■^'■■":^:^ ^m:rr?--:TSe UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY MikitM^ i'.;.i.^:f.':rt^^M^^ CONSIDERATIONS O N CRIMINAL LAW. V O L. U. CONSIDERATIONS O N CRIMINAL LAW. By HENRY D A G G E, Efqj V O L. II. Omnia fcire, non omnia re/equi ; pawis peccatis, 'veniam ; magnis ft'veritatem commodare : nee pand fempety fed fapius panitentid ccntentus ejfe. 'I acit. Vit. /^gricol. adfit fiegHluy Peccatii qua Pasnas irrcget aquas, HORAT. THE SECONfD EDITION, CORRECTED, AND GREATLY ENLARGED. LONDON: Printed for T. Longman, in Paternofter-Row j and T. Cadell, in the Strand. MDCCLXXiV\ TITLES O F CHAPTERS AND SECTIONS. BOOK in. CHAP. I. OPE CIE S of Criminal Laws, Page i 3ed. I. Of High Treafon. - 2 2. ReJleBions on the Stat, of 25 Edw. JIT. - - 5 3. 'Judgment in High Treafm. - 8 4. Reflexions on the fudgment in High Treafon. - - 9 c. Of the Laivs of other Coun- tries^ aneient and mo- dern^ in Cafes of High Treafon, - - 15* Vol. II. a Sea. Ti TITLES OF Se€t. 6. The fame fuhjeSl continued. Page 24 7. Of Forfeiture in High Trea- fon. - - - 38 ^8. Reflexions on Forfeiture in High Treafon, - 39 CHAP. IL Sed. I. Of Petty Treafon, - 45 2. Reflexions on Petty Treafon. ibid, 3. (7/^ ^^^ Judgment in Petty Treafon, - - 49 4. O/* Forfeiture in Petty Trea- fon. - - - 51 5. Ohfer'vations on the forego- ing SeBion, 52 CHAP. III. Bed. I. Of Felonies, 2. Of Public Felonies, 3. Cy Private Felonies. 53 57 - 58 CHAP. CHAPTERS AND SECTIONS, vii CHAP. IV. Sed. I. Of Murder. - Page 59 2. RefieSiions on the foregoing Seciion, - - 60 3. Of Forfeiture in Felo de fe. 62 4. RefleSiions on Forfeiture in Felo de fe. - ^ 63 CHAP. V. Sed. I. Of the Murder of another* 6j 2. Of JudgDient in Murder. 66 3. Of the Lauus of other Coun- tries^ ancieiit and mo- dern^ in cafe of Murder, ibid. 4. The fame fuhje^ co7itinued. 71 5. Refleciions on the Judgment in cafe of Murder - 78 6. Of Forfeiture in cafe of Murder. - - 81 7. Reflefiions on Forfeiture in cafe of Murder. • - 82 a 2 CHAP. vili TITLES OB CHAP. VI. Sed. I. Of Manjlaughter, - Page 84 2. Of the yudgment in Man- flaughter. - - 88 3. Reflexions on the Judgment in Manjlaughter* - ibid. 4. Of Forfeiture in Manflaugh-^ ter» - - 89 CHAP. VII.. Sed. I. Of Chancemedley. - - 92 2. Of the Judgment in Chance- 7nedley, - - ibid. 3. Of Forfeiture in Chance- medley, - - 93 CHAP. VIII. Sed. I. Of Homicide by NeceJfity. 95* 2. Of Judgment and Forfei- ture in Se Defendendo. 98 CHAP. CHAPTERS AND SECTIONS, ix CHAP. IX. Of private Felonies againji the Body of the Subject. ^ - Page 99 Se<^. I. Of Sodomy. *- - loo Of the Laws of other Na- tions in Sodomy » - ibid. 2 . Of Rape. - - 1 04 3. Of forcible Marriage, or De- flement of Women. - 109 4. Of Polygamy. - - 113 5. Of Mayhem, - - 119 CHAP. X. Of private Felonies againji the Goods of the Subject. - - 12a Sedt. I. Of Simple Larceny. - ibid. Of the different Funijloments of Theft. - - 12^ Of the Athenian Laivs in Theft. - - 127 Of the Roman Laiv in Theft. 130 Of the Jeivifh Laiv in Theft. 1 3 i Of the Laip of ChinainTheft . 132 a Sedt. s TITLES OF Sed. I. Of the Laiv of Scotland in Theft. - Page 133 Of the ancient Laius of this Kingdom in Theft. - 154 1 . Of mixed or complicated Lar- ceny, - - 143 3. Of Piracy, - - 148 C H A P. XL Of private Felonies againjl the Diuel- ling, &c. • - 149 Sedt. I. Of Burglary. - - ibid. 2. Of Arfonryy &c. - 154 CHAP. XIL RefeSlio7is on the foregoing Heads. 161 B O O K IV. CHAP. I. Of fiih ordinate Offences^ and pimifhing Offenders by Whippings Pillory, Im- prifonmentt and Tranfportation. iJZ CHAP. CHAPTERS AND SECTIONS. x\ CHAP. II. Of Ferjurj'j - - Page 1 75 CHAP. III. Sed. I. Of Libels, - - 197 2. Same SiibjeSi contimted, 205 CHAP. IV. Sed. I. Of Afaults and Batteries. 212 2. Same Suhjeil; continued, - 218 C H A P. V. Reflections on penal Statutes, - 224 CHAP. VI. Se£l. I. Of Informations. - 230 2. Arguments for and againji Informations. - 233 CHAP. VII. Of yldultery. - - 239 CHAP. VIII. Sed. I. Of Military Offences, - 249 Seel. %\i TITLES, 6'c. Sed:. ?. Of the Military Crimes and Punijhments in other Na- tions. - Page 253 3. Of Regimental or Garrijon Courts Martial -^ Petty Offences and Preventive Meafures, - - 257 CHAP. IX. 5e£t. I. Of the Criminal Laivs of this Kingdom before, and im- mediately after the Con- quefi, - - 266 %» Ohfervations on fome of the foregoing Laivs, - 287 CHAP. X. Of Criminal Proceedings by the Laiv of Scotland, ■?■ - 291 Conchifion» * ■? 304 C O N S I- w^»emie^mmnm*^m^^ CONSIDERATIONS O N CRIMINAL LAW. BOOK IIL CHAP. I. 0/ the different Species of Criminal Laws. WE have already obferved upon the inaccuracy of arranging Cri- minal Offences, fo as to poftpone the primary laws of Religion and Morality to thofe of a fecondary nature, which relate to the political intereft of fociety. Vol. II, B Wc 2 CONSIDERATIONS on We fliall however adopt the com- mon arrangement in treating of the civil crimes, and the punifliments annexed to them, and fhall therefore begin with High Treafon, as the higheft civil crime which can be committed by a member of the community. S E C T. I. 0/ High Treafon^ TJTIGH Treafon is an offence defined and defcribed by feveral Statutes. By the 55 Edw. III. Stat. v. chap. 2. which is to this day the ruling Statute, it may be committed in the feven fol- lowing inftances : I. By compafling and imagining the death of the king, queen> or their eldeft Ton and heir. s. By CRIMINAL LAW. 3 2. By violating the king's companion, or the king's eldeft daughter unmarried, or the wife of the king's eldeft fon and heir. 3. By le\'ying war againft the king In his realm. 4. By adhering to the king's enemies in his realm, giving them aid or comfort in the realm, or elfcwhere. 5. By counterfeiting the king's Great Seal, or Privy Seal, or Money. 