.P 1.
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COMMENTARIES
ON THE
LAWS OF ENGLAND.
BOOK THE FOURTH.
OF PUBLIC WRONGS..
CHAPTER THE FIRST.
OF THE NATURE OF CRIMES ; AND
THEIR PUNISHMENT.

WE are now arrived at the fourth and laft branch of thefe commentaries ; which treats of PUBLIC WRONGS., or crimes and mifdemefnors. For we may remember that, in the beginning of the preceding volume ^a, wrongs were divided into forts or fpecies ; the one private, and the other public. Private wrongs, which are frequently termed civil injuries, were the fubject of that entire book : we are now therefore, laftly, to proceed to the confideration of PUBLIC WRONGS. of PUBLIC WRONGS., or crimes and mifdemefnors ; with the means of their prevention and punifhment. In the purfuit of which fubject I fhall confider, in the firft place, the general nature of crimes and punifhments ; fecondly, the perfons capable of committing crime ; thirdly, their feveral degrees of guilt,

{FS}
^a Book III.ch.1.
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VOL. IV.

A
as
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as principals or acceffories ; fourthly, the feveral fpecies of crimes, with the punifhment annexed to each by the laws of England ; fifthly, the means of preventing their perpetration ; and, fixthly, the method of inflicting thofe punifhments, which the law has annexed to each feveral crime and mifdemefnor.

FIRST, as to the general nature of crimes and their punifhment : the difcuffion and admeafurement of which forms in every country the code of criminal law ; or, as it is more ufually denominated with us in England, the doctrine of the pleas of the crown : fo called, becaufe the king, in whom centers the majefty of the whole community, is fuppofed by the law to be the perfon injured by every infraction of the public right belonging to that community, and is therefore in all cafes the proper profecutor for every public offence ^b.

THE knowledge of this branch of jurifprudence, which teaches the nature, extent, and degrees of every crime, and adjuft to it it's adequate and neceffary penalty, is of the utmoft importance to every individual in the ftate, For (as a very great mafter of the crown law ^c has obferved upon a fimilar occafion) no rank or elevation in life, no uprightnefs of heart, no prudence or cirumfpection of conduct. Fhould tempt a man to conclude, that he many not at fome time or other be deeply interefted in thefe refearches. The imfirmitles of the beft among us, the vice and ungovernable paffions of other, the inftability of all human affairs, and the numberlefs unforefeen events, which the compafs of a day may bring forth, will teach us (upon a moment's reflection) that to know with precifion what the laws of our country have forbidden, and the deplorable confequences to which a willful difobedience may expofe us, is a matter of univerfal concern.

IN proportion to the importance of the criminal law, ought alfo to be the care and attention of the legiftature in properly

{FS}
^b See Vol.1. p.268
^c Sir Michael Fofter. pref.to rep.
{FE}
forming

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forming and enforcing it. It fhould be founded upon principles that are permanent, uniform, and univerfal ; and always conformable to the dictates of truth and juftice, the feelings of humanity, and the indelible rigthts of mankind : though it fometimes (provided there be no tranfgreffion of thefe eternal boundaries) may modified, narrowed, or enlarged, according to the local or occafional neceffities of the ftate which it is meant to govern. And yet, either from a want of attention to thefe principles in the firft concoction of the laws, and adopting in their ftead the impetuous dictates of avarice, ambition, and revenge ; from retaining the difcordant political regulations, which fuccefive conquerors or factions have eftablifhed, in the various revolutions of government ; from giving a lafting efficacy to fanctions that were intended to be tempory, and made (as lord Bacon expreffes it) merely upon the fpur of the occation ; or from, laftly, too haftily employing fuch means as are greatly difproportionate to their end, in order to check the progrefs of fome very prevalent offence ; from, or from all, of thefe caufes it hath happened, that the criminal law is in every country of Europe more rude and imperfect than the civil. I fhall not here enter into any minute enquire concerning the local conftitutions of other nations ; the inhumanity and miftaken policy of which have been fufficiently pointed out by ingenious writers of their own ^d. But even with us in England, where our crown-law is with juftice fuppofed to be more nearly advanced to perfection ; where crimes are more accurately defined, and penalties lefs uncertain and arbitrary ; where all our accufations are public, and our trials in the face of the world ; where torture is unknown, and every delinquent is judged by fuch of his equals, againft whom he can form no exception nor even a perfonal diflike ; --- even here we fhall occafionally find room to remark fome particulars, that feem to want revifion and amendment. Thefe have chiefly arifen from too fcrupulous an adherence to fome rules of the antient common law, when the refons have ceafed upon which thofe rules were founded ; from not repeal

