should be taken to prevent that injury, and of course under this aggravation the punishment should be more severe. Therefore treason in conspiring the king's death is by the English law punished with greater rigour than even actually killing any private subject. And yet, generally, a design to transgress is not so flagrant an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking: so that it requires more obstinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract: and that if a man stops even here, it is better for him than if he proceeds for which reason an attempt to rob, to ravish, or to kill (6), is far less penal that the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king's majesty, the bare intention will deserve the highest degree of severity; not because the intention is equivalent to the act itself, but because the greatest rigour is no more than adequate to a treasonable purpose of the heart, and there is no greater left to inflict upon the actual execution itself.

AGAIN: the violence of passion, or temptation, may sometimes alleviate a crime; as theft, in case of hunger, is far more worthy of compassion that when committed through avarice, or to supply one in luxurious excesses. To kill a man upon sudden and violent resentment, is less penal than upon cool deliberate malice. The age, education, and character of the offender; the repetition (or otherwise) of the offence; the time, the place, the company wherein it was [16] committed; all these, and a thousand other incidents, may aggravate or extenuate the crime'.

Thus Demosthenes (in his oration against Midias) finely works up the aggravations of the insults he had received. "I was abused," says he, "by "my enemy, in cold blood, out of

"malice, not by heat of wine, in the
"morning, publicly, before strangers
" as well as citizens; and that in the
"temple, whither the duty of my
"office called me."

(6) See post. p. 196. n.

66

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 sunt animadvertenda peccata maxime, quae difficillime "praecaventur." 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; in another it is only murder: to steal a handkerchief, or other trifle of above the value of twelve pence, privately from one's person, is made capital (7); 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 conclusion to the whole, we may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due dis[17] tinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action, that crimes are more effectually prevented by the certainty, than by the severity, of punishment. For the excessive severity of laws (says Montesquieu) hinders their

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 "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." (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 may 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. In this period the republic flourished: under the emperors severe pu nishments were revived; and then the empire fell,

Ir 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 extreme 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 statutes 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."

rank.

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 [ 18 ] 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 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.

(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 assuined 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 involves greater civil disabilities than simple imprisonment. -Code Penal. liv. 3. t. 2. ch. 2. s. 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 melancholy 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 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)

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

(9) Without embarking 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.