6. By bringing falfe money into the realm, counterfeit to the money of Eng- land^ knowing the money to be falfe, to merchandize or make payment with it. 7. By flaying the Chancellor, Trea- furer, or the king's Jufticcs of the one Bench or of the other, Juflices in Eyre, B 2 Juftices 4 CONSIDERATIONS ow Juftices of Affize, or other Juftices af- figned to hear and determine, being in their places, doing their offices. By later Statutes, many offences are made High Treafon, which were not fo before ; as thofe concerning the Coin, the Pope, Popilh Priefts, and Papifts, the Proteftant fucceffion, and foldiers enlift- ing in foreign fervice. It is no part however of the prefent defign, to enter into a minute detail of treafonable Offences, but only to give the reader a general view of the mofl enormous fpecies of Treafon, in order that he may be better able to judge of the propriety of fuch reflections as will be offered to his confideration, on the fubjeCt of this crime. SECT. CRIMINAL LAW. 5 SECT. IL Rejle&wns on the Stat, 25Edw.III. HTHE Statute above quoted enume- rating the crimes of High Trea- fon, appears to be not only extremely fevere, but flrangely undiftinguiihing. The prefident Montefquieu fays, If the crime of High Treafon be indetermi- nate, this alone is fufficient to make any government degenerate into arbitrary power. — Again, he fays, That it is a violent abufe to give the name of High Treafon to a crime which is not fo in fadl ; it tends to confound our ideas of things, and to diminilh the horror of the crime. By the ancient laws of England^ the crime of High Treafon was fo uncertain, B 3 and 6 CONSIDERATIONSow and the refolutions of the judges upon trials for that offence fo various, that it became abfolutely neceflary toafcertain by this a£t of Ediv. III. what fhould for the future be Treafon ; but in the reign of Richard 11. fo many new Treafons were declared, as made it neceffary for the legiflature in the next reign, (that of Henry IV.) to repeal all thofe new- created Treafons, by a ftatute, reciting, that no man kneiv hoiv he oiight to behave himfelf^ to do^ fp^ak, or fay ^ for doubt of fiich pains of Treafon» But to return to our Reflexions on the Stat. 25 EdiJL\ III. the dignity and fecurity of the King's perfon is here con- founded with the perfons of his officers, and to affaffinate the fervant, is as cri- minal as to deftroy the Sovereign. This is not all. The King's real per- fon is confounded with his effigies iin- preft CRIMINAL LAW. 7 preft on his coin ; and to counterfeit the type of Majefty, is held as criminal as to lift the fword againft the living Monarch. It would be tedious to produce farther inftances wherein the different degrees of criminality are confounded, and the Majefty of the Sovereign undervalued, by placing offences, whereby the fecu- rity of his perfon is no way endangered, and even his dignity only indiredly pre- judiced, in the fame rank of delinquency with thofe whereby the fafety of the Royal Perfon is immediately injured and en- dangered. This indlfcriminate blending of crimes, fo different and difproportionate in their nature, under one common head, is the more liable to objection, as the judg- ment in this offence is fo extremely grievous and terrible. B 4 SECT. 8 CONSIDERATIONS ow SECT. III. 'Judgment in High Treafon. np H E Judgment in High Treafon is fuch as one cannot tranfcribe with- out horror ; it is, that the offender fhall be drawn upon a hurdle to the gallows, and there hung by the neck, and cut down alive ; his entrails taken out, and burnt ; his head cut off, his body quar- tered ; and his head and quarters to be at the King's difpofal : but beheading being part of the Judgment, the King may pardon all the reft, under the Great Seal, as is ufually done in cafe of no- bility. The Judgment for counterfeiting the coin is by the common law, and is only to be drawn upon a hurdle and hanged. But CRIMINAL LAW. g But clipping being made High Treafon by fubfequent ftatutes, the Judgment, as fome contend, is to be hanged, drawn, and quartered, though the pradice is otherwife. The Judgment for a woman In all cafes of High Treafon, is to be drawn upon a hurdle, and burned. SECT. IV. Refle&ions on the "Juclgmefit in High Treafon, AX/ITH refpedt to the foregoing Judgment, it difgraces huma- nity, without anfwering the ends of po- licy. Nature (huddcrs at the thought of imbruing our hands in blood, and man- gling the fmoking entrails of our fellow- creatures. This is more than cruelty. It 10 CONSIDERATIONS on It is fuch favage butchery as might even ft^in a Hottentot. It feems difficult to conceive, that fuch a Judgment could have been devifcd by a human being ; or having been efta- blifhed in the days of ignorance, bi- gotry, and barbarity, that it fhould be fufFered to continue at the prefent civi- lized and enlightened period. To imagine that the horrid feve- rity of it will deter criminals from the crime, is a vain fuppofition. To men who engage in defperate and criminal under- takings, with a profped of death before their eyes, the mode of dying is an ad- dition of terror too inconfiderable to re- train them from perpetrating the in- tended crime. Such brutal execution feems as abfurd as it is unnatural; for it fhocks the fpec- tatorSj CRIMINAL LAW. ii tators, and pains the Imagination of all who refled; on the criminal's fate, with- out adding to his punifhment : as it is well known, that before the work of butchery begins, the delinquent is gene- rally paft the fenfe of feeling. Befides, as few can dlftinguifli fo nicely as to be fenfible that a crime againft the peace and order of fociety neceffarily in- cludes the higheft degree of moral tur^ pitude, fo there are many zealots fo blinded with party-prejudice, that they impofe upon themfelves fo far, as to think the heinous crime of High Trea^ fon to be no reproach to their moral cha- rai^er. Perhaps the very frame of the Law may, in fomc rncafurc, contribute to lefTen the fenfe of the moral turpitude of High Treafon; for by Law, Treafoa can only 12 CONSIDERATIONS on only be committed againft the King de fa^o ; and a King de jure is not within the meaning of the adt. Nay, it is faid, that if Treafon be committed againft the King de facto, and not de jure, and the King de jure after- wards comes to the crown, he fhall pu- nifli the Treafon done againft the King defaSio'y and a pardon granted by a King dejure, that is not alfo a King defa^Oy is void. Men, who can abftrad their ideas, know that the peace and order of fociety requires this diftindion, and that indi- viduals fhould not be allowed to decide concerning the fovereign title. But it neverthelefs feems to militate