{FS}
Baron Montefquicu, marquis Beccaria, & c.
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A 2
ing
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ing fuch of the old penal laws as are either obfolete or abfurd ; and from too little care attention in framing and paffing new ones. The enacting of penalties, to which a whole nation fhall be fubject, ought not to be left as matter of indiference to the paffions or interefts of a few, who upon temporary motives may prefer or fupport fuch a bill ; but be calmly and maturely confidered by perfons, who know what provifions the law has already made to remedy the mifchief complained of, who can from experience forefee the probable confequences of thofe which are now propofed, and who will judge without paffion or prejudice how adequate they are to the evil. It never ufual in the houfe of peers even to read a private bill, which may affect the property of an individual, without firft referring it to fome of the learned judges, and hearing their report thereon ^e. And furely equal precaution is neceffary, when laws are to be eftablifhed, which may affect the property, liberty, and perhaps even lives, of thoufands. Had fuch a reference taken place, it is impoffible that in the eighteenth century it could ever have been made a capital crime, to break down (however malicioufly) the mound of a fifhpond, wherby any fifh fhall efcape ; or cut down a cherry tree in an orchard ^f. Were even a committee appointed but once in an hundred years to revife the criminal law, it could not have continued to this hour a felony without benefit of clergy, to be feen for one month in the company of perfons who call themfelves, or are called, Egyptians ^g.

IT is true, that thefe outrageous penalties, being feldom or never inflicted, are harldly known to be law by the public : but that rather aggravates the mifchief, by laying a fnare for the unwary. Yet they cannot but occur to the obfervation of any one, who hath undertaken the tafk of examining the great outlines of the Englifh law, and tracing them up to their principles : and it is the duty of fuch a one to hint them with

{FS}
^e See Vol.II. p.345.
^f Stat. 9Geo.1.c.22. 31Geo.II.c.42.
^g Stat. 5Eliz. c.20.
{FE}
decency
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decency to thofe, whofe abilities and ftations enable them to apply the remedy. Having therefore premifed this apology for fome of the enfuing remarks, which might otherwife feem to favour of arrogance, I proceed now to confider (in the firft place) the general nature of crimes.

1. A CRIME, or mifdemefnor, is a act committed, or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and mifdemefnors ; which, properly fpeaking, are mere fynonymous term : though, in common ufage, the word, “crimes,” is made to denote fuch offences as are of a deeper and more atrocious dye ; while fmaller faults, and omiffions of lefs confequence, are comprized under the gentler name of “mifdemefnors” only.

THE diftinction of PUBLIC WRONGS. from private, of crimes and mifdemefnors from civil injuries, feems principally to confift in this : that private, or civil jnjuries, are an infringement or privation of the civil rights which belong to individuals, confidered merely as individuals ; wrongs, or crime and mifdemefnors, are breach and violation of the public rights and duties, due to the whole community, confidered as community, in it's focial aggregate capacity. As if I detain a field from another man, to which the law has given him a ritht, this is a civil injury, and not a crime ; for here only the right of an individual is concerned, and it is immaterial to the public, which of us in poffeffion of the land : but treafon, murder, and robgery are properly ranked among crimes ; fince, befides the injury done to individuals, they ftrike at the very being of fociety ; which cannot poffibly fubfift, where actions of fort are fuffered to efcape with impunity.

IN all cafes the crime includes an injury : every public offence is alfo a private wrong, and fomewhat more ; it affects the individual, and it likewife affects the commiunity. Thus

