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not yet carried into act, as conspiracies and the like; the
innocent has a chance to frustrate or avoid the villany, as the
conspirator has also a chance to escape his punishment; and
this
may

be one reason why the lex talionis is more proper to be inflicted, if at all, for crimes that consist in intention, than for such as are carried into act. It seems indeed consonant to natural reason, and has therefore been adopted as a maxim by several theoretical writers (r), that the punishment due to the crime of which one falsely accuses another, should 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 punishment for such only as preferred malicious accusations against others; it being enacted by statute 37 Edw. III. ch. 18, that such as preferred any suggestions to the king's great council should put in sureties of taliation; that is, to incur the same pain that the other should have had, in case the suggestion were found untrue. But, after one year's experience, this punishment of taliation was rejected, and imprisonment adopted in its stead (s).

But, though from what has been said it appears, that there by general prin- cannot be any regular or determinate method of rating the from the nature *quantity of punishments for crimes, by any one uniform ces of the crime. rule ; but they must be referred to the will and discretion of [ *15 ] the legislative power: yet there are some general principles,

drawn from the nature and circumstances of the crime, that may be of some assistance in allotting it an adequate punishment.

As, first, with regard to the object of it: for the greater tion to coinmrit and more exalted the object of an injury is, the more care vedly punished should be taken to prevent that injury, and of course under verity than the 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

Punishment best regulated

In cases of treason, the inten.

actual perpetra

ion of it in other cases.

(r) Beccar, c. 15.

(8) Stat. 38 Edw. III. c. 9.

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, is far less penal than 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 some- Circumstances times alleviate a crime; as theft, in case of hunger, is far crimes. more worthy of compassion, than 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 [ *16 ] the offence; the time, the place, the company wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime (t).

Farther: as punishments are chiefly intended for the pre- Those crimes vention of future crimes, it is but reasonable that among easily be comcrimes of different natures those should be most severely be most severely

punished. punished, which are the most destructive of the public safety and happiness (v): 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 maximè, quæ difficillime præcaventur (u)." 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 trea

(t) Thus Demosthenes (in his ora- ple, whither the duty of my office tion against Midias) finely works up called me." the aggravations of the insults he had (v) Beccar. c. 6. received. “I was abused, (says he), (u) Pro Seito Roscio. 40. by my enemy, in cold blood, out of [Those offences should be most semalice, not by heat of wine, in the verely punished, against which it is most morning, publicly, before strangers as difficult to guard. —Ed.] well as citizens; and that in the temVOL. Iv.

с

which may most A severe Crimi. nal Code is a

son (10); 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 (11); but to a 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 (x).

Lastly, as a conclusion to the whole, we may observe that proof of the dis- punishments of unreasonable severity, especially when inconstitution of discriminately inflicted, have less effect in preventing crimes,

and amending the manners of a people, than such as are more ( *17 ] merciful in general, yet properly intermixed with due *dis

tinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action (y), that crimes are more effectually prevented by the certainty, than by the severity, of punishment. For the excessive severity of laws (says Montesquieu) (z) 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 its 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

a government.

(1) 4 Inst. 285.

(y) Beccar, c. 7.

(:) Sp. L. b. 6, c. 13.

(10) This is no longer law. By 9 (11) This is altered by 7 & 8 Geo. Geo. IV. c. 31, s. 2, repealing 25 Ed. IV. c. 29, s. 6, which enacts, " that if III. st. 5, c. 2, respecting petit trea- any person shall steal any chattel,

66

son,

it is enacted, that every offence money, or valuable security, from the which before the commencement of person of another, or shall assault any that Act would have amounted to petit other person with intent to rob him, treason, shall be deemed to be murder or shall with menaces or by force deonly, and no greater offence; and that mand any such property of any other all persons guilty in respect thereof, person with intent to steal the same, whether as principals or accessaries, he shall be guilty of felony, and liable shall be dealt with, indicted, tried, and to be transported for life, or for not punished as principals and accessaries less than seven years, or to be impriin murder." See 1 Hawk. P. C. 6th soned for not exceeding four years ; edit. 105; 5 Chitty's Burn's J. last and, if a male, to be once, twice, or edit. 551 ; pst 75, 203.

thrice, publicly or privately whipped."

laws made for the preservation 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 sanguinary laws are a bad symptom of the distemper of any state, or at least of its 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 punishments were revived; and then the empire fell (12).

It is moreover absurd and impolitic to apply the same the impolicy of punishment to crimes of different malignity. A multitude of a sanguinary. sanguinary laws (besides the doubt that may be entertained Some examples 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 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 [*18 ] be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not

c. 12.

(12) The most admirable and ex- sity and love of a king and prince, cellent statute ever passed by the than for fear of his strait and severe English legislature is the l Edw. VI. laws. But as in tempest or winter one

course and garment is convenient, in In the preamble it states, in a beau- calm or warm weather a more liberal tiful and simple strain of eloquence, case or lighter garment both may and that “ Nothing is more godly, more ought to be followed and used ; so we sure, more to be wished and desired have seen divers strait and sore laws betwixt a prince, the supreme head made in one parliament (the time so and ruler, and the subjects whose requiring,) in a more calm and quiet governor and head he is, than on the reign of another prince by the like auprince's part great clemency and in- thority and parliament taken away,” &c. dulgency, and rather too much for- It therefore repeals every statute giveness and remission of his royal which has created any treason since power and just punishment, than exact the 25 Edw. III. st. 5, c. 2. severity and justice to be shewed; and It repeals “all and every act of paron the subjects' behalf, that they should liament concerning doctrine or matters obey rather for love, and for the neces- of religion."

attempt to cure.

It has been therefore ingeniously proposed (a), 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 (6): hence it is, that though perhaps they are therefore subject to fewer robberies, yet they never rob but they also murder (13). 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.

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 parlia

Its tendency to increase crimes stated and explained.

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It repeals every felony created by wife after the death of the first, he
the legislature, during the preceding should be deprived of the benefit of
long and cruel reign of Henry VIII. clergy, if he was convicted of any

It repeals the statute 31 Henry VIII. clergyable felony whatever. _CH.
“ that proclamations made by the (13) This is not now the law of
king's highness, by the advice of his France. By the present Criminal
honourable council, should be made Code, founded on the Code Napoleon,
and kept as though they were made robbery without murder has ceased to
by authority of parliament.”

be a capital offence. And the result
It repeals also the extraordinary mentioned by the learned judge has
statute de bigamis, 4 Edw. I. st. 3, ceased also ; nothing is more common
c. 5, which enacted, that if any man now than instances of robberies with-
married a widow, or married a second out murder, in France.

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