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fign of proper correction. Montesquieu fays, “ Every punishment which does not arise from absolute necessity is tirannical.” And it may also be said of harsh and cruel means, by which even proper punishment may be attended in its execution, if not absolutely necessary, they are wanton cruelty. The right to punish is founded upon the social compact, and that being violated by an individual, and the public tranquility disturbed, there is an absolute necessity of punishing the offender, to preserve the peace, and to guard the security of the whole; and by example, as well as precept, to deter others from the commission of acts of like tendency. The iminortal Beccaria fays, punishments are just, in proportion as the liberty preserved is facred and valuable.
If the right to punish arises out of the social compact, Roman citizens ought to have had no personal authority to put their wives, children, or slaves to death by their own hand. The right of inflicting punishment upon individuals should, in all countries, be delegated to the constituted authorities of the same, who stile themselves the servants of the people, and not remain in the hands of a private citizen to be executed, when and how he pleases. If this were allowed, it would destroy all the order and decorum necessary in the adminiftration of juitice, and tend to burst asunder all those ties of affection, friendship, and dependence, with which the God of nature has bound fociety together. Then man, instead of providing for the happiness of his offspring, might expose them to perish as soon as born, as is done in fome heathen countries. Moses allowed parents, in certain cases, to punish their children with death; but they were first to bring them before the judges---there publicly accuse them of the crimes they charged them with, and wait the sanction of those officers before they could lay violent hands upon their rebellious children. See Deut. xxi. 18. This was certainly an improvement in the criminal process, when we consider that other nations, at the same time, had absolute power of life and death over their children, &c. in their own hands, and were not under the necessity of repairing before the judges prior to the inflicting punishment apon them. Such an improven.ent was certainly great; though to us, who live in the present improved state of society, it appears barbarous ; and many, on this account, have called Mofes by ugly names : yet the institutions of Moses respecting malefactors who were hanged, is a standing reproof to those countries which still retain the practice of hanging in chains afterwards ---a practice which, one should suppose, Vandals would blush
at ----if Vandals could be found at this enlightened period. Deut. xxi. 23. Moses never allowed his people to fufpend wretches upon tenter-hooks, to groan out foine days of miserable existence.--but this has been done in Christian Russia.
Punishment ought to be inflicted only for the breach of a positive and promulgated law; and in order to the prevention of crimes, laws should be explicit, lest some should seem to be condemned by an ex poft facto law. The nearer laws approach to the principles of natural justice, the better they will be understood and obeyed by the generality of men. Some are of opinion the letter of the law ought always to be taken, especially in criminal cases. Beccaria may be wrong, but he says...--« Judges in criminal cases have no right to interpret the penal laws, because they are not the legislators. The only proper and lawul interpreter of the laws is the representive of society, not the judge, whose office is only to examine whether a man has or has not committed an action contrary to the laws.”Again, he says, “ We see the same crime punished in a different manner, at different times, in the same tribunals; the consequence of not having consulted the constant and invariable voice of the laws, but the erring instability of arbitrary interpretation.” The constitution of this country has guarded us from the dangers people in other countries are subject to; it says, No man shall be punished, but for violating a known and promulgated law. The judge cannot condemn an accused person---he is tried by twelve of his equals, who condemn or acquit, according as the evidence against him or for him preponderates : the judge records the verdict, and pronounces the sentence of the law.
Punishment cannot be legally indicted until the person be proved gui ty of the crime laid to his charge; nor ought any means to be used to convict a person, which would be unbecoming so solemn an office as that of magistracy. The old defpotism of France practised cunning and cruelty at the same time. That cruel engine of crooked policy could apprehend men with-, out legal forms; nothing was necessary but lettres de cachet from the grand monárque, to seize and confine in that gloomy hell, the ci-devant Basiile, “where hope never came.” A late writer, speaking of the state of France from the time of Louis XIII. says, “ The life and property of the subject were, from this time, entirely at the mercy of the sovereign': he imprisoned whom he pleased; and whenever he thought it necessary for his purpose, appointed what judges he thought proper for the trial of offenders.” The French never enjoyed the advanH 2
tages of an Habeas Corpus Act, therefore the king or his min nisters could confine them at pleasure, for what time they pleased, without giving them a trial, or even letting them know for what they were confined. For want of this, and the Englishman's boast, Trial by Jury, the blood of the innocent has dyed the scaffolds of ancient and modern France.
If punishment ought not to be inflicted but upon proof of guilt, then imprisonment before trial, upon fufpicion, ought not to be attended with rigorous measures, nor the confinement any closer than is absolutely necessary. It may be, the person accused is innocent; this has been the case more than once. « On this account,” says Beccaria, « the laws should determine the crime, the presumption, and the evidence to subject the accused to imprisonment and examination, and not leave it to a magistrate.”