treafon
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treafon in imagining the king's death involves in it confpiracy againft an individual, which is alfo a civil injury : but as this fpecies of treafon in it's confequences principally tends to the diffolution of government, and deftruction thereby of the order and peace of fociety, this denominates it a crime of the higheft magnitude. Murder is an injury to the life of an individual ; but law of fociety confiders principally the lofs which the ftate fuftains by being deprived of a member, and the pernicious example therby fet, for others to do the like. Robbery may be confidered in the fame view : it is an injury to private property ; but, were that all, a civil fatisfaction in damages might atone for it : the public mifchief is the things, for the prevention of which our laws have made it a capital offence. In thefe grofs and atrocious injuries the private wrong is fwallowed up in the public : we feldom hear any mention made of fatisfaction to the individual ; the fatisfaction to the community being fo very great. And indeed, as the public crime is not otherwife avenged than by forfeiture of life and property, it is impoffible afterwards to make any reparation for the private wrong ; which can only be had from the body or goods of the aggreffor. But there are crimes of an inferior nature, in which the public punifhment is not fo fevere, but it affords room for a private compenfation alfo : and herein the diftinction of crime from civil is very apparent. For inftance ; in the café of battery, or beating another, the aggreffor may be indicted for this at the fuit of the king, for difturbing the public peace, and be punifhed criminally by fine imprifonment : and the party beaten may alfo have his private remedy by action of trefpafs for the injury, which he in particular fuftains, and recover a civil fatisfaction in damages. So alfo, in café of a public nufance, as digging a ditch a highway, this is punifhable by indictment, as a common offence to the whole kingdom and all his majefty's fubjects : but if any individual fuftains any fpecial damage thereby, as laming his horfe, breaking his carriage, or the like, the offender may be compelled to

make
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make ample fatisfaction, as well for the private injury, as for the public wrong.

UPON the whole we may obferve, that in taking cognizance of all wrongs, or unlawful acts, the law has a double view : viz. not only to redrefs the party injured, by either reftoring to him his right, if poffible ; or by giving him an equivalent ; the manner of doing which was the object of our enquiries in the preceding book of thefe commentaries : but alfo to fecure to the public the benefit of fociety, by preventing or punifhing every breach and violation of thofe laws, which the fovereign power has thought proper to eftablifh, for the government and tranquillity of the whole. What thofe breaches are, and how prevented or punifhed, are to be confidered in the prefent book.

II. THE nature of crimes and mifdemefnors in general being thus afcertained and diftinguifhed, I proceed in the next place to confider the general nature of punifhments : which are evils or inconveniences confequent upon crimes and mifdemefnors ; being devifed, denounced, and inflicted by human laws, in confequence of difobedience or mifbehaviour in thofe, to regulate whofe conduct fuch laws were refpectively made. And herein we will briefly confider the power, the end, and the meafure of human punifhment.

1. AS to the power of human punifhment, or the right of the temporal legiflator to inflict difcretionary penalties for crimes and mifdemefnors ^h. It is clear, that the right of punifhing crimes agianft the law of nature, as murder and the like, is in a ftate of mere nature vefted in every individual. For it muft be vefted in fomebody ; otherwife the laws of nature would be vain and fruitlefs, if none were empowered to put them in execution : and if that power is vefted in any one, it muft alfo be vefted in all mankind ; fince all are by nature equal. Whereof

{FS}
^h See Grotius, de j.b.&. p.l.2.c.20. Puffendorf, L. of Nat. and N. b.8.c.3.
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the
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the firft murderer Cain was fo fenfible, that we find him ⁱ expreffing his apprehenfions, that whoever fhould find him would flay him. In a ftate of fociety this right is transferred from individuals to the fovereign power ; whereby men are prevented from being judges in their own caufes, which is one of the evils that civil government was intended to remedy. Whatever power therefore individuals had of punifhing offences aginft the law of nature, that is now vefted in the magiftrate alone ; who bears the fword of juftice by the confent of the whole community. And to this precedent natural power of individuals muft be referred that right, which fome have argued to belong to every ftate, (though, in fact, never exercifed by any) of punifhing not only their own fubjects, but alfo foreign embaffadors, even with death itfelf ; in cafe they have offended, not indeed againft the municipal laws of the country, but againft the divine laws of nature, and become liable thereby to forfeit their lives for their guilt ^k.

AS to offences merely againft the laws of fociety, which are only mala prohibita, and not mala in fe ; the temporal magiftrate is alfo empowered to infict coercive penalties for fuch tranfgreffions : and this by the confent of individuals ; who, in forming focieties, did either tacitly or expreffly inveft the fovereign power with a right making laws, and of enforcing obedience to them when made, by exercifing, upon their nonobfervance, feverities adequate to the evil. The lawfulnefs therefore of punifhing fuch criminals is founded upon this principle, that the law by which they fuffer was by their own confent ; it is part to the original contract into which they entered, when firft they engaged in fociety ; it was calculated for, and has long contributed to. their own fecurtiy.

