The measures of the two Russian sovereigns excite greater surprise, and call for stronger approbation, when we reflect that at no very distant period the Czar Peter, "though actuated with a noble genius and smit with the love and admiration of European arts, yet professed an esteem for the Turkish policy in one particular, that he approved of such summary decisions of causes as are practised in that barbarous monarchy, where the judges are not restrained by any methods, forms, or laws; and that he did not perceive how contrary such a practice would have been to all his other endeavours for refining his people."*

I well know the facility with which despotic power enabled the successors of Peter to reform the laws of their subjects. But it were strange to suppose that a free people are not equally capable of using, and equally desirous of obtaining a mild system of legislation, with men who are inured to slavery. It were indecent to assert that the councils of any foreign sovereign should have the power of doing that suddenly and gratuitously, which the enlightened Parliament of an enlightened nation can not do deliberately and effectually.

Montesquieu had observed before Blackstone, "how industriously the Russian government endeavoured to temper its arbitrary power by breaking their numerous guards, mitigating criminal punishments, erecting tribunals, entering into a knowledge of law, and instructing the people."†

A despotic government has thus stept before our own free government in the mitigation of capital punishments. The Duke of Tuscany is said to have introduced a similar regulation ‡ in his dominions, nor have I heard of any great public inconvenience arising from it. Future writers on jurisprudence, therefore, will not fail to remark that the experiment has been made both in an extensive and a small state. I am aware that the example of America may not be quite conclusive in reasoning upon the laws of England-but the general approbation with which the American States looked upon those laws, gives great weight to the opinion which they had formed of our penal code.

"Though both the penal and common laws of England are

* Hume, Essay 14.

+ Book v. chap. 14.

Murder and treason only were to be punished with death.

generally adopted in the United States, the punishments differ materially; but it will be admitted that they are sufficiently proportioned to the crimes. In very few cases indeed, in any state, is the punishment of death inflicted. Legislative bodies consider, that the laws of man should seldom extend to the extermination

of that life which was given by the Almighty. In Pennsylvania of late years capital punishments are remitted in all cases, I believe, except treason, or murder in the first degree, and in the latter case, death is seldom inflicted."

"Though law," says Mr. Hume,†"the source of all security and happiness, arises late in any government, and is the slow product of order and liberty, it is not preserved with the same difficulty with which it is produced, but when it has once taken root, is an hardy plant, which will scarce ever perish through the ill culture of men, or the rigour of the seasons." Happily for mankind the observation of Mr. Hume is very true, as applied to those laws which are the real sources of social happiness. "What is profitable," as the same writer says, "to every mortal, and in common life, when once discovered, can scarce ever perish, but by the total subversion of society, and by such furious inundations of barbarous invaders as obliterate all memory of former arts and civility." But the misfortune is, that from mistaken views of public security, tares will be sown with the wheat, and that having once taken root they too become hardy plants, which are slowly extirpated by the culture of reason. Of this we have a notable instance in the laws against witchcraft, of which the long continuance is a disgrace to our statute book, and the very late repeal illustrates my position, that in governments less free than our own, rational jurisprudence sometimes makes a quicker progress.

It was enacted by statute 9th of George II. that no prosecutions should be carried on for the future against any person for witchcraft or enchantment. But let us not forget that the statute of Henry VIII. against this crime, and another statute of James I. of which Blackstone, ‡ gravely tells us that he did not class it under the head of improvements made in that reign, had

* Vide Janson's Stranger in America, p. 182. Book iv. chap. 34.

† Essay 14.

long continued in force. True it is that executions for this crime, which Blackstone most unaccountably calls dubious, and which every Judge now upon the bench would call impossible, are at an end. But it so happens that in this instance of legislation, as well as in many other instances of arts and science, France has the praise of invention, and England only that of imitation. Many an honest Englishman, who disbelieves witchcraft and boasts of his own constitution, would feel some surprise when he was told, on the authority of a learned judge, that in protecting old women from the gallows for being witches, the legislature of France had taken the lead of our own, “which,” as Blackstone says, "at length followed the wise example of Louis XIV. in France, who thought proper by an edict to restrain the tribunal of justice from receiving informations of witchcraft.” *

