Hale must have known, that in cases of very aggravated thievery, the injured party puts a much higher value upon his own existence than upon his own property. He must have known, that the claims of individuals to redress for a particular wrong, and of society to protection from a repetition of it, rest upon general principles of justice, in which every member of the community, yet innocent, has a contingent, as every guilty one has an immediate interest, and which forbid us to inflict the heavier punishment, where the lighter would upon the whole be equally efficacious for the commonweal-he must have known, that our just and habitual indignation against a general class of actions is easily set in motion, and suddenly runs into excess * I have observed that in trials for capital offences the counsel for the accusation is permitted to make an opening speech, and that he often introduces general and declamatory matter, which powerfully affects the minds of the Jury, and to which no reply can, according to the practice of the Court, be inade by the counsel for the prisoner. Upon these occasions I have often recollected what Cicero says in defence of his client Cælius; and though the accusers of Cælius adverted only to subjects of licentiousness, the principle upon which Cicero argues may be applied to all general observations upon the nature of crimes, when they have a tendency to mislead and inflame the Court against an individual. "Ut tibi reum neminem, sed vitia proponas, res tamen ipsa et copiose et graviter accusari potest: sed vestræ sapientiæ est, judices non abduci ab reo; nec quos aculeos habeat severitas, gravitasque vestra, cum eos accusator erexerit in rem, in vitia, in mores, in tempora, emittere in hominem et in reum." (Orat. pro M. Cælio, Paragr. 29.) From this mischievous display of talent there is a most powerful dissuasive in Hales's remarks concerning the gifts of elocution." Much as I have been delighted and interested by the representations which Plato and Xenophon have given of their illustrious contemporary Socrates, I confess myself to have been equally delighted and more interested by Hale's "Account of the good steward," in which the above-mentioned remarks may be found. "It is the very picture," as says the editor, "wherein representing the good steward passing his account, it was impossible for him not to give a lively representation of himself;" and rarely do we meet with an instance in which any man speaks so unreservedly and so largely of his own opinions and actions with so much propriety. "His words are significant, perspicuous, manly, vox non ex ore, sed pectore emissa." Upon every account of matter, style, and against the persons who are accused of committing them; that it warps the operation of our judgment in balancing the probabilities of circumstantial evidence, and calculating the niceties of circumstantial extenuations; that it pushes a part even of our benevolent affections into a sort of violence quite inconsistent with the proper duties of benevolence itself; and that to our affrighted imaginations and our misguided conscienceit palliates and even recommends cruel retaliation,* by associating the effects of it with our regard to public utility, and the motives to it with our sincere and virtuous hatred of cruelty itself-he must have known, that man is often the creature of involuntary circumstances, which more or less usurp an undue control over his voluntary actions, and which, therefore, bring his weakness as well as his wickedness under the consideration, not of pity only, but of sound and impartial wisdom-he must have known that, under the influence of that moral sense to which all legislators spirit, it is a work which deserves to be read every year by every Light of the church, and every sage of the law" in Christendom. Such was the just, but excessive, indignation of the Romans qui dedi Decemviros æquum censebant, vivosque igni eos crematuros minitabantur:" but the legati well observed to them, "iræ vestræ magis ignoscendum quam indulgendum est, quippe qui crudelitatis odio in crudelitatem ruitis."-Liv. lib. iii. sect. 53. Such, too, was the language of Heraclea to the Syracusans, when actuated by a just but undistinguishing rage against the execrable oppression of Hieronymus, they had obtained a decree for the extirpation of his whole family: "omissis pro se precibus, puellis ut saltem parcerent, orare institit, à quâ ætate etiam hostes iratos abstinere, ne tyrannos ulsciscendo, quæ odissent scelera, ipsi imitarentur."-Livy, lib. xxiv. sect. 26. Possible it is, that in seasons of sudden and tumultuous alarm, from the prevalence of crimes affecting the interests of private life, well-meaning legislators may now and then have been impelled to the same severities, which in the instances above-mentioned are recorded of blind and infuriate multitudes. The aversion of George II. to capital executions is well known, and to the honour of the reigning Sovereign be it spoken, his prerogative has for many years past been frequently exercised in favour of condemned criminals, and without any known danger to the authority of the laws or the security of the public. and all judges appeal, upon the presumption that however enfeebled, it is not wholly extinguished, even culprits form some vague notions of proportion* between offence and punishment; that the errors of such men are more to be dreaded, because they are more immediately connected with practice; that from the suggestions of self-delusion they will be more exposed to error by the continuance of severities, which wiser men than themselves discern and lament; that their own remaining respect for justice will be weakened more and more by visible injustice in those laws which they have themselves violated, and which even others who obey them are unable to approve; that to their minds, labour, confinement, infamy, banishment, may appear more formidable, as well as more reasonable penalties, than the infliction of death; that even death itself, when contemplated at a distance, and when alone it can operate as a restraint, may be considered as a release † from hunger and thirst, from cold and misery, from cheerless prisons and galling fetters, * We have proportion in view, when in common language we say that a man suffered the punishment due to his crime. The Aristotelian school used peculiar terms for justice in the distribution of rewards and punishments: “ Καλεῖται δικαιοπράγημα μὲν πᾶσα πρᾶξις δίκαια, κἄν τε ἀδικίας ἔκτισις ᾖ, κἄν τε ἀρετῆς ἀνταπόδοσις δικαίωμα δὲ ἰδίως, ἡ τῆς ἀδικίας τιμωρία.”