againft the moral rules of right and wrong, to doom an offender to the fevereft of all punifh- ments, for fupporting what he conceives to be a juft title. They CRIMINAL LAW. 13 They who have not capacity to dif- cover with precifion the true grounds of this political principle, and to perceive that in the end it fquares with moral rec- titude, are mifled by its feeming incom- patibility with moral juftice, and think it meritorious to yield affiftance for the recovery of a juft title. Under the influence of this opinion, the rigour of the fentence rather ferves to inflame their zeal. The more they rifk, the greater they deem their merit. They confider themfelves as fo many political martyrs ; they glory in perifh- ing in their traiterous principles, with the fame fortitude that the prelates of old adhered to their religious tenets ; and rebels triumph on the IcafFold, like Rid'- Icy at the ftake. Their 14 CONSIDERATIONS o;/ Their refolute and determined behavi- our often leaves bad impreffions on in- confiderate minds. Many pity the fuf- ferer who braves his fate, and often filently reproach the hand which doomed him a facrifice to juflice. They are often milled to conclude, that thofe principles mufl be juft for which men can die with fuch refignation and intrepidity ; and, from admiring the traitor's magnanimity, they are fometimes betrayed fo far as to approve the Treafon. Thus, thefe rigorous punifhments coun- terwork their own intentions. They often make loyal fubjeds, of tender feel- ings and weak judgments, prove traitors in their hearts ; and difpofe them to adopt fehtiments from compaffion, which rea- fon bids them abhor. SECT, CRIMINAL LAW. 15 SECT. V. Of the Laws of other CoiintrieSy ancient and modern <^ in Cafes of High Ireafon. IT muft be confefTedj that the general cuftom of moft nations, both ancient and modern, feems to authorize the prac- tice of puniiliing Treafon and Rebellion with death. We do not read, however, that among the Egyptians either of them were capi- tally punifhed ; indeed they are not fo much ag mentioned by name. It is likewife obfervable, that by the yeivifJo Law we do not find any punifh- ment prefcribcd againft the crime of Treafon or Rebellion. 6 Lord i6 CONSIDERATIONS dH Lord Coke indeed obferres, that all the feveral parts of the punifhment in High Treafon are to be found in Holy Scrip- ture ; and he mentions the feveral in- ftances where each has been feparately inflided on different iridividuals j that Joab was drawn ; Bit ban hanged ; Jiidas embowelled ; Sbeba, the fon of Bicbri, beheaded ; Baanan and Recbal quarter- ed, &c. * But his Lordfhip has not fhewn, nor is it fuppofed he could fhew, where thefe puniihments have been inflidted Jiinul ac femd on a Traitor. Befides, examples might be brought from the Old Teftament to juftify many pradices which are now happily exploded. The New Teftament, which is the pattern of Chrift- ian Duty, breathes another fpirit. Be- nevolence, humanity, and mercy, are * 3 Inft. 211. the CRIMINAL LAW. 17 the precepts of our Saviour and divine Lawgiver. If we recur to the Athenian Laivsy we Ihall find, that they alfo took no cognizance of Treafon or Rebellion as capital offences ; on the contrary, it is only provided by thofe laws, that He fhall be denied burial within At- tica, and his goods expofed to fale, who hath been convided of perfidious beha- viour towards the ftatei or of facrilege. And, farther, that He who hath betrayed his country, fhall not enter into the borders of Attica^ Even during the ufurpation of P)fi'^ Jlratusy the tyranny of the Four Hun- dred, or the ufurpation of the Thirty, we do not find that Rebellion or Trea- VoL. II. C fon i8 CONSIDERATIONS on Ton were made capital ofFences by Law ; though it muft be confefled, that none of them fcrupled to difpatch thofe pri- vately, who made head againft their go- vernment, or, more properly, their ty- ranny. In a flate where the fyftem of go- vernment was fo equal and mild, fuch fevere Laws would have alarmed the people more than the exercife of actual tyranny. Even in Rome^ we do not find that the Laws againft Treafon and Rebellion in the days of their liberty punifhed the offenders with death ; and when fuch Laws were made, they did not fecure the flate againft the violent fhock of civil commotions. The Cornelia Lex., of which Cornelius Sj/lla, the dictator, was author, may be deemed CRIMINAL LAW. 19 deemed the firft of this kind. By this Law it was made Treafon, — To lead an army out of the province, or to engage in a war without fpecial orders : For any one to ingratiate himfelf with the army, fo as to make them ready to fcrve his particular intereft : To fpare or ranfom a com.mander of tlie enemy, when taken prifoner, or to pardon the captains of robbers and pirates : Or for a Ro77ian citizen to refide, with- out orders, at a foreign court. The puniihment of aqu£ ct igms inter- d'i6l'io^ was afligned to be inill6ted on thofe who fhould be convicted of any of thofe crimes. C 2 Every 20 CONSIDERATIONS on Every one may perceive that this Law fpeaks the language of an ufurper. By this, every officer, who gained, or was maUcioufly reprefented as endeavouring to concihate the good-will of his fellow- foldiers, might be convided of Treafon, and made a vidim to the jealoufy of the ruling tyrant. The Lex yu/ia, of which Julius Cafar was the author, ordained the punifh- ment mentioned in the Lex Cornelia to be inflided on all who are found guilty of the crimen de jnajejlate ; whereas Sylla only confined it to the particular fpecies of offence therein fpecified. We find, however, that this extraor- dinary feverity could not fecure the ufurping Ccefar in the enjoyment of the fruits of his ufurpation. By CRIMINAL LAW. 21 By the Laws of Terfia^ indeed, the crime of High Treafon was puniflied with the lofs of the right hand and be- heading : Which fentence was, by order of Artaxerxes, executed on the dead body of his brother Cynis. But by the ancient Law§ of the Per- fian kingdom, the king was reftrained from putting any man to death for a fingle crime. The judges were to ex- amine narrowly into the actions of the delinquent ; and if his faults were found to overbalance his former