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perhaps told by his ghostly teachers is the case with those of divine ordinance that all crimes are of equal enormity in the sight of God and the law, and that the extreme punishment, which is alike due in both cases, is redeemable, not according to the rate of the offence or of the repentance, but by indiscriminate and unmerited grace in the one, by blind chance, or equally blind caprice, in the othrer? And is this precisely the impression intended to be produced by the force of an example, so important and efficacious, that the arguments for it, in the opinion of its advocates, outweigh all the suggestions of humanity, justice, and religion, united against them?
If there is any truth in the foregoing observations, and if they do not go the length of proving that the example of capital punishments is useless in all cases, it must at least fol. low from them, that, in order to its usefulness in any, it is above all things necessary that it should be confined to a very few. The punishment of death is the utmost measure of law for the prevention of offences—and it becomes a most fearful consideration to the welfare and security of a state, when that highest sanction of justice is weakened by the frequency of its occurrence, and rendered contemptible by the force of habit. If there be a moral sense inherent in human nature, all human laws should be regulated in conformity to, and in aid of, that natural measure of right and wrong-woe to the government, whose laws on the contrary tend to level its distinctions and obliterate its precepts! if the impression designed by the example of an execution be, that a man should reflect, on the brink of committing a capital offence, “ If I do this, I shall surely die,”-what is the tendency of such a reflection, when it is to occur equally as a prevention to the stealing of a horse and to tbe commission of a murder ? Is it not to habituate men to the idea that murder is not more heinous, in the sight of God or man, than horse-stealing? I do not affirm that this is the actual effect produced the force of natural reason is strong enough in almost any conceivable case of depravity and ignorance to obviate so horrible a conclusion. But what, in the names of justice, policy, and goodness, can be said in favour of a system of laws, whose direct and undeniable tendency is to lead to such an effect? Human nature recoils at the thought of spilling human blood-get a law positively commanding murder would be scarcely less vicious in principle and tendency, than one which declares, that murder is not a more heinous offence than horse-stealing.
But, although the law is equally positive in its chac. ments in these, so different, cases of guilt, it is understood that, in the execution of the law, a wide and essential dis. tinction is frequently made. The murderer shall surely die. -The horse-stealer (except his offence be aggravated by repetition, or by some other circumstances of enormity) may probably be reprieved. In answer to this, it would be sufi. cient to say, that men are, nevertheless, very often executed for borse-stealing, and that the guilt of stealing a horse can never in any case bear the smallest proportion to the guilt of wilful and deliberate homicide. But let us take a case in which capital punishment follows conviction with as much certainty as in ibe case of murder. Let us, for instance, consider the crime of forgery. This, it is alleged, is an offence so fatal in its occurrence to the credit and existence of a commercial empire, so injurious in its consequences, so difficult of detection, that it is necessary to visit it with the severest measure of punishment by way of example. Of example ? Oh, wise and intelligent lawgiver! who, to increase the general security against the commission of a lesser offence, can find no other mode but by weakening the sanction of law against the perpetration of others ten thousand times more flagitious and horrible! Woe again to that government, which confesses its inability to restrain crimes, but at the ex, pense of a barrier raised by nature herself against the commis. sion of them, which subjects the dictates of conscience to the arbitrary measure of law, which encourages murder to prevent forgery!
“ But it may safely be adopted as a general principle, that the punishinent of offences should increase with the difficulty of detection."
To this general principle, (which may perhaps form the subject of some future remarks,) I shall only for the present oppose another general principle, of at least equal authority.
" If a man bave two offences in contemplation, the law ought to give him a motive to abstain from the greatest.”+
This is, in truth, the foundation of our whole argument; and if in any case, these two principles shall be found irreconcileable with each other, I have no doubt that in such case, the former principle is itself inconsistent with the dictates of true morality, justice and policy.
See the Debates in the House of Commons op Bir Samuel Romilly's Bills, 1810,
On the Criminal Laws.
TO THE EDITOR OF THE PHILANTHROPIST.
Sir, I Perceive, with great delight, that it is your intention to appropriate some part of your work to the consideration of the punishment of death : a punishment which, although it is not aggravated in England by bodily torture, bas, with more or less severity, and with more or less frequency, been, in all ages, inflicted by human tribunals sitting in judgment upon their fellow-creatures.
With your permission, I, at some future time, will send you such reasons as present themselves to my mind for indulging the hope that no obstacles can prevent the advancement of benevolence, and that, regardless of all resistance, the mild spirit of christian legislation will continue to move slowly and steadily over the whole earth until it has subdued all enemies under its feet. 66 So have I seen the sun, with a ray of distant light, challenge all the powers of darkness, and, without violence and noise, climbing up the hill, bath made night so to retire, that its memory was lost in the joys and sprightliness of the morning.” These shall be the subject of future inquiries. May I now request your attention to the measures which, during the last two or three years, have been submitted to the consideration of the British Parliament for mitigating the severity of our criminal laws and better securing the certainty of punishment for actual guilt ? Inquiries of this nature are always productive of good, they either lead to improvements of the law, or they afford addi. tional reasons for being satisfied with the laws which are already established.