THIS right therefore, being thus conferred by univerfal confent, gives to the ftate exactly the fame power, and no more, over all it's members, as each individual member had naturally

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ⁱ Gen.iv.14.
^k See Vol.1. pag.254.
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over
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over himfelf or others. Which has occafioned fome to doubt, how far a human ligiflature ought to inflict capital punifhments for pofitive offences ; offences agianft municipal law only, and not againft the law of nature ; fince no individual has, naturally, a power of inflicting death upon himfelf or other for actions in themfelves indifferent. With regard to offences mala in fe, capital punifhments are in fome inftances inflicted by the immediate command of God himfelf to all mankind ; as, in the cafe murder, by the precept delivered to Noah, their common anceftor and reprefentative ^l, “whofo fheddeth man's blood, by man fhall his blood be fhed.” In other inftances they are inflicted after the example of the creator, in his pofitive code of laws for the regulation of the Jewifh rupublic ; as in the cafe of the crime againft nature. But they are fometimes inflicted without fuch exprefs warrant or example, at will and difcretion of the human legiflature ; as for forgery, for robbery, and fometimes for offences of a lighter kind. Of thefe we are principally to fpeak : as thefe crimes are, none of them, offences againft natural, but only againft focial, rights ; not even robbery itfelf, unlefs it be a robbery from one's perfon : all others being an infringement of that right of property, which, as we have formerly feen ^m, owes it's origin not to the law of nature, but merely to civil fociety.

THE practice of inflicting capital punifhments, for offences of human inftitution, is thus juftified by that great and good man, fir Matthew Hale ⁿ : “when offences grow enormous, frequent, and dangerous to a kingdom or ftate deftructive or highly pernicious to civil focieties, and to the great infecurity and danger of the kingdom or it's inhabitants, fevere punifhment and even death itfelf id neceffary to bge annexed to laws in many cafes by the prudence of lawgivers.” It is therefore the enormity, or dangerous tendency, of the crime that alone can warrant any earthly legiflature in putting him to death that

{FS}
^l Gen.ix.6.
^m Book IF.ch.1.
ⁿ 1 Hal. P.C.13.
{FE}
B
commits
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commits it. It is not it's frequency only, or the difficulty of otherwife preventing it, that will excufe our attempting to prevent it by a wanton effufion of human blood. For, though the end of punifhment is to deter men from offending, it never can follow from thence, that it is lawful to deter them at any rate and by any means ; fince there may be unlawful methods of enforcing obedience even to the jufteft laws. Every humane legiflator will be therefore extremely cautious of eftablifhing laws that inflict the penalty of death, efpecially for flight offences, or fuch as are merely pofitive. He will expect a better reafon for his fo doing, than that loofe one which generally is giver ; that it is found by former experience that no lighter penalty will be effectual. For is it found upon farther experience, that capital punifhments are more effectual ? Was the vaft territory of all the Ruffias worfe regulated under the late emprefs Elizabeth, than under her fanguinary predeceffors ? Is it now, under Catherine II, lefs civilized, lefs focial, lefs fecure ? And yet we are affured, that neither of thefe illuftrious princeffes have throughout their whole adminiftration, inflicted the penalty of death : and latter has, upon, full experience of it's being ufelefs, nay even pernicious, given orders for abolifhing it entirely throughout her extenfive dominious ^o. But indeed, were capital punifhments proved by experience to be a fure and effectual remedy, that would not prove the neceffity (upon which the juftice and propriety depend) of inflicting them upon all occafions when other expedients fail. I fear this reafoning would extend a great deal too far. For inftance, the damage done to our public roads by loaded waggons is univerfally allowed, and many laws have been made to prevent it ; none which have hitherto proved effectual. But it does not therefore follow, that would be juft for the legiflature to inflict death upon every obftinate carrier, who defeats or eludes the provifions of former ftatutes. Where the evil to be prevented is not adequate to the violence of the preventive, a fovereign that thinks ferioufly can never juftify

{FS}
^o Grand inftructions for framing a new code of laws for the Ruffian empire. §.210.
{FE}
fuch
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fuch a law to the dictates of confcience and humanity. To fhed the blood of our fellow creature is a matter that requires the greateft deliberation, and the fulleft conviction of our own authority : for life is the immediate gift of God to man ; which neither he can refign, nor can refign, nor can it be taken from him, unlefs by the command or permiffion of him who gave it ; either expreffly revealed, or collected from the laws of nature or fociety by clear and indifputable demonftration.