fervices, the king was allowed to punifh him at plea- fure ; if not, he was either pardoned or punifhed lefs feverely. When the Perftan monarchy, how- ever, became defpotic, it is no wonder that Treafon was in the firfl: inftance made capital) fince fuch a provifion was C 3 adapted 22 CONSIDERATIONS on adapted to the fpirit of the govern- ment. By the Laws bf China likewlfe we find that Rebellion and Treafon were efteemed the greateft of all crimes, and punifhed with a rigour equal to the fe- verity of our judgment, viz. by cutting and mangling the criminal after the fol- lowing manner : The executioner having firll tied him to a flake, tore the Ikin of his forehead and head, and let it hang over his eyes, to prevent, as fome imagine, his feeing how dreadfully the reft of his body was mangled ; he next flafhed the other parts with a kind of cutlafs, till he had cut almoft all his fleih in pieces ; and then abandoned him to the cruelty of the gaz- ing populace, who commonly difpatched him in the fame butcherly manner. 7, This CRIMINAL LAW. 25 This puniihment, however, we are told, was feldom executed. For the iifual punifhment for Treafon confifts only of cutting the body of the criminal into feveral pieces, ripping up his belly, taking out his entrails, and then throw- ing his carcafs into a river or ditch, and this is commonly done to great male- factors. When we confider the fyllem of the Chinefe Laws in general, with the lenity and excellence of their government in mofl: inflances, we may be at a lofs to account for this inhuman provifion ; but, perhaps, the great reverence and vene- ration which they pay to the emperor, may have led them to this extreme fevc- rity in cafes of High Treafon. C 4 SECT. S4 CONSIDERATIONS o« SECT. VI. Same SubjeB continued. T N Scotland the punifhment of Treafon is death, and confifcation of all the traitor's eftate, whether hereditary or moveable, feudal or allodial. But in the fentence of the Scotch Law, there is none of that butchery which flains our Judg- ment in High Treafon. Yet, notwithftanding the terror of death and confifcation, it is obfervable, from a perufal of the Scotch hiftory, that Scotland has been particularly fruitful in rebellions. Tn fhort, in thofe ftates where the fyftem of government has been moft mild, and the eflablifhment moft equal, the CRIMINAL LAW. 25 the crimes of Treafon and Rebellion were either unknown to the Laws, or, if they fell under their cognizance, they were but (lightly punifhed. In this kingdom, by the feudal Laws of the Jnglo Saxons ^ compofition was allowed for what is now juftly deemed the moft grievous kind of Treafon^ that of killing the king. It muft be remarked, however, that our anceftors, the Saxojis^ had not fuch fevere notions of Treafon againft the kingy as of Treafon againft the kingdom ; and after the killing of the king came to be a capital offence, yet \\. was fomc time before it was efteemed Treafon, The Saxons i fays Nat. Bacon, being a people of public fpirit, preferred the good of their country above all, account- ing treachery againft it, or ncgled of it 2 in 26 CONSIDERATIONS on in times of danger, to be a crime of the mofl: grievous nature, and which ought \o be punllhed in a moil exemplary manner, frodltores et transfugas arbori- hiis Jiifpendunt^ fays Tacitus. Other Trea- fons than this, not even againft their kings, did they acknowledge, and there- fore the form of an indidtment for con- triving the death of the king, concluded only jdon'ice, as appears from the form of an indidment for an offence of that nature, intended and plotted againft Ed- mund the Saxoii king ; v.?hereas for the plotting againft allegiance, of a common and inferior nature, the indi(n:ments con- cluded y^/o^/a' et proditorle : And where- as the penalty, in c2i{Qoi treachery againft the ccimtrj, was death, and forfeiture of the whole eftate, both real and pcrfonal ; in treachery againft the king, it was only lofs of life and of perfonal eftate, and therefore it may feem that Majefty had not then arrived at its full growth, or that ■T CRIMINAL LAW. -7 that the greateft meafure of it refted ftill ill the body of the people. In the time of Hen. II. Treafon^ which formerly was only conddered as a breach of truft or fealty, was made equal with that of L(cfa Majejlas ; and that Majefiy, which was afterwards wholly wrapped up in the perfon of the king, was, in his time, imparted to the king aJid kingdom; whereas before his days, as already ob- fcrved, it related chiefly to the kingdom, Glanville^ in his book of Laws, fpeak- ing of the crime of Ltefa Mojejlcu, ex- emplifies fedition and the dcflrudion of the kingdom, to be in equal degree with the dcflrudion of the perfon of the king: And next he mentions fedition in the army, and fraudulent converfion of trea- fure-trove, which belongs to the king, homicide, burning, robbery, rape, and the s8 CONSIDERATIONS ow the like; all which, he faith, are pu- nifhed with death or lofs of member. In the Saxon times, before the king could be properly confidered as one of the three feparate eftates, or orders of government, it is no wonder that they deemed treachery againft the king, and treachery againft the kingdom, to be di- ilind: crimes. In thofe days, the king was only re- garded in the light of the head magi- ftrate; but fmce the king is become one of the three eftates in the kingdom, crimes againft the royal perfon, are very properly placed on the fame footing with crimes againft the kingdom ; for though the king, in his political capacity, as one of the three eftates, never dies, yet when we refledl on the confufion and calami- ties in which the nation may, nay muft be CRIMINAL LAW. 29 be involved, by crimes againft the fo- vereign perfon, it is a reafonable pre- fumptlon to conclude, that fuch offenders intend the diflblution of government. At Common Law, and before the Sta- tute of 25 Ediv. IIL Treafon was, as has been faid, a very uncertain crime; and the opinions concerning it were very va- rious. The killing of the king's father, brother, or even meffenger, was deemed Treafon. The accroaching^ or attempt- ing to exercife royal power, was treafon- able, and the Judges determined what amounted to