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make an unjust law? And if the law itself be unjust, may it not be the “ instrument” which ought “ to raise the author's and every body's highest “ indignation?” I see, in the last newspapers from London, that a womari is capitally convicted at the Old Bailey, for privately stealing out of a shop some gauze, value fourteen shillings and three pence. Is chere any proportion between the injury done by a theft, value fourteen shillings and three-pence, and the punishment of a human creacure, by death, on a gibbet? Might not that woman, by her labour, have made the reparation, ordained by God, in paying fourfold? all punishinent inflicted beyond the merit of the offence, so much punishment of innocence? In this light, how vast is the annual quantity, of not only injured but suffering innocence, in almost all the civilized states of Europe !
But it seems to have been thought, that this kind of innocence may be punished by way of preveniing crimes. I have read, indeed, of a cruel Turk in Barbary, who, whenever he bought a slave, ordered him inmediately to be hung up by the legs, and to receive a hundred blows of a cudgel on the soles of his feet, that the severe sense of the punishment, and fear of incurring it thereafter, might prevent the faults that should merit it. Our author himself would hardly ap. prove entirely of this Turk’s conduct in the
govern ment of slaves ; and yet he appears to recommend something like it for the government of English subjects, when he applauds the reply of Judge
Burnet to the convict horse-stealer; who, being asked what he had to say why judgment of death should not pass against him, and answering that it was hard to hang a man for only stealing a horse, was told by the judge, “ Man, thou art not to be “ hanged only for stealing a horse, but that horses
may not be stolen.” The man's answer, if candidly examined, will, I imagine, appear reasonable, as founded on the eternal principle of justice and equity, that punishments should be proportioned to offences; and the judge's reply. brutal and unreasonable ; though the writer “wishes all judges “ to carry it with them whenever they go the “ circuit, and to bear it in their minds, as cons 6 taining a wise reason for all the penal statutes “ which they are called upon to put in execution.
It at orice illustrates," says he, “ the true “ grounds and reasons of all capital punishments $whatsoever, namely, that every
property, as well as his life, inay be held inviolable."--Is there then no difference in value between property and life? If I think it right that the crime of murder should be punished with death, not only as an equal punishment of the crime, but to prevent other murders, does it follow that I must ap. prove of inflicting the same punishment for a little invasion on my property by theft? If I am not myself so barbarous, so bloody-minded and revengeful, as to kill a fellow creature for stealing from me fourteen shillings and three-pence, how can I approve of a law that does it ? Montesquieu, who was himself a judge, endeavours to impress other maxims. He must have known what hu. mane judges feel on such occasions, and what the effects of those feelings ; and, so far from thinking that severe and excessive punishments prevent crimes, he asserts, as quoted by our French writer; chat,
1 L'atrotite des loix en empeche l'execution. 4. Lorsque le peine est sans mesure, on est souvent obligé de lui preferer l'impunité. 1 La cause de tous le relâchemens vient de l'impunite des crimes, & non de la moderation des peines. *
It is said by those who know Europe generally, that there are more thefts committed and punished annually in England, than in all the other nations put together. If this be so, there must be a cause or causes for such depravity in our common people. May not one be the deficiency of justice and morality in our national government, manifested in our oppressive conduct to subjects, and unjust wars on our neighbours ? View the long persisted in, unjust, and monopolizing treatment of Ireland, at length acknowledged! View the plundering go vernment exercised by our merchants in the Indies; the confiscating war made upon the American cox lonies; and to say nothing of those upon France and Spain, view the late war upon Holland, which was seen by impartial Europe in no other light that of a war of rapine and pillage ; the hopes of immense and easy prey being its apparent,
*** * The excessive severity of laws hinders their execution.When the punishment is extremely disproportionate, punity is often obliged to be preferred to it-All corrup. tions proceed from impunity, not from the mildness of punishments.
probably its true and real motive and encouragement. Justice is as strictly due between neighbour nations as between neighbour citizens. A highwayman is as much a robber when he plunders in a gang, as when single; and a nation that makes an unjust war is only a great gang. After employing your people in robbing the Dutch, is it strange that, being put out of that employ by peace, they still continue robbing, and rob one another? Piraterie, as the French call it, or privateering, is the úniversal bent of che English nation, at home and abroad, wherever settled. No less than seven hundred privateers were, it is said, commissioned in the last war! These were fitted out by mer. chants to prey upon other merchants, who had never done them any injury. Is there probably any one of those privateering merchants of London, who were so ready to rob the merchants of Amsterdam, that would not as readily plunder another London merchant of the next street, if he could do it with the same impunity ? The avidity, the alieni appetens, is the same; ic is the fear alone. of the gallows that makes the difference. How then can a nation, which, among the honestest of its people, has so many thieves by inclination, and whose government encouraged and commissioned no less than seven hundred gangs of robbers ; how can such a nation have the face to condemn the crime in individuals, and hang up twenty of them in a morning? It naturally puts one in mind of a
Newgate anecdote. One of the prisoners com-
Works. Essays, p. 164. The useless profusion of punishments, which has never made men better, induces me to enquire whether the punishment of death be really just or useful in a well governed state. What right have men to cut the throats of their fellow creatures.
-It is a war of a whole nation against a citizen, whose destruction they consider as useful to the general good.
If the experience of all ages be not sufficient to show that the punishment of death has never prevented determined men from injuring society, let us consult human nature in proof of the assertion.
The terrors of death make so light an impression that it has not force enough to withstand the forgetfulness natural to mankind, even in the most essential things; especially when assisted by the passions. Violent impressions surprise us, but their effect is momentary. The execution of a criminal is, to the multitude, a spectacle which in some excites compassion mixed with indignation. -There are many who can look upon death with intrepidity and firmness; some through fanaticism, others through vanity; others from a desperate re