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the place, the company wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime'.
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 deftructive of the public fafety and happiness and, among crimes of an equal malignity, those which a man has the most frequent and eafy opportunities of committing, which cannot be fo eafily guarded against as others, and which therefore the offender has the strongest inducement to commit: according to what Cicero obferves ", "ea funt “animadvertenda peccata maxime, quae difficillime praecaventur." Hence it is, that for a fervant to rob his master is in more cafes capital, than for a stranger: if a fervant kills his master, it is a species of treason; in another it is only murder: to steal a handkerchief, or other trifle, privately from one's perfon, is made capital; but to carry off a load of corn from an open field, though of fifty times greater value, is punished with tranfportation only. And in the island of Man, this rule was formerly carried fo 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 eafily done, was a capital misdemesnor, and the offender was punished with death ".
LASTLY, as a conclufion to the whole, we may observe that punishments of unreasonable severity, especially when indifcriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than fuch as are more merciful in general, yet properly intermixed with due diftinctions
• Thus Demofthenes (in his oration against Midias) finely works up the aggravations of the infult he had received. "I was abufed, "fays 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, whi"ther the duty of my office called me." y Beccar. c. 6.
pro Sexto Rofcio, 40.
4 Inft. 285.
of severity. It is the fentiment of an ingenious writer, who feems to have well studied the fprings of human action*, that crimes are more effectually prevented by the certainty, than by the Severity, of punishment. For the exceffive severity of laws (fays Montefquieu) hinders their execution: when the punishment furpaffes all measure, the public will frequently out of humanity prefer impunity to it. Thus the ftatute 1 Mar. ft. 1. c. 1. recites in it's preamble, "that the state of every king confifts more af"furedly 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 prefervation 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 fubfequent practice of that deluded princess in matters of religion, had been correfpondent to these sentiments of herself and parliament, in matters of state and government! We may farther obferve that fanguinary laws are a bad symptom of the distemper of any ftate, or at least of it's 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, filently abrogated them all. In this period the republic flourished: under the emperors fevere punishments were revived; and then the empire fell.
IT is moreover abfurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of fanguinary laws (befides 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 folid fkill, to apply the fame univerfal remedy, the ultimum fupplicium, to every cafe of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind:
* Beccar. c. 7. VOL. IV.
Sp. L. b. 6. c. 13.
yet that magiftrate must be efteemed both a weak and a cruel furgeon, who cuts off every limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingeniously proposed, that in every state a scale of crimes should be formed, with a correfponding scale of punishments, descending from the greatest to the leaft: but, if that be too romantic an idea, yet at least a wife legislator will mark the principal divisions, and not affign penalties of the first degree to offences of an inferior rank. Where men fee no diftinction 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 fame': 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, befides the additional terrors of a speedy execution, and a subsequent exposure or dif section, robbers have a hope of transportation, which seldom is extended to murderers. This has the fame effect here as in China; in preventing frequent affaffination 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 fucceffive independent ftatutes, 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 an hundred and fixty have been declared by act of parliament' to be felonies without benefit of clergy; or, in other words, to be worthy of instant death. So dreadful a list, instead of diminishing, increases the number of
z Beccar. c. 6:
2 Sp. L. b. 6. c. 16.
b See Ruffhead's index to the ftatutes, (tit. felony) and the acts which have fince been made.
offenders. The injured, through compaffion, will often forbear to profecute: juries, through compaffion, will fometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offence: and judges, through compaffion, will respite one half of the convicts, and recommend them to the royal mercy.
Among fo many chances of escaping, the needy or hardened offender overlooks the multitude that fuffer; he boldly engages in fome desperate attempt, to relieve his wants or fupply his vices; and, if unexpectedly the hand of justice overtakes him, he deems himself peculiarly unfortunate, in falling at last a facrifice to those laws, which long impunity has taught him
CHAPTER THE SECON D.
OF THE PERSONS CAPABLE OF COMMITTING CRIMES.
AVING, in the preceding chapter, confidered in general the nature of crimes, and punishments, we are next led, in the order of our distribution, to enquire what perfons are, or are not, capable of committing crimes; or, which is all one, who are exempted from the cenfures of the law upon the commiffion of those acts, which in other persons would be feverely punished. In the process of which enquiry, we must have recourse to particular and special exceptions: for the general rule is, that no perfon fhall be excufed from punishment for difobedience to the laws of his country, excepting such as are expreffly defined and exempted by the laws themselves.
ALL the feveral pleas and excuses, which protect the committer of a forbidden act from the punishment which is otherwife annexed thereto, may be reduced to this fingle confideration, the want or defect of will. An involuntary act, as it has no claim to merit, fo neither can it induce any guilt: the concurrence of the will, when it has it's choice either to do or to avoid the fact in question, being the only thing that renders human