fuch accroaching. — In one inftance mentioned by Lord Chief Juftice Hale^ a Knight of Hcrtfordfloire was found guilty of Treafon, for affaulting and detaining his debtor till hedifcharged the debt. When any ads tended to diminifh the dignity of the crown, or when any man grew inordinately po- pular, 30 CONSIDERATIONS o;r pular, this was conflrued to be an en- croachment on the royal power, and as fuch held to be Treafon. Thus, by the excefs of former times, any crime, by aggravating the circum- ftances with which it was attended, was heightened into Treafon. On which ac- count, the above-mentioned Statute of Edw. III. was made to determine what fhould be adjudged Treafon; and for the excellence of this and other Statutes, the parliament in which they were made was called hmed'icliun parliament um. Since the making of that adt, there can be no conftrudlive Treafon ; that is, nothing can be conftrued Treafon, which is not literally fpecified in that or fubfe- quent ad:s. There was a remarkable claufe in this Statute, by which it was provided, that if CRIMINAL LAW. 31 if any other cafe fhoiild happen, before, the Juftices, fuppofed to be Treafon, ^ they fhall not proceed to judgment, till it be declared by the king and parlia- ment, whether it ought to be adjudged Treafon or not. This, it is evident, was leaving an un- bounded latitude in the legiflature, to re- move any offender who was obnoxious to them, by a conftruflion ex pojlfa^o. Lord Chief Juftice Hale^ in the ifl voL of his Pleas of the Crown, page 259, fays. That as the authoritative dccifion of thefe cafus om'ijji^ is refervcd to the king in parliament, the mofr regular way to do it, is by a new declarative a.^:. Though this adl: of Ediv. III. at the time of paffing it, was intended to keep the Icgillature as well as Judges, within proper bounds, as to tl:c crime of Trca- ibn, 32 CONSIDERATIONS on fbn, yet, in the time of king Rich, II. next immediate fucceflbr of Ediv. III. feveral other Treafons were created, as is before obferved ; and in the fucceeding reigns, other crimes of different natures were declared to be High Treafon. By 26 Tien. VIII. chap. 13. it was made High Treafon to wifh, or defire, by words or writing, or to imagine the death of the king, queen, or their heir appa- rent ; or to publifh that the king was an Heretic, Schifmatic, Infidel, &c. Every one muft conceive the abfurdity of making it Treafon to imagine the death of the king, unlefs the intention be fhewn by fome open or overt a£t. This loofe and ambiguous expreffion imagincy. which is a bare ad: of the mind, laid every one at the mercy of malicious conftrudion ; and could not but GRiMtNAL LAW. 33 but be attended with inconvenience to the king himfelf, as it was to Hen. VIII. whofe phyficians, it is faid, were afraid to declare him in danger, left they fliould incur the penalty of Treafon. But the Laws with refped: to Treafon, were uncommonly fevere in this reign. — By 33 ^^;/. VIII. If a man, non compos mentis^ commit High Treafon, and after accufation, ^r. become mad, he might be tried in his abfence, and fufFer death as if he were of perfect memory. And by the fame Stat. If a man attainted of Treafon become mad, he was executed notwithftanding his infanity. By the i Ednv. VI. cap. 12. To en- deavour to depofe the king, or to affirm, that he is an Ufurpcr, Tyrant, &c. was declared Treafon. Vol. II. D But 34 CONSIDERATIONS OM But thefe ads were repealed by the ift Mar. SelT. chap. i. By which it was enaded, that no a£t, deed, or ofFence Ihall be deemed or adjudged Treafon, but fuch as are declared and exprelTed to be fo by the 25 Edw. III. The I ft Mar. likewife takes away the power of the king, and parliament, to adjudge any thing elfe to be Treafon than what is declared to be fuch by the 25th Ediv. III. Neverthelefs, the ift Mar. has been in fome mcafure repealed, and many of- fences have been declared Treafon by fubfequent Statutes, which were not fo before, as has been fhewn above. Up- wards of twenty offences have, fince that time, been declared Treafon, which were not fo by the Stat. Edw. III. and, in truth, the greateft part of thefe offences require CRIMINAL LAW. ^^ require a forced and unnatural con- ftrudtion to bring them under the crime of Treafon. So likewife do many of the offences made Treafon by 25 Ediv. III. as before obferved ; particularly that relating to the coin ; and it does not appear that counterfeiting the coin was Treafon at the common Law, though by the pre- amble to the Statute of Ediv. III. all the offences therein fpecified, are declared to have been Treafonable at the Common Law. We read in Mahnjhury ^ that, by a Law of Hen. I. falfifiers of money were ad- judged to lofe their right hands, in the words of the Law, pugnum perdcre. Hoveden tells us, that falfifying of mo- ney was puniflied with the lofs of eyes and genitals. Buc Gemitifenjis^ and the D 2 Monk 36 CONSIDERATIONS on Monk who made the continuation of Florence of Worcejler^ agree with Mabnf- bury^ that the offenders loft their right hands ; adding, however, that they like- wife incurred the lofs of genitals ; that he, as Selden obferves, who was guilty of fuch a wicked crime, fliould have no hope left him of pofterity. From hence we may conclude, that in thofe times it was not treafonable ; and in farther fupport of this conclufion we may add, that Fleta does not rank the counterfeiting the Seal of the kingdom, or of one's lord, or the coining or coun- terfeiting the money of the kingdom, among the crlmina lef Y our Law, the Judgment in cafe of Murder, and of all capital felonies, is that the criminal fhall be hanged until he be dead. SECT. III. Of the Laws of other Countries'^ Ancient and Modern^ in cafi of Murder, T) Y the Laws of mofl civilized nations, both ancient and modern, Murder has been juftly punifhed with death. CRIMINAL LAW. 6^ By the Egyptian Laws, he who will- fully killed any perfon, whether Free- man or Slave, was condemned to die. The Laws of Egypt ^ however, went far- ther in providing for the fecilrity of the fubjedt's life, than any other we read of: For he who faw another killed, or vio- lently ailaulted on the highway, and did not endeavour to refcue him, if he