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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 “taining a wise reason for all the penal statutes "which they are called upon to put in execution. "It at once illustrates," says he," the true "grounds and reasons of all capital punishments "whatsoever, namely, that every man's property,
as well as his life, may 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 lit tle 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 2015 other
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, that i 28 1 : 1
L'atrocite des loix en empeche l'èxecution.
Lorsque le peine est sans mesure, on est souvent obligé de lui preferer l'impunité.
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 co> 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 cyanthan
The excessive severity of laws hinders their execution.When the punishment is extremely disproportionate, im punity is often obliged to be preferred to it All corrup tions proceed from impunity, not from the mildness of punishments.
that of a war of rapine and pillage; tlie hopes of immense and easy prey being its apparent, and 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 universal bent of the 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 merchants 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; it 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
Newgate anecdote. One of the prisoners complained that in the night somebody had taken his buckles out of his shoes."What the devil!" says another," have we then thieves among us? "It must not be suffered. Let us search out the ❝rogue and pump him to death.”
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 resolution
solution to get rid of their misery, or cease to
Let us for a moment attend to the reasoning of a robber or assassin, who is deterred from violating the laws by the gibbet or the wheel: He reasons thus: "What are these laws that I am "bound to respect, which make so great a diffe-. "rence between me and the rich man? He re"fuses me the farthing I ask of him, and excuses
himself, by bidding me have recourse to labour "with which he is unacquainted. Who made "these laws? The rich and the great, who never deigned to visit the miserable hut of the poor; "who have never seen him dividing a piece of mouldy bread amidst the cries of his famished "children and the tears of his wife. Let us "break those ties fatal to the greatest part of mankind, and useful only to a few indolent tyrants. Let us attack injustice at its source. "I will return to my natural state of indepen "dence. I shall live free and happy on the fruits "of my courage and industry. A day of pain "and repentance may come, but it will be short; "and for an hour of grief I shall enjoy years of pleasure and liberty. King of a small number,as determined as myself, I will correct the mis"takes of fortune; and I shall see those tyrants. grow pale and tremble at the sight of him, "whom with insulting pride they would not suffer to rank with their dogs and horses."ta Religion then presents itself to the mind, and promising him almost a certainty of eternal hap