ON CAPITAL PUNISHMENTS.

IT being established, That the only object of human punishments is the prevention of crimes▪ it necessarily follows, that when a criminal is put to death, it is not to revenge the wrongs of society, or of any individual—"it is not to recall past time and to undo what is already done:" but merely to prevent the offender from repeating the crime, and to deter others from its commission, by the terror of the punishment. If, therefore, these two ob­jects can be obtained by any penalty short of death, [Page 7] to take away life, in such case, seems to be an au­thorised act of power.

That the first of these may be accomplished by perpetual imprisonment, unless the unsettled state, the weakness or poverty, of a government prevent it, admits of little dispute. It is not only as effect­ual as death, but is attended with these advantages, that reparation may sometimes be made to the par­ty injured—that punishment may follow quick up­on the heels of the offence, without violating the sentiments of humanity or religion,—and if, in a course of years, the offender becomes humbled and reformed, society, instead of losing, 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 absolutely necessary to deter the wicked from the commission of atroci­ous crimes. This is the great problem, to the so­lution of which, all the facts I shall have occasion to mention hereafter, will be directed.

If capital punishments are abolished, their place must be supplied by solitary imprisonment, hard labor, or stripes: and it has been often urged, that the apprehension of these would be more terrible and impressive than death. This may be the case where great inequality is established between the citizens, where the oppressions of the great drive the lower classes of society into penury and des­pair, where education is neglected, manners fero­cious, and morals depraved. In such a country—and such there are in Europe—the prospect of death can be no restraint to the wretch whose life is of so 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 labor is bountifully rewarded, and existence is a blessing of which the poorest citizen feels the value, it cannot [Page 8] be denied, that death is considered as the heaviest punishment the law can inflict. The impression it makes on the public mind is visible when a crimi­nal is tried for his life. We see it in the general ex­pectation—in the numbers that throng the place of trial—in the looks of the prisoner—in the an­xious attention and long deliberation of the jury, and in the awful silence which prevails while the verdict is given in by their Foreman. All these announce the inestimable value which is set on the life of a citizen. But the reverse of this takes place when imprisonment at hard labor is the punishment, and the minds of all present, are free from the weight which oppresses them during a trial of a capital charge. The dread of death is natural, universal—impressive: and destruction is an idea so simple that all can comprehend and estimate it: while the punishment of imprisonment and hard la­bor, secluded from common observation, and con­sisting of many parts, requires to be contemplated 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 so weakened by the hopes of impunity, that the less punishment seems a curb as strong as the greater. The prospect of escaping detection and the hopes of an acquittal or pardon, blunt its ope­ration and defeat the expectations of the Legisla­ture. Experience proves that these hopes are wonderfully strong, and they often give birth to the most fatal rashness ^*. Through the violence [Page 9] of the temptation the offender over-looks the pun­ishment, or sees it "in distant obscurity." Few, who contemplate the commission of a crime, deli­berately count the cost.

These circumstances make it doubtful, whether capital punishments are beneficial in any cases, ex­cept in such as exclude the hopes of pardon. It is the universal opinion of the best writers on this subject, and many of them are among the most enlightened men of Europe, That the imagination is soon accustomed to over-look or despise the de­gree of the penalty, and that the certainty of it is the only effectual restraint. They contend, that capital punishments are prejudicial to society from the example of barbarity they furnish, and that they multiply crimes instead of preventing them. In support of this opinion, they appeal to the ex­perience of all ages. They affirm, it has been proved, in many instances, that the increase of punishment, though it may suddenly check, does not, in the end, diminish the number of offend­ers. ^(b) They appeal to the example of the Ro­mans, who, during the most prosperous ages of the commonwealth, punished with death none but their slaves. They appeal to the East Indians, that mild and soft people, where the gentlest pun­ishments are said to be a curb as effectual as the most bloody code in other countries. ^(c) They appeal to the experience of modern Europe,—to the feeble operation of the increased severity a­gainst robbers and deserters in France,—and to the situation of England, where, amidst a multitude of sanguinary and atrocious laws, the number of crimes is greater than in any part of Europe. They cite the example of Russia, ^‡ where the intro­duction [Page 10] of a milder system has promoted civiliza­tion, and been productive of the happiest ef­fects: ^(d) and they applaud the bolder policy of Leopold, which has effectually lessened the num­ber of crimes in Tuscany, by the total abolition of all capital punishments. This instructive fact is not only authenticated by discerning travellers, but is announced by the celebrated Edict of the Grand Duke, issued so lately as 1786. ^(e) To these might be added the example of Sweden and Denmark: and indeed the more closely we examine the effects of the different criminal codes in Europe the more proofs we shall find to confirm this great truth, That the source of all human corruption lies in the impunity of the criminal not in the moderation of Punishment. ^(f)

The experience of America does not contradict that of Europe. Crimes, which are capital in one state, are punished more mildly in another: and, in the same state, offences which were formerly capital are not so at present. Such are those of horse-stealing, forgery, counterfeiting bills of cre­dit or the coin, robbery, burglary, and some others: but, I cannot learn that these crimes have been better repressed by the punishment of death than by a milder penalty. Horse-stealing has al­ways been treated like the other kinds of simple larceny in New England and in Pennsylvania: in all the states southward of Maryland, it is a capital crime. In the latter states the offence seems to be as common as in the former; and if the se­verity of the punishment has any beneficial effect, my enquiries have not been able to ascertain it. On the contrary I have the best authority for say­ing, [Page 11] that, in Virginia, the effect is so feeble, that of all crimes this is the most frequent. New Jer­sey has made the experiment fairly. At first it was a felony of death: in 1769 the law was re­pealed: it was again revived in 1780; but after a few years experience, the Legislature was obliged to listen once more to the voice of humanity and sound policy. The unwillingness of witnesses to prosecute, the facility with which juries acquitted, and the prospects of pardon, created hopes of im­punity which invited and multiplied the offence. ^(g)

In the case of forgery the balance is clearly on the side of the milder punishment. It is capital in New York, but it is not so in Pennsylvania; and, in the latter state, there have been fewer convicts of this crime than in the former. It is natural that it should be so; for the public sentiment re­volting against this severity, very few have been executed: and the mischief became so apparent, that the late Attorney General thought it his duty to present a memorial to the Assembly and to re­recommend a milder punishment than death.