could, was punifhed with death. If it appeared that he was unable to give afliftance, he was neverthelefs obliged to difcover and profecute the offenders according to Law ; which, if he negleded, he was doomed to receive a certain number of ftripes, and was kept without food for three days. By the Laws of Athens^ Murderers and houfebreakers were tried before the AreopagiteSj and punifhed with death. Their counfel was not allowed even to make a preliminary apology, to fpeak F 2 any 68 CONSIDERATIONS 07Z any thing foreign to the caufe, or to urge any motives to excite compaffion. Neverthelefs, fo great was the lenity of their laws, even with refpedl to this moft heinous crime, that the prifoner was permitted to make his defence in two orations, delivered by himfelf, or, in later times, by his counfcl ; and if, after the firft oration, he was diffident of the event of the caufe, he was allowed to fecure himfelf by flight, and go into voluntary baniihment ; and if he availed himfelf of this privilege, his eftate was confifcated and expofed to fale by the UuXvjtui. By the Ro?nan Laws likewife Murder was punifhed with death. It is obfervable, however, that in the infancy of the Roman commonwealth, we do not find that Murder was, by Law, capitally CRIMINAL LAW. 69 capitally punifhed. Indeed, in the in- fancy of moft States, efpecially in thofc formed for, or attempting conquefts, Murder is feldom diftinguilhed as a ca- pital crime. A favage behaviour, and unrelenting ferocity, is the chief virtue of fuch mi- litary adventurers. Every man is taught to depend on his own prowefs, for the fecurity of his perfon and property. Up - on any violation of his rights, he is left to profccute private revenge, to the ut- mofl: extent of his power. The Law, therefore, at fuch uncivi- lized periods, takes no cognizance of of- fences done to individuals. To wreft private revenge, the darling privilege of unpolifhed minds, from the hands of the injured party, would then have been deemed a fpecies of injuflice. Among F 3 rorn 70 CONSIDERATIONS o« men whp live by blood and rapine, there is in fuch cafes no room for the interpo- fition of the magiftrate. It was not till the manners of man- kind were foftened by the arts of peace, and that the obligations to induftry taught them a more clofe and intimate connec- tion with each other, that they became fenfible of furrendering the right of pri- vate revenge. This is the reafon why Murder was not capital among the barbarous nations that overran the weftern empire. Held together by no other ties than that of partnerfhip in rapine, they were ftrangers to the more refined focial connediona. Every man meafured the equity of his claim, by the power he had to purfue it ; and, when injured, every man was his own avenger. His refentment alone 6 diaated CRIMINAL LAW. 71 dictated the proportion of punifhment ; and if, on the llighteft, or without any provocation, he committed Murder, a pecuniary compofition atoned for the of- fence. SECT. IV. T'hefajjie SubjeEi cont'mued, TD Y the Jeivi/Jj Law, Murder was not only punifliable by death, but aven- gers were appointed to punifh the Mur- derer wherever they fouud him ; and they fuffercd the criminal to be torn from the moft venerable fanctuaries to undergo punifhment; exprefsly forbid- ding both the avengers and the judges to make any compofitiaa, or accept of any rccompcncc for the crime. F 4 The 72 CONSIDERATIONS o« The ^ews had likewife another infti- tutioti, extremely proper at that time, to infpire the people with an extraordi- nary horror againft wilful Murder ; which was the expiation of an uncertain Mur- der; by which the Elders of the next city to the perfons flain, were to offer an heifer by way of atonement, to cleanfe the land from blood. By the Perfian Law, Murderers, more particularly poifoners, were prefTed to death between two flones. By the Laws of China, Murder is |)uni{hed with death, according to the nature of it. If a man kills his adver- fary in a duel, he is ftrangled, which is reckoned the lefTer punifhment ; if by aflaflination, or with any aggravating circumflances, he is beheaded, which is deemed more difhonourable. 2 The CRIMIiNAL LAW. 73 The Laws of Scotland., with refpe^t to Murder, are fomewhat analogous to our own, this crime being punifhed by death, and confifcation of moveables. But there is a fpecies of Murder un- known to our Laws, which by thofe of Scotland is punifhed as a treafonable of- fence, which is Murder upon trufl ; that is, where the party murdered put him- felf under the truft or confidence of the flayer ; in which cafe the crime is pu- nifhed as Treafon. Poifoning, likewife, by the Scotch Law, is declared to be punifhable as the crime of Treafon. The crime of poifoning was formerly fo odious in this kingdom, that by adl of parliament of Hen. VIII. it was made High Treafon, and punifhed by a more grievous and lingering death than the Common 74 CONSIDERATIONS on Common Law ordained, njiz. That the offender fliould be boiled to death in hot water. Upon which Statute Margaret Davy-i a young v;oman, was attainted of High Treafon, for poifoning her mif- trefs; and fome others were boiled to death in Smithfeld on the 1 7th of March, in the fame year. But this a6t was too fevere to live long, and therefore was re- pealed by I Ediju, VI. chap. 12. and ill Mar, chap. i. It is worthy of obfervation, that, by the ancient Law of Scotland^ the king could not pardon for Murder, unlefs the offender agreed to afTith the party, which aflithment being in the nature of a com- pofition, was modified by the council ; and when the Murderer was taken red hand^ that is, apprehended in the ad, the flieriff was to try and execute him within three funs. With CRIMINAL LAW. 75 With regard to our Laws, the crime of Murder, in the old feudal times, was atoned for, as has been obferved, by compofition. The Saxons punifhed Murder only with a fine, according to the old rule, luitur homicldiuyn certo armentorum & pecoimm nwnero : and what was ftill worfe, they countenanced that, which, in after- ages was called deadly feud ; and fo un- der colour of punifliing Murder by re- venge, they added blood to blood. But as times grew more civilized, and