misdemeanors; being devised, denounced, and inflicted by human laws, in consequence of disobedience or misbehaviour in those, to regulate whose conduct such laws were respectively made. And herein we will briefly consider the power, the end, and the measure of human punishment.

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanors. (h) It is clear, that the right of punishing crimes against the laws of nature, as murder and the like, is in a state of mere nature vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution: and if that power is vested in any one, it must also be vested in all mankind; *since all are by nature equal. Whereof the first murderer Cain was so sensible, [*8] that we find him (i) expressing his apprehensions, that whoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. Whatever power, therefore, individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which some have argued to belong to every state (though, in fact, never exercised by any), of punishing not only their own subjects, but also foreign ambassadors, even with death itself; in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt. (k)

As to offences merely against the laws of society, which are only mala prohi bita, and not mala in se; the temporal magistrate is also empowered to inflict coercive penalties for such transgressions; and this by the consent of individuals; who, in forming societies, did either tacitly or expressly invest the sovereign power with the right of making laws, and of enforcing obedience to them when made, by exercising, upon their non-observance, severities adequate to the evil. The lawfulness, therefore, of punishing such criminals is founded upon this principle, that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered, when first they engaged in society; it was calculated for, and has long contributed to their own security.

This right, therefore, being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all its members, as each individual member had naturally over himself or others. Which has *occasioned some to doubt how far a human legislature ought to inflict capital [*9] punishments for positive offences; offences against the municipal law only, and not against the law of nature: since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the case of murder, by the precept delivered to Noah, their common ancestor and representative, "whoso sheddeth man's blood, by man shall his blood be shed." (?) In other instances they are inflicted after the example of the Creator, in his positive code of laws for the regulation of the Jewish republic: as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak; as these crimes are, none of them, offences against natural, but only against social rights; not even theft itself, unless it be accompanied with violence to one's house or person: all others being an infringement of that right

(h) See Grotius, de j. b. & p. l. 2, c. 20. Puffendorf. L. of Nat. & N. 1. 8, c. 3. (k) See book I, p. 254. (1) Gen. ix, G.

(i) Gen. iv, 14.

of property, which, as we have formerly scen, (m) owes its origin not to the law of nature, but merely to civil society. (5)

The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale: (n) “ When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself, is necessary to be annexed to laws in many cases by the prudence of lawgivers." It is therefore, the enormity, or dangerous tendency, of the crime that alone can warrant any earthly legislature in putting him to death that commits it. *It is not its frequency, only, or the difficulty of otherwise preventing [*10] it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For, though the end of punishment is to deter men from offending, it can never follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing laws that inflict the penalty of death, especially for slight offences, or such as are merely positive. He will expect a better reason for his so doing than that loose one which generally is given; that it is found by former experience that no lighter penalty will be effectual. For is it found, upon farther experience, that capital punishments are more effectual? Was the vast territory of all the Russias worse regulated under the late empress Elizabeth, than under her more sanguinary predecessors? Is it now, under Catherine II, less civilized, less social, less secure? And yet we are assured that neither of these illustrious princesses have, throughout their whole administration, inflicted the penalty of death; and the latter has, upon full persuasion of its being useless, nay, even pernicious, given orders for abolishing it entirely throughout her extensive dominions. (0) But, indeed, were capital punishments proved by experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety depend) of inflicting them upon all occasions when other expedients fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded wagons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow that it would be just for the legislature to inflict death upon every obstinate carrier, who defeats or eludes the provision of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of *conscience and humanity. To shed the blood of our fellow creature is [*11] a matter that requires the greatest deliberation and the fullest conviction of our own authority: for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of Him who gave it; either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstration.

I would not be understood to deny the right of the legislature in any country to enforce its own laws by the death of the transgressor, though persons of some abilities have doubted it; but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises,

(0) Grand instructions for framing a new code of laws for the Russian empire, § 210.

(1) [It is strange that the learned judge's conclusion, viz., that theft itself is not an offence against natural rights, did not lead him to suspect the fallacy of the position, that the right of property owes its origin not to the law of nature, but merely to civil society, which he has also advanced in a former book (book 2, p. 11), and which I have there presumed to controvert. If theft be not a violation of the law of nature and reason, it would follow that there is no moral turpitude in dishonesty. "Non igitur magis est contra naturam morbus aut egestas aut quid hujusmodi quam detractio aut appetitio alieni."-Cic. Thou shalt not steal, is certainly one of the first precepts both of nature and religion. CHRISTIAN.

whether death may be lawfully inflicted for this or that transgression, the wisdom of the laws must decide it; and to this public judgment or decision all private judgments must submit; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors, who misinterpret the extent 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 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 precaution 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 imprisoment, 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 punishments, and to such executions of justice as are open and public: *or, lastly, by depriving the party injuring of the power to do future mischief; which is effected by either putting him to death or con[*12] demning him to perpetual confinement, slavery, or exile. The same one end, of preventing future crimes, is endeavoured to be answered by each 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 further 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 crim inal, 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 punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against 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 may add that law of the Jews and Egyptians, mentioned by *Josephus and Diordorus Siculus, that whoever without sufficient cause was found with any mortal poison in his [*13] custody, should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance 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 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, (7) that, he who struck out the eye of a one-eyed man, should lose both his own in

(p) Pro Cluentio, 46.

(2) Pott. Ant. b. 1, c. 26.

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return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity and wickedness. Theft cannot be punished with 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 principle. 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. (6) 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 re[*14] moving 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 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 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 sug gestions 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. (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 [*15] 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 alloting 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 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 design. For evil, the nearer we approach it, is the more disagreeable and shocking; so that it requires more obstinacy in wickedness to

(6) [It is possible that the commentator meant to flatter an audience of the sons of noblemen, by intimating that it was a less crime to kill a poor old man, than to kill a nobleman even in the bloom of youth! In the eye of every sound moralist there can be no difference.

perpetrate an uniawful 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.

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 these, and a thousand other incidents, may aggravate [16]

or extenuate the crime. (t)

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." 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; (7) 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; (8) 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 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 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 [*17] of severity. It is the sentiment of an 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

(f) 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."

(w) 4 Inst. 285.

(x) Beccar. c. 7.

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

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