Another fact deserves notice. Bank bills have been several times forged in the state of New York: but in Pennsylvania this crime has never been committed, although the act which made it capital at first, was repealed above seven years ago.

Counterfeiting the continental bills of credit and uttering them knowingly, were, as far as I can learn, much more frequent in this state, where they were capital, than in Connecticut were they were not. It appears, by the annexed table, that, in the space of two years, while such bills were cur­rent, there were eighteen persons tried for these [Page 12] crimes, of whom eleven were convicted. This is nearly equal to all the other instances of forgery, not capital, that have occured in the long term of fourteen years. Robbery, burglary, and the crime against nature were formerly punished with death in this state: since the year 1786, they have been as effectually restrained by the gentler penalties of imprisonment and hard labor.

The experience of Maryland, and, also, of Con­necticut, where a similar system has been adopted with regard to the two first of these crimes, is said to establish the same fact. ^(h).

Hereafter there may be occasion further to illus­trate this part of the subject: yet, even these facts incline us to suspect, that, in most cases to which it is applied, the terror of death (lessened as it is by the hopes of impunity) is neither necessary nor useful. May not milder penalties, strictly enforced, have as great an effect? Is there not sound wisdom in establishing a species of punishment in which the grade of criminality may be marked by a cor­respondent degree of severity? May we not be allowed to suspect, that any apparent necessity re­sults rather from the indolence and inattention of governments than from the nature of things? and, may we not infer, that a Legislature would be warranted to abolish this dreadful punishment in all cases (except in the higher degrees of treason and murder) and to make, in this country, a fair experiment in favor of the rights of human nature.

In no country can the experiment be made with so much safety, and such probability of suc­cess, as in the United States. In the old and cor­rupted governments of Europe, especially in the larger states, a reform in the criminal law has real difficulties to encounter. The multitude of offen­ders [Page 13] —the unequal state of society—the ignorance, poverty and wretchedness of the lowest class of the people—corruption of morals—and habits and manners formed under sanguinary laws, make a sudden relaxation of punishment, in those coun­tries, a dangerous experiment. But in America every thing invites to it: and strangers have ex­pressed their surprise, that we should still retain the severe code of criminal law, which, during our connection with Britain, we copied from her. "I am surprized, says a late traveller through America, ^† that the penalty of death is not abolish­ed in this country where morals are so pure, the means of living so abundant, and misery so rare, that there can be no need of such horrid pains to prevent the commission of crimes." That these punishments ought to be greatly lessened, if not totally abolished, is the opinion of many of the most enlightened men in America: among these I may be allowed to mention the respectable names of Mr. Jefferson, Mr. Wythe and Mr. Pendleton of Virginia, who, as a committee of revision in their report, to the General Assembly of that state, recommended the abolition of capital punishments in all cases but those of treason and murder: a pro­posal, which, unfortunately for the interests of hu­manity, was rejected in the Legislature by a single vote.

But authorities may mislead and theory may be delusive. Government is an experimental science: and a series of well established facts in our state is the best source of rational induction for us. I shall, therefore, after taking an historical view of our criminal law, proceed to examine the practical ef­fects of the new system of punishments—(adopted in 1786, and improved by new regulations, intro­duced [Page 14] in 1790)—of those which are still capital—and to accompany them with such observations as a course of some years experience may suggest.

HISTORICAL VIEW OF THE CRIMINAL LAW OF PENNSYLVANIA.

IT was the policy of Great Britain to keep the laws of the Colonies in unison with those of the mother country. This principle extended not only to the regulation of property, but even to the cri­minal code. The royal charter to William Penn directs, That the laws of Pennsylvania "respecting felonies, should be the same with those of England, until altered by the acts of the future Legislature," who are enjoined to make these acts "as near, as conveniently may be, to those of England:" ^* and in order to prevent too great a departure, a duplicate of all acts are directed to be transmitted, once in five years, for the royal approbation or dissent.

The natural tendency of this policy was to over­whelm an infant colony, thinly inhabited, with a mass of sanguinary punishments hardly endurable in an old, corrupted and populous country. But the Founder of the province was a philosopher whose elevated mind rose above the errors and prejudices of his age, like a mountain, whose sum­mit is enlightened by the first beams of the sun, while the plains are still covered with mists and darkness. He comprehended, at once, all the absurdity of such a system. In an age of religious [Page 15] intolerance he destroyed every restraint upon the rights of conscience, and insured not merely tolera­tion, but absolute protection, ^† to every religion under heaven. He abolished the ancient oppres­sion of forfeitures for self-murder, and deodands in all cases of homicide. He saw the wickedness of exterminating where it was possible to reform; and the folly of capital punishments in a country where he hoped to establish purity of morals and innocence of manners. As a philosopher he wish­ed to extend the empire of reason and humanity; and, as a leader of a sect, he might recollect that the infliction of death, in cold blood, could hardly be justified by those who denied the lawfulness of defensive war. He hastened, therefore, to prevent the operation of the system which the charter im­posed; and among the first cares of his administra­tion, was that of forming a small, concise, but com­plete code of criminal law, fitted to the state of his new settlement: a code which is animated by the pure spirit of philanthropy, and, where we may discover those principles of penal law, the elucida­tion of which has given so much celebrity to the philosophy of modern times. The punishments prescribed in it were calculated to tie up the hands of the criminal—to reform—to repair the wrongs of the injured party—and to hold up an object of terror sufficient to check a people whose manners he endeavoured to fashion by provisions interwo­ven in the same system. Robbery, burglary, ar­son, rape, the crime against nature, forgery, levying war against the Governor, conspiring his death, and other crimes, deemed so heinous in many coun­tries, and for which so many thousands have been [Page 16] executed in Britain, were declared to be no longer capital. Different degrees of imprisonment at hard labour—stripes—fines and forfeitures, were the whole compass of punishment inflicted on these offences. Murder, "wilful and premeditated," is the only crime for which the infliction of death is prescribed; and this is declared to be enacted in obedience "to the law of God," as though there had not been any political necessity even for this punishment apparent to the Legislature. Yet even here the life of the citizen was guarded by a provision, that no man should be convicted but upon the testimony of▪ two witnesses, and, by a humane practice, early introduced, of staying execution till the record of conviction had been laid before the Executive, and full opportunity given to obtain a pardon of the offence or a miti­gation of the punishment.