as Religion gained ground, the nature of this crime was better underftood, which brought on the Law of Appeals, and thus private revenge came under the power of the Law, which punilhed death with death. The good king Alfred^ zeal 76 CONSIDERATIONS on zeal againft Murder firfl: caufed it to be capitally punifhed. Our rude forefathers, however, as well as we, diftinguilhed the different degrees of bloodfhed, and made a difference in the punifhment. One kind they con- lidered as fpringing from fudden paffion ; another from forethought and purpofe, •which they called j^bere Murder, or Murder by foreplot or treachery ; and this was made nullo pretio emejidabile. Yet to"wards the time of the Danes, devotion grew fo high, that a fan£tuary could make any bloodihed expiable, if not acceptable, under the golden colour of recompcnce made to the king, to the lord of the party flain, and to the friends of the party, for the lofs of a fubjec^, a tenant, and a friend ; according to the cuftom of their forefathers, as defcribed by CRIMINAL LAW. 77 by Tacitus^ recipitque fatisfa^ionem uni^ ver/a domus. Their Laws, in this refpedt, under- went many changes, too tedious to re- cite, moft of which may be found in the Laws of Alfred^ Ed??iimdy Canute^ and Edivardf the Saxo7i Kings. In former days, Murder only figni- fied the private killing of a man, none feeing or knowing of it except the Mur- derer and his accomplices, as appears by the Laws of Ht^n. I. And it was not Murder, fome fay, except the party flain was an E?i^Ii/Ij??i^7i and no foreigner ; though by the Statute 14 Edzu. Ill, chap. 4. the killing of any EngllfJjman or foreigner, living under the king's pro- tedion, through malice prcpenfe, and whether committed openly or fecretly, is Murder ; And without doubt the makers of 78 CONSIDERATIONS (?7^ of the Statute of 23 Hen, VIII. which excludes all wilful Murder from the be- nefit of Clergy, intended to include open as well as private homicide within the ■^yord Murder, SECT. V. Reflexions 07t the yudg77tent in cafe of Murder » TN cafe of Murder it is Indeed both juft and reafonable to doom the cri- minal to death ; becaufe, by his crime, he has put it out of his power to make any kind of compenfation to the party ilain. The bare execution of the criminal, however, does not fufficiently fatisfy the claims of juflice. Juflice requires not only that puniChment be inflided on the offender, CRIMINAL LAW. 79 offender) but that all poffible reparation be made to the furviving friends and re- lations, who are injured by the death of the party (lain. This therefore is one of thofe crimes in which forfeiture is juftifiable. It may, and does often happen, that a helplefs family derived its whole fupport from the party flain ; and it is reafonable, where the Murderer is a man of proper- ty, that they fhould be intitlcd to recom- pencc out of it. In the moft rude times, the injury ck)ne to the friends and relations of the party flain, has always been confidered in the punifhment of the offender. Bromley, in his argument of PiedaiPs cafe, to (hew what effed: the confidera- tion of blood and kindred had in our Law, affuQis, that when, in an appeal of Murder, 8o CONSIDERATIONS on Murder, the appellant was found guilty, the old cuftom was, that all the blood of the party murdered, ufed to draw the Murderer by a long rope to his execu- tion; which ufage he fuppofes to be founded on the afFedion which they were all prefumed to bear towads the party (lain. But our Law regards Murder as a crime committed to the prejudice of the State, and takes no notice of the intereft of the friends and relations of the party flain, as will appear from the confide- ration of the next head. SECT, CRIMINAL LAW. ti S E C T. VI. Of Forfeiture in cafe of Murder, V^ITH refped to Forfeiture in cafe of Murder, it is in that, and in all capital felonies, as in High Treafon. Lands and tenements are forfeited upon attainder, and goods and chattels upon convidiion ; with this difference, that in felony, entailed lands are forfeited only during the life of tenant in tail ; and that in felony the wife is dowable, which in High and Petit Treafon fhe is not. Vol. II. G S E G T. 82 CONSIDERATIONS^^ SECT. VII. RefleEiions on Forfeiture in cafe of Murder, TX7 E find that the Law refpeding For- feiture pays no regard whatever to the friends and relations of the party flain, though perhaps they may be beg- gared by his death. Our Law, in this, as in many other cafes^ has ftarted from one extreme to the other. In the rude times of igno- rance, as has been fhewn, the recom- pence to the kindred of the party flain, was the fole confideration ; their notions of policy were not fufficiently enlarged to comprehend the injury done to the State. In :CRIMINAL LA AY. 83 In our times the ideas of public in- tereft are fo refined, that by making pro- vifions folely for the benefit of the State, we are guilty of injuftice to injured in- dividuals. Reafon and equity however pronounce, that the kindred of the deceafed, who are fufferers by his death, fhould be fharers in the Forfeiture incurred by the delin- quent. Neverthelefs, neither reafon or juftice requires, that we utterly ruin one innocent family to redrefs another. The Forfeiture therefore in this, and In all other cafes, might be only of a moiety of the delinquent's property; one fourth of which moiety fhould be appro- priated to the Fifk, and the remainder to the friends and relations of the party flain. G 2 CHAP. 54 CONSIDERATIONS a» CHAP. VL SECT. L Of Man-Jlaughter, 2. "]i /^An-Slaughter is defined to XV J, be the killing of another with- out malice, in a prefent heat, on a fud- den quarrel, upon a juft provocation ; or in the commiflion of a voluntary and unlawful ad:, without any deliberate in- tention of doing mifchief. If two people meet together, and in ftriving for the wall, one of them kills the other, this is Man-flaughter ; and fo it is, if, upon a fudden occafion, they had gone into the fields and fought, and one CRIMINAL LAW. 85 one had killed the other ; for all this is one continued al is doing a lawful adt without in- tent of hurt to another, and the death of fome perfon doth by chance enfue, SECT. IL Of th Judgment in