tent of their warrant; and not at the doors of the subject who is bound to receive the interpretations that are given by the sovereign power.

2. As to the end or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the Supreme Being: but as a précaution against future offences of the same kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the dread of his example from offending in the like way, "ut poena (as Tully (p) expresses it) ad paucos, "metus ad omnes, perveniat ;" which gives rise to all ignominious punish

ments, and to such executions of justice as are open and public: [12] or, lastly, by depriving the party injuring of the power to do future

mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered by cach of these three species of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be disabled from doing any farther harm and if the penalty fails of both these effects, as it may do, still the terror of his example remains as a warning to other citizens. The method however of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and by no means to exceed it; therefore the pains of death, and perpetual disability by exile, slavery, or imprisonment, ought never to be inflicted, but when the offender appears incorrigible; which may be collected either from a repetition of minuter offences: or from the perpetration of some one crime of deep malignity, which of itself demonstrates a disposition without hope or probability of amendment: and in such cases it would be cruelty to the public to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villanies.

3. As to the measure of human punishments. From what has been observed in the former articles we may collect, that the quantity of punish. ment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penal. ties as are warranted by the laws of nature and society, and such as ap pear to be the best calculated to answer the end of precaution againt future offences.

Hence it will be evident, that what some have so highly extolled for its equity, the lex talionis, or law of retaliation can never be in all cases an adequate or permanent rule of punishment. In some cases indeed it seems to be dictated by natural reason; as in the case of conspiracies to

do an injury, or false accusations of the innocent: to which we [13] may add that law of the Jews and Egyptians, mentioned by Jo

sephus and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in his custody, should himself be oblig. ed to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may embrace or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that if a court of justice awards a return of the blow, it is more than a just compensation. On the other hand, retaliation may, sometimes, be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had P Pro Cluentio, 46,

lost one before, it is too slight a punishment for the maimer to lose only one of his and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered by decreeing, in imitation of Solon's laws, (q) that he who struck out the eye of a oneeyed man, should lose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without mani. fest absurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same hurt he has done to his neighbour, and no more; but this correspondence between the crime and punishment is barely a consequence from some other prin. ciple. Death is ordered to be punished with death; not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death: the execution of a needy decrepit assassin is a poor satisfaction for the murder of a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reason upon which this sentence is grounded seems to be, that this is the highest penalty that man can inflict, and tends most to the security of mankind; by removing one murderer from the earth, and setting a dreadful example to deter others: so that even [14] this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury; since it seems contrary to reason and equity, that the guilty (if convicted) should suffer no more than the innocent has done before him; especially as the suffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which consist merely in the intention, and are not yet carried into act, as con. spiracies and the like; the innocent has a chance to frustrate or avoid the villany, as the conspirator has also a chance to escape his punishment: and this may be one reason why the lex talionis is more proper to be inflicted, if at all, for crimes that consist in intention, than for such as are carried into act. It seems indeed consonant to natural reason, and has therefore been adopted as a maxim by several theoretical writers, (r) that the punishment due to the crime of which one falsely accuses another, should be inflicted on the perjured informer. Accordingly, when it was once attempted to introduce into England the law of retaliation, it was intended as a punishment for such only as preferred malicious accusations against others; it being enacted by statute 37 Edw. III. ch. 18. that such as preferred any suggestions to the king's great council should put in sure. ties of taliation; that is, to incur the same pain that the other should have had, in case the suggestion were found untrue. But, after one year's experience, this punishment of taliation was rejected, and imprisonment adopted in its stead. (s)

But though from what has been said it appears, that there cannot be any regular or determinate method of rating the quantity of punishments for crimes, by any one uniform rule; but they must be refer- [15] red to the will and discretion of the legislative power: yet there are some general principles, drawn from the nature and circumstances of the q Pott. Apt. b. 1. c. 26.

Beccar. c. 15.

s Stat. 38 Edw. III. c. 9.

crime, that may be of some assistance in allotting it an adequate punish

ment.

As, first, with regard to the object of it: for the greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and of course under this aggravation the punishment should be more severe. Therefore treason in conspiring the king's death is by the English law punished with greater rigour than even actually killing any private subject. And yet, generally, a design to transgress is not so fla grant an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking: so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract; and that if a man stops even here, it is better for him than if he proceeds for which reason an attempt to rob, to ravish, or to kill, is far less penal than the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king's majesty, the bare intention will deserve the highest degree of severity; not because the intention is equivalent to the act itself; but because the greatest rigour is no more than adequate to a treasonable purpose of the heart, and there is no greater left to inflict upon the actual execution itself.