1. WOULD not be underftood to dony the right of the legiflature in any country to inforce it's own laws by the death of the tranfgreffor, though perfons of fome abilities have doubted it ; but only to fuggeft a few for the confideration of fuch as are, or may hereafter become, legiflators. When a queftion arifes, whether death may be lawfully inflicted for this or that tranfgreffion, the wifdom of the laws muft decide it : and to this public judgment or decifion all private judgments muft fubmit ; elfe there is an end of the principle of all fociety and government. The guilt of blood if any, muft lie at their doors, who mifinterpret the extent of their warrant ; and not at the doors of the fubject, who is bound to recieve the interpretations, that are given by the fovereign power.

2. As to the end, or final cuafe of human punifhments. This is not by way of atonement or expiation for the crime committed ; for that muft be left to the juft determination of the fupreme being : but as a precaution againft future offences of the fame kind. This is effected three ways : either by the amendment of the offender himfelf ; for which purpofe all corporal punifhments, fines, and temporary exile or imprifonment are inflicted : or, by deterring others by the dread of his example from offending in the like way, “ut poena (as Tully ^p expreffes it) ad paucos, metus ad omnes perveniat ;” which gives rife to all ignominious punifhments, and to fuch executions of juftice as are open and public : or, laftly, by depriving

{FS}
^p pro cluentio.46.
{FE}
B 2
the
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the party injuring of the power to do future mifchief ; which is effected by either putting him to death, or condemning him to perpetual confinement, flavery, or exile. The fame one end, of preventing future crimes, is endeavoured to be anfwered by each of thefe three fpecies of punifhment. The public gains equal fecurity, whether the offender himfelf be amended by wholfome correction ; or he be difabled from doing any farther harm : and if the penalty fails of both thefe effects, as it may do, ftill the terror of his example remains as a warning to other citizens. The method however of inflicting punifhment ought always to be proportioned to the particular purpofe it is means to ferve, and by no means to exceed it : therefore the pains of death, and perpetual difability by exile, ftavery, or imprifonment, 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 fome one crime of deep malignity, which itfelf demonftrates a difpofition without hope or probability of amendment and in fuch cafes it would be cruelty to the public, to defer the punifhment of fuch criminal, till had an opportunity of repeating perhaps the worft of villanies.

3. AS to the meafure of human punifhments. From what has been obferved in the former articles we may collect, that the quantity of punifhment can never be abofutely determined by any ftanding invariable rule ; but it muft be left to the arbitration of legiflature to inflict fuch penalties as are warranted by the laws of nature and fociety, and fuch as appear to be the beft calculated to anfwer the end of precaution againft future offences.

HENCE it will be evident, that what fome have fo highly extolled for it's equity, the lex talionis or law of retaliation, can never be in all cafes an adequate or permanent rule of punifhment. In fome cafes indeed it feems to be dictated by natural reafon ; as in cafe of confpiracies to do an injury, or falfe

accufations
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accufations of the innocent : to which we may add that law of the Jews and Egyptians, mentioned by Jofephus and Diodorus Siculus, that whoever without fufficient caufe was found with any mortal poifon in his cuftody, fhould himfelf be obliged to take it. But, in general, the difference of perfons, place, time provocation, or other circumftances, may enhance or mitigate the offence ; and in fuch cafes retaliation can never be propermeafure of juftice. If a nobleman ftrikes a peafan, all mankind will fee, that if a court of juftice awards a return of the blow, it is more than a juft compenfation. On the other hand, retaliation may fometimes be too eafy a fentence ; as, if a man malicioufly fhould put out the remaining eye him who had loft one before, it is too flight a punifhment for the maimer to lofe only one of his : and therefore the law of the Locrians, which demanded an eye for an eye, was in this inftance judiciofly altered ; by decreeing, in imitation of Solon's law ^q, that he who ftruck out the eye a one-eyed man, fhould lofe both his own in return. Befides, there are many crimes, that will in no fhape admit of thefe penalties, without manifeft abfurdity and wickednefs. Theft cannot be punifhed by theft, defamation by defamation, forgery by frogery, adultery by adultery, and the like. And we may add, that fhofe inftances, wherein retaliation appears to be ufed, even by the divine authoutity, do not really proceed upon the of exact retribution, by doing to the crimanal the fame hurt he has done to his neighbour, and no more ; but this correfpondece between the crime and punifhment is barely a confequence from fome other principle. Death is ordered to be punifhed with death ; not becaufe one is equivalent to the other, for that be expiation, and not punifhment. Nor is death always an equivalent for death : the execution of a needy decrepit affaffin is poor fatisfaction or the murder of a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reafon upon which this fentence is grounded feems to be, that this the higheft penalty that man can inflict,

