Few civil wars have been waged from considerations of Public Virtue, or even for the security of Public Liberty. These desperate undertakings are generally promoted and carried on by abandoned characters, who seek to better their fortunes in the general havoc and devastation of their country.--Those men are easily seduced from their Loyalty who are apostates from private virtue.
To be secure therefore against those public calamities which, almost inevitably, lead to anarchy and confusion, it is far better to improve and confirm a nation in the true principles of natural justice, than to perplex them by political refinements.
Having thus taken a general view of the principles applicable to Punishments in general, it may be necessary, for the purpose of more fully ill.u.s.trating these reflections, briefly to consider the various leading Offences, and their corresponding Punishments according to the present state of our Criminal Law; and to examine how far they are proportioned to each other.
High Treason is the highest civil Crime which can be committed by any member of the Community.--After various alterations and amendments made and repealed in subsequent reigns, the definition of this offence was settled as it originally stood, by the Act of the 25th of Edward III. stat. 5, cap. 2. and may be divided into seven different heads:
1. Compa.s.sing or imagining the Death of the King, Queen, or Heir Apparent.
2. Levying War against the King, in his realm.
3. Adhering to the King"s enemies, and giving them aid, in the realm or elsewhere.[11]
[Footnote 11: It has been thought necessary, by the Legislature, to explain and enlarge these clauses of the Act 25 _Ed._ III. as not extending, with sufficient explicitness, to modern treasonable attempts. It is therefore provided by the Act 36 _Geo._ III. _cap._ 7, "That if any person (during the life of his present Majesty, and until the end of the Session of Parliament next after a demise of the Crown) shall within the realm, or without, compa.s.s, imagine, invent, devise, or intend death or destruction, _or any bodily harm, tending to death or destruction, maim, or wounding, imprisonment, or restraint_ of the person of the King, his heirs, and successors, or to deprive or depose him or them from his stile, honour, or Kingly name; or to levy war against the King within this Realm, in order by force to compel him to change his measures; _or in order to put any force or constraint upon, or to intimidate or overawe_, BOTH HOUSES, OR EITHER HOUSE, OF PARLIAMENT; or to incite any foreigner to invade the dominions of the Crown: and such compa.s.sings, &c., shall express, utter, or declare, _by publishing any printing, or writing_, or by _any other_ overt act or deed"--the offender shall be deemed _a Traitor_, and punished accordingly.]
4. Slaying the King"s Chancellor or Judge in the execution of their offices.
5. Violating the Queen, the eldest daughter of the King, or the wife of the Heir Apparent, or eldest Son.
6. Counterfeiting the King"s Great Seal, or Privy Seal.
7. Counterfeiting the King"s Money, or bringing false Money into the kingdom.
This detail shews how much the dignity and security of the King"s person is confounded with that of his officers, and even with his effigies imprest on his Coin.--To a.s.sa.s.sinate the servant, or to counterfeit the type, is held as criminal as to destroy the Sovereign.
This indiscriminate blending of crimes, so different and disproportionate in their nature, under one common head, is certainly liable to great objections; seeing that the judgment in this offence is so extremely severe and terrible, _viz. That the offender be drawn to the gallows on the ground or pavement: That he be hanged by the neck, and then cut down alive: That his entrails be taken out and burned while he is yet alive: That his head be cut off: That his body be divided into four parts: And that his head and quarters be at the King"s disposal_.--Women, however, are only to be drawn and hanged:--though in all cases of treason, they were heretofore sentenced to be burned: a cruel punishment, which, after being alleviated by the custom of previous strangulation, was at length repealed, by the Act 30 Geo. III. _c._ 48.
There are indeed some shades of difference with regard to coining money; where the offender is only drawn and hanged; and that part of the punishment which relates to being _drawn_ and _quartered_ is, to the honour of humanity, never practised. But even in cases of the most atrocious criminality, the execution of so horrid a sentence seems to answer no good political purpose.--Nature shudders at the thought of imbruing our hands in blood, and mangling the smoaking entrails of our fellow-creatures.
In most Countries and in all ages, however, Treason has been punished capitally.--Under the Roman Laws, by the _Cornelia Lex_, of which Sylla, the Dictator, was the author, this Offence was created.--It was also made a capital Crime when the Persian Monarchy became despotic.
By the Laws of China, Treason and Rebellion are punished with a rigour even beyond the severity of our judgment, for the criminals are ordained to be cut in _ten thousand_ pieces.
There is another species of Treason, called _Petty Treason_, described by the Statute of the 25th of Edward the III. to be the offence of _a Servant killing his Master, a Wife killing her Husband_, or a _Secular or Religious slaying his Prelate_.--The Punishment is somewhat more ignominious than in other capital offences, inasmuch as a _hurdle_ is used instead of a _cart_.--Here again occurs a very strong instance of the inequality of Punishments; for although the principle and essence of this Crime is breach of duty and obedience due to a superior slain, yet if a child murder his parents (unless he serve them for wages) he is not within the Statute; although it must seem evident to the meanest understanding that Parricide is certainly a more atrocious and aggravated offence, than either of those specified in the Statute.
By the _Lex Pompeia_ of the Romans, Parricides were ordained to be sown [Transcriber"s Note: sewn] in a sack with a _dog_, a _c.o.c.k_, a _viper_, and an _ape_, and thrown into the sea, thus to perish by the most cruel of all tortures.
