11. What are punishments ?-7.

Evils or inconveniences consequent upon crimes and misde

meanors.

12. In whom is the right of punishing crimes against the law of nature, as murder and the like, vested by that law?—7.

In every individual.

13. What is the end of human punishment?-11.

To serve as a precaution against future offenses of the same kind.

14. How is the end of human punishment attained ?—11, 12.

It is attained in three ways: 1. By the amendment of the offender himself. 2. By deterring others, by the dread of his example, from offending in the like manner. 3. By depriving the party injuring of the power to do future mischief.

15. What is the measure of human punishment?-12.

The quantity of punishment can never be absolutely determined by any standing invariable rule; but it must be left to the arbitration of the legislature, to inflict such penalties as are warranted by the laws of nature and society, and such as appear to be the best calculated to answer the end of precaution against future offenses.

16. Why is death punished with death ?-13, 14.

Not because one is equivalent to the other, for that would be expiation and not punishment; but, for the reason that this is the highest penalty that man can inflict, and tends most to the security of mankind.

17. Why is treason, in conspiring the king's death, punished with greater rigor than even actually killing any private subject ?—15.

The greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and the punishment should be more severe. In case of a treasonable conspiracy, the object whereof is the king's majesty, the bare intention will deserve the highest degree of severity.

18. Why, generally, is a design to transgress not so flagrant an enormity as the actual completion of that design ?—15.

Because it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it.

19. What crimes should be most severely punished?-16.

Those 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. Hence it is, that for a servant to rob his master is in more cases capital than for a stranger; if a servant kills his master it is a species of treason.

20. Should crime be punished with great severity ?--17.

No; punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, than such as are more merciful in general, yet properly mixed with due distinctions of severity. Crimes are more effectually prevented by the certainty than the severity of punishment.

21. What do a multitude of sanguinary laws prove?-17.

They prove a manifest defect either in the wisdom of the legislature, 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 same universal remedy, the ultimum supplicium, to every species of difficulty.

22. What is the result where no distinction is made in the nature and gradations of punishment?-18.

The generality will be led to conclude there is no distinction in the guilt

CHAPTER II.

OF THE PERSONS CAPABLE OF COMMITTING CRIMES.

1. Who are exempted from the censures of the law ?—20.

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.

2. To what single consideration may all the several pleas and ex cuses, which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, be reduced?—20.

To this single consideration, the want or defect of will.

3. What two things must there be to constitute a crime against human laws?—21.

There must be, first, a vicious will; and, secondly, an unlawful act consequent upon such vicious will.

4. In what cases does the will not join with the act?—21.

In three cases: 1. When 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. 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 offenses committed by chance or ignorance. 3. Where the action is constrained by some outward force or violence.

5. What species of defect in will fall under the first of these general heads?-21.

Infancy, idiocy, lunacy, and intoxication.

6. What may be referred to the second head?-21, 22. Misfortune, and ignorance.

7. What ranks under the third head?—22.

Compulsion, or necessity.

8. How does the law privilege an infant ?-22.

In some cases, as to the common misdemeanors, the infant under twenty-one years is privileged, so as to escape fine, imprisonment, and the like, and particularly in cases of omission; but in cases of notorious breach of the peace, riot, battery, or the like, for these an infant, above the age of fourteen, is equally liable to suffer as a person of full age.

9. By what is the capacity of doing ill, or contracting guilt, measured?-23.

By the strength of the delinquent's understanding and judgment, as the law has stood since the time of Edward the Third.

10. At what age may an infant be guilty of felony ?—23.

Under seven years of age an infant cannot be guilty of felony. Also, under fourteen, though an infant shall be prima facie adjudged to be doli incapax; yet if it appear to the court and jury that he was doli capax, and could discern between good and evil, he may be convicted and suffer death.

Thus a girl of thirteen has been burnt for killing her mistress; and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged; because it appeared upon their trials, that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil. And there was an instance in the last century (17th) when a boy of eight years old was tried at Abingdon for firing two barns; and, it appearing that he had malice, revenge, and cunning, he was found guilty, condemned, and hanged accordingly. Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behavior plain tokens of a mischievous discretion; and, as the sparing this boy, merely on account of his tender years, might be of dangerous consequence to the public, by propagating a notion

that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment. But, in all such cases, the evidence of that malice which is to supply age, ought to be strong and clear beyond all doubt and contradiction.

11. In criminal cases, are idiots and lunatics chargeable for their own acts?-24.

They are not, for acts committed under the incapacities of idiocy, or lunacy. If a man in his sound memory commit a capital offense, and before arraignment for it he becomes mad, he ought not be arraigned for it. If after he has pleaded the prisoner becomes mad, he shall not be tried. If after he be tried, and found guilty, he loses his senses before judgment, judgment shall not be pronounced. And if he becomes of nonsane memory after judgment, execution shall be stayed; for, peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment and execution.

12. How shall it be ascertained whether the party be compos or not?-25.

It shall be tried by a jury.

13. Does drunkenness excuse criminal misbehavior ?—25, 26.

It does not. The law looks upon it as an aggravation, rather than an excuse.

14. Under what circumstances is a man excused for acts done through unavoidable force and compulsion ?-27, 28.

He is excused, in the first place, by the obligation of civil subjection, whereby the inferior is constrained by the superior to act contrary to what his own reason and inclination would suggest; as when a legislator establishes iniquity by a law, and commands the subject to do an act contrary to religion or sound morality.

He is excused, secondly, by duress per minas; or threats and menaces which induce a fear of death or other bodily harm, and which take away, for that reason, the guilt of many crimes. and misdemeanors; at least before the human tribunal.