And it were highly to be wished, that legislative power would thus direct the law rather to reformation than severity. That it would seem convinced that the work of eradicating crimes is not by making punishments familiar, but formidable. Then instead of our present prisons, which find or make men guilty, which enclose wretches for the commission of one crime, and return them, if returned alive, fitted for the perpetration of thousands; we should see, as in other parts of Europe, places of penitence and solitude, where the accused might be attended by such as could give them repentance if guilty, or new motives to virtue if innocent. And this, but not the increasing punishments, is the way to mend a state: nor can I avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature. In cases of murder their right is obvious, as it is the duty of us all, from the law of self-defence, to cut off that man who has shewn a disregard for the life of another. Against such, all nature arises in arms; but it is not so against him who steals my property. Natural law gives me no right to take away his life, as by that the horse he steals is as much his property as mine. If then I have any right, it must be from a compact made between us, that he who deprives the other of his horse shall die. But this is a false compact; because no man has a right to barter his life, no more than to take it away, as it is not his own. And beside, the compact is inadequate, and would be set aside even in a court of modern equity, as there is a great penalty for a very trifling convenience, since it is far better that two men should live, than that one man should ride. But a compact that is false between two men, is equally so between an hundred, or an hundred thousand; for as ten millions of circles can never make a square, so the united voice of myriads cannot lend the smallest foundation to falsehood. It is thus that reason speaks, and untutored nature says the same thing. Savages that are directed by natural law alone are very tender of the lives of each other; they seldom shed blood but to retaliate former cruelty.
Our Saxon ancestors, fierce as they were in war, had but few executions in times of peace; and in all commencing governments that have the print of nature still strong upon them, scarce any crime is held capital.
It is among the citizens of a refined community that penal laws, which are in the hands of the rich, are laid upon the poor.
Government, while it grows older, seems to acquire the moroseness of age; and as if our property were become dearer in proportion as it increased, as if the more enormous our wealth, the more extensive our fears, all our possessions are paled up with new edicts every day, and hung round with gibbets to scare every invader.
I cannot tell whether it is from the number of our penal laws, or the licentiousness of our people, that this country should shew more convicts in a year, than half the dominions of Europe united. Perhaps it is owing to both; for they mutually produce each other. When by indiscriminate penal laws a nation beholds the same punishment affixed to dissimilar degrees of guilt, from perceiving no distinction in the penalty, the people are led to lose all sense of distinction in the crime, and this distinction is the bulwark of all morality: thus the multitude of laws produce new vices, and new vices call for fresh restraints.
It were to be wished then that power, instead a contriving new laws to punish vice, instead of drawing hard the cards of society till a convulsion come to burst them, instead of cutting away wretches as useless, before we have tried their utility, instead of converting correction into vengeance, it were to be wished that we tried the restrictive arts of government, and made law the protector, but not the tyrant of the people. We should then find that creatures, whose souls are held as dross, only wanted the hand of a refiner; we should then find that wretches, now stuck up for long tortures, lest luxury should feel a momentary pang, might, if properly treated, serve to sinew the state in times of danger; that, as their faces are like ours, their hearts are so too; that few minds are so base as that perseverance cannot amend; that a man may see his last crime without dying for it; and that very little blood will serve to cement our security.
