pre fore peculiarly open to the divine rogative of pardon*." The truth is, that in many inftances, the common fense of mankind revolts against the extremity of the punishment; and pardons or acquittals are the neceffary confequence. It is these pardons-it is thefe acquittals-which create the hopes of impunity and rob the law of all its terrors. It has been as ftrictly executed in Pennsylvania as in moft countries: yet, of eighteen perfons tried fince the revolution for this crime, and pofitively charged, only five have been punished. By a table of capital convictions in Scotland, from 1768, to 1782†, it appears, that only one perfon was convicted of this crime, and that he was pardoned‡. William Penn confidered imprisonment, ftripes, and hard labour, as a punishment adequate to this crime, and fufficient to check the commiffion of it. The grand duke of Tufcany prefcribes imprisonment at hard labour, varied as the circumstances may requires. The legislature of Vermont, fo late as the year 1791, has followed the humane example and in that ftate death is no longer inflicted on this offence. If any one, miftaking the end of punishment, and more intent on vengeance than the prevention of the crime, deems this chastisement too light, a vifit to the penitentiary houfe lately erected as part of the jail of Philadelphia, will correct the opinion. When he looks into the narrow cells prepared for the more atrocious offenders-When he realizes what it is to fubfift on coarfe fare-to languish in the folitude of a prifon-to wear out his tedious days and long nights in feverish anxiety-to be cut off from his family-from his friends-from fociety-from all that makes life dear to the heart-when he realizes this, he will no longer think the punishment inadequate to the offence. Arfon. ARSON is the crime of flaves and children. Its motive is revenge; and, to a free mind, the pleasure of revenge is loft, when its object is ignorant of the hand that inflicts the blow. Twelve perfons have been tried for this offence in the laft fourteen years: and of these, three were negro flaves-four were children-and two were vagrant beggars. The remainNOTES. * Eden's principles, 238. + Howard on prifons, 485. There is scarce any crime which escapes punishment fo often as that of rape. In fupport of this, I appeal to the following facts in addition to thofe mentioned in the text. Between the years 1720 and 1732, there were twenty-four perfons tried for this crime at Old Bailey. Of all thefe, only two were convicted; one of them, the infamous col. Charters, who was pardoned; the other, a fervant boy, aged fifteen, who was hanged. Select Trials, &c. 1 and 2 vol. Janfen's Tables do not ftate the number of acquittals: but they prove this fact, That in twenty-three years, no more than nine perfons were convicted of rape, and of these there were executed-Two! Though it is not in my power to ftate the relative number of perfons convicted or acquitted of this crime in other ftates, I have fuch information, as fatisfied me that the severity of the punishment produces in America the fame effects which attend it in England and Scotland. Mr. Randolph, who held the office of attorney general in Virginia, many years, informs me, that "thus much may be fafely affirmed, that the proportion of the acquitted to the charged in that ftate was very great, leaving but few convicts. It feemed as if fomething more than ufual tendernefs for life, operated with the juries on these occafions; and they appeared to lay afide their natural abhorrence of the act, to feize the smalleft fymptoms of innocence!" Section 99. 1 ing three were acquitted, under cir cumftances which made it probable the fire was accidental. This offence may be committed fo fecretly, that it is feldom poffible to collect proof fufficient on a charge that is capital. Other crimes are committed in the prefence of witneffes, or are attended with circumftances which point out the criminal: but in arfon there are no eye-witneffes the prefumptive proof will feldom be violent; and confeffions are only to be expected from the ignorance of flaves and children. Thefe confeffions (too generally extorted by promifes or threats) come before the jury in fo queftionable a fhape, that they are often difregarded. Hence the feverity of the punishment, in this cafe, leads in a peculiar manner to impunity. The proof is fo difficult, that juries are juftified in acquitting; and the objects convicted, are fuch, as the executive is prompt. pardon. Of five perfons convicted of this crime, only one was executed. -This was a negro woman in a dif tant country. The crime of arfon extends