{FS}
^q Pott.Ant.b.1.c.26.
{FE}
and
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and tends moft to the fecurity of the world ; by removing one murderer from the earth, and fetting a dreadful example to deter others : fo that even this grand inftance proceeds upon other principles than thofe of retaliation. And truly, if any meafure of punifhment is to be taken from the damage fuftained by the fufferer, the punifhment ought rather to exceed than equal the injury : fince it feems contrary to reafon and equity, that the guilty (if convicted) fhould fuffer no more than the innocent has done before him ; efpecially as the fuffering of the innocent is paft and irrevocable, that of the guilty is future, contingent, and liable to be efcaped or evaded. With regard indeed to crimes that are incomplete, which confift merely in the intention, and are not yet carried into act, as confpiracies and the like ; the innocent has a chance to fruftrate or avoid the villany, as the confpirtor has alfo a chance to efcape his punifhment : and this may be one reafon why the lex talionis is more proper to be inflicted, if at all, for crimes that confift in intention, than for fuch as are carried into act. It feems indeed confonant to natural reafon, and has therefore been adopted as a maxim by feveral theoretical writers ^t, that the punifhment, due to the crime of which one falfely accufes another, fhould be inflicted on the perjured informer. Accordingly, when it was once attempted to introduce into England the law of retaliation, it was intended as a punifhment or fuch only as preferred malicious accufations aginft others ; it being enacted by ftatute 37Edw. III. C.18. that fuch as prefeffed any fuggeftions to the king's to the king's great council fhould put in fureties of taliation ; that is, to incur the fame pain that the other fhould have had, in café the fuggeftion were found untrue. But, after one year's experience, this punifhment of taliation was reject, and imprifonment adopted in it's ftead ^s.

But though from what has been faid it appears, that there cannot be any regular or determinate method of rating the

{FS}
^r Beccar.c.15.
^s Stat. 38Edw.III.c.9.
{FE}

quantity
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quantity of punifhments for crimes, by any one uniform rule ; but they muft be referred to the will and difcretion of the legiflative power : yet there are fome general principles, drawn from the nature and circumftances of the crime, that may be of fome affiftance in allotting it an adequate punifhment.

AS, firft, with regard to the object of it : for the greater and more exalted the object of an injury is, the more care fhould be taken to prevent that injury, and of courfe under this aggravation the punifhment fhould be more fevere. Therefore treafon in confpiring the king's death is by the Englifh law punifhed with greater rigour than even actually killing any private fubject. And yet, generally, a defign to tranfgefs is not fo ftagrant an enormity, as the actual completion of that defign. For evil, the nearer we approach it, is the more difagreeable and fhocking ; fo that it requires more obftinacy in wickednefs to perpetrate an unlawful action, than barely to entertain the thought of it : and it is an encourgement to repentance and remorfe, even till the laft ftage of any crime, that it never is too late to retract ; and that if a man ftops even here, it is better for him than if he proceeds : for which reafons an attempt to rob, to ravifh, or to kill, is far lefs penal than the actual robbery, rape, or murder. But in the cafe of a confpiracy, the object whereof is the king's majefty, the intention will deferve the higheft degree of feverity : not becaufe the intention is equivalent to the act itfelf ; but becaufe the greateft rigour is no more than adequate to a freafonable purpofe of the heart, and there is no greater to inflict upon the actual execution itfelf.

AGAIN : the violence of paffion, or temptation, may fometimes alleviate a crime ; as theft, in café o hunger, is far more worthy of compaffion, than when committed through avarice, or to fupply one in luxurious exceffes. To kill a man upon fudden and violent refentment is lefs penal, than upon cool deliberate malice. The age, education, and character of the offender ; the repetition (or otherwife) of the offence ; the time,


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the place, the company wherein it was committed ; all thefe, and a thouand other incidents, may aggravate or extenuate the crime ^t.