A prisoner ought never to be tortured in the course of his trial, under the pretence of making him confess the crinie he is accused of committing. But can this be reconciled with our ideas of justice? Rather produce evidence; and by evidence alone let facts be proved ; let the credibility of the witnesses be considered ; and if all combined are not sufficient to prove the guilt, the accused person must be pronounced innocent.---Torture has been customary in most nations, at one time or other, either to make a man confess his crime, his accomplices, or that some discovery might be thereby made of other matters, &c. When Archbishop Laud threatened one, who refused to confess his accomplices, that he should be put to the torture,--« Then I may impeach Archbishop Laud,” he replied. This Thews the impolicy of torture. Upon this head I will express myself in the words of Beccaria, in his Essay on Crimes and Punishment, a book which every European ought to read. He says,
«No man can be judged a criminal until he be found guilty; nor can society take from him the public protection, until it have been proved, that he has violated the conditions on which it was granted What right, then, but that of power, can authorise the punishment of a citizen, so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty, or not guilty. If guilty, he ihould only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both
the accuser and the accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method the robuft will escape, and the feeble be condemned. These are the inconveniences of this pretended test of truth, worthy only of a cannibal; and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.
The result of torture, then, is a matter of calculation, and depends on the constitution, which differs in each individual, and is in proportion to his strength and sensibility; so that, to discover truth by this method, is a problem, which may be better folved by a mathematician than a judge, and may be thus ftated.--The force of the muscles, and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a' given crime.” • The above writer lived in a country where torture was once. the order of the day, and made a part of their religious exercises, at least of the priests and lords inquisitors, those holy ministers of Christ, to whom Nebuchadnezzar's priests appear harmless in comparison. Who can read the history of the Inquisition, and not feel those emotions of grief and indignance which no language can describe? The variety of torments, the hot and the cold, the roasting alive, the broiling on gridirons, the continual dropping of water upon the bare head of one fixed in a chair; and all this was ordained by the laws of those times, and made a part of their penal code. The history of the Inquisition is the best exposition of those tales so common among uneducated men and children, and which they think belong to another world---namely, the shutting up in dark holes, boiling, burning, black tormentors, fire forks, &c.--.-But enough for the present. I am,
Yours, &c. JANUARY 14, 1799.
F. B. W.
SUFFICIENCY OF THE SCRIPTURES.
MR. EDITOR, IN viewing the prevalence of what is commonly called 1 Deism spreading among all ranks of people, I am clearly convinced none will escape its leaven or contagion, but those
who have tasted that the Lord is gracious, and are distinguished by their attachment to Christ's new commandment in loving those who are of the truth for the truth's sake. These, in Scripture language, are of the church of Philadelphia, who are promised, by the great Head of it, to be preserved from the present delusion, called (Rev. ii. 10 ) the hour of temptation. Because thou hast kept the word of my patience, I also will keep thee from the hour of temptation which shall come upon all the world to try them that dwell upon the earth.
I was led to these thoughts by seeing a question proposed in your Miscellany, vol. ii. p. 369. where your correspondent asks, « Is the Bible (received and credited as the word of God) sufficient of itself to lead a soul to salvation, or is any internal evidence necessary?” To obtain perfect satisfaction upon this subject, I would recommend him to take the apostle's advice to Timothy, (2 Epist. i 15.) by rightly dividing the word of truth, especially its two general divisions of letter and fpirit: for want of attending to this has arisen all the confufion in the world respecting the doctrines of Christianity, and cone sequently the increase of so many fects and parties. Hence the apostle, describing these two very important subjects (which comprehend the whole of the Bible) says, “ The letter * killeth, but the spirit giveth life.” 2 Cor. iii. 6. This part of the Bible called by the apostle the letter, being only attended to, is so far from « leading a soul to God,” that the reverse is the consequence; and for want of attending to each distinctly, the mouths of deists, and other gainsayers, have been opened against these sacred Oracles. But when both are properly illustrated and applied, they are then called the engrafted word; James, i. 21. Receive with meekness the engrafted word, which is able to save your souls. The apostle also in addressing Timothy, uses fimilar language, 2 Epift. iii. 15. And that from a child thou haft known the holy Scriptures, which are able to make thee wise unto salvation, through faith which is in Christ Jesus. Your correspondent will receive additional confirmation respecting the
fufficiency of the word of God to lead a soul to salvation, if he I will only atterid to our Lord's párable of the lower. Here he will find his second enquiry fully cleared up, by our Lord's stating the seed to be the word of God, and the human heart to be the ground into which it is sown. Luke, viii. I---15. There
* 2 Cor. iii. 6. to ypaupa a noxlerver, litera occidit, h. e, lex literis comprehensa, non conferens virens ad præftandum, scilicet quatenus docetur lecm galiter, separata a gracia Christi. Pafor, in loc.