only to the wilful burning of a dwelling-houfe, certain public buildings, or a barn having hay or corn therein. Every other fpecies of property may be maliciously deftroyed by fire, without incurring the forfeiture of life. Hence, fhips and other veffels in harbour or on the flocks-hay and grain in ftack or barrack-magazines of arms and provifions-ftore-houses of every defcription-mills-theatres and diftilleries, are not protected by these high terrors of the law: and to burn them is confidered merely as a misdemeanor at common law. Here then is a fair opportunity for comparifon. Has the milder punishment encouraged thefe malicious crimes; or, has the terror of death, hung up on high, deterred offenders from the crime of arfon ? The following fact will answer the queftion. Since the revolution twelve. perfons have been indicted for the crime of arfon; and only two for any other fpecies of malicious burning! In New Hampshire and Maffachufetts this crime is not capital, if committed in the day time: nor in Connecticut, " if no prejudice or hazard to the life of any perfon happen therefrom." To burn public veffels or magazines of provifion, in time of war, being a fpecies of treafon, is, indeed, capital in that ftate; but it is not so, if the fame offence be committed in time of peace. I cannot learn that thefe diftinctions have any effect, or that the leffer offence is more frequent than the greater. Upon the whole, it seems that folitude and hard labour will be a punifhment, for this crime, as efficacious and more advantageous to the public, than death. The offender may be reformed and become a useful citizen; and he may be compelled to repair, by his eftate or his labour, the injury he has done. This was formerly required in most cases, by the laws of William Penn: but, at prefent, is fwallowed up by the legal maxim which merges the private in the public wrong: a maxim, invented by fifcal or feudal ingenuity, to prevent the claims of the injured party from interfering with the forfeiture to the crown, and the escheat to the lord. Malicious Mayhem, &c. THIS offence is defcribed in the words of the English ftatute, 22 and 23 Car. II. ch. 1. commonly called the Coventry act. The feverity of this act, which goes confiderably beyond all former ftatutes on the fubject, was occafioned by a malicious affault made upon fir John Coventry, then one of the members of the houfe of commons. Laws thus made upon the spur of the occafion, and under the emotions of indignation, are feldom founded upon the permanent principles of juftice or policy. This act has remained a dead letter in Pennsylvania. No perfon has been profecuted under it; nor can I learn that the crime has ever been committed. I attribute this to the ftate of manners, and by no means to the nature of the penalty. On the contrary, as no profecution has called it into public notice, it is probable that very few people know that fuch an act exifts. New Hampshire, in legiflating on this fubject, has fet us an example of justice and moderation. There the penalty is fine and imprisonment, not exceeding feven years; and there, as well as in Pennfylvania, the offence is unknown. The fame penalty is prescribed by the laws of the United States. Even in Georgia, where the attention of the legiflature has been called to it fo late as 1787, the punishment, for the firft offence, is the pillory and fine, not exceeding one hundred pounds, half of which goes to the injured party. In Virginia and North Carolina, though it be a felony, it is not oufted, as with us, of the benefit of clergy. Man-flaughter by stabbing. THE act of Jac. I. ufually called, the ftatute of ftabbing, by which this offence was oufted of clergy, was extended to the province by an exprefs reference to it in the act of 1718. This ftatute, which was levelled against a temporary mifchief prevalent in England at that day-in which fo much ignorance of the common law is difcovered-which is fo rigor ous in its literal meaning, as to involve the cafes of chance medley and innocent mistake and fo obfcure and ill drawn, that the Judges have been divided on the meaning of almoft every important word in it-ought never to have been made a permanent law of Pennsylvania. Its feverity, however, has been fo mitigated by judicial conftruction, that the foundeft opinion now seems to be, "that the party indicted upon it, ought not to be convicted, unless the fact, upon evidence, turns out to be murder at common law*." For this reason, it has not been ufual, for fome years paft, to indict any perfon on this act in Pennfylvania; and, for the fame NOTE. *Fofter, 301-2. D reafon, it