human mind, will haften its deftruction*. has been better proportioned to the offence. This has been confidered as the commencement of a more general reform; and, if the refult of the experiment fhall be found to be fuch as the friends of humanity wish, it has been generally expected, that the legislature would refurae the benevolent tafk. Proceeding with that caution, which innovation on an ancient fyftem demands, they have NOTE. Happily for Pennsylvania, the examination and reform of the penal laws have been confidered by the legiflature as one of its moft important duties. Much attention has been paid to this fubject fince the revolution. Capital punishments have, in feveral instances, been abolished; and, in others, the penalty * It was a favourite opinion of dr. Jebb, "That no effort is loft:" and the fuccefs which has attended thefe endeavours to moderate the rigor of the Criminal Law, tends to confirm it. A flight review of the effects which the diffemination of these principles has had upon the governments of Europe, will not be foreign to the object of this work, and must be confolatory to the friends of humanity. Forty years ago, the execrable practice of torture was general on the continent of Europe: and it was confidered to be as neceffary in the administration of juftice, as capital punishments are at prefent. Against this cruel inftitution all the powers of reafon and ridicule were exerted: and the folly as well as the wickedness of it has been fo happily expofed, that it has either been wholly fuppreffed, or has become fo difreputable as feldom to be exercifed. The king of Pruffia fet the example of abolishing it in Germany, and the duke of Tuscany in Italy; and the example was foon followed in Saxony and in Poland. It was fuppreffed throughout all Ruffia in 1768, though not without fome oppofition from the prejudices of the people. In Geneva, it has not been used fince the year 1756; and it was totally abolished in Sweden in 1773. Maria Therefa tacitly fuppreffed, and the late emperor Jofeph, formally prohibited it in the Auftrian dominions. Louis XVI. about the fame time reftricted its exercife in France. The revolution has utterly abolished it in that country as well as in Avignon, where it was exercised with so much feverity, that the jailor there informed mr. Howard, in 1786, that he had feen drops of blood mixed with the fweat on the breafts of fome who had fuffered the torture. Even in Spain, the practice, though not formally abolished, is generally reprobated, and in fome of the provinces is no longer ufed. The Chevalier de Bourgoanne informs us, that a few years ago, an ecclefiaftic named Caftro, undertook a formal apology for it; but that his book was received with univerfal indignation, and was fully refuted by a gentleman of the law, who, in fact, only expreffed the moderate fentiments of the first tribunals of the kingdom, and of the reafonable part of the nation. Thofe, whofe imaginations have realized the fcenes which were formerly exhibited in a torture chamber, will confider the deftruction of this monfter as no inconfiderable caufe of triumph. See Bourg. Trav. I vol. 286-7. Howard on Pris. 154 &c. Lazarettos 66. 53. 2 Coxe's Trav. 83. 392. 4. Biblioth. Philof. 205. Though I have felected this ftriking inftance, it is but a fmall part of the effects produced by this dif fufion of light and truth. To this is to be attributed the general reformation in the civil and criminal code of Ruffia. The celebrated" Inftructions" of the emprefs, written with her own hand, and depofited with fo much care in paufed in their labours; but it is hoped they have not abandoned the work. What fuccefs has attended the new fyftem of punishments is, therefore, a question interefting to humanity. Some years have elapfed fince its first establishment; and we now have data fufficient to calculate its effects. To aid this important enquiry-to review the crimes which are ftill capital in Pennsylvania-and to examine, whether the punishment of death be, in any cafe, neceffary, is the object of the prefent attempt. On Capital Punishments. IT being established, That the only object of human punishments is the prevention of crimes, it neceffarily follows, that when a criminal is put to death, it is not to revenge the wrongs of fociety, or of any individual- it is not to recall paft time, and to undo what is already done;" but merely to prevent the offender from repeating the crime, and to deter others from its commiffion, by the terror of the punifhment. If, therefore, these two objects can be obtained by any penalty fhort of death, to take away life, in fuch cafe, feems to be an unauthorised act of power. That the first of these may be accomplished by perpetual imprisonment, unless the unfettled ftate, the weakness or poverty, of a government prevents it, admits of little difpute. It is not only as effectual as death, but is attended with these advantages, that reparation may fometimes be made to the party injured --that punishment may follow quick upon the heels of the offence, without violating the fentiments of humanity or religion-and if, in a courfe of years, the offender becomes humbled and reformed, fociety, inftead of lofing, gains a citizen. It is more difficult to determine what effects are produced on the mind by the terror of capital punishments; and, whether it be abfolutely neceffary to deter the wicked from the NOTE. the gilded vafe at Petersburg-What are they, but the principles fcattered through the writings of the philofophers of Europe, and often expreffed in their very words? It was the fame caufe which produced the reformation of the criminal law at Vienna in 1785. "The court (fays Baron Reifbach, fpeaking of the Codex Therefianus) became afhamed, at the time when all Europe was making an outcry about humanity, the abolition of capital punishments, &c. of a ftatute book which had nothing in it but halters, gibbets, and fwords" and a reform was immediately begun. The amelioration introduced into the laws of Sweden by Guftavus III. begins to be generally known. -We now perceive in that country "the character of a government which liftens to the voice of humanity;" and it is eafy to trace the fource of this reform to thofe phi As lofophical writings whofe maxims In Spain, the triumphs of reafon have not been wanting. Various fteps have been taken under the aufpices of Count d'Aranda, to narrow the jurifdiction and humanize the proceedings of the inquifition, and with fuch fuccefs, that fome years ago, there was an expectati on "that the moment was at hand when this hydra, which philosophy had condemned long before, was to be destroyed."