FARTHER : as punifhment are chiefly intended for the prevention of future crimes, it is but reafnable that among crime of different natures thofe be moft feverely punifhed, which are the moft deftructive of the public fafety and happinefs ^v : and, among crimes of an equal malignity, thofe which a man has the moft frequent and eafy opportunities of committing, which cannot be fo eafily guarded againft as others, and which therefore the offender has the ftrongeft inducement to commit : according to what Cicero obferves ^u, “ea funt animadvertenda peccata maxime, quae difficillime praecaventur.” Hence it is, that for a fervent to rob his mafter is in more cafes capital, than for a ftranger : if a fervant kills his mafter, it is a fpecies of treafon ; in another it is only murder : to fteal 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 punifhed with tranfportation only. And in the ifland of Man, this rule was formerly carried fo far, that to take away an horfe or an ox was there no felony, but a trefpafs ; becaufe of the difficulty in that little territory to conceal them or carry them off : but to fteal a pig or a fowl, which is eafily done, was a capital mifdemefnor, and the offender was punifhed with death ^w.

LASTLY, as a conclufion to the whole, we may obferve that punifhments of unreafonable feverity, efpecially when indifcriminately inflicted, have lefs 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

{FS}
^t Thus Demofthenes (in his oration againft 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 ftrangers as well as citizens ; and that in the temple, whither the duty of may office called me.”

{FS}
^v Beccar. c.6.
^u pro Sexto Rofcio, 40.
^w 4 Inft.285.
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of feverity. It is the fentiment of an ingenious writer, who feems to have well ftudied the fprings of human action ^x, that crimes are more efectually prevented by the certainty, than by the feverity, of punifhment. For the exceffive feverity of laws (fays Montefquieu ^y) hinders their execution : when the punifhment furpaffes all meafure, 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 ftate of every king confifts more affuredly 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 punifhments.” Happy had it been for the nation, if the fubfequent practice of that deluded princefs in matters of religion, had been correfpondent to thefe fentiments of herfelf and parliament, in matters of ftate and government ! We may farther obferve that fanguinary laws are a bad fymptom of the diftemper of any ftate, or at leaft, or at leaft of it's weak conftitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punifhments : the porcian law, which exempted all citizens from fentence of death, filently abrogated them all. In this period the republic flourifhed : under the emperors fevere punifhments were revived ; and then the empire fell.

IT is moreover abfurd and impolitic to apply the fame punifhment to crimes of different malignity. A multitude of fanguinary law (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 legiflative, or the ftrength of the executive power. It is 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 dificulty. It is, it muft be owned, much eafier to extirpate than to amend mankind :

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^x Beccar. c.7.
^y Sp. L.b.6.c.13.
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yet that magiftrate muft be efteemed both a weak and a cruel furgeon, who cuts off limb, which through ignorance or indolence he will not attempt to cure. It has been therefore ingenioufly propofed ^z, that in every ftate a fcale of crimes fhould be formed, with a correfponding fcale of punifhments, defcending from the greateft to the leaft : but, if that be too romantic an idea, yet at laft a wife legiflator will the principal divifions, and not affign penalties of the degree to offences of an inferior rank. where men fee no diftinction made in the nature and gradations of punifhment, the generality will be led to conclude there is no diftinction in the guilt. Thus in France the punifhment of robbery, either with or without murder, is the fame ^a : hence it is, that thought perhaps they are therefore fubject to fewer robberies, yet they never rob but they alfo 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 fpeedy execution, and a fubfequent expofure or difection, robbers have a hope of tranfportation, 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 Englifh law, we fhall find it more difficult to juftify the frequency of capital punifhment to 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 lefs than an hundred and fixty have been declared by act of parliament ^b to be felonies without benefit of clergy ; or, in other words, to be worthy of inftant death. So dreadful a lift, inftead of diminifhing, increafes the number of

{FS}
^z Beccar. c.6.
^a Sp.L.b.6.c.16.
^b See Ruffhead's index to the ftatutes, (tit. felony) and the acts which have fince been made.
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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 refbite one half of the convicts, and recommend them to the royal mercy. Among fo many chances of efcaping, the needy or 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 of juftice overtakes him, he deems himfelf peculiarly unfortunate, in falling at laft a facrifice to thofe laws, which long impunity has taught him to contemn.

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