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ing from the person. As every degree of force is excluded by the description of the crime, it will be difficult to assign an example, where either the amount or circumstances of the theft place it upon a level with those dangerous attempts to which the punishment of death should be confined. It will be still more difficult to show, that, without gross and culpable negligence on the part of the sufferer, such examples can ever become so frequent, as to make it necessary to constitute a class of capital offences, of very wide and large extent.

The prerogative of pardon is properly reserved

joined him in the felony; not so much on account of any distinction in the guilt of the offenders, as for the sake of casting an obstacle in the way of such confederacies, by rendering it difficult for the confederates to settle who shall begin the attack, or to find a man amongst their number willing to expose himself to greater danger than his associates. This is another instance in which the punishment which expediency directs, does not pursue the exact proportion of the crime.

Injuries effected by terror and violence, are those which it is the first and chief concern of legal go

to the chief magistrate. The power of suspend-vernment to repress; because their extent is un

ing the laws is a privilege of too high a nature to be committed to many hands, or to those of any inferior officer in the state. The king also can best collect the advice by which his resolutions should be governed: and is at the same time removed at the greatest distance from the influence of private motives. But let this power be deposited where it will, the exercise of it ought to be regarded, not as a favour to be yielded to solicitation, granted to friendship, or, least of all, to be made subservient to the conciliating or gratifying of political attachments, but as a judicial act; as a deliberation to be conducted with the same character of impartiality, with the same exact and diligent attention to the proper merits and circumstances of the case, as that which the judge upon the bench was expected to maintain and show in the trial of the prisoner's guilt. The questions, whether the prisoner be guilty, and whether, being guilty, he ought to be executed, are equally questions of public justice. The adjudication of the latter question is as much a function of magistracy, as the trial of the former. The public welfare is interested in both. The conviction of an offender should depend upon nothing but the proof of his guilt; nor the execution of the sentence upon any thing beside the quality and circumstances of his crime. It is necessary to the good order of society, and to the reputation and authority of government, that this be known and believed to be the case in each part of the proceeding. Which reflections show, that the admission of extrinsic or oblique considerations, in dispensing the power of pardon, is a crime, in

limited; because no private precaution can protect the subject against them; because they endanger life and safety, as well as property; and lastly, because they render the condition of society wretched, by a sense of personal insecurity. These reasons do not apply to frauds which circumspection may prevent; which must wait for opportunity; which can proceed only to certain limits; and by the apprehension of which, although the business of life be incommoded, life itself is not made misera ble. The appearance of this distinction has led some humane writers to express a wish, that capital punishments might be confined to crimes of violence. In estimating the comparative malignancy of crimes of violence, regard is to be had, not only to the proper and intended mischief of the crime, but to the fright occasioned by the attack, to the general alarm excited by it in others, and to the consequences which may attend future attempts of the same kind. Thus, in atlixing the punishment of burglary, or of breaking into dwelling-houses by night, we are to consider not only the peril to which the most valuable property is exposed by this crime, and which may be called the direct mischief of it, but the danger also of murder in case of resistance, or for the sake of preventing discovery; and the universal dread with which the silent and defenceless hours of rest and sleep must be disturbed, were attempts of this sort to become frequent; and which dread alone, even without the mischief which is the object of it, is not only a public evil, but almost of all evils the most insupportable. These circumstances place a dif

the authors and advisers of such unmerited par-ference between the breaking into a dwelling

tiality, of the same nature with that of corruption in a judge.

Aggravations, which ought to guide the magistrate in the selection of objects of condign punishment, are principally these three, repetition, cruelty, combination. The first two, it is manifest, add to every reason upon which the justice or the necessity of rigorous measures can be founded; and with respect to the last circumstance, it may be observed, that when thieves and robbers are once collected into gangs, their violence becomes more formidable, the confederates more desperate, and the difficulty of defending the public against their depredations much greater, than in the case of solitary adventurers. Which several considerations compose a distinction that is properly adverted to, in deciding upon the fate of

convicted malefactors.

