execution: when the punishment furpaffes all measure, the public will frequently out of humanity prefer impunity to it. Thus alfo the ftatute 1 Mar. ft. 1. c. 1. recites in it's preamble," that the state of every king confists more affuredly "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 fubfequent practice of that deluded princess in matters of religion, had been correfpondent to these fentiments of herfelf and parliament, in matters of ftate and government! We may farther observe that fanguinary laws are a bad symptom of the distemper of any state, or at least of its weak conftitution. 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 fentence of death, filently abrogated them all. In this period the republic flourished: under the emperor's 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 likewife prove a manifeft defect either in the wifdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid fkill, to apply the fame universal remedy, the ultimum fupplicium, to every cafe of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind: yet [18] 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 there fore ingeniously propofed, that in every ftate a fcale of crimes fhould be formed, with a correfponding scale of pu

z Beccar. c. 6.

nifhments,

nishments, defcending from the greateft to the leaft: but, if that be too romantic an idea, yet at leaft a wife legiflator will mark the principal divifions, 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 fubject 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 diffection, robbers have a hope of transportation, which feldom is extended to murderers. This has the fame effect here as in China; in preventing frequent affaffination and flaughter.

YET, though in this inftance we may glory in the wifdom of the English law, we fhall find it more difficult to justify the frequency of capital punishment to be found therein; inflicted (perhaps inattentively) by a multitude of succeffive 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 inftant death. So dreadful a list, instead of diminishing, increases the number of offenders. The injured, through compaffion, will often forbear to pro- [ 19 ] fecute: 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 refpite one half of the convicts, and recommend them to the

a Sp. L. b. 6. c. 16.

tutes (tit. felony) and the acts which See Ruffhead's index to the fta- have fince been made.

royal mercy. Among fo many chances of escaping, the needy and hardened offender overlooks the multitude that fuffer; he boldly engages in fome defperate attempt, to relieve his wants or fupply his vices; and, if unexpectedly the hand of juftice 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 THE SECOND.

OF THE PERSONS

THE PERSONS CAPABLE OF

COMMITTING CRIMES.

HAVING, in the preceding chapter, confidered in

general the nature of crimes, and punishments, we are next led, in the order of our distribution, to inquire 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 perfons would be feverely punished. In the process of which inquiry, we must have recourse to particular and special exceptions: for the general rule is, that no perfon fhall be excufed from punishment for disobedience to the laws of his country, excepting fuch as are exprefsly defined and exempted by the laws themselves.

ALL the feveral pleas and excufes, 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 queftion, being the only thing that renders human actions either praifeworthy or culpable. [ 21 ] Indeed, to make a complete crime cognizable by human. laws, there must be both a will and an act. For though, in foro confcientiae, a fixed defign or will to do an unlawful almoft as heinous as the commiffion of it, yet, as no temporal tribunal can fearch the heart, or fathom the intentions of the mind, otherwife than as they are demonftrated by outward actions, it therefore cannot punifh for what it can

C 3

not

not know. For which reafon in all temporal jurifdictions an overt act, or fome open evidence of an intended crime, is neceffary, in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vitious will without a vitious act is no civil crime, fo, on the other hand, an unwarrantable act without a vitious will is no crime at all. So that to constitute a crime against human laws, there must be, firft, a vitious will; and, fecondly, an unlawful act confequent upon fuch vitious will.

Now there are three cafes, in which the will does not join with the act: 1. Where there is a defect of understanding. For where there is no difcernment, there is no choice; and where there is no choice, there can be no act of the will, which is nothing elfe 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 fufficient, refiding in the party; but not called forth and exerted at the time of the action done; which is the cafe of all offences commited by chance or ignorance. Here the will fits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by fome outward force and violence. Here the will counteracts the deed; and is fo 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 confider all the feveral fpecies of defect in will, as they fall under fome one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the firft clafs; misfortune, and ignorance, which [22] may be referred to the fecond; and compulfion or neceffity, which may properly rank in the third.

I. FIRST, we will confider the cafe of infancy, or nonage; which is a defect of the understanding. Infants, under the age of difcretion, ought not to be punished by any criminal profecution whatever. What the age of difcretion is, in

a 1 Hawk. P. C. 2.

various