The National Register. — London, England, 1819-02-07 00:00:00

ce ritriDr No. 574.—V0z.. XII. rauTicAL Insql'lst 110 N. ON OUR CkINIINIL LAW. DR. PALEY lays down as his furdamental princi ple, that punishment is inflicted by human magistrates, t: for the sake of retrithition, of so much pain for au tr.t.ch guilt, but solely fur the sake of preventing the rtietition of crimes. ' The fear,' says Pityley, lest • :he escape of the criminal •huuld encourage him, or • others by his example, to repeat the same crime, or • to commit different crimes, is the sole consideration • which authorises the infliction of punishment by • human laws. Now, that, whatever it may be, which is the cause and end of the punishment, ought tin ' doubtedly to regulate the n.casure of its severity. Upon these rrinciples this writer proceeds to account for, and to justify, the disproportion of punishments, in many nut:awes, to the moral turpitude of crimes ; far the degree of punishment is not at all regulated by this moral consideration. The mischief of the crime, and the ease with which h may be committed rad con cealed, are the only two considerations which must I,s -guLtte the punishment. For these reasons, the stealing of cloths from the centers or bleaching grounds, Lei bs: stealing, and sheep stealing, subject the offenders to sen tence of death, in order that the increased terror of the punishment may counteract the facility of the crime. Bet in laying down these doctrines, Archdeacon Paley does not take into his view of the subject, in what way the moral feelings of naenkited are influenced'by say very wide variations of this principla of human putlishnient from the principles of divine or retributive' juetice.— He says, in another place, that the sole objects of p:atisbnient are the amendment of the criminal, or example to others. In considering the wide infliction of death by the law of England, we have nothing to do with the former. of these objects. In investigating the latter, we should renewer, thee by whatever mo tives of expediency legislators .may be influenced, in assigning certain penalties to certain offeneee, the people, who witness the execution of these laws, behold them with feelings r.f approbation or disapprobation, according to the priuciples of moral justice, Red not of political expediency; and that, when one men is' lunged fir an atrocious murder, and smelter by his s:de for stealing a sheer, :he people will be shocked, aid outraged by the :mete itenishrneet being exacted for crimes so widely different in wilst of guilt. Wheteer the people may he wroig in this, we will not now en-, quire. We only state tile fact, which no one will deny. But it follows from this fact, that that very example, • which Dr. Paley has laid down as the object of isen guinary 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 compassioa, instead of execration, and, instead of a culprit, he appears as a martyr. The moral feelings which so awfully enhance, the minds of the apectittors, the weight, and consequently the example of capital punishment, when inflicted for an atrocious offence, are thrown into the opposite scale, and produce the very opposite effect to that which is intended. Legislators must not merely study political expediency, the object of their laws; but also the nature of the human heart, by operating on which their laws 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 the knowledge of the punishment that is affixed to it, as long as that punish ment is not obviously out of proportion. Thus, murders associated as it is with an infamous death, appears more morally atrocious, than it otherwise woall ; but when a glaring disproportion exits between the offence and the penalty, title very feeling affects tae people in the neposite direction. The sensibility of our common Lata.c 13 shocked, aad re-acts (to use a Freut.h phrase,) 4 •~ t I k 4 e tion fot•the h he Our Con4titty SUNDAY, FLIIRUAW l'itter 94d. lif itittr + tp anD ROA. ISI9. M exciting popular commieeration . piifferer, and horror of the bloody law to which . fells 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, iu the same.fate us if he bad murdered a fellow creature. The Doetor's justification, therefore, in this respect, of the indictiun of death by the law of England on so many minor offecces, falls short of its object. lie advances, however, another defence, namely, that death, though denounced against an many crimes, it; inflicted on only a few criminals. Tills he mays, is systematically the intention of the law of England. ' It is founded on the oonsideretion, that ' the selection of proper objects thr Capital punishment ' principally depends upon drain:unlaces ; v‘•lic:i haw ' ever easy to perceive, in each panietiler case, after ' the crime. 15 committee, it is impondhle to enu-reritte ' or define before hand, or to ascertain, however, w Al: ' that exactness, which is requisite in legal descriptions. ' Hence, although it be necessary to. fix by precise ' rules of law the boundary on one side, that is, the ' limit to which the punishment may be extended; and ' also, that nothing has than the wither; cy of the whole ' legislature be soared to determine that boundary, ' and assign these rules ; yet the mitigation of purish • ' merit the exerciee of lenity, may without danger be ' entrusted to the executive magistrate, whose fits ' ctetion will operate upon thou: nunicreus, unforeseen, ' mutable, and indefinite circumstances both of the ' crime 'visa the criminal, which constitute or quality ' the mateignity of each otlence. Without the power ' of relaxation lodged in a living authority, either ' some cileiders wou:d - escepe capital punishment, ' whom the public safety required to suffer, or some ' would undergo this plinishment, where it was ' neither deserved nor necessary. R a w if jedgment of ' death were reserved for one or tele spec'es of crime ' only (which would reliably he the case, if that pi'- ' nislunent was intended to be executed without exec.p -' tion), crimes might oecur of the most dangerous ex ' ample, and accompanied wl.ll circumstances of heinous ' aggravation, which did not fell within any description ' of OC-ewes which the laws led piaile capital, and ' yid:7h consequently could not ragtime the punishment ' their own rnelignity and the public safety required.' ' Tee law of England,' he a:twinges, ' in constructed • upon a different awl better policy. By the number ' of statetca creating capital offences, it sweeps into 1 1 the net every crime, which under every possible cit.