In crimes, however, which are perpetrated by a multitude, or by a gang, it is proper to separate, in the punishment, the ringleader from his followers, the principal from his accomplices, and even the person who struck the blow, broke the lock, or first entered the house, from those who

house by day, and by night; which difference obtains in the punishment of the offence by the law of Moses, and is probably to be found in the judicial codes of most countries, from the earliest ages to the present.

Of frauds, or of injuries which are effected without force, the most noxious kinds are,forgeries, counterfeiting or diminishing of the coin, and the stealing of letters in the course of their conveyance; inasmuch as these practices tend to deprive the public of accommodations, which not only improve the conveniencies of social life, but are essential to the prosperity, and even the existence, of commerce. Of these crimes it may be said, that although they seem to affect property alone, the mischief of their operation does not terminate there. For let it be supposed, that the remissness or lenity of the laws should, in any country, suffer offences of this sort to grow into such a frequency, as to render the use of money, the circulation of bills, or the public conveyance of letters, no longer safe or practicable; what would follow, but that every species of trade and of activity must decline under these discouragements; the sources of subsistence fail, by which the inhabitants of the country are supported; the country itself, where the intercourse of civil life was so endangered and defective, be deserted; and that, beside the distress and poverty which the loss of employment would produce to the industrious and valuable part of the existing community, a rapid depopulation must take place, each generation becoming less numerous than the last; till solitude and barrenness overspread the land; until a desolation similar to what obtains in many countries of Asia, which were once the most civilized and frequented parts of the world, succeed in the place of crowded cities, of cultivated fields, of happy and well peopled regions? - When therefore we carry forwards our views to the more distant, but not less certain conséquences of these crimes, we perceive that, though no living creature be destroyed by them, yet human life is diminished: that an offence, the particular consequence of which deprives only an individual of a small portion of his property, and which even in its general tendency seems to do nothing more than obstruct the enjoyment of certain public conveniencies, may nevertheless, by its ultimate effects, conclude in the laying waste of human existence. This observation will enable those who regard the divine rule of "life for life, and blood for blood," as the only authorized and jus tifiable measure of capital punishment, to perceive, with respect to the effects and quality of the actions, a greater resemblance than they suppose to exist between certain atrocious frauds, and those crimes which attack personal safety.

In the case of forgeries, there appears a substantial difference between the forging of bills of exchange, or of securities which are circulated, and of which the circulation and currency are found to serve and facilitate valuable purposes of commerce; and the forging of bonds, leases, mortgages, or of instruments which are not commonly transferred from one hand to another; because in the former case, credit is necessarily given to the signature; and without that credit the negotiation of such property could not be carried on, nor the public utility, sought from it, be attained: in the other case, all possibility of deceit might be precluded, by a direct communication between the parties, or by due care in the choice of their agents, with little interruption to busi ness, and without destroying, or much encumbering, the uses for which these instruments are calculated. This distinction I apprehend to be not only real, but precise enough to afford a line of division between forgeries, which as the law now stands, are almost universally capital, and punished with undistinguishing severity.

we shall be brought, probably, to agree with the opinion of those who contend that perjury, in its punishment, especially that which is attempted in solemn evidence, and in the face of a court of justice, should be placed upon a level with the most flagitious frauds.

The obtaining of money by secret threats, whether we regard the difficulty with which the crime is traced out, the odious imputations to which it may lead, or the profligate conspiracies that are sometimes formed to carry it into execution, deserves to be reckoned amongst the worst species of robbery.

