been yet more rarely satisfied with that sentence which doomed his fellow-creatures "to die"-" to go they knew not whither" -to be sent to their last solemn account" with all their imperfections on their head," when from the scantiness of their education, the untowardness of their habits, the inquietude of their spirits, and the shortened span of their existence, little or no "reckoning could be made." Oh! horrible! most horrible! Doubtless there are subjects upon which the maxim sua cuique in arte credendum est," may be admitted to a great extent. But the general principles of jurisprudence, and the prac tical effects of those laws which inflict death, are within the reach of every man who has formed habits of reflection, and who has been blessed with the advantages of a liberal education. But if professional men should exclaim, as they are wont to do, contemptuously, "tractent fabilia fabri," I should remind them, that I am speaking of those by whom laws are made, rather than those by whom they are administered, and that for my opinion upon this topic I can find protection in the wise and humane observations of a well-known and justly-celebrated writer: "The crimes of such a man as Barnardine, careless, reckless, and fearless of what is past, present, or to come, may perhaps have made him unfit to live; but he is certainly unfit to die. The safety of the community, and the preservation of individuals, may call for his execution; but the bosom of humanity will heave in agony at the idea, the eye of religion will turn with horror from the spectacle. "Suppose the sufferer, on the contrary, to have been a valuable member of society, and to have erred only from some momentary impulse of our imperfect nature, one who in the recollection of reason hath found repentance; who resigns with cheerfulness that life which is become a forfeiture to the law, and looks up in confidence to heaven for that forgiveness which is not to be found on earth. The last footsteps of such a man are watered with the tears of his fellow-citizens, and we hear from the mouth of every spectator, "Yes, I do think that you might pardon him, Eden's Principles of Penal Law, cap. iii. "* At such a moment the most flinty-hearted man would be ashamed to insist upon the topics which were recommended to a mere pleader: "Locus inducetur ille per quem hortandi judices erunt, ut veterem famam hominis nihil ad rem putent pertinere, nam eum ante celasse, nunc manifesto teneri; quare non oportere hanc rem ex superiori vita spectari, sed superiorem vitam ex hac re improbari, et aut potestatem ante peccandi non fuisse, aut causam."* For my general dissatisfaction with the penal law of England I have the authority of a yet greater writer, who occasionally found room to remark some particulars which seemed to want revision and amendment, and which had chiefly arisen from those causes to which in part I have myself applied them. It is impossible to read his masterly chapter on the national crimes and their punishments, without perceiving that he looked with no favourable eye on the frequency of our capital punishments, "upon too scrupulous an adherence to some rules of the ancient common laws, where the reasons have ceased on which those rules were founded; upon not repealing such of the old penal laws as are obsolete or absurd; and upon too little care and attention in framing new ones." "It is a kind of quackery," he says, “in government, and argues a want of skill to apply the same universal remedy, the ultimum supplicium to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind; yet that magistrate must be esteemed both a weak and a cruel surgeon who cuts off every limb which through indolence or ignorance he will not attempt to cure."† The language of Blackstone is, indeed, as it ought to be, wary and temperate. But his real opinions and his real wishes are sufficiently intelligible; and they who for their own instruction have read the conclusion of this chapter, may be content to read it again, when produced, as it now is, for my own vindication. "Robbers," says he, "in England have a hope of transportation, which seldom extends to murderers. This has the same effect here as in China, in preventing frequent assassination and slaughter." * Cicero de Inventione, lib. ii. vol. i. p. 77. ed. Gruter. + Blackstone, vol. iv. cap. i. "Yet though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein, inflicted (perhaps inattentively) by a multitude of successive indefensible statutes upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by Act of Parliament to be felonies without benefit of clergy, or in other words to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured through compassion will often forbear to prosecute; juries through compassion will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence; and judges through compassion will respite one half of the convicts and recommend them to royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer; he boldly engages in some desperate attempt to relieve his wants or supply his vices; and if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate in falling at last a sacrifice to those laws which long impunity had taught him to contemn."* The acute and indignant author of a Fragment on Government will, I think, be ready to allow that in the foregoing passage Blackstone has sustained the part not merely of “an expositor who is to show what the legislator, and his under workman the judge, had done already," but of "a censor, to whom it belongs to suggest what the legislator ought to do in future."