- , ' mimeo:ince, tree merit the punishment of death; but ' when the execution of this sentee , e comes to he de. 6 libetatc,d upoe, a small proportiqn of each class are, ' sled': I out, the general character, or the peculiar ag. ' we-Jet:on' of whose crimes, render them fit examples ' of public justice. By this .. . few actually suf eller ' fer death, whilst the dread and of it hang over ' the crimetoof many.' .. a .. Now, &Limiting the full force *is argument, what would it prove? Much more titan Doctor Paley,in tended, via. that arbitrary power, discreetly alai:lie. tered, is better than a system of law ; because as the varieties of the degrees of guilt of dilterent culprits are infinite, an no previous denunciations of the law can fit them exactly, bat only the dinereion of the judg,es, when all these circutnstances are known. Now admit ting this argument, it could only Ispl,l true were there but one jucl.:e, and were he giftedellith the keenest in sight into characters and motives. Out there are twelve judges, who go the circuits, and tire hare no right to expect that they should be all an fated. The discre tion of one judge is very diFeein z from that of another; and must be so. ' Imputing to all,es they well deserve, mach knowledge, the highest integrity, sod the best 'intentions, yot from ratings mini of habit, tempera mail, stales, and tliWereace of iele.icnee, some must be more inclined to severity thsn t ethers, an 4 dome most view Jilni:ur circumstances ie ditferent lights. 'rhe consequence therefore is, that the fate of an °dewier, as the law is administered in this country, depends, me:. only on the varieue shades of guilt belonging to hia tv!"- fence, but al:,o on the chance of who happens to be the judge who tries him—whether. iu the coarse hut expres sive language of the criminate, it being a h a ngi t e: judge. ur not. Besides this, 'he assertion or supitositicit, with whieh the foregoing exeract from Dr. Peley cone! ades, is not well grounded. lie xeye, ' Ry this expedient fete actually suffer death'—iii proportion to the number whom the law condemns to death, this is true. • Whii:t. the dread and danger of it hang ova many.' Now this is not true, nor can it be, utilese men were. differ ently constituted than they are. A much ~ranter number of those, who are guilty of thtee minor offe 1- eve I:uve their punishment mitigated than suffer capi tally.. This is known to the people at large as much as to the lawyers or legislators of the country. flow thee ' can the dread of death be said to hang over those wile are tempted to commit these offences, when a lar,!e majority of those who do commit theta escepo.eupi_ tal punishment ? The fact is you cannot cheat the people, and deter than from crimes by the dread of death, if you do not generally inflict that penalty. They will believe what they see and witeess, not whet the leer hooks say ; experience will tell them, that though in the books death for taco crimes is the general rule, and a tuidguted penislimeet e ilte eeceptiee ; in point of fact the Maier penalty is,the genera rule. and death the exception. - Mettle therefore, when - it is inflicted, will not operate as an ceumple ; and etill less will it du so, when the prisoner and every oee else imputes it, nut to the degree of his geilt, but to his being unlucky in the judge who tries him. The sacrifice of his life, therefore, is clearly an evil, without any eiptivelent good. l'ittis, as far as capitel punishment is intlictod on these oll'euces, it does not operate as an example, much less es far as it is nut inflicted. It seer es, therctiwe, that this defenee of such a bloody cote as the English, totally feils ;' and that time very practice on which the defetice °vial:bates, proves the impraeticability of the low as it ettinds ; while the aixwe considcretiens show the i:epoliceeof it as it is administered. Accounts both from Sweden and Norwiy exhibit the unexampled fact, that down to the beginning nf the present month, them has teen neither frJsi nor snow 1-i them remote and hitherto inhorpituble regions; b.. t that the primrose blossom, and the gooseberry t e.a are green, under the 59 h tiegre•?.. of latitude. A document of some importaece has been received from the United States, in the form of an official letter from the Atneticen S. , eretary of State, to the Republk.,:a Minister at the Llow tof Madrid : awl which prtifes4el to be an answer to the representations of M. Pizarro, of the much canvassed subject of the Floridas. Three fourths of the letter, though nominally discussing the me. its of the late war with the Seminole Indians, as concerns the Spaniards oely, is devoted to the sing.e tonic of the milimry butchery of Arbuthnot and ,tm brister ; awl discloses, we can hardly hesitate to believe, the principles en which the American Ministry are ia t*,iikl to argue, when it may be pressetl upon them by $:;;•C.:t l4ritain, the great rFestion in which en: right, Livervqs, and henottr, are involved. —drum the wl. e o f gas i rap t ,v, %% hit the docu:neuts annexed to it. rather suspect that the American Government mean to deli:n(l and justify the conduct of Gen. ladcson towar...s the subjects of Great &nail', whom he and ins conn martial. betweeu them, unlawfully put to the sword. Not eacuses, Hugely, but jiastifleatien ; not justiftteuion, but the highest admiration andapplause,are lavi• bed ;e -on Juck.oo for the whole of his preceedings towarris these unha p py Englishmen. ry odious epithet is hestewed the unfurtunate men, anti upon other British olcers who Karl preceded them it: Weir ouatidee tit: intercourse 'vith the `tiara h ttut':orities er the Indian •We trust that, upon reconsideration, the Cabinet of the United States may dis vow tug atr, lets dote in the Floridas. If approved .n at 1% ir t ) ;•, g .. ton, it is no lo 'ger Gen. Jacksen, but Mr. Mourne a.m•l theßepublic itsclt, become reveze•LeioLaiiatnl, to civiti..atuni, and to ha.ll.wity. ( 1 ( I\ 11^ Ist II 4 A 6 1 k I Xe *Cs Is t .' C f.i;t i ! o, r , e'lalgatto. I WA. i *4Oll