The National Register. — London, England, 1819-02-08 00:00:00

„ c, /le kx"at,e-- 7ebr PUltionall No. 574.—V0L. XII. POLITICAL insQuisurloN. ON OUR CRINIANAL LAW. DR. PALEY lays down as his fundamental princi t?.it. punishment is inflicted by barium magistrates, rin for the sake of retribution, of so much pain fur so guilt, hut solely for the sake of preventing the rt i vtition .of crimes. ' The fear,' says Paley, lest • the escape of the criminal should encourage him, or ' others by his exarnp!e, to repeat the same crime, or • to commit different crimc., is the sole consideration ' Mhi.h authorises the intlietion of punishment by ' humaa how-. Now, that, -....hstever it may be, which ' is the cause and end of the punishment, ought un ' doulnedly to regulate the measure of its severity. Upon these principles this writer proceeds to account fir, an , t to justify, the disproportion of punishments, in many instances, to the moral turpitude of crimes ; for the t:c.,;ree of punishment . is not at all regulated by thm moral conAideration. The mischief of the crime, and the ease with which it may be committed and con cealed, are the only two considerations which must re gulate the punishment. For these reasons, the stealing of cloths front the teeters or bleazhing grounds, horse stealing, and sheci) stealing, subject the offenders to sen tence of death, in order that the increased terror of the punishment may counteract the of the crime. Bat in laying down these doctrines, Archdeacon Paley does not take into his view of the subject, ir. what way the moral feelings of mankind arc induencedby any very wide variations of this principle of human punishment Lam the principles of divine or retributive justice.— lie says, in another place, that the sole objects of punishment are the amendment of the criminal, or example to others. In ounsiderieg the wide infliction of ("nth by the law of England, we have nothing to do with the former of these objects. In investigating the latter, we should remember, that by whatever mo tives of expediency legislators may be influeneed, in assigning certain penalties to certain offences, the people, who witness the execution of these laws, behold them with feelings of approbation or disapprobation, according to the principles of moral justice, and not of political expeiliency ; and that, when one man is banged for au atrocious murder, and another by his side Cr stealing a sheep, the people will be shocked, and outraged by the saute punishment king exacted fur crimes so widely different in point of guilt. Whether the people may be wrong in this, we will not now to quire. We only Mate the fact, whielt no one will deny. But it follows from this fact, that that very example, which Dr. Paley has laid down as the object of san gainaxy punishment, must be in a great measure defeated, where the disproportion between the guilt and the penalty are very great. The criminal becomes an object of compusiJa, instead of execration, and, , instead of a culprit, he appears as a martyr. The moral feelings which so awfully enhance, in the minds of the spectators, the weight, and soasequently the example of capital punisluneat, when inflicted for an atrocious offence, are thrown into the opposite scale, tad produce the very opposite effect to that which is ;,,tended, Legislators must not merely study political cspeliency, the object of their laws ; but u! so the nalure or the human heart, by operating on which their liws are to attain that object. Now it is one feature of the mind of men in general, that their sense of the guilt of an offence is increased by th 3 knowledge of the punishment that is Axed to it, its long as that punish ment ;Ram obviously Out of proportieo. Thus, murder, enceinte(' as it is with an inrainints drixtb, api•ears more morally atrocious, than it otherwise would; but when a glaring disproportion exists bet'•veen the orenec and the penalty, this very feeling affee:s the people is the ++poosite direction. The sensibility of our common tature is shocked ) and-re-acts (to uses Fsench phrase,) r WM+ Our iling, ott6titution an aiDl. MONDAY, FEBRUARY 8, 1819. in exciting popular for the sufferer, and horror of the bloody law to which he falls a victim. Now admitting Dr Paley's principles, it appears, that his very object—example—is defeated by punishing a man for stealing a sheep, in the same fate as if he had murdered a fellow creature. The Doe tor's justification, therefore, in this respect, of the infliction of death by the law of England on so many minor offences. falls short of its object. Ile advances, however, another defence, namely, that death, though denounced against so many crimes, is inflicted on only a few criminals. This he says, is systematically the intention of the law of England. 'lt is founded on the consideration, that • the selection of proper objects for capital punishment principally depends upon circumstances ; which how ' ever easy to perceive, in each particular case, after ' the crime is committed, it is impos►ible to enumerate ' or define before hand, or to ascertain, however, will • that exactness, which is requisite in legal descriptions. ' Hence, although it be necessary to fix by precise rules of law the baundary on one site, that is, the limit to which the punishment may be extended; and also, that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules ; yet the mitigation of punish ' ment the exercise of lenity, may without danger be entrusted to the execative magistrate, whose dis cretion will operate upon those numerous, unforeseen, mutable, and indefinite circumstances both of the crime and the criminal, whit i constitute or quality the malignity of each offence. Without the power of relaxation lodged in a Aving authority, either some offenders would escape capital punishment, whom the public safety required to suffer, or some ' would undergo this punishment, where it was ' neither deserved nor necessary. For if judgment of death were reserved for one or two species of crime only (which xvould probably be the case, if that pu- nishment Wai intended to be executed without exec',- " tion), crimes might occur of the most dangerous ex ' ample, and accompanied with circumstances of heinous • aggravation, which did nut fall within any description of offences teLich the laws had made capital, and which consequently could not receive the punishment their own ntalignity and the public safety required.' ' The law of England,' he contiqdes, is constructed upon a different and better policy. By the number of statutes creating capital offences, it sweeps into • the net every crime, which under every possible cit.