"effectual way to prevent crimes is, to prevent the temptation; if you would prevent thefts and robberies, you must take care to "have your people educated in virtuous principles, and every man "brought up and inured to labour and industry, that has no estate "to subsist on: if you would prevent treasons, you must do it by "the mildness of your government, in order to prevent the am"bitious from having any matter to work on, or any prospect of 66 success, and to prevent any number of men from being rendered "desperate; for desperate men no laws can restrain, no punish"ment frighten; and no man ever yet conspired against a govern"" ment, without some prospect of success. I am therefore fully "convinced that punishments always promote, instead of prevent ing, conspiracies and civil wars; and I have the experience of "all ages, and all countries, for supporting my opinion. Nay, if "we have any faith in Providence, we must expect that a govern"ment shall not go unpunished, which injures and oppresses the "fatherless, the widow, and the orphan. These severe punish"ments upon treason, sir, serve for nothing but to lull a govern"ment into a fatal and mistaken security, that no man will venture "to conspire or rebel against them. In arbitrary governments, "this emboldens ministers to tyrannize over, and oppress the people; and in limited governments it encourages them to encroach upon the liberties and privileges of the people. In both they "continue their oppressions or encroachments, till the people are "become generally discontented. Then some desperate, or some "ambitious man sets fire to the train, and the ministers too often "with their masters are blown up by the combustibles which they "themselves have collected for their own destruction. It was to "this cause chiefly, I am convinced, sir, that we owed all the civil (( wars, and all the revolutions that have happened in this country "almost ever since the conquest; and if we remove the cause, I may venture to prophecy, that both our civil wars and revolutions "will be less frequent." One would think nothing was more natural, than that murder be punished with death, according to Moses's law, "he who sheddeth man's blood, by man shall his blood be shed."** Nec lex est justior ulla, Quam necis artifices arte perire suâ. It seems strange, that any nation wise enough to propose pu- . nishments, should propose any other punishment for every injury, than formal retaliation, where it can be inflicted. Why should he, who mangles an innocent person, in such a manner that he is three days in the pains of death, be neatly tucked up, and put out of pain in the time of pronouncing, one, two, three? A few years ago, a merciless monster in human shape, starved his wife to death, keeping her tied with her hands behind her in constant anguish, for many weeks, if I rightly remember. He was only hanged; that is, he was punished, as if he had only stolen a sheep. This is not common sense. His guilt was as much beyond that of a sheep-stealer, as this globe of 25,000 miles round is larger than a hillock. "At Taunton a man was lately executed as usual [that is, he was hanged] for murdering his own father."+ Our laws are grown to be very sanguinary. In the Saxon times, they were quite contrary. For the lives of all ranks of men were valued at a certain fine; though some authors think those fines were for accidental killing; not for nurder of malice a forethought. In those times they distinguished the rank of a * Gen. ix. 6. + London Mag. 1768, p. 228. "The weregild See Seld. Tit. Hon. p. 603. Ercebisceowsr Eorles, &c. [or fine for killing] an archbishop and an earl, is 15,000 thrymsas, [a thrymsa about a third of a Saxon shilling] of a bishop and an eldorman 8000, of a holde and a highgereeve 4000, of a massethanc, or spiritual lord, and a worldthane, or temporal lord, 2000." Aud see Ibid. 619, the fines for murder committed on certain holidays. person by the fine for killing him. One was a 200 s. man; another a 300, and so on.* Had due care been taken, "it is impossible, that in the 18th century, it could ever have been made a capital crime to break down (however maliciously) the mound of a fish-pond, or to cut down a cherry tree in an orchard, or that it should still be felony to be seen for one month in company with the people called Egyptians, or Gipseys.† Add to these the game acts, the dog-act, the smuggling-acts, the penal laws against dissenting preachers officiating without subscription to human articles and creeds, &c. By 10 Geo, III. c. 19, every unqualified person taking or killing a partridge in the night, is to be whipped publicly. This law is so cruel, that, I suppose, no magistrate will venture to put it in execution. The good emperor Antoninus was so cautious of too great severity, (the worst error of the two) that he promised never to punish capitally a senator; which promise he kept so faithfully, that he spared several murderers of that rank.‡ It is not the severity of punishments, but the certainty of not escaping, that restrains licentiousness. When laws and sanctions are ill contrived, it is necessary to make laws to punish crimes occasioned by former laws: but this is the height of injustice.** Public executions, if they do not strike the people with fear, Spelm. Gloss. voc, Wera, Mægbota, Weregildun, &c. + Blackstone, iv. 6. Ant. Univ. Hist. xv. 199. § Czar. Instr. 127. ** Ibid. 128. instead of being exemplary, do harm, by hardening them against punishment. Whenever a people come to shew themselves unmoved, or not properly affected at those awful scenes, a government who had common sense, or any feeling of their proper function, would immediately put a stop to such exhibitions, and confine executions to the bounds of the prison. In Scotland at an execution, all appear melancholy; many shed tears, and some faint away. But executions there are very rare. It is the same in Holland. "It may not be unseasonable, says Davenant, in this place, to offer to public consideration, whether it would not be more religious, [more agreeable to the spirit of christianity] to transport many of those miserable wretches, who are frequently executed in this kingdom, for small transgressions of the law; it being peradventure one of the faults of our constitution, that it makes so little difference between crimes; for experience tells us, that many malefactors have, by after-industry, and a reformation in manners, justified their wisdom, whose clemency sent them abroad."* Voltaire says the English only murder by law. He makes repeated reflections on this nation as bloody, cruel, rebellious, &c. More crowned heads, he says, have been cut off in England, than in all Europe besides. I wish our law was less sanguinary in punishing theft. But it very ill becomes a Frenchman to reflect on English severity. Did not their tyrant tell them a few years ago, that the whole power, legislative and executive, is in him alone? Do the English ever put any person to the torture to force them to confess? On the contrary, is it not a maxim in our law, that no man is obliged to accuse himself? Do the French try accused persons by their peers? Has not their tyrant, or their tyrant's tool, or their tyrant's whore, power to send to the Bastile whom * Daven. 11. 4. they please? Is there a man in France secure of his liberty, or his property, one day to an end? "The severest punishment, under a mild administration, would be, to convince the offender, that he has committed a foul crime."* Is it the fault of government, if a people are less delicate to offend against the laws of their country, and of morality, than a well-brought up son, or daughter, against those of their parents. In England we have little notion of obeying either our Maker, our laws, or our parents. Punishments operate according to the dispositions of the people. Severe punishments harden their tempers, and defeat their own intention. There are more offenders among the Turks, who bastinado their people to death for slight faults,† than in England. The rigorous punishments of martial law do not restrain the soldiery from licentious behaviour. The youth of the public schools, where the discipline is severe, are more unruly, than those in private houses of education, where they are corrected with more gentleness, "The only punishment denounced against the transgressors of the Ogulnian law was, that they should be deemed guilty of a dishonourable action. A slight punishment, indeed, for a more corrupt age; but sufficient at this time to restrain the Romans, who piqued themselves on their virtue, and were never chosen for great employments, unless they had preserved their reputation pure and untainted."+ "A violent administration will be for sudden and violent remedies, in case of public disturbances; and by and by these * Czar. Instr. 86. + Mod. Univ. Hist. xviii. 205. |