PENAL LAWS.

AMONG the pamphlets you lately sent me, was one, entitled, Thoughts on Executive Justice. In return for that, I send you a French one on the same subject. They are both addressed to the judges, but written, as you will see, in a very different spirit. The English author is for hanging all thieves; the French is for proportioning punishments to of fences.

If we really believe, as we profess to believe, that the law of Moses was the law of God, the dictate of divine wisdom, infinitely superior to human, on what principles do we ordain death as the punishment of an offence, which, according to that law, was only to be punished by a restitution of four-fold? To put a man to death for an offence which does not deserve death, is it not a murder? And, as the French writer says, Doit-on punir un delit contre la société par un delit contre nature? *

Superfluous property is the creature of society. Simple and mild laws were sufficient to guard the property

Ought a crime against society to be punished by a crime against nature?

property that was merely necessary. The savage's bow, his hatchet, and his coat of skins, were sufficiently secured, without law, by the fear of personal resentment and retaliation. When, by virtue of the first laws, part of the society accumulated wealth and grew powerful, they enacted others more severe, and would protect their property at the expence of humanity. This was abusing their power, and commencing a tyranny. If a savage, before he entered into society, had been told-"Your neighbour by this "means may become owner of an hundred deer; "but if your brother, or your son, or yourself, "having no deer of your own, and being hungry, "should kill one, an infamous death must be the

consequence:" he would probably have preferred his liberty, and his common right of killing any deer, to all the advantages of society that might be proposed to him.

That it is better a hundred guilty persons should escape, than that one innocent person should suffer, is a maxim that has been long and generally approved; never, that I know of, controverted. Even the sanguinary author of the Thoughts agrees to it, adding well," that the very thought of injured innocence, and much more that of suffering innocence, must awaken all our tenderest

and most compassionate feelings, and at the "same time raise our highest indignation against "the instruments of it. But," he adds, "there " is no danger of either from a strict adherence to "the laws."-Really!-Is it then impossible to make

make an unjust law? And if the law itself be unjust, may it not be the "instrument" which ought "to raise the author's and every body's highest "indignation?" I see, in the last newspapers from London, that a woman is capitally convicted at the Old Bailey, for privately stealing out of a shop some gauze, value fourteen shillings and three pence. Is there any proportion between the injury done by a theft, value fourteen shillings and three-pence, and the punishment of a human creature, by death, on a gibbet? Might not that woman, by her labour, have made the reparation, ordained by God, in paying fourfold? Is not all punishment inflicted beyond the merit of the offence, so much punishment of innocence? In this light, how vast is the annual quantity, of not only injured but suffering innocence, in almost all the civilized states of Europe!

But it seems to have been thought, that this kind of innocence may be punished by way of preventing crimes. I have read, indeed, of a cruel Turk in Barbary, who, whenever he bought a slave, ordered him immediately to be hung up by the legs, and to receive a hundred blows of a cudgel on the soles of his feet, that the severe sense of the punishment, and fear of incurring it thereafter, might prevent the faults that should merit it. Our author himself would hardly ap prove entirely of this Turk's conduct in the government of slaves; and yet he appears to recommend something like it for the government of English subjects, when he applauds the reply of Judge

Burnet

Burnet to the convict horse-stealer; who, being asked what he had to say why judgment of death should not pass against him, and answering that it was hard to hang a man for only stealing a horse, was told by the judge, Man, thou art not to be "hanged only for stealing a horse, but that horses may not be stolen." The man's answer, if candidly examined, will, I imagine, appear reasonable, as founded on the eternal principle of justice and equity, that punishments should be proportioned to offences; and the judge's reply brutal and unreasonable; though the writer "wishes all judges "to carry it with them whenever they go the "circuit, and to bear it in their minds, as con

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taining a wise reason for all the penal statutes "which they are called upon to put in execution. "It at once illustrates," says he, "the true "grounds and reasons of all capital punishments "whatsoever, namely, that every man's property, "as well as his life, may be held inviolable."Is there then no difference in value between property and life? If I think it right that the crime of murder should be punished with death, not only as an equal punishment of the crime, but to prevent other murders, does it follow that I must approve of inflicting the same punishment for a little invasion on my property by theft? If I am not myself so barbarous, so bloody-minded and revengeful, as to kill a fellow creature for stealing from me fourteen shillings and three-pence, how can I approve of a law that does it? Montesquieu, who was himself a judge, endeavours to impress

other

other maxims. He must have known what humane judges feel on such occasions, and what the effects of those feelings; and, so far from thinking that severe and excessive punishments prevent crimes, he asserts, as quoted by our French writer, that

L'atrocite des loix en empeche l'execution.

Lorsque le peine est sans mesure, on est souvent obligé de lui preferer l'impunité.

La cause de tous le relâchemens vient de l'impunite des crimes, & non de la moderation des peines.

It is said by those who know Europe generally, that there are more thefts committed and punished annually in England, than in all the other nations put together. If this be so, there must be a cause or causes for such depravity in our common people. May not one be the deficiency of justice and morality in our national government, manifested in our oppressive conduct to subjects, and unjust wars on our neighbours? View the long persisted in, unjust, and monopolizing treatment of Ireland, at length acknowledged! View the plundering go. vernment exercised by our merchants in the Indies; the confiscating war made upon the American colonies; and to say nothing of those upon France and Spain, view the late war upon Holland, which was seen by impartial Europe in no other light

than

*The excessive severity of laws hinders their execution.When the punishment is extremely disproportionate, impunity is often obliged to be preferred to it -All corruptions proceed from impunity, not from the mildness of punishments.