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The frequency of capital executions in this country owes it necessity to three causes;-much liberty, great cities, and the want of a punishment short of death, possessing sufficient degree of terror. And if the taking away of the life of malefactors be more rare in other countries than in ours, the reason will be found in some difference in these articles. The liberties of a free people, and still more the jealousy with which these liberties are watched, and by which they are preserved, permit not those precautions and restraints, that inspection, scrutiny, and control, which are exercised with success in arbitrary governments. For example, neither the spirit of the laws, nor of the people, will suffer the detention or confinement of suspected persons, without proofs of their guilt, which it is often impossible to obtain; nor will they allow that masters of families be obliged to record and render up a description of the strangers or inmates whom they entertain; nor that an account be demanded, at the pleasure of the magistrate, of each man's time, employment, and means of subsistence; nor securities to be required when these accounts appear unsatisfactory or dubious; nor men to be apprehended upon the mere suggestion of idleness or vagrancy; nor to be confined to certain districts; nor the inhabitants of each district to be made responsible for one another's behaviour; nor passports to be exacted from all persons entering or leaving the kingdom: least of all will they tolerate the appearance of an armed force, or of military law; or suffer the streets and public roads to be guarded and patrolled by soldiers; or lastly, intrust the police with such discretionary powers, as may make sure of the guilty, however they involve the innocent. These expedients, although arbitrary and rigorous, are many of them effectual: and in proportion as they render the cominission or concealment of crimes more difficult, they subtract from the necessity of severe punishment. - Great cities multiply crimes, by presenting easier opportunities, and more incentives to libertinism, which in low life is commonly the introductory stage to other enormities; neighbourhood, which enables them to form communications and confederacies, that increase their art and courage, as well as strength and wickedness; but principally by the refuge they afford to villany, in the means of conccalment, and of subsisting in secrecy, which crowded towns supply to men of every description. These temptations and facilities can only be counteracted by adding to the number of capital punishments. But a third cause, which increases the frequency of capital executions, in England, is, a defect of the laws, in not being provided with any other punishment than that of death, sufficiently terrible to keep offenders in awe. Transportation, which is the

Perjury is another crime, of the same class and by collecting thieves and robbers into the same

magnitude. And, when we consider what reliance is necessarily placed upon oaths; that all judicial decisions proceed proceed upon testimony; that consequently there is not a right that a man possesses, of which false witnesses may not deprive him; that reputation, property, and life itself, lie open to the attempts of perjury; that it may often be committed without a possibility of contradiction or discovery; that the success and prevalency of this vice tend to introduce the most grievous and fatal injustice into the administration of human affairs, or such a distrust of testimony as must create universal embarrassment and confusion:--when we reficct upon these mischiefs,

sentence second in the order of severity, appears | ployment, or who has been distressed by the want to me to answer the purpose of example very im- of it. When jails are once provided for the sepaperfectly not only because exile is in reality a rate confinement of prisoners, which both proposlight punishment to those who have neither sals require, the choice between them may soon property, nor friends, nor reputation, nor regular be determined by experience. If labour be exacted,

means of subsistence, at home; and because their situation becomes little worse by their crime, than it was before they committed it; but because the punishment, whatever it be, is unobserved and unknown. A transported convict may suffer under his sentence, but his sufferings are removed from the view of his countrymen: his misery is unseen; his condition strikes no terror into the minds of those for whose warning and admonition it was intended. This chasm in the scale of punishment produces also two farther imperfections in the administration of penal justice; the first is, that the same punishment is extended to crimes of very different character and malignancy: the second, that punishments separated by a great interval, are assigned to crimes hardly distinguishable in their guilt and mischief.

punishment

The end of punishment is two-fold;-amend ment, and example. In the first of these, the reformation of criminals, little has ever been effected, and little, I fear, is practicable. From every species of punishment that has hitherto been devised, from imprisonment and exile, from pain and infamy, malefactors return more hardened in their crimes, and more instructed. If there be any thing that shakes the soul of a confirmed villain, it is the expectation of approaching death. The horrors of this situation may cause such a wrench in the mental organs, as to give them a holding turn: and I think it probable, that many of those who are executed, would, if they were delivered at the point of death, retain such a remembrance of their sensations, as might preserve them, unless urged by extreme want, from relapsing into their former crimes. But this is an experiment that, from its nature, cannot be repeated often.

Of the reforming punishments which have not yet been tried, none promises so much success as that of solitary imprisonment, or the confinement of criminals in separate apartments. This improvement augments the terror of the punishment; secludes the criminal from the society of his fellow-prisoners, in which society the worse are sure to corrupt the better; weans him from the knowledge of his companions, and from the love of that turbulent, precarious life in which his vices had engaged him: is calculated to raise up in him reflections on the folly of his choice, and to dispose his mind to such bitter and continued penitence, as may produce a lasting alteration in the principles of his conduct.