These laws were at first temporary, but being, at length, permanently enacted, they were trans­mitted to England, and were all, without excep­tion, repealed by the Queen in Council. The rights of humanity, however, were not tamely given up: the same laws were immediately re­enacted, and they continued until the year 1718, and might have remained to this day had not high handed measures driven our ancestors into an adop­tion of the sanguinary statutes of the Mother Country. During this long space of thirty-five years, it does not appear that the mildness of the laws invited offences, or that Pennsylvania was the theatre of more atrocious crimes than the other Colonies. The judicial records of that day are lost: but, upon those of the legislative or execu­tive departments and other public papers, no com­plaint of of their inefficacy can be found; nor any attempt to punish these crimes with death. On the contrary, as these laws were temporary the [Page 17] subject was often before the Legislature, and they were often re-enacted: which is a decisive proof that they were found adequate to their object.

Under this policy the province flourished: but during the boisterous administration of Governor Gookin, a storm was gathering over it which threatened to sweep away not only this system of laws, but, with it, the privileges of the people. The administration of government, in all its de­partments, had, from the first settlement of the province, been conducted under the solemnity of an attestation instead of an oath. The laws upon this subject were repealed in England, and, by an order of the Queen in Council, all officers and witnesses were obliged to take an oath, or, in lieu thereof, the affirmation allowed to Quakers in England by the statute of William III. But the Assembly chose to legislate for themselves on this important subject; and this, together with the re­fusal to adopt the English statutes in other cases, had given offence. The conduct of the Assembly, in their disputes with the Governor, was misrepre­sented—suspicions of disaffection were propagated—the declining health of the Proprietor left them without an advocate, and his necessities threatened them with a surrender of the government into the hands of the crown.

At this moment the Quakers were alarmed with the prospect of political annihilation. It was said, that the act of 1 George I. which prohibits an affirmation in cases of qualifications to office or in criminal suits, extended to the colony and super­ceded the ancient laws. This construction, which was advocated by the Governor, and tended to exclude the majority of the settlers from all offices and even from the protection of the law, threw the whole province into confusion. The Governor refused to administer the affirmation as [Page 18] a qualification for office—the Judges refused to sit in criminal cases—the administration of justice was suspended, and two atrocious murderers re­mained in gaol three years without trial. The Assembly were alarmed, but they resolutely and forcibly asserted the rights of the people: and Gookin was at length re-called. ^*

On the accession of Sir William Keith a tempo­rary calm took place—the criminals were convicted under the old forms of proceeding, and executed agreeably to their sentence. A representation and complaint of this was made to the Crown; and the Assembly were panick struck with the intelli­gence. They trembled for their privileges—they were weary of the contest which had so long agi­tated them, and impatient to obtain any regular ad­ministration of justice consistent with their funda­mental rights.

They had been assured by the Governor that the best way to secure the favor of their Sovereign was to copy the laws of the Mother Country,—"the sum and result of the experience of ages." The advice was pursued—a resolution to extend such of the British penal statutes, as suited the pro­vince▪ was suddenly entered into. An act for this purpose (containing a provision to secure the right of affirmation to such as conscientiously scrupled an oath) was drawn up by David Lloyd, the Chief Justice, and, together with a petition to the Crown, was passed in a few days. ^†

So anxious were they to conform, that they not only surrendered their ancient system, but left it to the British Parliament to legislate for them, in [Page 19] future, upon this subject: ^† and so humbled that they departed, in their petition, from their usual stile, ^† and directed their Speaker to solicit the Ves­try and some members of the Church of England to join in a similar address. The sacrifice was ac­cepted, and the privilege of affirmation, so anxious­ly desired, was confirmed by the royal sanction.

Thus ended this humane experiment in legisla­tion, and the same year, which saw it expire, put a period to the life of its benevolent Author.

The royal approbation of this act was trium­phantly announced by the Governor, and such was the satisfaction of seeing its privileges secur­ed, that the province did not regret the price that it paid.

By this act, which is the basis of our criminal law, the following offences were declared to be capital: high treason (including all those treasons which respect the coin) petit treason, murder, rob­bery, burglary, rape, sodomy, buggery, malicious maiming, man-slaughter by stabbing, witch-craft and conjuration, arson, ^§ and every other felony (except larceny) on a second conviction. The sta­tute of James I. respecting bastard children, was extended, in all its rigor, and the courts were au­thorized to award execution forthwith.

To this list, already too large, were added, at subsequent periods, counterfeiting and uttering counterfeit bills of credit, counterfeiting any cur­rent gold or silver coin, and the crime of arson, [Page 20] was extended so as to include, the burning of cer­tain public buildings. All these crimes, except perhaps, the impossible one of witch-craft, were ca­pital at the revolution.

We perceive, by this detail, that the severity of our criminal law is an exotic plant and not the native growth of Pennsylvania. It has been endur­ed but, I believe, has never been a favorite. The religious opinions of many of our citizens were in opposition to it: and, as soon as the principles of Beccaria were disseminated, they found a soil that was prepared to receive them. During our con­nection with Great Britain no reform was attempt­ed: but, as soon as we separated from her, the public sentiment disclosed itself, and this benevo­lent undertaking was enjoined by the constitution. This was one of the first fruits of liberty, and con­firms the remark of Montesquieu, ^* "That, as freedom advances, the severity of the penal law decreases."