-Attempts were also made in the year 1783, to reform the criminal law of the other tribunals of the kingdom. The coun commiffion of atrocious crimes. This is the great problem, to the folution of which, all the facts I fhall have occafion to mention hereafter, will be directed. value, it cannot be denied, that death is confidered as the heaviest punishment the law can inflict. The impreffion it makes on the public mind, is vifible when a criminal is tried for his life. We fee it in the general expectation-in the numbers that throng the place of trial-in the looks of the prifoner-in the anxious attention and long deliberation of the jury-and in the awful filence which prevails while the verdict is given in by their foreman. All thefe announce the inestimable value which is fet on the life of a citizen. But the reverse of this takes place when imprifonment at hard labour is the punishment; and the minds of all prefent, are free from the weight which oppreffes them during a trial of a capital charge. The dread of death is natural, univerfal, impreffive: and deftruction is an idea fo fimple, that all can comprehend and eftimate it: while the punishment of imprisonment and hard labour, fecluded from common obfervation, and confifting of many parts, requires to be contemplated NOTE. If capital punishments are abolished, their place must be supplied by folitary imprisonment, hard labour, or ftripes and it has been often urged, that the apprehenfion of these would be more terrible and impreffive than death. This may be the cafe where great inequality is eftablished between the citizens-where the oppreffions of the great drive the lower claffes of fociety into penury and defpair-where education is neglected, manners ferocious, and morals depraved. In fuch a country-and fuch there are in Europe-the profpect of death can be no reftraint to the wretch whofe life is of fo little account, and who willingly risks it to better his condition. But in a nation where every man is or may be a proprietor, where labour is bountifully reward. ed, and existence is a bleffing of which the pooreft citizen feels the cil of Caftile propofed this, and a committee was appointed to carry the propofal into effect. But what has been the refult, I have not been able to learn. the England, contenting herfelf with the fuperior wisdom, humanity, and justice of her laws, in all refpects but one, and too fond of ancient order of things," has alone remained stationary. The nation indeed is fully fenfible of the evil which attends a multitude of fanguinary laws; and the government itfelf begins to be alarmed with the magnitude of the mischief. Judge Blackstone was active in profecuting a reform and lord Afhburton, it is faid, was prevented by his death from bringing forward in parliament a plan for that purpose. A difpofition to eftablish penitentiary houfes has been difcovered; and this rational expedient will probably be adopt ed when the Botany Bay scheme has been fufficiently tried. The fermentation of the public mind in Europe, excited by greater objects, will prevent for a while any attention to this fubordinate fubject: but a reform in the government will in the end haften that which is fo much wanted in the criminal law. It is impoffible that error can long refift the gentle, but continued impreffion of reafon. The ftroke of truth on public prejudice will be finally irrefiftible. It refembles that of a grain of fand falling on unannealed glafs. Feeble as it feems to be-and flow and invifible as its operations are, no hu man power can prevent its effects, or preferve from deftruction the object on which it falls. See Reifbach's Trav. 1 vol. p. 106. Bourg. 1 vol. 320. 1. 186. Jebb on Prifons. Parl. Regift. vol, 18. p. 521. or felt, before its horrors can be realized. But, while this truth is admitted in the abstract, it cannot be denied, that the terror of death is often fo weakened by the hopes of impunity, that the lefs punishment feems a curb as ftrong as the greater. The profpect of efcaping detection, and the hopes of an acquittal or pardon, blunt its operation, and defeat the expectations of the legiflature. Experience proves, that these hopes are wonderfully ftrong, and they often give birth to the moft fatal rafhnefs. Through the violence of the temptation, the offender over-looks the punishment, or fees, it in diftant obfcurity." Few, who contemplate the commiffion of a crime, deliberately count the coft. Thefe circumstances make it doubt ful, whether capital punishments are beneficial in any cafes, except in fuch as exclude the hopes of pardon. It is the univerfal opinion of the beft writers on this fubject, and many of them are among the most enlightened men of Europe, That the imagination is foon accuftomed to over-look or defpife the degree of the penalty, and that the certainty of it is the only effectual reftraint. They contend, that capital punishments are prejudicial to fociety from the example of barbarity they furnish, and that they multiply crimes inftead of preventing them. In fupport of this