I would leave the whole, or a portion, of the earnings to the prisoner's use, and I would debar him from any other provision or supply; that his subsistence, however coarse and penurious, may be proportioned to his diligence, and that he may taste the advantage of industry together with the toil. I would go further; I would measure the confinement, not by the duration of time, but by quantity of work, in order both to excite industry, and to render it more voluntary. But the principal difficulty remains still; namely, how to dispose of criminals after their enlargement. By a rule of life, which is perhaps too invariably and indiscriminately adhered to, no one will receive a man or woman out of a jail, into any service or employment whatever. This is the common misfortune of public punishment, that they preclude the offender from all honest means of future support. It seems incumbent upon the state to secure a maintenance to those who are willing to work for it; and yet it is absolutely necessary to divide criminals as far asunder from one another as possible. Whether male prisoners might not, after the term of their confinement was expired, be distributed in the country, detained within certain limits, and employed upon the public roads; and females be remitted to the overseers of country parishes, to be there furnished with dwellings, and with the materials and implements of occupation; whether by these, or by what other methods, it may be possible to effect the two purposes of employment and dispersion, well merits the attention of all who are anxious to perfect the internal regulation of their country. Torture is applied either to obtain confessions of guilt, or to exasperate or prolong the pains of death. No bodily punishment, however excruciating or long-continued, receives the name of torture, unless it be designed to kill the criminal by a more lingering death; or to extort from him the discovery of some secret, which is supposed to lie concealed in his breast. The question by torture appears to be equivocal in its effects: for since extremity of pain, and not any consciousness of remorse in the mind, produces those effects: an innocent man may sink under the torment, as well as he who is guilty, The latter has as much to fear from yielding, as the former. The instant and almost irresistible desire of relief may draw from one sufferer false accusations of himself or others, as it may sometimes extract the truth out of another. This ambiguity renders the use of torture, as a means of procuring information in' criminal proceedings, liable to the risk of grievous and irreparable injustice. For which reason, though recommended by ancient and general example, it has been properly exploded from the mild and cautious system of penal jurisprudence established in this country.

As aversion to labour is the cause from which half of the vices of low life deduce their origin and continuance, punishments ought to be contrived with a view to the conquering of this disposition. Two opposite expedients have been recommended for this purpose; the one, solitary confinement with hard labour; the other, solitary confinement with nothing to do. Both expedients seek the same end; to reconcile the idle to a life of industry. The former hopes to effect this by making labour habitual; the latter, by making idleness insupportable: and the preference of one method to the other depends upon the question, whether a man is more likely to betake himself, of his own accord, to work, who has been accustomed to em- | private persons should be tender in prosecuting them.

Barbarous spectacles of human agony are justly found fault with, as tending to harden and deprave the public feelings, and to destroy that sympathy

Until this inconvenience be remedied, small offerices had perhaps better go unpunished: I do not mean that the law should exempt them from punishment, but that with which the sufferings of our fellow-creatures | facilitate the conviction of criminals. The offence

ought always to be seen; or, if no effect of this kind follow from them, they counteract in some measure their own design, by 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 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,

Infamous punishments are mismanaged in this country, with respect both to the crimes and the criminals. In the first place, they ought to be confined to offences which are holden in undisputed and universal detestation. To condemn to the pillory the author or editor of a libel against the state, who has rendered himself the favourite of a party, if not of the people, by the very act for which he stands there, is to gratify the offender, and to expose the law to mockery and insult. In the second place; the delinquents who receive this sentence, are for the most part such as have long ceased either to value reputation, or to fear shame; of whose happiness, and of whose enjoyments, character makes no part. Thus the low ministers of libertinism, the keepers of bawdy or disorderly houses, are threatened in vain with a punishment that affects a sense which they have not; that applies solely to the imagination, to the virtue and the pride of human nature. The pillory, or any other infamous distinction, might be employed rightly, and with effect, in the punishment of some offences of higher life; as of frauds and peculation in office; of collusions and connivances, by which the public treasury is defrauded; of breaches of trust; of perjury, and subornation of perjury; of the clandestine and forbidden sale of places; of flagrant abuses of authority, or neglect of duty; and lastly, of corruption in the exercise of confidential or judicial offices. In all which, the more elevated was the station of the criminal, the more signal and conspicuous would be the triumph of justice.