But let us for a moment“ stand upon the old ways, and see what is good therein ;” let us lift up our hands with gratitude for the blessings which, in our own time, are so bountifully bestowed upon us. Before us “ we have the noblest prospects of the progress of knowledge-from the height of men's wits
from the excellent monuments of antient writers, which, as so many great lights, shine before us;- from the art of printing, from the traversed bosom of the ocean, and of the world ;
from the leisure wherewith the civilized world abounds, and from the inseparable quality that attends time itsell, which is ever more and more to disclose truth.” Before us is the garden of Eden.- If we look back we shall see more causes for our gratitude in contemplating the progress of christianity. In this very land of liberty, what enormities have not been committed under the sacred naines of justice and religion !
The accomplished and sentimental Sir Thomas Moore, caused Lutherans to be whipt, tortured, and burnt alive in his presence.-Cranmer led Arians and Anabaptists to the stake.--Wriothesly, the Chancellor of England, directed a young and beautiful woman to be stretched on the rack, for having differed with him on the real presence; with his own arm he tore her body almost asunder, and caused her afterwards to be committed to the flames.- Ministers of the christian religion, were seen hovering over the embers in which a new-born infant and its mother had been burnt in the same flamos.-Human sacrifices were at this time more frequent than in Mexico. Under the auspices of Bishop Gardiner, two hundred and seventy-seven Protestants were dragged to the stake; and in all these instances, the future damnation of the heretic was believed to be the inevitable consequence of his death.
Such were the horrors of religious infatuation. The dark. ness which then overspread us did not stop here.
A century has scarcely passed away, since three persons were condemned at Huntingdon for witchcraft; an aged man and woman, and a young maid their daughter. They were accused of bewitching the Lady Cromwell, five of Mr. 'Throgmorton's children, scven servants, and the gaoler's man. Their goods to the value of 401. were eschcated to Sir Thomas Cromwell, lord of the manor, who gave the said 401. to the mayor and corporation of Huntingdon for a lecture upon the subject of witchcraft; which is now annually preached. The father and daughter maintained their innocence to the last; but the aged mother, insulted and tormented, separated from her family, and harrassed night and day by her cruel per. sccutors, at last lost her reason ; and, moved by the tears and intreaties of the children whom she was supposed to bewitch, she consented to repeat certain words which were put into
her mouth, and besought the evil spirits to depart from tliem. The old man made no confession, but declared his innocence; whereupon the judge (Mr. Justice Fenner) told him, “that <if he would not speak the words of the charm, the court “ would hold him guilty of the crime of which he was “ accused ;” and so at length, with much ado, the said Samuel, with a loud voice said, in the hearing of all present, as I am a witch, and did consent to the death of the “ Lady Cromwell, so I charge thee Devil, to suffer Mrs. « Jane to come out of lier fits at this present.”-Upon this she came out of her fit; when the judge said, you all see she is now well, but not by the music of David's harp. Upon the confession of this crazed woman, whose reason ład been so unfairly disturbed, an English jury were incited to put to death three innocent persons, though she pleaded, being cighty years of age, tbat she was with child, at which some in court laughed, and the poor creature laughed too. It was suggested to the daughter, by those who could not chuse but pity her hard case, that a similar plea might save her life; but she held fast to her integrity, where many would have failed, and in her simplicity, and in the homely phrase of that day answered, “ nay, they have said that I am witch, it shall never be said that I am a whore.”
And to murders like this did the great and good Sir Matthew Hale lend himself, under the quaint advice of Sir Thomas Brown, one of the first physicians and philosophers of his time, who was devoting his life to the confutation of what he deemed vulgar errors.-And these things were not done in a corner, not in remote provinces, where knowledge was circulating slowly, but at the heart where it beat strongest, within a little space of a learned university, and a day's journey of a great metropolis, and in the midst of a people who said they were of Christ.
Not unmindful of these sad scenes, we shall enter with becoming feelings upon the present inquiry.
As a foundation for the bills submitted to the House of Commons, Sir Samuel Romilly moved for a return of all the prisoners confined on criminal charges in all the gaols of the united kingdom during the years 1905, 1806, 1807, and 1808 ; the nature of their respective crimes, the numbers convicted, and those upon whom the sentence of death or transportation had been actually executed.
On February 9th, 1810—SIR SAMUEL ROMILLY rose in his place, and said, that, agreeably to the notices which had been given during the last and present sessions, he rose for the purpose of proposing some alterations in the criminal law of this country : and, whatever might be the fate of the motion which it was his intention to submit to the consideration of the house; whether his sentiments were ultimately sanctioned by the approbation of the legislature, or were deemed in: