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 [*14] 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 villainy, as the conspirator has also a chance to escape his punishment: and this may be one reason why the lex talionis (law of retaliation) 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, () that the punishment due to the crime of which one falsely accuses another should be inflicted on the perjured informer. Accordingly, when it was 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, c. 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 suggestions were found untrue. But, after one year's experience this punishment of taliation was rejected, and imprisonment adopted in its stead. (8)

But though from what has been said it appears that there cannot be any regular or determinate method of rating the *quan[*15] 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.

Regard is had for the object of the crime.- 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 flagrant an enormity as the actual completion of that de

sign. 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 to the last stage of any crime, that it is never 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.

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

Aggravating circumstances. Further: 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 animadvertenda peccata maxime, quæ difficillime præcaventur" (those offences should be most severely punished, which it is most difficult to guard against). 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; 2 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 a horse or 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 fowl,

(t) 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.

This is no longer the law. What was formerly petit treason is now murder. 9 Geo. IV, c. 31, § 2.

2 The capital punishment for this offence was abolished by statute 7 and 8 Geo. IV, c. 29.

which is easily done, was a capital misdemeanor, and the offender was punished with death. (w)

Punishment should not be unusual or cruel.- 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 [*17] ingenious writer, who seems to have well studied the springs of human action, (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 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.

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 (the severest or capital punishment), to every case of difficulty. It is, it must be owed, much easier to extirpate than to amend man

kind: yet that magistrate must be esteemed both a weak [*18] and cruel surgeon, 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 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

(w) 4 Inst. 285.

(x) Beccar. c. 7.

(y) Sp. L. b. 6, c. 13.

(z) Beccar. c. 6.

1 [McClain's Cr. L., p. 80; 2 Wilson's Works, 372.]

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 to 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.

Imperfection of the English code.-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 words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of offenders. *The injured, through compassion, will often forbear to prosecute; juries, through compassion, will [*19] 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 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.

*CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

[*20]

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 particular and special exceptions: for the general rule is, that no person shall be excused from pun

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

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

1 The legislature has at length been brought to see this truth, and has greatly diminished this fearful list.

ishment for disobedience to the laws of his country, excepting such as are expressly defined and exempted by the laws themselves.

Capacity to commit crime.- 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 do or to avoid the fact in question, being the only thing *that ren[*21] ders human action either praiseworthy or culpable. Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act. For, though, in foro conscientiæ (at the tribunal of conscience), 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.

Classes of incapacity.- 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. Involuntary act.- 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. Unwilling act, duress.- 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 infancy, idiocy, lunacy, and intoxication, which fall [*22] under the first class; misfortune and ignorance, which may be referred to the second; and compulsion or necessity, which may properly rank in the third.

I. Infancy. 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

1[McClain, Cr. L., § 154 et seq.]