312 



CRIMES. 



Crimes that it is absurd and impolitic to apply the same punish- 

 •— -Y~*~' ment to crimes of different malignity. A multitude of 

 sanguinary laws (besides the doubt that may be enter- 

 tained concerning the right of making them) do like- 

 wise prove a manifest defect, either in the wisdom of the 

 legislative, or the strength of the executive power. It 

 is a kind of quackery in government, and argues a 

 want of solid 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 esteem- 

 ed both a weak and a cruel surgeon, who cuts off every 

 limb which through ignorance or indolence he will not 

 attempt to cure. 



The disproportionate nature of the punishment at- 

 tached by our penal laws to the commission of certain 

 offences, appears to be indirectly admitted by the mode 

 in which some of the criminal statutes are enforced. 

 From the Tables kept by Sir Stephen Janssen, and 

 published by Mr Howard, it appears that, in the seven 

 years ending with 1756, there were convicted capitally 

 in London and Middlesex, 428 persons, of whom about 

 three-fourths, or 306, were executed; that, from 1756 

 to 1764, 236 were convicted, and 1'59, or above one 

 half, executed; from 1764 to 1772, 457 convicted, and 

 233, or little more than an half, executed. During the 

 interval between 1772 and 1802, the accounts have not 

 been published ; but from 1802 to 1808, the returns, 

 printed by the secretary of state's office, afford very ac- 

 curate information. In 1802, there were 97 convicted, 

 and 1 executed, being nearly one-tenth ; and the ave- 

 rage yearly number of convictions for the whole seven 

 succeeding years being about 75, the average number 

 of executions was about 9^, or somewhat more than 

 one-eight. From this statement it will be observed, 

 that, at the commencement of the present reign, there 

 were more executions than pardons of persons capitally 

 convicted ; whereas, of late, there have been about se- 

 ven times as many pardoned as executed. From Jans- 

 sen's Tables it likewise appears, that, in the period be- 

 tween 1749 and 177 i, there were convicted for shop- 

 lifting and similar offences, 240 persons, of whom 109 

 were executed. The convictions for the seven years 

 ending with 1 809, do not appear in the returns pub- 

 lished by the secretary of state ; but these returns show, 

 that, during that period, 1 872 persons were committed 

 to Newgate, for privately stealing in shops and dwel- 

 ling-houses, and that of these only one was executed. 



There are some who attempt to justify this discre- 

 pancy between the letter and the execution of our cri- 

 minal laws, on the ground, that, while the severe de- 

 nunciations of the law itself operate as a terror to evil 

 doers, it is expedient that the execution of it, in each in- 

 stance, should be left to the discretion of the judge. 

 The obvious answer to this proposition, however, rea- 

 dily occurs ; namely, that such a system is directly con- 

 trary to every just principle of criminal legislation ; 

 that it tends to confound all proper distinction in crimes, 

 and vests in the judges, without any adequate respon- 

 sibility, a most awful discretionary power, in regard to 

 the punishment of offences, which the legislature only 

 ought to have the right of exercising. Terror itself, 

 without regard to the dictates of justice and expediency, 

 is ever a wretched principle of government or legisla- 

 tion ; and in the enactment of laws, as little as possible 

 should be left to uncertainty, or chance. Such a system, 

 too, as that we have been contemplating, generally de- 

 feats its own ends ; and it were easy to enumerate a 

 multitude of evil consequences, which may, and actually 



do, result from such a method of dispensing criminal 

 justice. The excessive severity of laws, says Montes- v 

 quieu, hinders their execution : when the punishment 

 surpasses all measure, the public will frequently, out of 

 humanity, prefer impunity to it. 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 re- 

 spite one half of the convicts, and recommend them to 

 the royal mercy. In short, the very object of all laws, 

 viz. that of having a clear, fixed, and known rule of 

 conduct, is placed entirely out of view ; the connection 

 between the crime and the punishment, in each in- 

 stance, is utterly lost ; and no man is distinctly aware 

 of the consequences that may attend his actions. 



Beccaria justly observes, that crimes are more effec- 

 tually prevented by the certainty, than by the severity 

 of punishments. If it were possible, says Sir Samuel 

 Romilly, that punishment, as the consequence of guilt, 

 could be reduced to an absolute certainty, a very sbght 

 penalty would be sufficient to prevent almost every 

 species of crime, except those which arise from sudden 

 gusts of ungovernable passion. If the restoration of 

 the property stolen, and only a few weeks, or even a 

 few days imprisonment, were the unavoidable conse- 

 quences of theft, no theft would ever be committed. 

 No man would steal what he was sure that he could 

 not keep ; no man would, by a voluntary act, deprive 

 himself of his liberty, though but for a few days. It is 

 the desire of a supposed good which is the incentive to 

 every crime. No crime, therefore, could exist, if it 

 were infallibly certain, that not good, but evil must fol- 

 low, as an unavoidable consequence to the person who 

 committed it. This absolute certainty, however, is un- 

 attainable, where facts are to be ascertained by human 

 testimony, and questions are to be decided by human 

 judgments. All that can be done is, by a vigilant po- 

 lice, by rational rules of evidence, by clear laws, and 

 by punishments proportioned to the guilt of the of- 

 fender, to approach as nearly to that certainty as hu- 

 man imperfection will admit. By the system of enact- 

 ing severe laws for the punishment of inferior offences, 

 and leaving them to be executed, in each instance, at 

 the discretion of the judge, these sound principles are 

 completely violated : there is no certainty in the law; 

 and the consequences that may ensue to the perpetra- 

 tor of each criminal act resolve into a mere calculation 

 of chances. 



Let it be supposed, — and the case we are going t© 

 state is by no means a mere speculative hypothesis, — 

 that two individuals are tried for the same offence be- 

 fore two different judges, who entertain different opi- 

 nions, either in regard to the administration of the 

 law, or the enormity of the crime ; the one individual 

 is acquitted, or pardoned after conviction ; the other is 

 Condemned and executed. What must be the feelings 

 of the public upon such an occasion ! and what must 

 their ideas be with respect to the nature and admini- 

 stration of the criminal law \ Again ; a person, under 

 the present system, may be put upon his trial for a 

 crime, and convicted upon a charge quite different from 

 that preferred in the indictment, and enquired into by 

 the court. The culprit is accused of having stolen to 

 the amount of five shillings in a shop ; and it is possible 

 that nothing beyond this charge may come before the 

 court which is to try it. But it is also very possible 

 that other matter may arise out of the judicial investi- 

 gation ; and that this incidental matter may be so int- 



erim cs. 



