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by the subornation of perjured witnesses. In truth, he suffers death, not for felony, but for subornation of perjury; altbough that be not the legal punishment of this offence.
If so large a discretion as this can safely be intrusted to any magistrates, the legislature ought at least to lay down some general rules to direct or assist them in the exercise of it ; that there might be, if not a perfect uniformity in the administration of justice, yel the same spirit always prevailing, and the same maxims always kept in view ; and that the law, as it is executed, not being to be found in any written code, might at least be collected with some degree of certainty from an attentive observation of the actual execution of it. If this be not done, if every judge be left to follow the light of his own un. derstanding; and to act upon the principles and the system which he has derived partly from his own observation, and his reading, and partly from his natural temper and his early im. pressions ; the law, invariable only in theory, must in practice be continually shifting with the temper, and habits, and opinions of those by whom it is administered.-No man can have frequently attended our criminal courts, and have been an attentive observer of what was passing there, without having been deeply impressed with the great anxiety which the judges feel to discharge most faithfully their important duties to the publick. Their perfect impartiality, their earnest desire in every case to prevent a failure of justice, to punish guilt, and to protect innocence, and the total absence with them of all distinctions between the rich and the poor, the powerful and the unprotected; are matters upon which all men are agreed. In these particulars the judges are all actuated by one spirit, and the practice of all of them is uniform.--But in seeking to attain the same object, they frequently do, and of necessity · must, from the variety of opinions which must be found in
different men, pursue very different courses. The same benevolence and humanity, understood in a more confined or a more enlarged sense, will determine one judge to pardon and another to punish.-It has often happened, it necessarily must have happened, that the very same circumstance which is considered by one judge as matter of extenuation, is deemed by another a high aggravation of the crime. The former good character of the delinquent, his having come into a country in which he was a stranger to commit the offence, the frequency or the novelty of the crime; are all circumstances which have
been upon some occasions considered by different judges in those opposite lights: and it is not merely the particular circumstances attending the crime, it is the crime itself, which different judges sometimes consider in quite different points of view.
Not a great many years ago, upon the Norfolk circuit, a larceny was committed by two men in a poultry yard; but only one of them was apprehended; the other, having escaped into a distant part of the country, had eluded all pursuit. At the next assizes the apprehended thief was tried and convicteds; but Lord Loughborough, before whom he was tried, thinking the offence a very slight one, sentenced him only to a few months imprisonment. The news of this sentence having reached the accomplice in his retreat, he immediately returned; and surrendered himself to take his trial at the next assizes. The next assizes came; but, unfortunately for the prisoner, it was a different judge who presided; and still more unfortunately, Mr. Justice Gould, (who happened to be the judge, though of a very mild and indulgent disposition,) had observed, or thought he had observed, that men who set out with stealing fowls, generally end by committing the most atrocious crimes ; and building a sort of system upon this observation, had made it a rule to punish this offence with very great severity ; and he accordingly, to the great astonishment of this unhappy man, sentenced him to be transported. While one was taking his departure for Botany Bay, the term of the other's imprisonment had expired; and what must have been the notions which that little publick, who witnessed and compared these two examples, formed of our system of criminal jurisprudence ?
In this uncertain administration of justice, not only different judges act upon different principles; but the same judge, under the same circumstances, acts differently at different times, It has been observed, that in the exercise of this judical discretion, judges, soon after their promotion, are generally inclined to great lenity; and that their practical principles alter, or, as it is commonly expressed, they become more severe, as they become more habituated to investigate the details of hu. man misery and human depravity.
Let us only reflect how all these fluctuations of opinion and variations in practice must operate upon that portion of mankind, who are rendered obedient to the law only by the terrour
of punishment. After giving full weight to all the chances of complete impunity which they can suggest to their minds; they have besides to calculate upon the probabilities which there are, after conviction, of their escaping a severe punishment; to speculate upon what judge will go the circuit ; and upon the prospect of its being one of those who have been recently elevated to the bench. As it has been truly observed, that most men are apt to confide in their supposed good! fortune, and to miscalculate as to the number of prizes which there are in the lottery of life ; so are those dissolute and thoughtless men, whose evil dispositions penal laws are most necessary to repress, much too prone to deceive themselves in their speculations upon what I am afraid they accustom themselves to consider as the lottery of justice.