of counterfeiting the coin could not be checked by all the terrors and the utmost severity of law, whilst the act of coining was necessary to be established by specific proof. The statute which made possession of the implements of coining capital, that is, which constituted that possession complete evidence of the ofiender's guilt, was the first thing that gave force and efficacy to the denunciations of law upon this subject. The statute of James the First, relative to the murder of bastard children, which ordains that the concealment of the birth should be deemed incontestable proof of the charge, though a harsh law, was, in like manner with the former, well calculated to put a stop to the crime.

It is upon the principle of this observation, that I apprehend much harm to have been done to the community, by the over-strained scrupulousness, or weak timidity, of juries, which demands often such proof of a prisoner's guilt, as the nature and secrecy of his crime scarce possibly admit of; and which holds it the part of a safe conscience not to condemn any man, whilst there exists the minutest possibility of his innocence. Any story they may happen to have heard or read, whether real or feigned, in which courts of justice have been misled by presumptions of guilt, is enough, in their minds, to found an acquittal upon, where positive proof is wanting. I do not mean that juries should indulge conjectures, should magnify suspicions into proofs, or even that they should weigh probabilities in gold scales: but when the preponderation of evidence is so manifest as to persuade every private understanding of the prisoner's guilt; when it furnishes the degree of credibility upon which men decide and act in all other doubts, and which experience hath shown that they may decide and act upon with sufficient safety; to reject such proof, from an insinuation of uncertainty that belongs to all human affairs, and from a general dread lest the charge of innocent blood should lie at their doors, is a conduct, which, however natural to a mind studious of its own quiet, is authorised by no considerations of rectitude or utility. It counteracts the care and damps the activity of government; it holds out public encouragement to villany, by confessing the impossibility of bringing villains to justice; and that species of encouragement which, as hath been just now observed, the minds of such men are most apt to entertain and dwell upon.

There are two popular maxims, which seem to have a considerable influence in producing the injudicious acquittals of which we complain. One is:-"That circumstantial evidence falls short of positive proof." This assertion, in the unqualified sense in which it is applied, is not true. A concurrence of well-authenticated circumstances compose a stronger ground of assurance than positive testimony, unconfirmed by circumstances, usually affords. Circumstances cannot lie. The conclusion also which results from them, though deduced by only probable inference, is commonly more to

The certainty of punishment is of more consequence than the severity. Criminals 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 may suffer from 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 be relied upon than the veracity of an unsupported

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

solitary witness. The danger of being deceived is less, the actual instances of deception are fewer, in the one case than the other. What is called positive proof in criminal matters, as where a man swears to the person of the prisoner, and that he actually saw him commit the crime with which he is charged, may be founded in the mistake or perjury of a single witness.-Such mistakes, and | presbyters amongst their first converts, it must be such perjuries, are not without many examples. remembered that deacons also and deaconesses Whereas, to impose upon a court of justice a were appointed by them, with functions very

chain of circumstantial evidence in support of a fabricated accusation, requires such a number of false witnesses as seldom meet together; an union also of skill and wickedness which is still more rare; and, after all, this species of proof lies much more open to discussion, and is more likely, if false, to be contradicted, or to betray itself by some unforeseen inconsistency, than that direct proof, which, being confined within the knowledge of a single person, which, appealing to, or standing connected with, no external or collateral circumstances, is incapable, by its very simplicity, of being confronted with opposite probabilities.