In obedience to these injunctions, the Assembly proceeded, in the year 1786, to introduce the pu­nishment of hard labor; and the offences (formerly capital) on which its effects have been tried, are, the crime against nature, robbery and burglary.

We are now to enquire whether this punishment has been less efficacious in preventing these crimes than the punishment of death. To aid this enqui­ry, a table exhibiting a view of the number of persons convicted, acquitted and executed, since the year 1778, is annexed.

OF THE CRIME AGAINST NATURE.

THIS crime, to which there is so little tempta­tion, that philosophers have affected to doubt its [Page 21] existence, is, in America, as rare as it is detesta­ble. In a country where marriages take place so early, and the intercourse between the sexes is not difficult, there can be no reason for severe penal­ties to restrain this abuse. The wretch, who per­petrates it, must be in a state of mind which may occasion us to doubt, whether he be sui Juris at the time; or, whether he reflects on the punish­ment at all. The infamy of detection would, of itself, be a punishment sufficient to restrain any one who was not certain of being undiscovered: and what terror has any punishment to him who believes that his crime will never be known? The experiment that has been made, proves that the mildness of the punishment has not encreased the offence. In the six years preceding the act, and while the crime was capital, there are on record two instances of it: in the same period since, there is but one. It was impossible this last offender could be seduced by the mildness of the punishment, be­cause at the time, and long after his arrest, he be­lieved it to be a capital crime.

These facts prove, that to punish this crime with death would be a useless severity. They may teach us, like the capital punishments formerly inflicted on adultery and witch-craft, how dangerous it is rashly to adopt the Mosaical institutions. Laws might have been proper for a tribe of ar­dent barbarians wandering through the sands of Arabia which are wholly unfit for an enlightened people of civilized and gentle manners.

ROBBERY AND BURGLARY.

THE salutary effects of this change in our laws are not so evident in the cases of robbery and bur­glary as in that of the crime against nature. On the contrary, a superficial inspection of the annex­ed [Page 22] table would lead a careless observer to believe that it has tended to encourage these crimes instead of suppressing them. It is true, there were, at first, great defects in the plan and still greater in the execution: and, for some time after its adop­tion, it had difficulties to struggle with which nothing but the native merit of its principle could have surmounted. A detail of these is necessary to enable us justly to appreciate this new system of punishment.

It must be remarked, that about three-fourths of the convictions of robbery and burglary, stated in the table, took place in Philadelphia. In a large city like this there is always a class of men, some­times greater and sometimes less, who live by dis­honest means, and considering theft as a regular vo­cation, pass through all the gradations of simple lar­ceny into the higher departments of robbery and burglary. It so happened, that about the time of passing the act for amending the penal laws, there was accumulated in the goal of the city and county of Philadelphia a great number of persons who had been convicted of these and other infamous crimes, and were either pardoned by the mercy of the go­vernment, or had undergone the punishment (and some of them the repeated punishment) of the pil­lory and whipping-post. These wretches, harden­ed by the nature of the punishment they had sus­tained—shut up together in idleness—freely sup­plied with liquor—witnesses of each others debauchery—instructing the inexperienced in the arts of villainy—and mutually corrupting and corrupted by each other, were a melancholy proof of the in­efficacy of our former laws, and they were well prepared to despise the new. In order to clear the goal, and accommodate it to the operation of the new system, these offenders were, from time [Page 23] to time, discharged, and as soon as they were at li­berty they returned to their old vocation.

It is a fact well known, that among all the convicts which first fell under the correction of the new law, scarce a new face appeared. Most of those who were convicted of the two offices in question, were sentenced to undergo an imprisonment of five, seven or ten years; and had these sentences been strictly enforced, the benefit of the new system would have been apparent, and these crimes would have be­come rare.

Of all offenders these are the most incorrigible. Other offences are seldom repeated: but a person once devoted to any species of theft is seldom re­claimed by any terrors he has undergone or any mercy he has received. Reformation, though not impossible, must be the work of much time. A strict execution of the act was, therefore, essential to its success. But it unfortunately happened, that they were scarcely convicted before many of them were again loose upon the public. Pardons, so destructive to every mild system of penal laws, instead of being thought dangerous, were granted with a profusion as unaccountable as it was mischie­vous: and escapes, which ought to have been guarded against by the most vigilant care, were multiplied to an alarming degree. Sixty-eight different persons were convicted of these offences previous to the year 1790. Of these twenty-nine escaped and thirty have been pardoned—five exe­cuted for capital offences committed after their escape, and one killed in an affray. I doubt whe­ther any one male offender served out the time to which he was condemned by the sentence of the court; and it is certain, that there is not, at this time, in goal a single person under a sentence pro­nounced previous to the year 1791. When to these abuses it is added, that the system itself was de­fective [Page 24] in requiring the criminals to be employed abroad, which gave them opportunities for intoxi­cation, and hardened them against shame—that their labor was not equal to that which it is the lot of poverty to endure, while their fare was much better—that there were no places for solitary con­finement nor power to inflict it, and no real increase of punishment for a second offence, we may readi­ly conjecture, that the operations of the system must have been not only impeded but perverted.

The defects of the system were corrected in 1790—the execution of it has been diligently at­tended to by the Inspectors, and the prerogative of pardon, since it has resided in a single Magistrate, is no longer weakly exercised.

Our calculations ought, therefore▪ to be made on the operations of the corrected system during the two two last years. From an inspection of the table, it is evident these crimes have greatly de­creased during that period. The convictions in those two years are, upon an average, considerably less than those in any two years which precede them.

