Thomas More,(") and by Lord Bacon;() and where the only(") evidence, supplied by departed merit, in opposition to these great authorities, seems to be

(P) See his Utopia, from which the following is extracted: "I was then much obliged to that reverend prelate, John Morton, archbishop of Canterbury, cardinal, and chancellor of England; a man that was not less venerable for his wisdom and virtues, than for the high character he bore; he was of a middle stature, not broken with age, his looks begot reverence rather than fear, his conversation was easy, but serious and grave; he spoke both gracefully and weightily; he was eminently skilled in the law, had a vast understanding, and a prodigious memory: and those excellent talents with which nature had furnished him, were improved by study and experience. One day when I was dining with him, there happened to be at table one of the English lawyers, who took occasion to run out in a high commendation of the severe execution of justice upon thieves, who, as he said, were then hanged so fast, that there were sometimes twenty on one gibbet; and upon that he said he could not wonder enough how it came to pass, that since so few escaped, there were yet so many thieves left who were robbing in all places. Upon this, I who took the boldness to speak freely before the cardinal, said there was no reason to wonder at the matter, since this way of punishing thieves, was neither just in itself, nor good for the public; for as the severity was too great, so the remedy was not effectual.

“While I was talking thus, the counsellor who was present had prepared an answer, and had resolved to resume all I had said, according to the formality of a debate, in which things are generally repeated more faithfully than they are answered; as if the chief trial to be made, were of men's memories. You have talked prettily for a stranger, said he, having heard of many things among us, which you have not been able to consider well: but I will make the whole matter plain to you, and will first repeat in order all that you have said, then I will shew how much your ignorance of our affairs has misled you, and will in the last place answer all your arguments. And that I may begin where I promised, there were four things.-Hold your peace, said the cardinal, this will take up too much time." UTOPIA.

(9) Lord Bacon, speaking of the reform of the law of England, says, there are a number of ensnaring penal laws, which lie upon the subject; and if in bad times they should be awakened and put in execution, would grind them to powder. There are some penal laws fit to be retained, but their penalty is too great; and it is ever a rule, that any over great penalty, besides the acerbity of it, deadens the execution of the law.

(5) See note (*) in page xiv.

the opinions of Dr. Paley(") and of Mr. Windham,(') and of an author who, in the beginning of the last

($) See Paley's Moral Philosophy. He says, By the number of statutes creating capital offences, the law of England sweeps into the net every crime, which under any possible circumstances may merit the punishment of death; but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes render them fit examples of public justice. By this expedient few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared, as far as the necessity of restraint ́ and intimidation permits; yet no one will adventure upon the commission of any enormous crime, from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries. The charge of cruelty is answered by observing, that these laws were never meant to be carried into indiscriminate execution; that the legislature, when it establishes its last and highest sanctions, trusts to the benignity of the crown, to relax their severity, as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are wanting which render this rigorous interposition necessary. Upon this plan is it enough to vindicate the lenity of the laws, that some instances are to be found in each class of capital crimes, which require the restraint of capital punishment; and that this restraint could not be applied, without subjecting the whole class to the same condemnation?

It is difficult to reconcile this reasoning of Dr. Paley with the subjoined extract from another part of his work, where he says: The certainty of punishment is of more consequence than the severity.-Criminais do not so much flatter themselves with the lenity of the sentence, as with the hope of escaping. They are not so apt to compare what they gain by the crime with what they suffer by the punishment, as to encourage themselves with the chance of concealment or flight. For which reason, a vigilant magistracy, an accurate police, a proper distribution of force and intelligence, together with due rewards for the discovery and apprehension of malefactors, and an undeviating impartiality in carrying the laws into execution, contribute more to the restraint and suppression of crimes, than any violent exacerbations of punishment. And for the same reason, of all contrivances directed to this end, those perhaps are most effectual which facilitate the conviction of criminals.

(*) See Windham's speech, May 2, 1810. It is much to be lamented that this which was, I believe, his last speech in the House of Commons, is not published from the copious notes from which he spoke.

century, seriously recommended that, as malefactors who differed in guilt could not with justice be doomed to the same punishment, torture ought in many if not in most cases to be sanctioned by the legislature.(")

