curious Learning, and may often serve the Purpose of historical Proof and illustration.
It is indeed to be lamented, that our Penal Laws are so numerous; but perhaps this is an Inconvenience unavoidably resulting from the wide and extensive Concerns of a commercial Kingdom. Though a State confined within a narrow Sphere of Action, may be very vicious, yet the Modes of Vice will not there be greatly diversified: Offences will multiply, as the Pursuits and Occupations of Mankind grow more various and diffusive: And in a Kingdom so jealous of its Liberty, as to leave as little as possible to discretionary Power, every Offence must be precisely described, therefore it is well observed by Montesquieu, that the Multiplicity of our Laws is a Price we pay for our Freedom.[1]
On this Occasion, however, it may not be improper to observe, that our Statute Laws, with respect to criminal Offences, seem to breathe too much the Spirit of Draco’s; all Degrees of Offence being confounded, and all Proportion of Punishment destroyed: Whence many Delinquents are, with cruel Precipitancy, hurried out of the World for slight Transgressions, who, by prudent and adequate Correction, might be made useful to themselves and to Society.
Men bewildered in the Maze of Stoic Sophistry, may revolt against the obvious Principles of Nature, and contend for the Necessity of commutative Justice: But Reason evidently declares, that Punishments should, as nearly as possible, bear Proportion to the Offences committed: And though this Rule cannot, in some Cases, be strictly adhered to, yet it ought, in general, to be the guiding Principle.
Adsit
Regula, peccatis quæ pœnas irroget æquas:
Nec scutica dignum, horribili sectere flagello.
Experience sufficiently evinces, that extraordinary Severity has never produced any lasting Effect. It has indeed been sometimes found to check the Evil for a Time, but then, as Montesquieu observes, it has returned with the same Violence as before. To render the intended Effects permanent, the Laws should be adapted to the Genius of the People, and the Nature of the Constitution: And it would be a Task well worthy the Wisdom of the Legislature, so to model them that they may better answer the true Ends of Government, which are to prevent, rather than to punish Crimes.[2]
- ↑ They who exclaim against the Multiplicity of our Laws, are fond of quoting the Passage in Tacitus, where he says, Corruptissima Respublica, plurimæ Leges; but they should consider that the Historian does not throw this out as a general Reflection, but as applicable to the particular Circumstances of Rome during the licentious Authority of the Tribunes; when, in Contravention to the Laws of the twelve Tables, particular and partial Laws were made by the Influence of private Men: The twelve Tables provided that no Laws should be made by private Persons, and that no capital Punishments should be adjudged, but at the Comitia Centuriata. The frequent Revolutions however among the Romans, rendered these Provisions ineffectual; for whenever the lawless Attempts of an ambitious Leader prevailed, the Usurper instantly commenced Legislator: And consequently in this corrupt State of the Commonwealth, the Laws, as Tactitus observeth, were very numerous. See Cicero pro Sextio—And Id. pro Domo sua.
- ↑ Perhaps it might be shewn, that the present unequal System of our Criminal Laws, is not calculated even to answer the End of deterring Offenders: But this would open into a Field of Argument, too wide to find Place here, and may well demand a Treatise of itself.
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