But, under all the difficulties which, at first, it encountered, and without allowing for re-convic­tions which swell the account, let us examine what has been the general effect of the system, on these crimes, since it was first adopted. Referring, therefore, to the table, and excluding the year 1778 in order to make the time previous and sub­sequent to the act as equal as we can, the account will stand thus:

[Page 25] From this statement it appears, that more per­sons were tried for these offences, while they were capital, than-since the punishment has been lessened: and if we allow for re-convictions the difference will be much greater. It is true, the number of per­sons convicted, in the former period, is less than that of those convicted in the latter: but in this (as well as in the number of partial acquittals) I see nothing but the humane struggles of the jury to save the offender from death. At that period the acquittals were more than half the number of the convictions: since the change in our laws, they do not amount to a fourth.—A proof how much the severity of a law tends to defeat its exe­cution!

It is probable that the number of these crimes would have been less, had a greater difference been made between their punishment and that of simple larceny. Perhaps it might have a benefici­al effect if solitary confinement and coarse fare were a necessary part of the punishment. At present, it forms no part of the sentence on the criminal, but is inflicted, at the discretion of the Inspectors, on "the more hardened offenders." This is so in­definite a description, that this salutary rigor may be either capriciously inflicted or weakly withheld: and, as it is not the certain consequence of the of­fence, it can be no check upon the mind of the offender.

It might be sound policy to make a distinction between the punishment of those who commit these offences, armed with dangerous and mortal wea­pons, and of those who do not indicate such vio­lent intentions. Such a distinction prevails in the laws of Connecticut, and, also, in those of Milan: and I understood from from the nephew of the Marquis Beccaria, while he was in America, that [Page 26] beneficial effects had resulted from this discrimina­tion.

These crimes are still punished with death in the first instance, when committed by any person, sentenced to hard labor, after an escape: and, al­so, on the second conviction, if the offender was pardoned for the first. A similar provision is found in the laws of Denmark, where robbery is not in the first instance a capital offence, and where (Mr. Howard assures us) Night Robberies are never heard of. ^*

It is evident, from this examination, that the principle of the new system, properly modified, coincides with the public safety as much as with the dictates of humanity. The happy result of this experiment is an encouragement to proceed still further. I have already observed, that no offen­ders are so incorrigible as [...]obbers and burglars, and on few crimes could the experiment have been made with so little prospect of success as on these I have been considering. Succeeding in this, there is little to apprehend from extending it to other crimes, which, though still capital, are not of the deepest dye.

COUNTERFEITING THE COIN.

BY the act of 1767, the counterfeiting "of any gold or silver coin, which is, or shall be, pass­ing, or in circulation," is made a felony of death without benefit of clergy. This not only compre­hends all current foreign coins, but will embrace those of the United States as soon as they come into circulation.

[Page 27] This act is more penal than even the British sta­tutes, for it is not a capital offence in England to counterfeit any foreign coin at present current in that kingdom. ^* If it be necessary to guard our coin by the terrors of an ignominious death, the act, to be consistent, ought to go further. False money made in another state or beyond seas, may be imported or uttered without incurring this pun­ishment. The offence may, therefore, in sub­stance, be committed, and yet the penalty of the law avoided.

But there does not appear to be any necessity for so violent a remedy. It is probable this crime will be neither frequent nor dangerous. The per­fection of modern coins renders its commission difficult, and, to counterfeit them with success, requires not only time and industry, but a degree of skill which few possess, and which, in this country will always ensure its possessor a respecta­ble livelihood.

Most people are now a days sufficiently discern­ing to distinguish the genuine from false coin▪ and the Banks, established in this and many of the principal cities in America, form a valuable check upon the circulation of base money. In these it is immediately detected; and, if a quantity appears to be abroad, information of it, and of the marks which distinguish it, is immediately transmitted to every part of the state by means of the public prints: Add to this, that the practice of making payments by checks or bank notes, now so gene­ral in this city (which is the usual mart for vending base money) tends very much to lessen the mischief. There is no longer any danger that false money will shock the public confidence or embarrass the course of dealing between man and man. The [Page 28] monstrous folly of considering this offence as an usurpation of sovereignty, and, therefore, a spe­cies of high treason, is past; and it may now be safely ranked with other base frauds against indi­viduals. The Edict of the Duke of Tuscany con­siders the coining of false money as grand larceny and punishes it as such. ^† This crime is not capital in Massachusetts, nor in Connecticutt, nor in Ma­ryland, nor in North Carolina, as far as relates to foreign coin; and to every reflecting mind, which is not still enslaved by ancient errors, the punish­ment of death must appear to be far beyond the demerits of the offence. Is it wise, or is just, to confound together dissimilar crimes, and to involve him who debases a piece of money in the fame punishment with him who is guilty of deliberate murder?

There is no substantial reason for making this crime capital which does not equally apply to that of forgery. In the present state of society paper negotiations require as much protection as the coin. The latter offence, in general, is more easily committed; and, a single act of forgery, may be more injurious to the individual than many acts of counterfeiting the coin. Yet, we find, the paper of the Banks, promissory notes and bills of exchange sufficiently safe under the mild system of our laws. It is true various acts of As­sembly made it a felony of death to counterfeit and utter the Continental bills of credit: but it has been already stated, that no beneficial consequen­ces resulted from this severity.

Only three persons have been tried in Pennsylva­nia for counterfeiting the coin since the revolution, and of these two were acquitted. Positive proof of this crime is rarely to be obtained, and the [Page 29] usual circumstances which attend its commission, as they amount to proof of an inferior offence, are sel­dom admitted by a jury to amount to anything more.

From the experience we have had it is not pro­bable, that many will become the victims of the law: but, while it remains in our stature book, it furnishes a precedent for involving, in the same punishment, crimes which are similar in their na­ture and effects. I suspect this offence was over­looked at the time the reform was made in our pe­nal laws, otherwise it would hardly have been continued in the list of capital crimes.

Of the acts respecting the crime of counterfeit­ing bills of credit, loan-office certificates, &c. I shall take no notice, as the offence will scarcely be committed at this day, and the law will become obsolete of itself, if it be not repealed.

RAPE.

THE infliction of death for any crime supposes the incorrigibility of the criminal. But this offence, arising from the sudden abuse of a natural passion, and perpetrated in the phrenzy of desire, does not announce any irreclaimable corruption.

