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MILDNESS OF CEIMINAL LAWS.
In fine, a very remarkable circumstance in the English government (and which alone evinces something peculiar and excellent in its nature), is that spirit of extreme mildness with which justice, in criminal cases, is administered in England: a point with regard to which. England differs from all other countries in the world.
When we consider the punishments in use in the other states of Europe, we wonder how men can be brought to treat their fellow-creatures with so much cruelty; and the bare consideration of those punishments would sufficiently convince us (if we did not know the fact from other circumstances) that the men in those states who frame the laws, and preside over their execution, have little apprehension that either they, or their friends, will ever fall victims to those laws which they thus rashly establish.
In the Roman republic, circumstances of the same nature with those just mentioned were also productive of the greatest defects in the kind of criminal justice which took place in it. That class of citizens who were at the head of the republic, and who knew how mutually to exempt each other from the operation of any too severe laws or practice, not only allowed themselves great liberties, as we have seen, in disposing of the lives of the inferior citizens, but had also introduced, into the exercise of the illegal powers they assumed to themselves in that respect, a great degree of cruelty.*
Nor were things more happily conducted in the Grecian republics. From their democratical nature, and the frequent revolutions to which they were subject, we naturally expect to find that authority used with mildness which those who enjoyed it must have known to have been precarious; yet such were the effects of the violence attending those very
"A copy of this act, elegantly engrossed and illuminated," continues Judge Blackstone, "was sent to Moscow, and an ambassador extraordinary commissioned to deliver it."
* The common manner in which the Senate ordered citizens to be put to death, was by throwing them headlong from the top of the Tarpeian rock. The consuls, or other particular magistrates, sometimes caused citizens to expire upon a cross; or, which was a much more common case, ordered them to be beaten to death, with their heads fastened between the branches of a fork; which they called cervicem furca inserere.
revolutions, that a spirit both of great irregularity and cruelty had taken place among the Greeks in the exercise of the power of inflicting punishments. The very harsh laws of Draco are well known, of which it was said they were not written with ink but with blood. The severe laws of the Twelve Tables among the Romans were in great part brought over from Greece. And it was an opinion commonly received in Rome, that the cruelties practised by the magistrates on the citizens were only imitations of the examples which the Greeks had given them.*
In fine, the use of torture, that method of administering justice in which folly may be said to be added to cruelty, had been adopted by the Greeks in consequence of the same causes which had occurred to produce the irregularity of their criminal justice. And the same practice continues, in these days, to prevail on the continent of Europe, in consequence of that general arrangement of things which creates there such a carelessness about remedying the abuses of public authority.
But the nature of that same government which has procured to the people of England all the advantages we have before described, has, with still more reason, freed them from the most oppressive abuses which prevail in other countries.
That wantonness in disposing of the dearest rights of mankind, those insults upon human nature, of which the frame of the governments established in other states unavoidably becomes more or less productive, are entirely banished from a nation which has the happiness of having its interest guarded by men who continue to be themselves exposed to the pressure of those laws which they concur in making, and of every tyrannic practice which they suffer to be introduced,—by men whom the advantages which they possess above the rest of the people render only more exposed to the abuses they are appointed to prevent, only
* Cffisar expressly reproaches the Greeks with this fact in his speech in favour of the accomplices of Catiline, which Sallust has transmitted to us:—" Eodem illo tempore, Grsecise morem imitati (majores nostri), verberibus animadvertebant in cives; de condemnatis summum supplicium sumebant."
MEECIFUL SPIEIT OF THE LAWS.
more alive to the dangers agaiust which it is their duty to defend the community.*
Hence we see that the use of the torture has, from the earliest times, been utterly unknown in England. And all attempts to introduce it, whatever might be the power of those who made them, or the circumstances in which they renewed their endeavours, have been strenuously opposed and defeated.f
From the same cause also arose that remarkable forbearance of the English laws to use any cruel severity in the punishments which experience showed it was necessary for the preservation of society to establish; and the utmost vengeance of those laws, even against the most enormous offenders, never extends beyond the simple deprivation of life.J
Nay, so anxious has the English legislature been to establish mercy, even to convicted offenders, as a fundamental
* Historians take notice that the Commons, in the reign of Charles II., made haste to procure the abolition of the old statute, I)e Htzretico comburendo (for burning heretics), as soon as it became publicly known that the presumptive heir to the crown was a Roman Catholic. Perhaps they would not have been so diligent and earnest, if they had not been fully convinced that a member of the House of Commons, or his friends, might be brought to trial as easily as any other individuals among the people, so long as an express and written law could be produced against them.