opinion, they appeal to the experience of all ages. They affirm, it has been proved, in many inftances, that the increase of punishment, though it may fuddenly check, does not, in the end, diminish the number of offenderst. They appeal to the ex NOTES. * Soon after the act to amend the penal laws was paffed, two perfons were convicted, one of robbery, the other of burglary, committed previous to it. Thefe had the privilege of accepting the new punifhment inftead of the old: but they obftinately refused to pray the benefit of the act, and fubmitted to the fentence of death in expectation of a pardon. The hopes of one were realized; but the other was miferably difappointed. The unavailing regret he expreffed, when his death warrant was announced, and the horrors which feized him when he was led to execution, proved at once, how terrible is the punishment of death, and how ftrong are the hopes of pardon! + This principle is well illuftrated by Montefquieu. To the facts adduced by him in fupport of it, the following may be added. In 1752, the British parliament paff ed an act for the better preventing the horrid crime of murder; by which, in order" to add further terror to the punishment of death," it was directed that the body of the criminal fhould be delivered at Sur-, geons' Hall, to be diffected and anatomized. This expedient, it is faid, carried fome terror with it at firft: but, we are affured, that this prejudice is now pretty well worn off. I vol. Wenderb. View, p. 78. This is confirmed by fir S. T. Janfen, who, on comparing the annual average of convictions for 23 years previous and fubfequent to that ftatute, found that the number of murders had not at all decreased. See his table in Howard's Lazar. I am forry to perceive, that this ufelefs, and perhaps pernicious, expedient has been introduced into the laws of the United States. An anatomical profeffor might have found reafons for its adoption; but the fingle object of the legislature was or ought to have been to prevent the crime. See Debates Cong. 7 April, 1790. Not wholly foreign to this fubject is the following ftrik, ing paffage in the Rights of Man: "It may, perhaps, be faid, that it fignifies nothing to a man what is done to him after his death: but it fignifies much to the living. It ei ample of the Romans, who, during the most profperous ages of the commonwealth, punished with death none but their flaves. They ap peal to the Eaft Indians, that mild and foft people, where the gentleft punishments are faid to be a curb as effectual as the most bloody code in other countries*. They appeal to the experience of modern Europe-to the feeble operation of the increafed feverity against robbers and deferters in France--and to the fituation of England, where, amidst a multitude of fanguinary and atrocious laws, the number of crimes NOTES. ther tortures their feelings or hardens their hearts; and in either cafe, it teaches them how to punish, when power falls into their hands. Lay then the axe to the root, and teach governments humanity. It is their fanguinary punishments which corrupt mankind." Rights of Man, I part, p. 33. *Facts, from which principles are to be deduced, ought to be well established. I am therefore obliged to obferve, that Montefquieu appears to have taken up that alluded to in the text, without fufficiently examining into its truth. The paffage in the Spirit of Laws is thus: "The people of India are mild, tender, and compaffionate. Hence their legiflators repofe great confidence in them. They have established very few punishments, and these are not severe nor rigorously executed." This is founded on the authority of Le P. Bouchuel in his collection of edifying letters. A fimilar account is given by other European writers. The author of "Travels into Europe, Afia, and Africa," published in 1782, fays, "The Hindoos are naturally the most inoffenfive of mortals. There is a wonderful mildness in their manners, and alfo in their laws, by which the murder of a human creature and of a cow (one of the facred animals) are the only crimes which are punished with death." I vol. p. 332. Thefe accounts are very different from thofe of the ancients, who reprefent the punishment of crimes in India as extremely rigorous and fince the Bramins have been prevailed upon, by the addrefs of mr. Haftings, to commu nicate the Hindoo code to the world, we find that the ancients were right in their reprefentations. There is a profufion of capital punishments prefcribed in that code; and the cruel manner of inflicting them, bears the ftamp of remote and barbarous ages. This difference is, in fome meafure, reconciled, by mr. Halhed, the tranflator of the Hindoo code, in his preface to that work. Speaking of the chapter on theft, his words are, "This part of the compilation exhibits a variety of crimes, punished by various modes of capital retribution, contrary to the general opinion adopted in Europe, that the Gentoo adminiftration was wonderfully mild and averfe to the deprivation of life. One caufe for this opinion might be, that fince the Tartar emperors became absolute in India, the Hindoos (like the Jews in captivity) though in fome refpects permitted to live by their own rules, have, for reafons of government, been in moft cafes prohibited from dying by them.” p. 62. Be this as it may, little can be inferred from the example of fo peculiar a people, who are more governed by manners and religion, than by laws; otherwife it might be obferved, that thofe of the fuperior caft or tribe, are exprefsly exempted from capital, though they are fubjected to other punishments: and there is no good ground to believe, that this exemption ever corrupted the heart or tempted to the commiffion of crimes. See Spirit Laws. B. 14. ch. 15. Raynal vol. 1. Sketches Hift. Hindoft. 300. I. Hindoo Code. 1777. paffim. Roberts. Ind. 263. |