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Punishment best regulated

by general prin

ciples, deduced

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 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

and circumstan

[ *15 ] the legislative power: yet there are some general principles,

In cases of treason, the inten

crime is deser

with more se

actual perpetraion of it in other cases.

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 commit 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

(r) Beccar. c. 15.

(s) 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.

may extenuate

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).

which may most

mitted ought to

punished.

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, 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 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 tem

VOL. IV.

C

ple, whither the duty of my office
called me."

(v) Beccar. c. 6.
(u) Pro Sexto Roscio. 40.

[Those offences should be most se-
verely punished, against which it is most
difficult to guard.-ED.]

A severe Criminal Code is a

temper, or weak

a government.

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 ìnconstitution 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 *distinctions 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) (2) 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 (1) 4 Inst. 285. (y) Beccar, c. 7.

(10) This is no longer law. By 9 Geo. IV. c. 31, s. 2, repealing 25 Ed. III. st. 5, c. 2, respecting petit treason, it is enacted, "that every offence which before the commencement of that Act would have amounted to petit treason, shall be deemed to be murder only, and no greater offence; and that all persons guilty in respect thereof, whether as principals or accessaries, shall be dealt with, indicted, tried, and punished as principals and accessaries in murder." See 1 Hawk. P. C. 6th edit. 105; 5 Chitty's Burn's J. last edit. 551; post 75, 203,

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

(11) This is altered by 7 & 8 Geo. IV. c. 29, s. 6, which enacts, "that if any person shall steal any chattel, money, or valuable security, from the person of another, or shall assault any other person with intent to rob him, or shall with menaces or by force demand any such property of any other person with intent to steal the same, he shall be guilty of felony, and liable to be transported for life, or for not less than seven years, or to be imprisoned for not exceeding four years; and, if a male, to be once, twice, or 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 prin-
cess 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).

a sanguinary

produced.

It is moreover absurd and impolitic to apply the same The impolicy of punishment to crimes of different malignity. A multitude of code of laws. 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 be esteemed both a weak and a cruel surgeon, who cuts off every limb, which through ignorance or indolence he will not

[*18 ]

(12) The most admirable and excellent statute ever passed by the English legislature is the 1 Edw. VI. c. 12.

sity and love of a king and prince,
than for fear of his strait and severe
laws. But as in tempest or winter one
course and garment is convenient, in
calm or warm weather a more liberal
case or lighter garment both may and
ought to be followed and used; so we
have seen divers strait and sore laws
made in one parliament (the time so
requiring,) in a more calm and quiet
reign of another prince by the like au-
thority and parliament taken away," &c.

In the preamble it states, in a beautiful and simple strain of eloquence, that " Nothing is more godly, more sure, more to be wished and desired betwixt a prince, the supreme head and ruler, and the subjects whose governor and head he is, than on the prince's part great clemency and indulgency, and rather too much forgiveness and remission of his royal power and just punishment, than exact severity and justice to be shewed; and on the subjects' behalf, that they should obey rather for love, and for the neces

It therefore repeals every statute which has created any treason since the 25 Edw. III. st. 5, c. 2.

It repeals "all and every act of parliament concerning doctrine or matters of religion."

Its tendency to increase crimes stated and explained.

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 (b): 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 na

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

(a) Beccar. c. 6.

(b) Sp. L. b. 6, c. 16.

It repeals every felony created by the legislature, during the preceding long and cruel reign of Henry VIII.

It repeals the statute 31 Henry VIII. "that proclamations made by the king's highness, by the advice of his honourable council, should be made and kept as though they were made by authority of parliament."

It repeals also the extraordinary statute de bigamis, 4 Edw. I. st. 3, c. 5, which enacted, that if any man married a widow, or married a second

wife after the death of the first, he should be deprived of the benefit of clergy, if he was convicted of any clergyable felony whatever.-CH.

(13) This is not now the law of France. By the present Criminal Code, founded on the Code Napoleon, robbery without murder has ceased to be a capital offence. And the result mentioned by the learned judge has ceased also; nothing is more common now than instances of robberies without murder, in France.

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