Female innocence has strong claims upon our protection, and a desire to avenge its wrongs is natural to a generous and manly mind. We con­sult this resentment, rather than our reason, when we punish this offence with such dreadful severity. The injury is certainly great: yet, it cannot be denied, that much of its atrocity resides in the imagination and is the creature of opinion. Why else do we estimate the degree of the offence so much by the rank, the situation, and the character of the injured party? Why does a jury frequently treat this charge so lightly as to acquit against po­sitive and uncontradicted evidence? Or why do [Page 30] the laws consider the violation of a female slave of so little moment as to secure the offender from pun­ishment by excluding the only witness who can prove it? ^* In most cases the violation of the natu­ral right and the real injury to the individual is nearly the same: yet, those who justify the pre­sent severity are obliged to admit, "that is a crime peculiarly liable to vary in the degree of its atro­ciousness, according to the circumstances of the case, and, therefore, peculiarly open to the di­vine prerogative of pardon." ^† The truth is, that in many instances, the common sense of mankind revolts against the extremity of the punishment, and pardons or acquittals are the necessary conse­quence. It is these pardons—it is these acquittals—which create the hopes of impunity and rob the law of all its terrors. It has been as strictly exe­cuted in Pennsylvania as in most countries: yet, of eighteen persons tried since the revolution for this crime, and positively charged, only five have been punished.

By a table of capital convictions in Scotland from 1768, to 1782, ^§ it appears, that only one person was convicted of this crime, and that he was pardoned. ⁽ⁱ⁾

William Penn considered imprisonment, stripes and hard labour as a punishment adequate to this crime and sufficient to check the commission of it. The Grand Duke of Tuscany prescribes imprison­ment at labor, varied as the circumstances may require. ^‡ The Legislature of Vermont, so late as the year 1791, has followed the humane exam­ple, [Page 31] and in that state death is no longer inflicted on this offence.

If any one, mistaking the end of punishment, and more intent on vengeance than the prevention of the crime, deems this chastisement too light, a visit to the penitentiary house lately erected as part of the goal 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 subsist on coarse fare—to languish in the solitude of a prison—to wear out his tedious days and long nights in feverish anxiety—to be cut off from his family—from his friends—from socie­ty—from all that makes life dear to the heart—When he realizes this he will no longer think the punishment inadequate to the offence.

ARSON.

ARSON is the crime of slaves and children. Its motive is revenge, and, to a free mind, the pleasure of revenge is lost when its object is igno­rant of the hand that inflicts the blow. Twelve persons have been tried for this offence in the last fourteen years: and of these, three were negro slaves—four were children, and two were vagrant beggars. The remaining three were acquitted un­der circumstances which made it probable the fire was accidental.

This offence may be committed so secretly that it is seldom possible to collect proof sufficient on a charge that is capital. Other crimes are commit­ted in the presence of witnesses, or are attended with circumstances which point out the criminal: but in arson there are no eye-witnesses—the pre­sumptive proof will seldom be violent, and confes­sions are only to be expected from the ignorance of slaves and children. These confessions (too [Page 32] generally extorted by promises or threats) come before the jury in so questionable a shape, that they are often disregarded.

Hence the severity of the punishment, in this case, leads in a peculiar manner to impunity. The proof is so difficult that juries are justified in ac­quitting, and the objects convicted are such as the Executive is prompt to pardon. Of five persons convicted of this crime only one was executed.—This was a negro woman in a distant county.

The crime of arson extends only to the wilful burning of a dwelling-house, certain public build­ings, or a barn having hay or corn therein. Every other species of property may be maliciously de­stroyed by fire, without incurring the forfeiture of life. Hence, ships and other vessels in harbour or on the stocks—hay and grain in stack or bar­rack—magazines of arms and provisions—store­houses of every description—mills—theatres and distilleries, are not protected by these high terrors of the law: and to burn them is considered mere­ly as a misdemeanor at common law. Here then is a fair opportunity for comparison. Has the milder punishment encouraged these malicious crimes; or, has the terror of death, hung up on high, deterred offenders from the crime of arson? The following fact will answer the question. Since the revolution twelve persons have been indicted for the crime of arson; and only two for any other species of malicious burning!

In New Hampshire and Massachusetts this crime is not capital if committed in the day time: nor in Connecticut, "if no prejudice or hazard to the life of any person happen therefrom." To burn public vessels or magazines of provision, in time of war, being a species of treason, is, indeed, capi­tal in that state: but it is not so if the same offence be committed in time of peace. I cannot [Page 33] learn that these distinctions have any effect, or that the lesser offence is more frequent than the greater.

Upon the whole, it seems that solitude and hard labor will be a punishment, 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 estate or his labor, the injury he has done. This was formerly required in most cases, by the laws of William Penn; but, at present, is swallowed up by the legal maxim which merges the private in the public wrong: a maxim, invented by fiscal 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 described in the words of the English statute, 22 & 23 Car. II. ch. 1. commonly called the Coventry act. The severity of this act, which goes considerably beyond all former statutes on the subject, was occasioned by a malicious assault made upon Sir John Coventry, then one of the members of the House of Commons. Laws thus made upon the spur of the occasion, and under the emotions of indignation, are seldom founded upon the permanent principles of justice or policy.

This act has remained a dead letter in Pennsyl­vania. No person has been prosecuted under it, nor can I learn that the crime has ever been com­mitted. I attribute this to the state of manners, and by no means to the nature of the penalty. On the contrary, as no prosecution has called it into publice notice, it is probable that very few people know that such an act exists.

[Page 34] New Hampshire, in legislating on this subject, has set us an example of justice and moderation. There the penalty is fine and imprisonment not ex­ceeding seven years; and there, as well as in Pennsylvania, the offence is unknown. The same penalty is prescribed by the laws of the United States. Even in Georgia, where the attention of the Legislature has been called to it so late as 1787, the punishment, for the first 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 ousted, as with us, of the benefit of clergy.