† So strong, however, is the reasoning, and so just are the views of the writer here mentioned, that I think myself bound to introduce what he has written upon the propriety and usefulness of revising our laws. I shall take the substance of his observations, but omit some sharp strictures which are interwoven with them. "Those who duly consider upon what slight and trivial ‡ cir *Blackstone, book iv. chap. 1. † Preface, p. 10. This remark may sometimes be applied to the interpretation of penal laws. See the case of a prisoner tried by Hale at cumstances, even in the happiest times, the adoption or rejec tion of a law so often turn; circumstances with which the utility of it has no imaginable connection-those who consider the desolate and abject state of the human intellect, during the pe riods in which so great a part of the still subsisting mass of institutions had their birth-those who consider the backwardness there is in most men, unless when spurred by personal interests or resentments, to run a tilt against the colossus of authoritythose, I say, who give these considerations their full weight, will not be zealous to terrify men from setting up what is now 'private judgment,' against what once was 'public;' nor to thunder down the harsh epithet of 'arrogance' on those who, with whatever success, are occupied in bringing rude establishments to the test of polished reason. They will rather do what they can to cherish a disposition at once so useful and rare,* which is so little connected with the causes that make popular discontentment dangerous, and which finds so little 'aliment in those propensities which govern the multitude of men. They will acknowledge, that if there be some institutions which it is 'arrogance' to attack, there may be others which it is effrontery to defend. Tourreil has defended torture; torture, established by the public judgment' of so many enlightened nations. Beccaria has condemned it. Of those two whose lot among men would one choose the apologist's or the censor's ?" They who look to things rather than men, to reason than to names, may derive, as I have done, the most valuable information, and feel, as I have done, the strongest conviction, from the works of the writer whose opinions I have just now pro Cambridge for burglary, when all doubts upon the nature of his crime were removed by the trivial accident of some bricks having fallen down the chimney through which he descended into the house. "Such deviations," says Mr. Eden, "of sound sense into sophistry, are too often the effect of legal reasoning.”—Page 326. * "When Beccaria came, he was received by the intelligent as an angel from heaven would be by the faithful. He may be styled the father of censorial jurisprudence. Montesquieu's was a work of the mixed kind. Before Montesquieu all was unmixed barbarism. Grotius and Puffendorf were to censorial jurisprudence what the schoolmen were to natural philosophy."-Preface, p. xix. to Fragment on Government. duced. He holds a distinguished place in that small number of sages who will "echo to the sentiments of Beccaria from the bottom of their hearts, and co-operate with him in giving effect to the voice, which if it be the voice of one philosopher only might be too weak to be heard amidst the clamours of a multitude blindly influenced by custom."* But the progress of civilization, science, and sound religion, has prepared even the multitude for such punishments as are less offensive than those which are now inflicted, to the sense of humanity and of justice. Enlightened men, as we have seen, plead for some reform, and the necessity of that reform was discerned long ago by a celebrated writer, under the shelter of whose name I will conclude these remarks. Lord Coke, in his Epilogue to his third Institute, which treats of the Crown Law, after observing that frequent punishment does not prevent crimes, says, "What a lamentable case it is that so many Christian men and women should be strangled on that cursed tree of the gallows; insomuch as if in a large field a man might see together all the Christians that but in one year come to that untimely and ignominious death, if there were any spark of grace or charity in him, it would make his heart to bleed for pity and compassion." His Lordship then proceeds to shew, that the method of preventing crimes is, "first, by training up youth in the principles of religion and habits of industry. Secondly, in the execution of good laws. Thirdly, in the granting pardons very rarely, and upon good reasons." He then concludes, "that the consideration of this prevention were worthy of the wisdom of Parliament, and in the mean time expert and wise men to make preparation for the same, ut benedicat eis dominus. Blessed shall he be that layeth the first stone of the building; inore blessed that proceeds in it; most of all that finisheth it to the glory of God, and the honour of our king and nation."† Long after I had written thus far, Sir Samuel Romilly, whose name I never mention without veneration, moved in the House of Commons for the repeal of the law against private stealing * See Beccaria, chap. xxviii. † See Introduction to first edition of Dagge's Considerations of Criminal Law, p. 74, vol. iii. |