wards or punishments. When we apply it to any man, we do not treat of him absolutely, and in gross; but under a particular relation or precision: we do not comprehend or concern ourselves about the several inherent properties which accompany him in real existence, which go to the making up the whole complex notion of an active and intelligent being; but arbitrarily abstract one single quality or mode from all the rest, and view him under that distinct precision only which points out the idea above-mentioned, exclusive of every other idea that may belong to him in any other view, either as substance, quality, or mode. And therefore the consideration of this same quality, or qualification, will not be altered by any others of which he may be possessed; but remains the same whatever he shall consist of besides: whether his soul be a material or immaterial substance, or no substance at all, as may appear from examining the import of these pronouns, I, thou, he, &c. [the grammatical meaning of such words generally pointing out the true origin of our ideas primarily annexed to them] which both in their original sense and common acceptation are purely personal terms, and as such lead to no farther consideration either of soul or body; nay, sometimes are distinguished from both, as in the following line, Linquebant dulces animas, aut ægra trahebant An inquiry after the identity of such person will be, whether at different times he is, or how he can be, and know himself to be the same in that respect, or equally subjected to the very same relations and consequent obligations which he was under formerly, and in which he still perceives himself to be involved, whenever he reflects upon himself and them. This *See Locke on 1 Cor. xv. 53, we shall find to consist in nothing more than his becoming sensible at different times of what he had thought or done before; and being as fully convinced that he then thought or did it, as he now is of his present thoughts, acts, or existence. Beyond this we neither can nor need go for evidence in any thing; this, we shall soon see, is the clear and only medium through which distant things can be discovered and compared together; which at the same time sufficiently ascertains and establishes their several natures and realities respectively, so far as they relate to ourselves and to each other: or if this should not be esteemed sufficient to that end, we shall find, in the last place, that there is nothing else left for it. This distinct consciousness of our past actions, from whence arise all the ideas of merit and demerit, will most undoubtedly be regarded with the strictest exactness in foro divino; and indeed has its due weight in foro humano, whenever it can be with certainty determined: wherever this appears to be wanting, all judicial proceedings are at an end. How plain soever any criminal act were, the man would now-a-days be acquitted from guilt in the commission of it, and discharged from the penalties annexed to such fact, could it at the same time be as plainly made out, that he was incapable of knowing what he did, or is now under a like incapacity of recollecting it. And it would be held a sufficient reason for such acquittal, that the punishment, or prosecution of a creature in these circumstances, could not answer the end proposed by society in punishment, viz. the prevention of evil, the only end that I know of, which can justify punishments in any case. The reason then why such a plea has usually so small regard paid to it in courts of justice, is, I apprehend, either the difficulty of having this incapacity proved with the same clearness that the fact itself is established; or the common maxim that one crime, or criminal indisposition, is not admissible in excuse for another; as in cases of drunkenness, violent passion, killing or maiming men by mistake when one is engaged in an unlawful pursuit, &c. Or in some of these cases perhaps men are punished for the murders, &c. not be cause they possibly may be conscious of them, and yet that consciousness not appear; but that such evils may be more effectually prevented by striking at the remoter cause, i. e. exciting a salutary terror of those confessedly evil practices and habits, which are often found to terminate in such fatal effects. A kind of injustice is here indeed committed by society, which we have no reason to suppose will be admitted in foro divino, and some worse instances may be seen in our statute books. By the 23 of Hen. 8. a man becoming lunatic after an act of treason shall be liable to be arraigned, tried, and executed. But Hale* in his P. C. says, That if a traitor becomes non compos before conviction, he shall not be arraigned; if after conviction, he shall not be executed: and Hawkins + observes the same concerning those who have committed any capital offences. In human courts, which cannot always dive into the hearts of men and discover the true springs of action, nor consequently weigh the effects and operations of each in an equal balance; in this state of ignorance and uncertainty, such a notorious indisposition as that of drunkenness; v. g. being generally a great fault in itself, is seldom allowed in extenuation of such others as are committed under its influence; nor indeed does it, I believe, often produce any new, materially dif ferent trains of thinking, or totally obliterate the old ones; but where this is really so, the Deity would make just abatement for such defect or disability, as 'was at the time both unconquerable and unavoidable; nor can we properly impute actions consequent upon any real disorder of the rational faculties, howsoever that disorder might have been contracted; and there *Hale, P. C. 10. + Hawk. P. C. c. fore all animadversions upon them must be in vain': nor is a man punishable for any thing beside the bare act of contracting such disorder, or for the original cause of this disability, how great or durable soever; the dangerous consequences of which he did, or might foresee. As is the case in some other confirmed habits, viz. that of swearing, &c. which often operate mechanically and unperceived, and in which therefore all the moral turpitude (or what is so accounted) arising from them, never can reach beyond the foun tain-head from whence they are derived, and from which all the effects of them naturally, and even necessarily flow. We must therefore conclude in ge neral, that a person's guilt is estimated according to his past and present consciousness of the offence, and of his having been the author of it. Nor is it merely his having forgotten the thing, but his having so far lost the notion of it out of his mind, that how fre quently soever, or in what forcible manner soever, it may be presented to him again, he lies under an utter incapacity of becoming sensible and satisfied that he was ever privy to it before, which is affirmed to render this thing really none of his, or wholly exculpate him when called to answer for it. Suppose this same consciousness to return, his accountableness (call it personality, or what you please) will return along with it: that is, the infliction of evil upon him will now answer some purpose, and therefore he must be considered as now liable to it. Thus some wholly lose the use of their intellectual faculties for a time, and recover them at intervals. In such cases they are considered as punishable by laws, and so declared by juries, in proportion to the probability of their being conscious of the fact. Others lie under a partial deprivation of some one faculty for certain periods, while they continue to enjoy the rest in tolerable perfection. I knew a learned man, who was said to recollect with ease subjects upon which he had written, or any others that had been discussed before the last ten or fifteen years; could reason freely, and readily turn to the authors he had read upon them; but take him into. the latter part of his life, and all was blank; when any late incidents were repeated to him, he would only stare at you, nor could he be made sensible of any one modern occurrence, however strongly represented to him. Was this man equally answerable for all transactions within the last period of his life, as for those in the first? Or if he could have been made sensible of the latter part, but had irrecoverably lost the former; could that former part have been in like manner imputed to him? Surely not. And the reason plainly is, because society could find no advantage from considering him as accountable in either case. Which shows personality to be solely a creature of society, an abstract consideration of man, necessary for the mutual benefit of him and his fellows; i. e. a mere forensic term; and to inquire after its criterion or constituent, is to inquire in what circumstances societies or civil combinations of men have in fact agreed to inflict evil upon individuals, in order to prevent evils to the whole body from any irregular member. Daily experience shows, that they always make consciousness of the fact a necessary requisite in such punishment, and that all inquiry relates to the probability of such consciousness. The execution of divine justice must proceed in the same manner. The Deity inflicts evil with a settled view to some end; and no end worthy of him can be answered by inflicting it as a punishment, unless to prevent other evils. Such end may be answered, if the patient is conscious, or can be made conscious of the fact, but not otherwise. And whence then does this difference in any one's moral capacity arise, but from that plain diversity in his natural one? from his absolute irretrievable want of consciousness in one case, and not in the other? Suppose now that one in the former condition kills a man; that he, or some part of what we call him, was ever so notoriously the instrument |