MAN-SLAUGHTER BY STABBING.

The act of 1 Jac. I. usually called, the statute of stabbing, by which this offence was ousted of cler­gy, was extended to the province by an express re­ference to it in the act of 1718. This statute, which was levelled against a temporary mischief pre­valent in England at that day—in [...]ich so much ignorance of the common law is discovered—which is so rigorous in its literal meaning as to involve the cases of chance medley and innocent mistake—and so obscure and ill drawn that the Judges have been divided on the meaning of almost every important word in it—ought never to have been made a per­manent law of Pennsylvania. Its severity, how­ever, has been so mitigated by judicial construction, that the soundest 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 usual, for some years past, to indict [Page 35] any person on this act in Pennsylvania; and, for the same reason, it ought not to remain among our laws. It is useless when rightly explained: it may be the instrument of mischief when it is perverted or misunderstood.

MURDER.

IT has been a question which has divided the philosophers of Europe, whether it be lawful, in any case, to take away the life of a criminal: and the negative has been advanced and ingeniously supported in our own country. ^† Great names are arranged on the different sides of this question: but, waving useless refinement, it seems to resolve itself into that which we are considering, viz. whether it be necessary to the peace, order, and hap­piness of society.

Murder, in its highest degree, has generally been punished with death, ^‡ and it is for deliberate assassination, if in any case, that this punishment will be justifiable and useful. Existence is the first blessing of Heaven, because all others depend upon it. Its protection is the great object of civil soci­ety and governments are bound to adopt every measure which is, in any degree, essential to its preservation. The life of the deliberate assassin can be of little worth to society, and it were bet­ter that ten such atrocious criminals should suffer the penalty of the present system, than that one worthy citizen should perish by its abolition. The crime imports extreme depravity and it admits of no reparation.

"But why should capital punishments have a more powerful effect on these than on other offen­ders?" [Page 36] I have already observed, that the fear of death is universal and impressive: and that its be­neficial effects and defeated principally by the hopes of impunity.

We have had [...] experience what its effect will be when it is applied to a single crime of such a nature as to exclude the hopes of pardon. In such a case, where an execution would be as rare as it is dreadful, the wholesome terror of the law would be wonderfully increased: and this is one reason why a less punishment should be adopted for other crimes.

If we seek a punishment capable of impressing a strong and lasting terror, we shall find it in an execution rarely occuring— solemnly conducted ^(k)—and inflicted in a case, where the feelings of man­kind acquiesce in its justice and do not revolt at its severity.

But while I contend that this is the most power­ful curb of human governments, I do not affirm that it is absolutely necessary, or that a milder one will be insufficient. It is possible that the fur­ther diffusion of knowledge and melioration of manners, may render capital punishments unneces­sary in all cases: but, until we have had more ex­perience, it is safest to tread with caution on such delicate ground, and to proceed step by step in so great a work. A few years experience is often of more real use than all the theory and rhetoric in the world. One thing, however, is clear. What­ever be the punishment inflicted on the higher de­grees of murder it ought to be widely different from that of every other crime. If not different in its nature at least let there be some circumstance in it calculated to strike the imagination—to impress a [Page 37] respect for life—and to remove the temptation which the villain otherwise has to prevent the dis­covery of a less crime by the commission of a greater. ^(l)

But while I speak thus of deliberate assassina­tion, there are other kinds of murder to which these observations do not apply: and in which, as the killing is in a great measure the result of acci­dent, it is impossible the severity of the punishment can have any effect. The laws seem, in such cases, to punish the act more than▪ the intention: and, because society has unfortunately lost one citizen, the executioner is suffered to deprive it of ano­ther.

In common understanding the crime of murder includes the circumstance of premeditation. In the laws of William Penn, the technical phrase malice aforethought, was avoided; and "wilful and pre­meditated murder" is the crime which was declared to be capital. Yet murder, in judicial construction, is a term so broad and comprehensive in its mean­ing as to embrace many acts of homicide, where the killing is neither wilful nor premeditated. " A. shooteth at the poultry of B. and, by accident, killeth a man; if his intention was to steal the poultry it will be murder: but if done wantonly it will be barely man-slaughter." Again, "A park­er found a boy stealing wood in his masters ground: he bound him to his horse's tail and beat him. The horse took fright, run away and killed the boy. This was held to be murder." ^* In the latter case there was no design to kill; in the for­mer not the least intention to do any bodily harm.

I am sensible how delicate a step it is to break in upon the definition of crimes formed by the [Page 38] accumulated care of ages; but, when we consider how different, in their degree of guilt, these of­fences are from the horrid crime of deliberate as­sassination, it is difficult to suppress a wish, that some distinctions were made in favor of homicides which do not announce extreme depravity. The defect may be, in a degree, supplied by the pre­rogative of pardon: yet it shocks the vulgar opi­nion and lessens the horror of the crime whenever a murderer is pardoned. It has been said, "Ye shall take no satisfaction for the life of the mur­derer:" yet it is often necessary, as the law stands, to interpose the prerogative of mercy. Even in England, where restraints are laid upon its exercise in cases of murder, it appears, by tables ^* already referred to, that, of eight-one sentenced to die for this crime, seven were pardoned,—in Scotland seven out of twenty,—and in Pennsylvania about one-fourth of the whole number convicted. Not one of these, thus pardoned, has ever been prosecu­ted, to my knowledge, for any other crime.

In the report of the committee of revision to the General Assembly of Virginia, a reform is suggest­ed so far as relates to homicide accidentally hap­pening in consequence of a felonious or unlawful act: and it is proposed to be enacted. "That, in future, no such case shall be deemed man-slaugh­ter unless man-slaughter were intended, nor mur­der unless murder were intended."