—Andronic. Rhod. Eth. Nicomach. Paraphr. lib. iv. cap. 11. In conformity to this distinction, we read, “Ο μὲν ἀδικῶν κολαζόμενος ἀκου σίως δικαιοῦται· ὁ ἀδικούμενος ἐκδικούμενος, ἑκουσίως δικαιοῦται.” -ld. cap. 13. † In an extract from the Danish ritual, given us by Dr. Nicholls, in the second volume of his Commentary on the Common Prayer, it is directed that "when a malefactor is to be led to the place of execution, he be exhorted heartily to rejoice that every step he makes brings him nearer to his liberty, where he shall see no sorrow, no fetters, no prisons any more." But these very circumstances, which console the dying malefactor, may, under another aspect, embolden the offender, when before the commission of a crime he looks upon the punishment of it as a deliverance from "sorrow, fetters, and prisons." We naturally wish for some alleviation of impending evil, and the mischief is, that we find encouragement to wickedness in that which ought to be only a solace to grief. Legislators ought to take into their calculations this well-known and most pernicious propensity of the human mind. from the frowns of the prosperous and the menaces of the powerful; that from the prospect of death, while it continues to be painful, they may endeavour to find some relief by accustoming themselves to sullen indifference or gay defiance; and that even their fears, if they degenerate into cowardice, may not lead to reformation, but induce them to substitute a mischievous cunning for that boldness which is not always incapable of a temporary alliance with virtue. Hale must have known that the appearance of heroism is captivating to common minds, and that it is supposed to consist, not in the patient endurance of longcontinued evils, be they chains, or solitude, or dungeons, but in that firmness of soul which bears up against one vast and mighty danger, from which nature usually shrinks. He must have known, that by the perversion of that constitutional courage which animates better men to better things, a criminal might be led to shake off the apprehension of death as a weakness disgraceful to his nature, and by calling in the aid of pride and rage, to fortify himself in a secret or open contempt of the last severity which human authority or human vengeance can employ. He must have known that when fear ceases obduracy begins, and gradually prepares men for perpetrating the greatest crimes with the least compunction. Hale must have known farther, that " authority, though it may err like others, hath a kind of medicine in itself, that skins the vice o' the top." He must have known, that in all ages and in all countries "man, proud man, drest in a little brief authority," is sometimes "most ignorant of what he is most assured;" and that, measuring his duty by his power, he will now and then "play such fantastic tricks before high heaven, as make the angels weep." He must have believed, "No ceremony, that to great ones 'longs, Not to the King's crown, nor the deputed sword, "'* Finally, he must have observed, and he must have felt, that from the unseen, unsuspected, unalterable influence of moral * Measure for Measure. causes upon a being so short-sighted and so imperfect as man, a very slight difference in external situation may ultimately, though imperceptibly, lead to most important differences in conduct, and that if he had been himself placed and tempted, as many culprits were, he might himself" like them," have sometimes" slipped." Under these awful impressions, the wise, humane, and pious Hale must often have had occasion to exclaim, as Boerhaave was said to do, when a criminal was condemned to die,* “ May not this man be better than I? If otherwise, the praise is due not to me, but the grace of God."+ Such, dear Sir, are the fixed and serious sentiments of one, who for many years has been a very attentive observer of judicial proceedings; of one, who is no stranger to the pleas usually alleged for the rigour of our laws, or to the effects really produced by it; of one, who has often thought it "the charitable duty of his Order," to prepare malefactors for eternity by lessons of resignation and repentance; of one who, while he soothed them by consolation when they were about to taste" the bitterness of death," rarely failed to explore the deepest recesses of their hearts; of one who, upon a view of all circumstances, has "A worthy prelate of the Church of England once said upon seeing a criminal led to execution, 'There goes my wicked self.' Considering the vices to which the frailty of human nature exposes whole families of every rank and class in life, it becomes us, whenever we see a fellow-creature led to public infamy and pain, to add further, 'There goes my unhappy father, my unhappy brother, or my unhappy son." I found the foregoing passage in p. 17 of an Inquiry into the Effects of Public Punishments upon Criminals and Society, published in Philadelphia 1787. I differ from the enlightened author of it in his objections to the publicity of capital punishments, though I believe that in some few cases privacy in the infliction of other punishments, and even uncertainty as to their duration, might increase their effect. But the experiment should be made with caution. Who the prelate was I cannot determine; but he understood human nature, and what is better, he has exemplified the celestial rule, γνῶθι σεαυτὸν. † See Life of Boerhaave, p. 56. Part of the words are quoted by Johnson in No. 114 of the Rambler, where the reader will find many just and serious reflections on the rigour of our penal laws. |