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the place, the company wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crimes.

* 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: 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 ", " 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 servant 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 person, is made capital; 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 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 distinctions

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of severity. It is the sentiment of an ingenious writer, who feems to have well studied the springs of human action*, that crimes are more effectually prevented by the certainty, than by the feverity, of punishment. For the excessive severity of laws (says Montesquieu) hinders their execution: when the punishment furpaffes all measure, the public will frequently out of humanity prefer impunity to it. Thus the statute 1 Mar. ft. 1. c. 1. recites in it's preamble, " that the state of every king confists more af" furedly in the love of the fubject 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 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 farther observe that fanguinary laws are a bad symptom of the distemper of any ftate, or at least of it's 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 emperors severe punishments were revived; and then the empire fell.

It is moreover abfurd and impolitic to apply the fame punishment to crimes of different malignity. A multitude of fanguinary 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 folid skill, to apply the fame universal remedy, the ultimum fupplicium, to every case 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. с. 13.
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yet

yet that magistrate must be esteemed 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 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 there is no distinction in the guilt. Thus in France the punishment of robbery, either with or without murder, is the same*: 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 or difsection, robbers have a hope of transportation, which seldom is extended to murderers. This has the same effect here as in China; in preventing frequent afssassination and flaughter.

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 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

b

Beccar. c. 6. a Sp. L. b. 6. с. 16.

See Ruffhead's index to the statutes, (tit. felony) and the acts which have fince been made.

offenders.

offenders. The injured, through compassion, will often forbear to 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 or hardened offender overlooks the multitude that suffer; he boldly engages in some 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 sacrifice to those laws, which long impunity has taught him

to contemn.

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CHAPTER THE SECOND.

OF THE PERSONS CAPABLE OF COMMITTING CRIME S.

H

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 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 enquiry, 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 fuch as are expreffly 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 otherwife annexed thereto, may be reduced to this single confideration, 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 it's choice either to do or to avoid the fact in question, being the only thing that renders human

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