ought not to remain among our laws. It is ufelefs when rightly explained: it may be the inftrument of mifchief, when it is perverted or mifunderstood. Murder. IT has been a queftion which has divided the philofophers of Europe, whether it be lawful, in any cafe, to take away the life of a criminal: and the negative has been advanced and ingenioufly fupported in our own countryt. Great names are arranged on the different fides of this question: but, waving ufelefs refinement, it seems to refolve itself into that which we are confidering, viz. whether it be neceffary to the peace, order, and happiness of fociety. Murder, in its highest degree, has generally been punished with death‡: · NOTES. + "Obfervations on the injuftice and impolicy of punishing murder with death," by dr. Rush. The practice of punishing mur. der with death, has been fo general among civilized nations, that fome writers have confidered it as fanctioned by the univerfal confent of mankind, and as abfolutely neceffary for the fafety of fociety. It is certain, however, that it has been difpenfed with in many countries at different periods: and a review of the beft authenticated facts of this kind (obscured as fome of them may be, by the mift of time) will not be ufelefs. Taken together, they will imprefs upon our minds thefe two important truths-That the penalty of death is not in its own nature neceffary-and yet-That it is dangerous, rafhly to abolish it! The most ancient inftance on record, is that of Sabaco, king of Egypt. The account is to be found in Herodotus and Diodorus Siculus: That of the latter, tranflated by Booth, is thus: "A long time after him, one Sabach, an Ethiopean, came to the throne, going beyond his predeceffors in his worship of the gods and kind and it is for deliberate affaffination, will be juftifiable and useful. Exist. if in any cafe, that this punishment ence is the firft bleffing of Heaven; NOTE. 1 nefs to his fubjects. Any man may judge of his gentle difpofition in this, that when the law pronounced the fevereft judgment, I mean fentence of death, he changed the punishment; and made an edict, that the condemned perfon fhould be kept to work in the town, in chains, by whose labour he raised many mounts, and made many commodious canals." p 34. "He thought," fays mr. Goguet," that Egypt would draw more profit and advantage from this kind of punishment, which, being for life, appeared to him equally adapted to punish crimes and to reprefs them." What its effects were, is not fo evident: but the ancients fpeak in terms of approbation of this clemency; and it is certain, that during his long reign of fifty years, Sabaco did not fee caufe to alter it and his fucceffor, Anyfis, feems to have continued it. This example is cited with approbation, by fir Tho. Moore, Puffendorff, Grotius, and other modern writers. See Diod. Sic. L. I. ch. 65. Puff. b. 8. ch. 3. S. 23. Gog. Orig. Laws, 3 vol. p. 15. ift Rollin Anc. Hift. 90. 66 Among the Perfians it was not lawful either for a private perfon to put any of his flaves to death, or for the prince to inflict capital punishment upon any of his fubjects for the first offence; because it might rather be confidered as an effect of human weaknefs and frailty, than of a confirmed malignity of heart." 2d Rollin Anc. Hift. p. 221. Rome furnishes us with a more brilliant and better authenticated example. It is well known, that foon after the expulfion of the Decemviri, the Porcian law ordained, that no citizen of Rome should be put to death. In the happy ages of the republic, his country was every thing to a Roman, and banishment the heaviest of punishments! For the fpace of two hundred years, from the establishment of equal liberty, to the end of the fecond Punic war, penalties fhort of death were found fufficient for the government of Rome. Simple in their manners-frugal-unacquainted with luxury, and intent upon conquering the world, these proud republicans had neither leifure nor inclination for the commiffion of crimes. Livy more than once triumphs in this moderation of punishments: and no, hiftorian has hinted that, during the period I have mentioned, they were inadequate to their object! But we must remember at the fame time, that capital punishments were found neceffary in the camp; and while they were denied to the magiftrate, were abfurdly trufted to the difcretion of a mafter and a parent. See 4 Gibbon's Hift. ch. 44. Quarto. When Rome loft her liberty, a profufion of capital punishments enfued; and under the emperors, the hands of the executioner were every day stained with the blood of the citizen. But in the decline of the eastern