Though assassination has been rare in Pennsyl­vania, it cannot be concealed that homicides have been very frequent. It appears by the table an­nexed, that, in the last fourteen years, there have been tried for murder and manslaughter no less than one hundred persons, of whom one half were convicted, and thirty-four of these were for mur­der. [Page 39] In the same space of time there were but twenty convicted of this latter crime in Scotland. Even in the city of London, nearly twice as popu­lous as this state, there were but nineteen persons executed for murder from 1771 to 1783, a space of twelve years. ^* In fourteen years twenty-six have been executed in Pennsylvania.

There is one species of murder which deserves attention. It is that of bastard children. The horrid severity of the statute of James I. introdu­ced here, had long been mitigated by a humane practice of requiring some proof that the child was born alive. This practical construction is now le­gally authorized, and it is necessary to give, some "probable presumptive proof of that fact, before the strained presumption that the child, whose death is concealed, was therefore, murdered by its mo­ther, shall be sufficient to convict the party in­dicted." ^†

But does it necessarily follow that a child, which is born alive, must be destroyed merely be­cause its death is concealed? May not the child perish from want of care, or of skill, in so criti­cal a moment? A helpless woman, in a situation so novel and so alarming—alone, and, perhaps, exhausted by her sufferings—may she not be the involuntary cause of her infant's death? and, if she afterwards consults a natural impulse to conceal her shame, is not the penalty beyond the demerit of the offence? These reflections naturally arise in the hearts of jury-men; they regard these unfor­tunate creatures with compassionate eyes, and I have never known them convict unless there were marks of violence, or some circumstances that would amount to proof of murder at common law. The [Page 40] punishment is ever before their eyes, and they tremble at the consequences of an irretrievable mistake. The presumptions that the child was born alive have been, not only probable but violent, and yet the act has not been enforced. There have been fifteen women tried for child-murder since the year 1778; three only convicted, and, of these, two were pardoned. Where a positive law is so feebly enforced, there is reason to suspect that it is fundamentally wrong. The error of this act is apparent. Proof of a crime is that which satisfies our minds of the truth of the charge. If it does not produce a belief of the fact laid in the indictment it is not proof of it—and this belief is neither in our power nor that of the law. It is absurd, therefore, to say, that this or that circum­stance shall be proof of the murder. To make the concealment a capital crime is one thing: but, to say, that when the concealment is proved, the jury must, at all events, believe the murder to be committed—is a very different one.

In Denmark, women guilty of child-murder are no longer punished with death: but are condemn­ed to work in spin-houses for life, and to be whip­ped annually, on the day when, and the spot where, the crime was committed. "This mode of punishment, Mr. Howard assures us, ^* is dread­ed more than death, and since it has been adopt­ed has greatly prevented the frequency of the crime."

An attempt was made to introduce a similar al­teration in the laws of Sweden. It was recom­mended by Gustavus III. in his speech at the open­ing of the Diet of 1786. But this innovation was warmly opposed by the Clergy: and the patriots to whose consideration it was referred were unani­mous [Page 41] in advising the representatives of the nation to continue the punishment of death. ^§

There is a provision in the laws of New Hamp­shire, which is founded in good sense, and which, while this offence remains capital, it is desirable could be introduced here. There, the conceal­ment is treated as a crime punishable by fine, im­prisonment or public infamy, according to the cir­cumstances of the case; while the proof of the murder remains as at common law. If, as is usu­ally done, the indictment charges both crimes, the jury may acquit of the murder and find the prison­er guilty of the less offence.

MAN-SLAUGHTER.

THOUGH man-slaughter is not, in common acceptation, a capital crime, I mention it for the sake of making a single observation respecting its punishment.

Man-slaughter, as explained in our law-books, is exceedingly comprehensive in its nature. While its deepest shade partakes of the hue of murder, its lightest is faintly tinged with the feeble colors of carelessness and inadvertance. The punishment ought, therefore, to be such as might be varied according to the circumstances of the case: or, the different degrees of the crime should be ascer­tained and marked with a correspondent penalty. The former is the case in all the New England states, and the court may inflict an infamous pun­ishment, or fine or imprisonment, or all or either of these as the degree of guilt requires. This was formerly the law in Pennsylvania; but now every person convicted of man-slaughter is sentenced to [Page 42] be burnt in the hand—to find security for his good behaviour during life—and to be sined and impri­soned: and for the second offence to be hanged.

Beneficial effects resulted from an act of Assem­bly, passed in the year 1780, which authorized the Attorney General, with the leave of the court, to proceed against any person charged with treason, as for as a misdemeanor only. Upon this princi­ple, might not the Public Prosecutor be impower­ed to wave the felony in the lower species of man-slaughter, and to indict the defendant for an un­lawful homicide, punishable as a misdemeanor at common law?

PETIT TREASON.

THIS crime, which consists in a wife's killing her husband or a servant his or her master, is pun­ished differently from the other species of murder. A man convicted of it is to be drawn and hanged, and a woman to be drawn and burnt. Is not this distinction unjust, and this mode of inflicting death, handed down from ferocious ages, injurious to so­ciety from it apparent, ^* if not real, barbarity?

In many of the states, as well as by the laws of Congress, it is expressly enacted, That death shall always be inflicted by hanging the offender by the neck. We have no such act in Pennsylvania.

The distinction between petit treason and other kinds of murder is abolished by the laws of Mas­sachusetts. Neither the enormity of its its guilt, nor the supposed allegiance of the party, require a distinction more than the crime of parricide which is punished as simple murder.

HIGH TREASON.

HIGH TREASON, when properly limited, has generally been considered as the highest crime and as involving in it the guilt of murder. In its true meaning it is an attack upon the sovereignty and existence of the nation.

By the acts of Congress and of several of the states ^* it is properly confined to the levying war and adhering to enemies, and is described in the words of the statute of Edward III:—words, whose precise extent has been settled by the judicial construction of more than four centu­ries. In Pennsylvania the description of this crime is more diffuse: and the act of 1782 is sufficiently severe which makes it high treason to set up a no­tice inviting the people to meet for the purpose of erecting a new and independent government with­in the bounds of the state, or even to attend at any meeting for such a purpose.