date

27 Jan 1809 . View P 2 Paley? Reason
27 Jan 1809 . View P 2

Paley? Reason for English practice cases meet for capital punishment depend on circumstances impossible to be defined till after the offence has been committed

"The better of which two methods (continues the Reverend

Doctor) "has been long adopted in this country, where, of those

"who receive sentence of death scarcely one in ten is executed

Such is the statement germ of the practice:

and worse, under the notice of an indication of the

by which the conduct of the authors creators and preservers of this state of

things may have been determined, comes a justification of

it

"And the preference of this to the former method (as if there

"were no other) seems to be founded on the consideration, that

"the selection of proper subjects for capital punishment principally

"depends upon circumstances, about, however easy to perceive

"in each particular case after the crime is committed, it

"is impossible to enumerate or define beforehand; in to

"ascertain however with that exactness which is requisite

in legal description."

"The propriety of inflicting mode of punishment he depends depending depends principally

to upon circumstances which it is impossible to

"enumerate or define beforehand! or at any rate at least to ascertain

"with that exactness which is requisite in legal descriptions!

This is as much as to say that it is impossible for the business

of punishment to be carried or had by powers compleatly arbitrary.

The circumstances in which the propriety of a lot of punishment which has

been inflicted depends — impossible to enumerate or define

beforehand! and yet there some circumstance easy to

perceive after the crime has been is committed! A Nero or

a Caligula, if it were an object with them to find a justification

for their barbarities, would it be possible for them to dwell

as

or wish for a theory that should set them more compleatly at their ease?

3 By the help of this doctrine, which supposes that In the administration of penal law, it is necessary Judges should be invested with arbitrary power the atrocities of Nero & Caligula or any other atrocities may find their justification
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  • Title: [29 Jan y 1809 Peines 18 9]
    Description: 29 Jan y 1809

    Peines 18

    9 But a supposition involved in this metaphor as above, & which is as above groundless, is that though it may be done after, it is impossible before the crime is committed to give expression to the circumstances that constitute the ground for punishment

    What must be confessed, is — True it is that were it the quotation to stop here, and with the

    above blank in it unnoticed in it, it the quotation might

    be in danger of being charged with infidelity: being an unfaithful one.

    For time it is, that the time at which the impossibility of being enumerated

    or defined is predicated ascribed to of those circumstances

    in the time signified by the word "beforehand": viz.

    a length of time preceding the commission of the individual

    offence: he it being at the same time in the last preceding page, predicated of the

    same circumstances in the prior anterior antecedent page that "after the

    "crime is committed it is not only possible but " easy to

    " perceive" them, and on the posterior page that, at the same relative period it is

    matter of habitual practice to take the general character of

    them for the subject of "deliberation". But of these

    is a set of general terms which before this or that crime has

    been committed are capable of serving to give expression

    to the material circumstances of it - the circumstances on which

    the propriety or impropriety of punishing the criminal

    with death turns depends — of giving expression to those important

    circumstances after the crime has been committed —

    why the same words should be incapable or

    less capable of serving for the giving expression to those

    same circumstances before that same individual crime has been committed,

    remains to be explained by any person, if

    such there be, to whom it appears a practicable task

    to find any thing like sense or reason

    in this explanation and defence of the policy

    with the intelligence of which the Reverend doctor is so much enamoured. so completely satisfied.
  • Title: [27 Jan 1809. Evid. Prosp. View 3]
    Description: 27 Jan 1809.

    Evid. Prosp. View 3

    The A lot of punishment The circumstances by on

    which the propriety or impropriety of a lot of punishment depends 5 Occasions for capital punishment being thus inexpressible whenever inflicted no reason for its infliction can ever be assigned

    capable of being perceived, and yet incapable of being expressed!

    propriety of punishment depending depends upon circumstances

    altogether indescribable and inexpressible,or what is as bad, capable of

    being on each individual occasion, expressed and described after the act has been committed, but not

    before: - expressed —

    always for the purpose of destruction, never

    for the purpose of warning!

    Under the rules which the Reverend

    Doctor has provided for his guidance, suppose

    a lot of punishment to have been administered by by the earthly

    God of D r Paley's and Doctor Blackstone's idolatry. A curiosity

    is conceived by a pupil of this school - a

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    to be conceived - a curiosity to know whether the

    exercise thus made performed if the power of punishment

    was proper or improper. This curiosity could it on

    the principles of the Reverend Doctor ever possess the smallest

    chance of obtaining satisfaction? Impossible: Not it indeed: the circumstances

    in which the propriety depends were it is true

    capable of being perceived, and were perceived accordingly,:

    the propriety of it is therefore not of above dispute superior to all: but

    as to the being enumerated or defined, or at least understand enumerated

    and defined beforehand — at any rate with that

    exactness which is requisite in legal discussion — is

    in other words to be expressed with any sufficient exactness - is what it is not in the nature of such circumstances

    to be susceptible of.

    Incapable of being enumerated or defined beforehand: and

    yet according to the admission insinuated, thus , not incapable of being

    enumerated or defined afterwards! These circumstances be

    they what they may, hear they or hear they not not they is they not susceptible of a name?

    If yes, what should hinder its being delivered beforehand? If no,

    how is it capable of being delivered afterwards! 6 Though if those circumstances have a name that name is as capable of being given to them before as after the offence is committed.
  • Title: [29 Jan 1809 Peines 1 9 Paley]
    Description: 29 Jan 1809

    Peines 1 9

    Paley Deliberated upon 10 "The execution of the sentence is deliberated upon" Meaning not by the King for that is impossible but by the Judge - Which supposes what was just before & is just after pronounced impracticable, that the Judges in words actually thus express the circumstances calling for capital punishment in each particular instance

    "Deliberated upon"? the execution of the sentence

    deliberated upon? - how and by whom? By the

    King alone, conversing with himself alone thinking in his own person? A supposition

    so extravagant can hardly have been intended:

    his Majesty. whole time for a task like this, the whole disposable time of this royal person would hardly be sufficient .

    Deliberated upon by persons more than one, Speaking

    as well as thinking together? If so, observe the consequence.

    Of the materials for such thinking, a part, and by the

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    " general" character of the crimes of those in whose instance

    the execution of this sentence, i.e the question whether

    to put them to death according to law, or save them from it in disobedience to the is thus

    taken for the subject of deliberation. But In this

    But this " general" character of the crimes in question,

    by what means is it to be rendered the subject of the

    deliberation - of the conversation the existence of which

    be for , and with so much a satisfaction contemplated? is so decidedly assumed and so thoroughly

    approved of? By what means, but by general

    words, in the same way as in being the same instruments by which in relation to any other

    subject, general ideas are by such as are capable of them wont to be expressed? Here

    then, in this page it seems, that the circumstances in

    question - viz the circumstances on which the propriety or

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    perfectly compleatly capable of being expressed: which at the same time

    in the next preceding page but on these same circumstances

    were as inexplicably decidedly and insuperably - inexpressible: "circumstances which,

    "however easy to perceive" ...... "it is impossible to enumerate

    "or define."