this sentence is grounded seems to be, that this is the highest [*14] 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 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 conspiracies 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 punishmeut 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 sureties 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 [*15) cannot be any regular or determinate method of rating the *quan

tity of punishments for crimes, by any one uniform rule; but they must be referred to the will and discretion of the legislative power: yet there are some general principles, drawn from the nature and circumstances of the crime, that may be of some assistance in allotting it an adequate punishment.

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

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 flagrant 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 (r) Beccar. c. 15.

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 à 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 offender: the repetition (or otherwise) *of the offence; the time, [*16 ] the place, the company wherein it was committed ; all these, and a thousand other incidents, may aggravate or extenuate the crime (t).

Farther: as punishments are chiefly intended for the prevention of future 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 animadvertendu 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 (15); 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 (16); but to carry off a load of corn from an 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 misdemeanor, and the offender was punished with death (w).

Lastly: as a conclusion to the whole, we may observe that punish-
ments of unreasonable severity, especially when indiscriminately inflicted,
have less effect in preventing crimes, and amending the manners of a peo-
ple, than such as are more merciful in general, yet properly inter-
mixed with due *distinctions of severity. It is the sentiment of [*17 ]

(1) Thus Demosthenes (in his oration against strangers as well as citizens; and that in the
Midias) finely works up the aggravations of the in- temple, whither the duty of my office called me."
sults he had received. “I was abused," says ye,
“by my enemy, in cold blood, out of malice, not (v) pro Serto Roscio, 40.
by heat of wine, in the morning, publicly, before

(u) Beccar c. 6.

() 4 Inst. 285.

(15) This is no longer law. By 9 Geo. IV.c. 29,9 6, which enacts, “ that if any person shall 31, $ 2, repealing 25 Ed. III. st. 5, c. 2, respect. steal any chattel, money, or valuable security ing petit treason, it is enacted, “that every of- from the person of another, or shall assault fence which before the commencement of that any other person with intent to rob him, or Act would have amounted to petit treason, shall shall with inenaces or by force demand any be deemed to be murder only, and no greater such property of any other person with intent to offence; and that all persons guilty in respect steal the same, he shall be guilty of felony, and thereof, whether as principals or accessaries, liable to be transported for life, or for not less shall be dealt with, indicted, tried and punish- than seven years, or to be imprisoned for not ed as principals and accessaries in murder." exceeding four years; and, if a male, to be See 1 Hawk. P. C. 6th edit. 105. 5 Burn's J. once, twice, or thrice, publicly or privately last edit 551 ; post 75, 203.

whipped." (16) This is altered by 7 and 8 Geo. IV. C. VOL. II.

51

an ingenious writer, who seems to have well studied the springs of human action (2), 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 hunanity 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 punishments.” 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 punishments were revived; and then the empire fell (17).

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 [*18 ] *that magistrate must be esteemed both a weak and a cruel sur

geon, who cuts off every limb, which through ignorance or indolence he will not attempt 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 legislator will mark

a

a

(z) Beccar. c. 6.

(r) Beccar. c. 7.
(y) Sp. L. b. 6, c. 13.

(17) The most admirable and excellent sta- parliament (the time so requiring), in a more tute ever passed by the English legislature is calm and quiet reign of another prince by the the 1 Edw. VI. c. 12. In the preainble it like authority and parliament taken away," states, in a beautiful and simple strain of elo. &c. It therefore repeals every statute which quence, that “ Nothing is more godly, more has created any treason since the 25 Edw. III. sure, more to be wished and desired betwixt a st. 5. c. 2. It repeals "all and very act of prince, the supreme head and ruler, and the parliament concerning doctrine or matters of subjects whose governor and head he is, than religion.” It repeals every selony created by on the prince's part great clemency and indul- the legislature, during the preceding long and gency, and rather too much forgiveness and cruel reign of Henry VIII.' It repeals the sta. remission of his royal power and just punish- tute 31 Hen. VIII. " that proclamations made ment, than exact severity and justice to be by the kings, highness, by the advice of his hoshewed; and on the subjects' behalf, that they nourable council, should be made gud kept should obey rather for love, and for the neces. as though they were made by authority of sity and love of a king and prince, than for parliament.”. It repeals also the extraordinafear of his strait and severe laws. But as in ry statute de bigamis, 4 Edw. I. st. 3. c. 5. tempest or winter one course and garment is which enacted, that if any man married a wi. convenient, in calm or warm weather a more dow, or married a second wife after the death liberal case or lighter garment both may and of the first, he should be deprived of the bener ought to be followed and used ; so we have' fit of clergy, if he was convicted of any cler. seen divers strait and sore laws made in one gyable felony whatever.

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 (18). 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 (19). So dreadful a list, instead of diminishing, increases the number of of. fenders. "The injured through compassion, will often forbear to [ *19] 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 impunity has taught him to contemn.

a

CHAPTER 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, (a) Sp. L. b. 6, c. 16.

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 severaly punished. In the process of which inquiry, we must have recourse to particular and special exceptions: for the general rule is, that no person shall be excused from punishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.

All the several pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any

guilt: the concurrence of the will, when it has its choice either to [ 21 ] do or to avoid the fact in question, being the only thing that ren

ders human actions either praiseworthy or cu pable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. For, though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will, without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

Now there are three cases, in which the will does not join with the act: 1. Where there is a defect of understanding. For where there is no discernment, there is no choice; and where there is no choice, there can be no act of the will

, which is nothing else but a determination of one's choice to do or to abstain from a particular action : he, therefore, that has no understanding, can have no will to guide his conduct. 2. Where there is understanding and will sufficient, residing in the party ; but not called forth and exerted at the time of the action done ; which is the case of all offences committed by chance or ignorance. Here the will sits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed; and is so far from concurring with, that it loaths and disagrees to, what the man is obliged to perform. It will be the business of the present chapter briefly to consider all the several species of defect in will, as they fall under some one or other of these general heads : as in

fancy, idiocy, lunacy, and intoxication, which fall under the first [ *22 ] class; misfortune, and ignorance, which *may be referred to the

second; and compulsion or necessity, which may properly rank in the third.

I. First, we will consider the case of infancy, or nonage ; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever (a). What the age of discretion is, in various nations, is matter of some variety. The civil law

(a) I Hawk. P. C. 2.