No human being can reverence more than I do the excellence of the English constitution. But I am unwilling to accept that excellence as a compensation for the severity of our penal code, and I suspect the justness of that reasoning which employs our liberty as a pretext for continuing that severity. Dr. Paley, I remember, tells us, "that the liberties of a free people, and still more the jealousy with which they are watched, and by which they are maintained, permit not those precautions and restraints, that inspection, scrutiny, and controul, which are exercised with success in arbitrary governments, where, in proportion as they render the commission or concealment of crimes more difficult, they subtract from the necessity of severe punishment."† I shall never allow that the liberty of a people increases the necessity of severe punishment, till all other expedients, from hard labour, from infamy, from long imprisonment, or solitary confinement, have been tried in vain. I shall not allow the validity of that reasoning, till experience has shewn whether a stricter police be not compatible with the preservation of our political liberty. The argument of Dr. Paley applies chiefly, if not solely, to those crimes which are accompanied with violence. But a very considerable portion of the offences for which malefactors suffer among us, are perpetrated without violence; and for the prevention of those which are committed with violence, persons who look with

a jealous eye upon the invasion of our liberty, have often expressed their wishes for a more vigilant and active police. To me it seems, that in the administration of such police we should have little reason to be alarmed about the loss of our liberty, because the crimes against which that police is pointed have a more intimate and more visible connection with the happiness and security of men in private life, than with the peculiar interests of the government. If the experiment were made we might find that the diminution of capital punishments, together with the increased security of the public from a stronger police, would be accepted as an ample compensation for all concomitant inconveniences. Such a police would not require the summary proceedings of "military law." Our streets and public roads need not be "travelled and patrolled by soldiers;" but they might be guarded by other persons, who should be appointed, not by the Sovereign immediately, but by the Magistrates-who should be paid, not from the public treasury, but from County Funds→→ who should wear, not the dress of a soldier, but some other badge, which should mark their office. Thus appointed, thus recompensed, and thus accoutred, they would not appear to us the instruments of despotism. Suspected persons might, without injury to our freedom, be in some cases detained longer than they now are. Men might be apprehended, not on mere suggestions," but upon strong proofs of "idleness or vagrancy." Accounts of a man's time, employment, and means of subsistence might be demanded, not at the arbitrary "pleasure," but the sound discretion of the magistrate; and the responsibility of the magistrate himself would afford reasonable security against the abuse of his power We might recall and modify that ancient institu tion which Mr. Eden pronounces to be "full of reason and humanity, and which dividing the people into certain classes, compelled the several neighbourhoods or divisions of men to become mutual pledges for the good behaviour of the individuals who composed them; and consequently when any offence was committed within their district, either to produce the offender, or become liable to such penalty, as might be thought proportion. able to the peace of society."* Many other expedients, neither

* See Eden's Penal Law, chap. 8, and the quotation from Wilkin's Leges Edwardi.

arbitrary nor rigorous, might be employed with effect, and that effect would appear to be very good, not only as preventing the commission of crimes, but as subtracting from the necessity of punishing them severely, when they were committed and detected.

I hope that the constitution of England will always be alleged as a reason for increased lenity in the laws, and my opinion is supported by such authority as should protect me from the imputation of rashness. Montesquieu * observes, "that all laws should be relative to the principles of the government, to the nature of the climate, to the morals, manners, and religion of the people, and to the number of inhabitants." My concern is with the first only, and my sentiments upon them in relation to our criminal laws, shall be given in the words of Mr. Dagge. "It would be easy to prove," says he upon the authority of Montesquieu, "that in all, or almost all of the states of Europe the rigour of punishments has diminished or augmented in proportion as they approached towards or deviated from liberty."

Dagge illustrates this proposition by various instances drawn from history. He quotes a remark of the Chinese writers, that on the eve of a revolution there was always a great increase of rigorous punishment, and that a corruption of morals kept pace with their progressive severity. He contrasts the laws of Draco with those of Solon among the Athenians, and states as the result of his inquiry," that the rigour of the Athenian laws was mitigated in proportion as liberty gained strength and ascendancy." He then examines the Roman government, where the laws were mild and the morals comparatively pure in the days of freedom: but where offences multiplied with penalties, and severity, from its natural tendency to debase the mind, destroyed the dignity of virtue, when tyranny and usurpation lorded it over the liberties of a corrupt people.

After tracing the imperfection of our own law under the old feudal system, and the causes of that imperfection, he thus proceeds: "It is remarkable that the first who restrained the benefit of the clergy was Henry VII. a politic and ambitious prince, who supported a precarious title by rigorous institutions; and by late

* Book i. chap. 3.