Law is the very basis of civil society, without it man would quickly
return to his original rudeness; the result would be, robbery and
blood:--and even laws themselves are of little moment, without a due
execution of them--there is a necessity to annex punishment.
But there is no necessity to punish the living, who are innocent, by
hanging the dead bodies of criminals in the air. This indecent and
inhuman custom, which originated from the days of barbarism, reflects an
indelible disgrace upon a civilized age. The intention, no doubt, was
laudable; to prevent the commission of crimes, but does it answer that
intention?
In 1759, two brothers, of the name of Darby, were hung in chains near
Hales-Owen, since which time there has been only one murder committed in
the whole neighbourhood, and that under the very gibbet upon which
they hung[5].
[Footnote 5: Joseph Skidmore, a carrier of Stourbridge, having Ann
Mansfield, a young woman of Birmingham, under his care, ravished and
murdered her in the evening of December 10, 1774.]
Justice, however, points out a way wherein the dead body, by conveying
chirurgical knowledge, may be serviceable to the living.
Laws generally tend, either directly, or remotely, to the protection of
property.
All wise legislators have endeavoured to proportion the punishment to
the crime, but never to exceed it: a well conducted state holds forth a
scale of punishments for transgressions of every dimension, beginning
with the simple reprimand, and proceeding downwards even to
death itself.
It will be granted, that the line of equity ought to be drawn with
critical exactness.
If by fair trade, persuasion, or finesse, I get the property of another
into my hands, even to the trifling value of a shilling, my effects
ought to be responsible for that sum.
If I possess no effects, he certainly retains a right of punishing to
that amount: for if we do not lay this line in the boundaries of strict
justice, it will not lie upon any other ground. And if I am allowed
fraud in one shilling, I am allowed it in a greater sum. How far
punishment may be softened by concurring circumstances, is
another question.
It therefore follows of course, that if my creditor has a right to
recover his unfortunate property, those laws are the nearest to
perfection, that will enable him to recover it with the most expedition,
and the least expence and trouble to us both.
If the charge of recovery is likely to exceed the debt, he will be apt
to desist, I to laugh at him, and to try my skill at a second
enterprize.
Trade and credit cannot be well separated; they are as closely connected
as the wax and the paper. The laws of credit, therefore, ought to rest
upon a permanent foundation: neither is law necessary to restrain
credit; for if, in a commercial state, it becomes detrimental by its
over growth, it finds itself a remedy.
Much has been said, and perhaps more than has been thought, concerning
the court before us. The loser is expected to complain, and his friends
to give him a partial hearing; and though he breathes _vengeance_
against his antagonist, it ends in a _breath_.
The looker-on can easily spy an error in the actor. If a fault is
committed, we are glad it was done by another; besides, it is no new
thing for the _outs_ to complain of the _ins_. It will plead strongly in
excuse, to say, the intention was right, if the judgment was wrong. If
perfection is required, she does not reside upon earth.
But if these pleadings are not found a balance against prejudice, and a
man suffers his wrath to kindle against a valuable institution, because
perfection does not preside over it, let him peruse an old author, who
asks, "What shall we think of the folly of that man, who throws away the
apple, because it contains a core? despises the nut, for the shell? or
casts the diamond into the sea, because it has a flaw?"
Decision is usually established upon oath, both in criminal courts, and
in those at Westminster, through which the oath is seen to pass with
free currency.
A judge is sometimes fond of sheltering himself behind an oath; it may
be had at an easy rate. Each of the contending parties wishes to win his
cause by an oath: but though oaths would be willingly taken, they ought
to be sparingly given.--They may be considered what they generally are
not, _of the last importance_.
We may observe, that two opponents are ready to swear directly contrary
to each other; that if a man asserts a thing, he can do no less than
swear it; and that, after all, an oath proves nothing.
The commissioners, therefore, wish rather to establish _fact_ upon
_proof_; but, if this is wanting, then upon circumstantial evidence; and
if this support fails, they chuse to finish a quarrel by a moderate,
though a random judgment.
Much honor is due to that judicial luminary, William Murray, Earl of
Mansfield, who presides over the King's-Bench, for introducing equity
into the courts of law, where she had long been a stranger.
The Court of Requests may justly be charged with weakness, and what
court may not? It is inseparable from man.
A person cannot chuse his capacity, but he may chuse to be a rogue; one
is an act of nature, the other of the will. The greater the temptation
to go astray, the greater must be the resolution to conquer it.
One of the suitors presented a commissioner with a couple of chickens,
as a powerful argument to strengthen a feeble case; but the commissioner
returned his present, and the plaintiff lost his cause; and no wonder,
he sent a chicken to plead it.
The defendant, by disobeying the orders of the court, falls under the
power of the plaintiff, who can cause execution to issue against his
goods, and reimburse himself; or, against his body, and confine him
forty days, unless paid his demand.
There is no cause that can be brought before the Court of Requests, but
may be brought before a higher court, and at a higher expence.
A cause passes through this court for seventeen-pence; and cannot well,
by chicanery or neglect, amount to more than two shillings and
nine-pence: So that ruin is not one of its imperfections.
Though law is said to produce quarrels among friends, yet the contending
parties often go out of that court better friends than when they
came in.
It has been objected, that the publicans give credit to the lower class,
in expectation of relief from the court. But the debtor is equally
apprized of the remedy, and often drinks deeper, in expectation of a
mild sentence from the commissioners; besides, is not all credit founded
on the laws of recovery?
It has also been urged, that while punishment pursues the debtor, for
neglect of orders, his family falls upon the community.
But the community would not wish to put a bar between a man and his
property--The precedent would be dangerous: Justice is no respector of
persons. A culprit will soon procure a family, if they are able to plead
his excuse: It would follow, that single men only would be obliged to be
honest. She does not save the criminal, because he is an handsome man.
If she did, beauty would increase in value; but honesty, seldom be its
companion.
But can accusation lie against a fair tribunal of rectitude? The man
does not exist that can quarrel with equity, and treat her as the
offspring of fraud---The most amiable character in the creation, and the
immediate representative of supreme excellence. She will be revered,
even by the sons of plunder!
Many of the causes that pass this court, are of a disputable nature, and
if not terminated there, would take a different turn.
From distant views of relief here, even sickness herself finds credit in
the day of distress.
The use of the court is also favourable to trade, for, to oblige a man
to pay his debts, is to oblige him to labour, which improves the
manufactures.
Birmingham, in no period of her existence, has increased with such
rapidity, in people, buildings and commerce, as since the erection of
that court; so that depopulation is not one of its inconveniencies.
From a consideration of the prodigious intercourse subsisting in so vast
a body of people, and the credit consequent thereon, it was wisely
judged necessary to establish an easy, and expeditious method of ending
dispute, and securing property.
The inhabitants of Birmingham, therefore, in 1752, procured an act for
the recovery of debts under Forty Shillings; constituting seventy-two
commissioners, three to be a quorum. They sit for the dispatch of
business in the chamber over the Old Cross every Friday morning, and
there usually appear before them between eighty and one hundred causes:
Their determinations are final. Two clerks also, constituted by the act,
attend the court to give judicial assistance; are always of the law,
chosen alternately by the lord of the manor, and the commissioners, and
to continue for life. Once in every two years, ten of the commissioners
are ballotted out, and ten others of the inhabitants chosen in
their stead.