Again: the violence of passion, or temptation, may sometimes alleviate a crime; as theft, in case of hunger, is far more worthy of compassion than when committed through avarice, or to supply one in luxurious excesses. To kill a man upon sudden and violent resentment, is less penal than upon cool deliberate malice. The age, education, and character of the offend

er; the repetition (or otherwise) of the offence; the time, the [16] place, the company wherein it was committed; all these, and a thou

sand other incidents, may aggravate or extenuate the crime. (t) Farther as punishments are chiefly intended for the prevention of fu ture crimes, it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness; (u) and, among crimes of an equal malignity, those which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others, and which therefore the offender has the strongest inducement to commit; according to what Cicero observes, (v) "ea sunt animadvertenda peccata maxime, quae difficillime praecaventur." Hence it is, that for a servant to rob his master is in more cases capital, than for a stranger: if a servant kills his master, it is a species of treason; in another it is only murder: to steal a handkerchief, or other trifle of above the value of twelve pence, privately from one's person, is made capital; but to carry off a load of corn from open field, though of fifty times greater value, is punished with transportation only. And, in the island of Man, this rule was formerly carried so far, that to take away an horse or an ox was there no felony, but a trespass, because of the difficulty in that little territory to conceal them or carry them off but to steal a pig or a fowl, which is easily done, was a capital misdemespor, and the offender was punished with death. (w)

Thus Demosthenes (in his oration against Midias) finely works up the aggravations of the insults he had received. "I was abused," says he, "by my enemy, in cold blood, out of malice, not by heat of wine. in the morning, publicly, before strangers as well as citizens; and that in the temple, whither the duty of my office called me."

u Beccar. c. 6.

v Pro Sexto Roscio, 40.

w 4 Inst. 285,

Lastly; as a conclusion to the whole, we may observe, that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due distinctions of severity. It is the sentiment of an ingenious [ 17 ] writer, who seems to have well studied the springs of human ac. tion, (x) that crimes are more effectually prevented by the certainty, than by the severity, of punishment. For the excessive severity of laws (says Montesquieu) (y) hinders their execution: when the punishment surpasses all measure, the public will frequently out of humanity, prefer impunity to it. Thus also the statute 1 Mar. st. 1. c. 1. recites in its preamble," that "the state of every king consists more assuredly in the love of the subject towards their prince, than in the dread of laws made with rigorous pains; " and that laws made for the preservation of the commonwealth without great "penalties are more often obeyed and kept, than laws made with extreme pu"nishments." Happy had it been for the nation, if the subsequent practice of that deluded princess in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government! We may further observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished under the emperors severe puuishments were revived; and then the empire fell."

:

It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the executive, power. It is a kind of quackery in government, and argues a want of solid skill, to apply the same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind: yet that [18] magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not attempt

(11) The most admirable and excellent statute ever passed by the English legislature is the 1 Edw. VI. c. 12. In the preamble it states, in a beautiful and simple strain of eloquence, that "Nothing is more godly, more sure, more to be wished and desired betwixt a prince, the su preme head and ruler, and the subjects whose governor and head he is, than on the prince's part great clemency and indulgency, and rather too much forgiveness and remission of his royal power and just punishment, than exact severity and justice to be shewed; and on the subjects' behalf, that they should obey rather for love, and for the necessity and love of a king and prince, than for fear of his strait and severe laws. But as in tempest or winter one course and garment is convenient, in calm or warm weather a more liberal case or lighter garment both may and ought to be followed and used; so we have seen divers strait and sore laws made in one parliament (the time so requiring), in a more calm and quiet reign of another prince by the like authority and parliament taken away," &c. It therefore repeals every statute which has created any treason since the 25 Edw. III. st. 5. c. 2. It repeals "all and every act of parliament concerning doctrine or matters of religion." It repeals every felony created by the legislature, during the preceding long and cruel reign of Henry VIII. It repeals the statute 31 Hen. VIII. "that proclamations made by the king's highness, by the advice of his honourable council, should be made and kept as though they were made by authority of parliament." It repeals also the extraordinary statute de bigamis, 4 Edw. I. st. 3. c. 5. which enacted, that if any man married a widow, or married a second wife after the death of the first, he should be deprived of the benefit of clergy, if he was convicted of any clergyable felony whatever. Chitty.

to cure. It has been therefore ingeniously proposed, (2) that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least: but, if that be too romantic an idea, yet at least a wise legislature will mark the principal divisions, and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, the generality will be led to conclude there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same: (a) hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder. In China, murderers are cut to pieces, and robbers not: hence in that country they never murder on the highway, though they often rob. And in England, besides the additional terrors of a speedy execution, and a subsequent exposure or dissection, robbers have a hope of transportation, which seldom is extended to murderers. This has the same effect here as in China; in preventing frequent assassination and slaughter.

Yet, though in this instance we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of successive independent statutes, upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of parliament (b) to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, in

stead of diminishing, increases the number of offenders. The injur[19] ed, through compassion, will often forbear to prosecute; juries,

through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence and judges, through compassion will respite one half of the convicts, and recommend them to the royal mercy. Among so many chances of escaping, the needy and hardened offender overlooks the multitude that suffer: he boldly engages in some desperate attempt, to relieve his wants or supply his vices: and, if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate, in falling at last a sacrifice to those laws, which long impu. nity has taught him to contemn.

CHAP. II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

HAVING, in the preceding chapter, considered in general the nature of crimes and punishments, we are led next, in the order of our distribution, to inquire what persons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the censures of the law upon the commission of those acts, which in other persons would be severely punished. In the process of which inquiry, we must have recourse to parti a Sp. L. b. 6. c. 16.

z Beccar. c. 6.

b See Ruffhead's index to the statutes (tit Felony) and the acts which have since been made,