em pire, an opinion grew up, that it was unlawful to fhed Chriftian blood: and capital punishments were fometimes fuppreffed, without fubftituting any efficient check in their place. To mutilate an offender, and then turn him loofe, was but to provoke him to the commiffion of new crimes. Hence they became frequent-infurrections multiplied-and the throne tottered from the fhameful imbecility of the laws. Anaftatius, it is faid, punished no crimes at all: and Mauritius, Ifaac Angelus, and others, by rafhly fuppreffing the punishment of death among fo corrupted a people, endangered their own fafety and that of their fubjects. See Rife and Fall of Rom. Emp. p. 212. Spir. Laws B. 6. ch. 21. The conduct of Alexius Comne nus, an enlightened prince, diftinguished equally for his talents and virtues, deferves a closer inspection; and I regret that I have no fources of infor because all others depend upon it. Its protection is the great object of civil fociety; and governments are bound to adopt every meafure, which is, in NOTE. mation fufficiently particular, to afcertain the effects of his regulations. I only learn from mr. Gibbon," that during his reign of twenty-five years, the penalty of death was abolifhed in the Roman empire: a law of mercy moft delightful to the humane theorift, but of which, the practice in a large and vicious community is feldom confiftent with the public fafety. Severe to himfelf, indulgent to others, chafte, frugal, and abftemious, he despised and moderated the stately magnificence of the Byzantine court, fo oppreffive to the people, and fo contemptible to the eye of reafon. Under fuch a prince, innocence had nothing to fear, and merit every thing to hope and without affuming the tyrannical office of Cenfor, he introduced a gradual, but "visible reformation in the public and private manners of Conftantinople." V. Gibb. Hift. Decline and Fall, &c. ch. 48. The punishments inflicted on thofe who confpired against him, were confifcation of goods, and banishment. 6 Univ. Hift. 617. The only countries in modern Europe, in which murder is not punished with death, are Ruffia and Tuscany. It has already been mentioned, that the empress Elizabeth made a vow, that fhe would put no one to death. This clemency has been much celebrated: and Blackstone enquires, "Was the vaft territory of all the Ruffias worfe regulated under the late emprefs, than under her more fanguinary predeceffors?" But mr. Williams affures us, that the abuse of this clemency became fo intollerable, that the fenate requested Catherine II. to re-eftablish the law, which ordained that certain crimes fhould be punished with death. North. Gov. vol. II. p. 255. This appears to have been complied with: as the fame author mentions an inftance of four villains being condemned to be broke upon the wheel for murder, p. 266. The punishment of death, however, is now formally retained only in the case of high treafon: yet, in that prescribed for murder, it virtually fubfifts. Though no one is literally fentenced to die, many are knooted to death. "This punishment," fays mr. Howard, 66 is often dreaded more than death; and fometimes the criminal has endeavoured to bribe the executioner to kill him. It feldom caufes immediate death; but death is often the confequence of it." Pris. 86. 2d Cox's Trav. 82. Though all felons are liable to undergo the knoot, yet it is inflicted with this peculiar feverity on murderers, "who never receive any mitigation of their punishment." To this is added the flitting of the noftrils, and branding on the cheek with hot irons. This horrid method of torturing the body, attended with fuch confequences, may well be dreaded more than the mere loss of life : and I cannot confider it as any moderation of the punishment. It is probably owing to the remaining barbarifm of fome parts of Ruffia, that this feverity is thought neceffary: and the abufe of the clemency of the former reign has been attributed to this circumftance. 2d Will. North. Gov. 232. But what fhall we fay to the example of Tufcany? There, not only are the pains of death abolished, but every kind of cruel punishment is prohibited. The beneficial effects have been ftated: and general Lee fays, "It is a known fact, that fince the adoption of this plan, there have been but two murders committed: one by a little boy of eleven years old, in a ftroke of paffion; and the other, not by a native Italian fubject, but by an Irifh officer." Memoirs, p. 53. But the point of time to which he refers, is not afcertained. It were defirable to know, how far that police which the grand duke calls a vigilant attention to prevent the 66 |