The other maxim, which deserves a similar examination, is this:- "That it is better that ten guilty persons escape, than that one innocent man should suffer." If by saying it is better, be meant that it is more for the public advantage, the proposition, I think, cannot be maintained. The security of civil life, which is essential to the value and the enjoyment of every blessing it contains, and the interruption of which is followed by universal misery and confusion, is protected chiefly by the dread of punishment. The misfortune of an individual (for such may the sufferings, or even the death, of an innocent person be called when they are occasioned by no evil intention,) cannot be placed in competition with this object. I do not contend that the life or safety of the meanest subject ought, in any case, to be knowingly sacrificed: no principle of judicature, no end of punishment, can ever require that.

dissimilar to any which obtain in the church at present. The truth seems to have been, that such offices were at first erected in the Christian church, as the good order, the instruction, and the exigencies of the society at that time required, without any intention, at least without any declared design, of regulating the appointment, authority, or the distinction, of Christian ministers under future circumstances. This reserve, if we may so call it, in the Christian Legislator, is sufficiently accounted for by two considerations:-First, that no precise constitution could be framed, which would suit with the condition of Christianity in its primitive, state, and with that which it was to assume when it should be advanced into a national religion: Secondly, that a particular designation of office or authority amongst the ministers of the new religion, might have so interfered with the arrangements of civil policy, as to have formed, in some countries, a considerable obstacle to the progress and reception of the religion itself.

The authority therefore of a church-establishment is founded in its utility: and whenever, upon this principle, we deliberate concerning the form, propriety, or comparative excellency of diferent establishments, the single view under which we ought to consider any of them is, that of "a scheme of instruction;" the single end we ought to propose by them is, "the preservation and communication of religious knowledge." Every other idea, and every other end, that have been mixed with this, as the making of the church an engine, or even an ally, of the state; converting it into the means of strengthening or diffusing in

But when certain rules of adjudication must be pursued, when certain degrees of credibility must be accepted, in order to reach the crimes with which the public are infested; courts of jus- fluence; or regarding it as a support of regal, in

tice should not be deterred from the application of these rules by every suspicion of danger, or by the mere possibility of confounding the innocent with the guilty. They ought rather to reflect, that he who falls by a mistaken sentence, may be considered as falling for his country; whilst he suffers under the operation of those rules, by the general effect and tendency of which the welfare of the community is maintained and upholden.

CHAPTER X.

Of Religious Establishments and of Toleration.

opposition to popular forms of government; have served only to debase the institution, and to introduce into it numerous corruptions and abuses.

The notion of a religious establishment comprehends three things:-a clergy, or an order of men secluded from other professions to attend upon the offices of religion; a legal provision for the maintenance of the clergy; and the confining of that provision to the teachers of a particular sect of Christianity. If any one of these three things be wanting, if there be no clergy as amongst the Quakers; or if the clergy have no other provision than what they derive from the voluntary contribution of their hearers; or if the provision which the laws assign to the support of religion Christians; there exists no national religion or established church, according to the sense which these terms are usually made to convey. He, therefore, who would defend ecclesiastical establishments, must show the separate utility of these three essential parts of their constitution :

"A RELIGIOUS establishment is no part of be extended to various sects and denominations of

Christianity: it is only the means of inculcating it." Amongst the Jews, the rights and offices, the order, family, and succession of the priesthood, were marked out by the authority which declared the law itself. These, therefore, were parts of the Jewish religion, as well as the means of transmitting it. Not so with the new institution. It cannot be proved that any form of church-government was laid down in the Christian, as it had been in the Jewish Scriptures, with a view of fixing a constitution for succeeding ages; and which constitution, consequently, the disciples of Christianity would every where, and at all times, by the very law of their religion, be obliged to adopt. Certainly, no command for this purpose was delivered by Christ himself; and if it be shown that the apostles ordained bishops and

1. The question first in order upon the subject, as well as the most fundamental in its importance, is, whether the knowledge and profession of Christianity can be maintained in a country without a class of men set apart by public authority to the study and teaching of religion, and to the conducting of public worship; and for these purposes secluded from other employments. I add this last circumstance, because in it consists, as I take it, the substance of the controversy. Now it must be remembered, that Christianity is an historical

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