(") This work, which it is my intention to republish, is entitled, “ Hanging not good enough." It was written by a Scholar, and was published in 1701. He says, "I acknowledge also, that the spirit of Christianity disposes us to patience and forbearance, insomuch that when the Roman emperors began to grow Christian, we are informed that most capital punishments were taken away, and turned into others less sanguinary; either that they might have longer time for repentance (an indulgence agreeable to the zeal and piety of those good ages), or that the length and continuance of their punishment might be more exemplary. And I acknowledge with the wise Quintilian,† That if ill men could be made good, as, it must be granted, they sometimes may, it is for the interest of the commonwealth that they should rather be spared than punished. And I know that it is frequently alledged, that you take away a better thing, and that is a man's life, for that which is worse, and that is your money and goods; but though this be speciously enough urged, yet I doubt not but the public safety‡ and happiness may lawfully and reasonably be secured by this way, if it can by no other. No doubt if other methods would do, there had never been recourse to death, since that was questionless reserved as the last refuge :--but even that now fails, and so fails, that if some remedy be not found to stop this growing evil, we shall shortly not dare to travel in England, unless, as in the deserts of Arabia, it be in large companies and armed; for to such a height of villany are they arrived, that even some of the nobility themselves have not escaped their hands; and there is no order of men in England but has been sensible of their insolence and rage: and it is a very great aggravation of their crime, and a high provocation to those who fall into their power, that they use them in so barbarous and insulting a manner, and so much worse than in former ages, that some men of spirit cannot bear so inhuman treatment, without endangering,

* Magis ad exemplum proficit pœna diuturnior.-GROTIUS.

† Nemo dubitabit, quia si nocentes mutari in bonam mentem aliquo modo possint, sicut posse interdum conceditur, salvos esse eos magis è Republica sit, quam puniri.

+ Consuleret securitati justâ ultione.-Tacit.

Mors ipsa ab iis qui primum constituerint, non seu malum aliquod sontibus imposita sit, sed tanquam extremum præsidium, et loco medicamenti.-Camerar. Oper. Subcisiv.

If, standing upon the old ways and hearing the opinions of former times, inquiry be made whether

endangering, and oftentimes losing their lives, as has been too often known to be proved. So that must beg leave to say, that they who shew no mercy should find none; and if hanging will not restrain them, or (if murtherers and robbers at the same time, or night incendiaries) breaking them on the wheel, or whipping them to death, a Roman punishment should.

For, as the benefit of the Clergy is of late taken from pick-pockets, so they are now in the eye of the law upon the same foot with murtherers, highwaymen, and house-breakers. Their crimes are certainly very unequal by the laws of God and the consent of nations-Why, then, should not their punishment be so too?*

But my design is not that man's blood should be shed, but that it should not; and I verily believe, that for five men condemned and executed now, you would hardly have one then. For those men out of terror of such a law would (it is to be hoped) either apply themselves to honest labour or industry, or else would remove to our plantations, where they are wanted, and so many useful hands would not be yearly lost."

* Major minorque transgressio non unius debeat mulctationis prædemnari supplicio præsertim cum Dominus in lege sua præcipiat: Pro mensura peccati, erit & plagarum modus.-Lex Wisigotthor, Lib. 12. Tit. iii. cap. 1.— The consistency of this reasoning is confirmed by Dr. Paley, in his Moral Philosophy, who says, Barbarous spectacles of human agony, are justly found fault with, as tending to harden and deprave the public feelings, and to destroy that sympathy with which the sufferings of our fellow-creatures ought always to be seen, or if no effect of this kind follow from them, they counteract in some measure their own design, by sinking men's abhorrence of the crime in their commiseration of the criminal. But if a mode of execution could be devised, which would augment the horror of the punishment, without offending or impairing the public sensibility by cruel or unseemly exhibitions of death, it might add something to the efficacy of the example: and by being reserved for a few atrocious crimes, might also enlarge the scale of punishment; an addition to which seems wanting; for, as the matter remains at present, you hang a malefactor for a simple robbery; and you can do no more to the villain who has poisoned his father. Somewhat of the sort we have been describing was the proposal, not long since suggested, of casting murderers into a den of wild beasts, where they would perish in a manner dreadful to the imagination, yet concealed from the view.

these theories of our ancestors have ever been reduced to practice? it will be a gratification to the most timorous to know that, some years since, an act, dictated in the very spirit of christianity, passed the legislature of Pennsylvania.

It is an act, for the better preventing of crimes, and for abolishing the punishment of death in certain cases.

"Whereas the design of all punishment is to pre"vent the commission of crimes, and to repair the

injury that hath been done thereby to society, or "the individual, and it hath been found by experi"ence that these objects are better obtained by mo"derate, but certain penalties, than by severe and

It may, perhaps, be supposed that Madan's Thoughts on Executive Justice is a work 'inimical to an alteration of the law.-The professed object of his work is, that the law should be carried into execution: with respect to the revision of the law, he says.: I have professedly avoided entering upon the question, how far it might be expedient to revise our penal statutes relative to capital offences? but, as a friend to examination and revisal of all kinds, I should not be sorry to hear that such a thing was in agitation, for, if any of the laws in being, fail of their execution, and consequently of their end and purpose, because they are thought too sanguinary, they had much better be altered into something less severe, than to let those offences, which are the objects of them, go without any punishment at all.*

The authors upon this subject may be considered of two classes, and exhibited as follows:

Not recommending any revision,

1. That the existing laws should be strictly enforced.

Madan.

2. That the laws should occasionally be enforced. Paley Recommending 1. By lowering the standard. Blackstone, Johnson, &c. 2. By raising the standard.

revision,

* Page 133.