Let it at the same time be remembered, that it is universally agreed, that the certainty of punishment is much more efficacious than any severity of example for the prévention of crimes. Indeed this is so evident, that if it were possible that punishment, as the consequence of guilt, could be reduced to an absolute certainty ; a very slight 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 cons sequence 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, there. fore, could exist, if it were infallibly certain that not good, but evil must follow, as an unavoidable consequence to the person who committed it. This absolute certainty, however, is unattainable, 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 police, by rational rules of evidence, by clear laws, and by punishments proportioned to the guilt of the offender; to approach as nearly to that cerlainty as human imperfection will admit.
There is another point of view in which this matter may be considered ; and which will make it evident that it would be more expedient that the judges should have the power vested in then by law, of appointing the punishment of every of
fence after it had been established with all its circumstances in proof, and of proportioning the particular nature and degree of the punishment to those circumstances; than that, (for such offences as I am speaking of,) so severe a punishment should be fixed by law, with a power left in the judges according to circumstances, to relax it.-In the former case it is highly probable that the discretion would in practice be exercised by none but the judges; that is, by magistrates accustomed to judicial investigations, fully aware of the importance of the duties which they are called on to discharge ; and who from the eminence of their stations, are, and cannot but be sensible, that they are under a very great degree of responsibility to the publick. According to the practice which now: prevails, this most important discretion is constantly assumed by persons to whom the constitution has not intrusted it; and to whom it certainly cannot with the same safety be intrusted; by prosecutors, by juries, and by witnesses. Though for those thefts which are made capital by law, death is seldom in practice inflicted; yet (as it is the legal appointed punishment,) prosecutors, witnesses, and juries, consider death as that which, if it will not with certainty, yet possibly may be the consequence, of the several parts which they have to act in the judicial proceeding: and they act their parts accordingly, though they never can, in this indirect way, take upon themselves to prevent the execution of the law, without abandoning their duty; and in the case of jurymen and witnesses, without a violation of their oaths.
There is still another view which may be taken of this sub. ject; and which is perhaps more important than those which have been already considered. The sole object of human pu. nishments, it is admitted, is the prevention of crimes; and to this end, they operate principally by the terrour of example. In the present system, however, the benefit of example is en. tirely lost ; for the real cause of the convict's execution is not declared in his sentence; nor is it in any other mode published to the world. A man is publickly put to death. All that is told to the spectators of this tragedy, and to that part of the publick who hear or who read of it, is, that he stole a sheep, or five shillings worth of goods privately in a shop, or that he pilfered to the value of forty shillings from his employer in a dwelling-house; and they are left in total ignorance that the criminal produced upon his trial perjured witnessess to prove
an alibi, or some other defence; and that it is for that aggravation of his crime that he suffers death. The example cannot operate to prevent subornation of witnesses to establish a false defence ; for it is not known to any but those who were present at the trial, that such was the offender's crime ;--neither can it operate to prevent sheep-stealing, or privately stealing in a shop, or larceny, in a dwelling-house, because it is notorious that these are offences for which, if attended with no aggravating circumstances, death is not in practice inflicted. Nothing more is learned from the execution of the sentence, than that a man has lost his life because he has done that which by a law not generally executed, is made capital ; and because some unknown circumstance or other existed, either in the crime itself or in the past life of the criminal, which in the opinion of the judge who tried him, rendered him a fit subject to be singled out for punishment.---Surely if this system is to be persevered in, the judge should be re- quired in a formal sentence to declare why death is inflicted ; that the sufferings and the privations of the individual might be rendered useful to society in deterring others from acting as he has done, and drawing on themselves a similar doom. The judge would undoubtedly be required to do this, if the discretion which he exercises in point of fact, were expressly confided to him by law. But unfortunately, as the law stands, he is supposed not to select for capital punishment; but to determine to whom mercy shall be extended ; (although these objects of mercy, as compared with those who suffer, are in the proportion of six to one). Were recorded reasons to be required of the judge, it will be said, they must be his reasons for extending mercy, which is his act; not his reasons for inflicting punishment, which is the act of the law :-and additional proof of the mischief which results from leaving the theory and the practice of the law so much at variance.
In truth, where the law which is executed is different from that which is to be found in the written statutes, great cure should be taken to make the law which is executed known; because it is that law alone which can operate to the prevention of crimes. An unexecuted law can no more have that effect, than the law of a foreign country ; and the only mode that can be adopted for making known the law which is exe. cuted, is that of stating in a written sentence the circumstances which have rendered the crime capital. Such written sen.