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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 it's preamble, " that the state of every king consists more assuredly in the so love of the subject towards their prince, than in the dread so of laws made with rigorous pains; and that laws made 6 for the preservation of the commonwealth without great “ penalties are more often obeyed and kept, than laws made ** with extreme punishments.” (7) 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


farther observe that sanguinary laws are a bad symptom of the distemper of any state, 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, silently abrogated them all. riod the republic flourished: under the emperors severe punishments were reviyed; and then the empire fell.

In this pe

It is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary 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 solid skill, to apply the

(7) The text only abridges, and that not very successfully, this preamble, which for the soundness of its reasoning, and appropriate solemnity of language, deserves to be cited entire. “ Forasmuch as the state of every king, ruler, and governor of any realm, dominion, or commonalty, standeth and consisteth more assured by the love and favour of the subject toward their sovereign ruler and governor, than in the dread and fear of laws made with rigorous pains and extrene punishment for not obeying of their sovereign ruler and governor : and laws also justly made for the preservation of the commonweal, without extreme punishment or great penalty, are more often for the most part obeyed and kept, than laws and statutes made with great and extreme punishments, and in special such laws and statụtes so made, whereby not only the ignorant and rude unlearned people, but also learned and expert people, minding, honesty, are often, and many times, trapped and snared.” VOL. IV.


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same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind : yet that magistrate must be esteemed both a weak and a cruel surgeon, 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 (8). 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 dissection, robbers have a hope of transportation, which seldom is extended to murderers. This has the same effect here as in China; in preventing frequent assassination and slaughter.

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(8) The offence of wrongfully taking the goods of another is now punished with death in France, only under very particular circumstances. It must have been committed at night, by two or more persons in company, one of them at least armed; actual violence, or a threat of using arms, must have been used; the outer door of some dwelling house or its dependencies must have been broken, or opened by false keys, or the same must have been entered by scaling or burrowing; and further, the persons committing the crime must have assuinea the title or uniform of some officer, civil or military, or must have pretended to act under the order of the civil or military authority.

When some, but not all, these aggravating circumstances concur, the offence is punished according to a graduated scale, by hard labour for life, term of years, or imprisonment of the kind which is called “reclusion,” which subjects to hard labour, and involve's greater civil disabilities than simple imprisonment. -Code Penal. liv. 3. t. 2. ch. 2. 8. 1.

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 melanchoiy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by act of parliament b 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 offenders.

The injured, [ 19 ] 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 and hardened offender overlooks the multitude that suffer; he boldly engages in some desperate attempt, to relieve his wants or supply 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. (9)

See Ruffhead's index to the statutes (tit. Felony), and the acts which have

since been made.

(9) Without einbarking in the question of capital punishment, which is far too difficult and complicated to be satisfactorily discussed in a note, it is right to observe, that the spirit of the legislature latterly has leaned very much to the humane and moderate reasoning of the author. Capital punishment has been rarely imposed, and in many instances been taken away since the commencement of the regency of his present majesty.




HAVING, in the preceding chapter, considered in general

the nature of crimes, and punishments, we are led next, 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 such as are expressly 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 otherwise annexed thereto, may be reduced to this single consideration, 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 ren[ 21 ] ders human actions either praiseworthy or culpable. Indeed,

to make a complete crime cognizable by human laws, there must be both a will and an act. For though, in foro conscientiae, a fixed design or will to do an unlawful act, is almost as heinous as the commission of it, yet, as no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than as they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary in order to demonstrate the depravity of the will, before the man is liable to punishment. And, as a vicious will without a vicious act is no civil crime, so, on the other hand, an unwarrantable act without a vicious will is no crime at all. So that to constitute a crime against human laws, there must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

Now there are three cases, in which the will does not join with the act: 1. Where there is a defect of understanding, For where there is no discernment, there is no choice; and where there is no choice, there can be no act of the will, which is nothing else 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 sufficient, residing in the party; but not called forth and exerted at the time of the action done; which is the case of all offences committed by chance or ignorance. Here the will sits neuter; and neither concurs with the act, nor disagrees to it. 3. Where the action is constrained by some outward force and violence. Here the will counteracts the deed; and is so 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 consider all the several species of defect in will, as they fall under some one or other of these general heads: as infancy, idiocy, lunacy, and intoxication, which fall under the first class; misfortune, and ignorance, which may be referred to the second ; and compulsion or necessity, [ 22 ] which may properly rank in the third.

1. First, we will consider the case of infancy, or nonage ; which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever a. What the age of discretion is, in various nations is matter of some variety. The civil law distinguished the age of minors, or those under twenty-five years old, into three stages : infantia, from the birth till seven

i Hawk. P.C. 2.

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