The ancient Laws of all civilized nations punished the crime of Parricide by examples of the utmost severity.--The Egyptians put the delinquents to death by the most cruel of all tortures--mangling the body and limbs, and afterwards laying it upon thorns to be burnt alive.
By the Jewish Law it was death for children to curse, or strike their parents; and in China, this crime was considered as next in atrocity to Treason and Rebellion, and in like manner punished by cutting the delinquent in _one thousand_ pieces.
The Laws of England however make no distinction between this crime and common Murder; while it is to be lamented that offences far less heinous, either morally or politically considered, are punished with the same degree of severity; and it is much to be feared, that this singular inequality is ill calculated to inspire that filial awe and reverence, to parents, which all human Laws ought to inculcate.
The offences next in enormity to Treason, are by the Laws of England, denominated Felonies, and these may be considered as of two kinds, _public_ and _private_.
Under the head of _Public Felonies_ we shall cla.s.s the following: having peculiar relation to the State.
1. Felonies relative to the Coin of the Realm.
2. ----------------- to the King and his Counsellors, &c.
3. ----------------- to Soldiers and Marines.
4. ----------------- to embezzling Public Property.
5. ----------------- to Riot and Sedition.
6. ----------------- to Escape from Prison.
7. ----------------- to Revenue and Trade, &c.
We consider as comprehended under _Private Felonies_ the following crimes committed, 1. _Against the Life_, 2. _the Body_, 3. _The Goods_, 4. _The Habitation of the Subject_.
Against 1. By Murder.
Life. 2. By Man-slaughter.
3. By Misadventure.
4. By Necessity.
Against the 1. Sodomy.
Body. 2. Rape.
3. Forcible Marriage.
4. Polygamy.
5. Mayhem.
Against 1. Simple Larceny.
Goods. 2. Mixt Larceny.
3. Piracy.
Against the 1. Arson.
Dwelling or 2. Burglary.
Habitation.
Those Crimes which we have denominated _Public Felonies_ being merely of a political nature, it would seem that the ends of justice would be far better answered, than at present, and convictions oftener obtained, by different degrees of Punishment short of Death.
With regard to _Private Felonies_, it may be necessary to make some specific observations----
The first, in point of enormity, is _Murder_, which may be committed in two Ways:--first, upon _one"s self_, in which case the offender is denominated _Felo de se_ or a _Self-murderer_;--secondly, by killing another person.
The Athenian Law ordained, that persons guilty of Self-murder should have the hand cut off which did the murder, and buried in a place separate from the body; but this seems of little consequence.--When such a calamity happens, it is a deplorable misfortune; and there seems to be a great cruelty in adding to the distress of the wife, children, or nearest kin of the deceased, by the forfeiture of his whole property; which is at present confiscated by Law.
By the Law of England, the judgment in case of Murder is, that the person convicted shall suffer death and that his body shall be dissected.
The Laws of most civilized nations, both ancient and modern, have justly punished this atrocious offence with death. It was so by the Laws of Athens, and also by the Jewish and Roman Laws.--By the Persian Law Murderers were pressed to death between two stones; and in China, persons guilty of this offence are beheaded, except where a person kills his adversary in a duel, in which case he is strangled.--Decapitation, by the Laws of China, is considered the most dishonourable mode of execution.
In the ruder ages of the world, and before the manners of mankind were softened by the arts of peace and civilization, Murder was not a capital crime: Hence it is that the barbarous nations which over-ran the Western Empire, either expiated this crime by private revenge, or by a pecuniary composition.--Our Saxon ancestors punished this high offence with a fine; and they too countenanced the exercise of that horrid principle of revenge, by which they added blood to blood.--But in the progress of civilization and Society, the nature of this crime became better understood; private revenge was submitted to the power of the Law; and the good King Alfred first made Murder a capital offence in England.
In this case, as in that of Self-murder, the property of the murderer goes to the State; without any regard to the unhappy circ.u.mstances of the families either of the murdered or the guilty person, who may be completely ruined by this fatal accident.--A provision which seems not well to accord with either the justice or mildness of our Laws.
Man-slaughter is defined to be _The killing another without malice, either express or implied: which may be either, voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful Act_. And the Punishment is, _that the person convicted shall be burnt in the hand, and his goods forfeited_.--And offenders are usually detained in prison for a time not exceeding one year, under the Statutes regulating the Benefit of Clergy.
Homicide by _Misadventure_ is, when _one is doing a lawful act, without intent to hurt another_, and _death ensues_.--For this offence a pardon is allowed of course; but in strictness of Law the property of the person convicted is forfeited; the rigour of which, however, is obviated by a Writ of Rest.i.tution of his goods, to which the party is now, by long usage, ent.i.tled of right; only paying for suing out the same.
Homicide _by necessity_ or in _Self-defence_, is another shade of Murder, upon which no punishment is inflicted: and in this is included what the Law expresses by the word _Chance-medley_: which is properly applied to such killing as happens in self-defence upon a sudden rencounter. Yet, still by strictness of Law, the goods and chattels of the person charged and convicted are forfeited to the Crown; contrary, as it seems to many, to the principles of Reason and Justice.
It should be recollected that in all cases where the Homicide does not amount to Murder or Man-slaughter, the Judges permit, nay even direct, a verdict of acquittal.--But it appears more consonant with the sound principles of Justice, that the Law itself should be precise, than that the property of a man should, in cases of _Misadventure_, _Chance-medley_, and _Self-defence_ depend upon the construction of a Judge, or the lenity of a Jury: Some alteration therefore, in the existing Laws, seems called for in this particular.