion of an old offender.
On these hints I mean not to enlarge, but they point to ob. jects of great importance, which may deserve attention whenever a further reform is attempted.