ON THE PUNISHMENT OF DEATH
It hath long since been observed, that a man after he is hanged is good for nothing, and that punishments invented for the good of society, ought to be useful to society. It is evident, that a score of stout robbers, condemned for life to some public work, would serve the state in their punishment, and that hanging them is a benefit to nobody but the executioner. Thieves, in England, are seldom punished with death, but are transported to the colonies. This is also practised in Russia, where not one criminal was executed during the whole reign of the autocratical Elisabeth. Catherine II. who hath succeeded her, with much more genius, follows her example; yet crimes are not multiplied by this humanity; and it generally happens that the criminals sent to Siberia in time become honest people. The same is observed in the English colonies. We are astonished at the change, and yet nothing can be more natural. The condemned are forced to continual labour for a livelihood. The opportunities of vice are wanting. They marry and multiply. Oblige men to work, and you certainly make them honest. It is well known, that atrocious crimes are not committed in the country, unless when there is too much holiday, and consequently too much idleness, and consequently too much debauchery.
The Romans never condemned a citizen to death, unless for crimes which concerned the safety of the state. These our masters, our first legislators, were careful of the blood of their fellow-citizens; but we are extravagant with the blood of ours.
The question hath been frequently debated, whether a judge ought to have the power to punish with death, when the punishment is undetermined by the law? This question was solemnly agitated in the presence of the Emperor Henry VII. who decreed that no judge should have such a power.
There are some criminal cases which are either so new, so complicated, and so unaccountable as to have escaped the provision of the laws, and which, therefore, in some countries are left to the discretion of the judge. But for one case in which the laws permit the death of a criminal whom they have not condemned, there are a thousand wherein humanity should save whom the laws have condemned to suffer.
The sword of justice is in our hands, but we ought rather to blunt than to sharpen its edge. It remains within its sheath in the presence of kings, to inform us that it ought seldom to be drawn.
There have been some judges who were passionately fond of spilling human blood; such was Jefferies in England, and such in France was the man whom they called Coupe-tete. Nature never intended such men for magistrates, but for executioners.
Categories: Criminal Jurisprudence