Bill for proportioning Crimes and Punishments, in Cases heretofore Capital.
Whereas, it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties, and property of others, and, the secure enjoyment of these having principally induced men to enter into society, government would be defective in its principal purpose, were it not to restrain such criminal acts, by inflicting due punishments on those who perpetrate them; but it appears, at the same time, equally deducible from the purposes of society, that a member thereof, committing an inferior injury, does not wholly forfeit the protection of his fellow-citizens, but, after suffering a punishment in proportion to his offence, is entitled to their protection from all greater pain, so that it becomes a duty in the legislature to arrange, in a proper scale, the crimes which it may be necessary for them to repress, and to adjust thereto a corresponding gradation of punishments.
And whereas, the reformation of offenders, though an object worthy the attention of the laws, is not effected at all by capital punishments, which exterminate, instead of reforming, and should be the last melancholy resource against those whose existence is become inconsistent with the safety of their fellow-citizens, which also weaken the State, by cutting off so many who, if reformed, might be restored sound members to society, who, even under a course of correction, might be rendered useful in various labors for the public, and would be living and long continued spectacles to deter others from committing the like offences.
And forasmuch as the experience of all ages and countries hath shown, that cruel and sanguinary laws defeat their own purpose, by engaging the benevolence of mankind to withhold prosecutions, to smother testimony, or to listen to it with bias, when, if the punishment were only proportioned to the injury, men would feel it their inclination, as well as their duty, to see the laws observed.
For rendering crimes and punishments, therefore, more proportionate to each other.
Be it enacted by the General Assembly, that no crime shall be henceforth punished by deprivation of life or limb,* except those hereinafter ordained to be so punished.
* This takes away the punishment of cutting off the hand of
a person striking another, or drawing his sword in one of
the superior courts of justice. Stamf. P. C. 38; 33 H. 8. c.
12. In an earlier stage of the Common law, it was death.
‘Gif hwa gefeohte on Cyninges huse sy he scyldig ealles his
yrfes, and sy on Cyninges dome hwsether he lif age de nage:
si quis in regis domo pugnet, perdat omnem suam
ha; reditatem, et in regis sit arbitrio, possideat vitarn an
non possideat.‘ LI. Inae. 6. &c.
*If a man do levy war** against the Commonwealth [in the same], or be adherent to the enemies of the Commonwealth [within the same],*** giving to them aid or comfort in the Commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others,**** shall be adjudged treasons which extend to the Commonwealth, and the person so convicted shall suffer death by hanging,***** and shall forfeit his lands and goods to the Commonwealth.
* 25 E 3. st. 5. c. 2; 7 W. 3. c. 3, § 2.
** Though the crime of an accomplice in treason is not here
described yet Lord Coke says, the partaking and maintaining
a treason herein described makes him a principal in that
treason. It being a rule that in treason all are principals.
3 inst. 138; 2 Inst. 590; H. 6. c. 5.
*** These words in the English statute narrow its operation.
A man adhering to the enemies of the Commonwealth, in a
foreign country, would certainly not be guilty of treason
with us, if these words be retained. The convictions of
treason of that kind in England, have been under that branch
of the statute which makes the compassing the king’s death
treason. Foster, 196, 197. But as we omit that branch, we
must by other means reach this flagrant case.
**** The stat. 25 E. 3. directs all other cases of treason
to await the opinion of Parliament. This has the effect of
negative words, excluding all other treasons. As we drop
that part of the statute, we must, by negative words,
prevent an inundation of common law treasons. I strike out
the word ‘it,’ therefore, and insert ‘the said cases and no
others.’ Quaere, how far those negative words may affect the
case of accomplices above mentioned? Though if their case
was within the statute, so as that it needed not await the
opinion of Parliament, it should seem to be also within our
act, so as not to be ousted by the negative words.