- ' cumstance, may merit the punishment of death ; but when the execution of this sentence comes to be de. libetatcd upon, a small proportion of each class are singled out, the general character, or the peculiar ng gravations of whose crimes, render them fit examples of public justice. By this expedient few ectually suf. fee death, whilst the dread and danger of it hang over the crimes of many.' Now, admiting the full force of this argument, what would it prove? Much more than Doctor Paley in tended, viz. that arbitrary power, discreetly adminis tered, is better than a system of law ; because as the varieties of the degrees of guilt of diticreut culprits arc infinite, w no previous denunciations of the law can fit them exactly, bat only the cliseretion of the judges, when all these drcumstances are known. Now admit- tine this argument, it could only hold true we r e th ere but one jade, and were he gifted with the keenest in sight into characters and motives. But there are twelve judges, who go the circuits, and we have no right to expect that they should be all so gifted. The discre tion of one judge is very diffe'cnt from that of another ; and must be so. Imputing to all, as they well deserve, much knowledr, the highest integrity, and the best intentions. vet from wagons causes of hibit, tempera 's:teak, stu..l'.es ) aud Ilirfercuee o f ex p er i euee , some PRICE 90. must be more inclined to severity than others, and some must view similar circumstances in different lights. The consequence therefore is, that the fate of an offender, .s the law is administered in this country, depends, not only on the various shades of guilt belonging to his ef fence, but also on the chance of who happens to Le the judge who tries him—whether, in the coarse but expres sive language of the criminals, it being a hanging judge, or not. Besides this, the assertion or supposition, with which the foregoing extract from Dr. Paley concluder, is not well grounded. He says, By this expedient few actually suffer death'—in proportion to the number whom the law condemns to death, this is true. Whiht the dread and danger of it hang over many.' Now this is not true, nor can it be, unless men were differ ently constituted than they are. A much greater number of those, who are guilty of these minor offen ces have their punishment mitigated than saffer capi tally. This is known to the people at large as much as to the lawyers or legislators of the country. How thea can the dread of death be said to hang over those who are tempted to commit these offences, when a large • majority of those who do commit them escape capi tal punishment ? The fact is you cannot cheat the peop.e, and deter them from mimes by the dread of death, if you do not generally inflict that penalty. Thcv will believe what they see and witness, nit what the law books say ; and experience will tell them, that though in the books death for these crimes is the general rule, and a mitigated punishment the exception; is point of fact the inferior penalty is the generetrule. and death the exception. Death, theretbre, when it is inflicted, will not operate as an example ; and still less will it do so, when ,the prisoner and every one else imputes it, not to the degree of his guilt, but to his being unlucky in the judge who tries hini. The sacrifice of his life, therethre, is clearly an evil, without aay equivalent good. Thus, as far as capital punishment is inflicted on these offences, it does not operate as an example, much less as fir as it is nut inflicted. It seems, therefbre, that this defence of such a bloody code as the English, totally fail ; and that the very practice on which the defence originates, proves the impracticability of the law as it stands ; while the above considerations thew the impolicy of A. as it is administered Accounts both from Sweden arid Norway exhibit the unexampled fact, that down to the beginning► of the present month, there has been neither frost nor snow :n these remote and hitherto inhospitable regiori; Lot that the pritarose blossom, and the gooseberry La-s are green, under the 59;h degree of latitude. A document of some importance has Wen recei7ett from the United States, in the form aim officiate letter from the American Srcretary of State, to the Itlntblican Minister at the Court of Madrid : and which professes to he an answer to.the representations of M. Pizarro, oar the much canvassed subject of the Florid's. Three ti.,:ialis of the letter, though no.ninally discussing the meuits of the late war with the Seminole Indians, as it concerns th Spaniards only, is devoted to the single topic of the mi!i:ary butclory ~f Arbuthnot and Atn brister ; and discloses, we can hardly hesitate to believe, the principles en which the American Ministry are in clined to argue, when it may lie pressed upon theta by Great Britain, the great question in which our right, interests, and honour, are involved. Front the- wire:e of this paper, with the documents annexed td- it, we rather suspea tha: the American Government mean to defend and justify the conduct of Gen. Jackson towards the subjects of Great Britain, whom he and his court martial, between them, unawfully put to the sword. Not excuses, merely, but justification; not jusiifictsiion, but the highest admiration andapplause,are lavished up on Jack-on for the whole of his proceedings towards. three unhappy Englishmen. Ev-ry odious epithet is bestowed upon the unfortunate men, and upon other British of icers.who had preceded thous in their ennaden tial intercourse with the 'pull -h Aut.,orities of the Indian tribes. We trust that, upon reconsideration, thy Cabinet ef the United States may Las tVJW the tuna in, acts sione in, the Florida& if approved of at Washini tun, it is no lo ,per Gen. Jackson, but Mr. Monroe at theßepublie itself, which become re.spuosWe to civilipiti,on, and to huuutuity. • I 4 4 ie of `it tll er .11 I r- l A er 11- OS ,t ho of 4 7- at at he 3; e. it ill ne int 1 / 2 ,4 11, 1 / 2 t 1 / 2 lot . wt 1 ch nit 03, ; it the the ;c) Lot .ter wee te- the gle 11- by ;ht, we to ,r.is itt- mt. on, up- irds- is . 171) her IL s en- , - -‘"7_,k the g., • gh, - 1 ,04 . ng •- fr k l / 2 Y/ 1 1., an •