t This assertion is incorrect. The torture has frequently been used in England. The rack, scavenger's daughter, iron screw, gauntlets, and cell of little ease, were instruments to inflict the most excruciating torture upon Papists. The Puritans did not always escape the engines of Elizabeth's High Court of Commission. At present the remarks of De Lolme with regard to punishments are perfectly applicable; but when he wrote, the number of capital offences were disgraceful to our laws ; for stealing to the value of one shilling, and the crime of murder, were equally visited with the punishment of death; and women for petite treason might, by law, be sentenced to be burnt alive.—Ed.
X A very singular instance occurs in the history of the year 1605, of the care of the English legislature not to suffer precedents of cruel practices to be introduced. During the time that those concerned in the gunpowder-plot were under sentence of death, a motion was made in the HouBe of Commons to petition the King that the execution might be stayed, in order to consider of some extraordinary punishment to be inflicted upon them; but this motion was rejected. A proposal of the same kind was also made in the House of Lords, where it was dropped. —See the Parliamentary History of England, vol. v. anno 1605.
principle of the government of England, that they made it an express article of that great public compact which was framed at the important sera of the Eevolution, that "no cruel and unusual punishments" should be enforced.* They even endeavoured, by adding a clause for that purpose to the oath which kings were thenceforward to take at their coronation, as it were to render it an everlasting obligation of English kings, to make justice to be "executed with mercy." t
A MOEE INWARD VIEW OF THE ENGLISH GOVERNMENT THAN HAS HITHERTO BEEN OFFEEED TO THE READER IN THE COURSE OF THIS WORK.—VERT ESSENTIAL DIFFERENCES BETWEEN THE ENGLISH MONARCHY, AS A MONARCHY, AND ALL THOSE WITH WHICH WE ARE ACQUAINTED.
The doctrine constantly maintained in this work, and which has, I think, been sufficiently supported by facts and comparisons drawn from the history of other countries, is, that the remarkable liberty enjoyed by the English nation is essentially owing to the impossibility under which their leaders, or in general all men of power among them, are placed, of invading and transferring to themselves any branch of the governing executive authority; which authority is exclusively vested, and firmly secured, in the crown.
* See the Bill of Eights, art. x.—" Excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted."
t Those same dispositions of the English legislature which have led them to take such precautions in favour even of convicted offenders, have still more engaged them to make provisions in favour of such persons as are only suspected and accused of having committed offences of any kind. Henoe the zeal with which they have availed themselves of every important occasion—such, for instance, as that of the Revolution— to procure new confirmations to be given to the institution of the trial by jury, to the laws on imprisonments, and in general to that system of criminal jurisprudence of which a description has been given in the first part of this work.
Hence the anxious care with which those men continue to watch the exercise of that authority. Hence their perseverance in observing every kind of engagement which themselves may have entered into with the rest of the people.
But here a consideration of a most important kind presents itself: How comes the crown in England thus constantly to preserve to itself (as we see it does) the executive authority in the state, and moreover to preserve it so completely as to inspire the great men in the nation with that conduct so advantageous to public liberty, which has just been mentioned? These are effects which we do not find, upon examination, that the power of crowns has hitherto been able to produce in other countries.
In all states of a monarchical form, we indeed see that those men whom their rank and wealth, or their personal power of any kind, have raised above the rest of the people, have formed combinations among themselves to oppose the power of the monarch. But their views, we must observe, in forming these combinations, were not by any means to set general and impartial limitations on the sovereign authority. They endeavour to render themselves entirely independent of that authority; or even utterly to annihilate it, according to circumstances.
Thus we see that in all the states of ancient Greece, the kings were at last destroyed and exterminated. The same event happened in Italy, where in remote times there existed for a while several kingdoms, as we learn both from the ancient historians and poets. And in Bome, we even know the manner and circumstances in which such a revolution was brought about.
In more modern times, we see the numerous monarchical sovereignties (which had been raised in Italy on the ruins of the Soman empire) successively destroyed by powerful factions: and events of much the same nature have at different times taken place in the kingdoms established in the other parts of Europe.
In Sweden, Denmark, and Poland, for instance, we find the nobles reducing their sovereigns to the condition of simple presidents over their assemblies,—of mere ostensible heads of the government.