Chancemedley. "POR this offence, the offender has his pardon of courfe. SECT. CRIMINAL LAW. ^j SECT. m. Of Forfeiture in Chancemedley. *T^HE rigour and injuftice of the for- feiture in this cafe is very obferv- able, as the offence is unattended with the leaft degree of blame in the offend- ing party. Where, indeed, there are any circumflances of careleffnefs, it is proper that the offender fhould be pu- nifhed. For inflance, if a, workman flings rub- bifh from off a houfe, and gives warn- ing to all perfons to fland out of the way ; yst if he kills a perfon underneath, he ought to fuffer, becaufe there v/as a degree of negligence in not making him- felf certain that there was no one within the reach of danger, and it is but juft 2 that 94 CONSIDERATIONS (?w that every man fliould be punifhed for the confequences of his negligence. In this cafe therefore, it is reafonable that he fhould incur a forfeiture : three- fourths of which, however, as in the former inftances, fhould be appropriated to the kindred of the deceafed, and the remainder to the ftate ; for the kindred of the flain are more injured by the lofs of their relation, than the ftate is by the lofs of a fubjedl. But where chancemedley Is attended with no negligence in the party doing the mifchief ; as where a man riding a horfe on the ftreet, and a ftander-by whips the horfe, by which means he runs over a child, or other perfon, and kills it ; in this cafe, as there is no care- leffnefs in the rider, fuch chancemedley fhould not be punifhed with forfeiture of goods and chattels. Some CRIMINAL LAW. 95 Some flight atonement, in the nature of a deodand, would be fufficient to fhew, that the ftate interefts itfelf in the pre- fer vation of its fubjedts. CHAP. VIII. SECT. I. Of Ho77iidde by Necejfity, 4. 'T^HIS Neceflity makes Homicide -■- excufable or juftifiable. I. Excufable homicide is committedy^ defendendo, where one has no other pof- fible means of prefervinp; one's own life than by killing the perfori vs^ho reduced him to fuch Neceflity. It is obfervable, that a man could not, by our ancient Laws, draw a weapon 96 CONSIDERATIONS 0/^ even in his oivn defence in a church or church-yard, or in view of the king's courts of jufl;ice> or in any of the king's palaces. But fuch a conftrudion of law, which oppofes the primitive law of nature, by which men are directed towards felf- prefervation, is highly unnatural and abfurd. No place can be fo facred as to deprive a man of his right of felf-defence, and oblige him to yield himfelf a tame fa- crifice. Such paflive conducfl would, in fa€t, make him criminal in the higheft degree ; for, fhould he negle£t to defend himfelfj he would become z-felo deje. The law of nature, which dictates felf- prefervation, is fo powerful, that it fu- perfedes all other laws, and an attempt to reftrain it, is abfurd and inefficacious. S. Jufti- CRIMINAL LAW. 97 2. Juftifiable Homicide is either pub/ic^ and done in the execution of public juf- lice ; or prwate^ in defence of one's per- fon, houfe or goods : as when a woman kills one who attempts to ravifh her, or when one kills another attempting to murder him or rob him, abroad or in his own houfe. But if the aflault in the houfe were in the day-time, not to rob, but to beat another, it would be a killing fe defew dendo. Upon the fpecial matter found in cafe of juftifiable Homicide, the party is to be difmifTed without any forfeiture or pardon purchafed. Vol. IL H SECT* 98 CONSIDERATIONS e/f S E C T. n. Of Judgment and Forfeiture in Se Defendendo. 'T^ H E Judgment and Forfeiture in ^e Defendendo is the fame as in chance- m'edley, and liable to the fame excep- tions. Indeed, it fcems uncommonly abfurd and unjuft, to make a man forfeit his goods and chattels for ading in con- formity to the firft law of nature, which didates felf-defence. The expiation of uncertain murder among the Jews^ was grounded on reafon, but there is no reafon whatever for fuch rigour in cafes of felf-defence. CHAP. CRIMINAL LAW. 99 CHAP. IX. Of Private Felonies againjl the Body of the SubjeB. PRIVATE Felonies againft the Body of the Subject may be com- mitted, I. By fodomy. q. By rape. 3. By forcible marriage or defilement of women. 4. By polygamy. 5. By maihem. All thefe offences (polygamy excepted) are capital ; but perhaps in fome of them milder punifliments might more effec- tually prevent the perpetration of fuch {hocking crimes. H :: SECT. 100 CONSIDERATIONS (J« SECT. I. Of Sodomy. I, "117 IT H refpe£l to the firft, which is of fuch a difgraceful and abominable nature, that it is difEcult even to credit its exiftence ; the feverity of the punifhment does not feem calcu- lated to diminifh the frequency of the of- fence, though by the laws of moft na- tions, ancient and modern, it has beea capitally punifhed. Of the laws of other nations in Sodomy, Among the Grecians, the punifhment of this unnatural vice was fometimes difcretion* CRIMINAL LAW. loi difcretionary, and at other times puniflied with death. Among the Romans^ by the Scatania Lex^ the penalty was only pecuniary, but it was afterwards made death. By the JewiJJj law it was punifhed with death. By the law of France the offender fuf- fers death by burning. By the law of Scat land it is punifhable by death. It does not appear, that by the com- mon law of Efigland this deteftable fm was capitally punifhed. We read that in the time of Ediju. IIL a complaint was made in parliament, that the Lo7n^ bards had brought this fliamcful fin into the realm. H 3 Our 102 CONSIDER ATIONS ort Our ancient authors, fays Lord Cbke, conclude that it merits death, ultimiitn fuppliciumy though they differ in the manner of infliding it. Briton fays, that fodomites fhall be burned, as they were by the judgment of Almighty God. The Mirrour ranks this crime among thofe of Treafon againft the King of Heaven, and fays, that the punifhment of this mortal fin is by burying the of- , fenders alive deep in the earth, fo that the remembrance of them be forgotten, for the great abomination of the fait ; it being fuch a fm which calleth for vengeance from God, and which is more horrible than the ravifliing of the mo- ther, 6v. In ancient times, the man was hanged for this offence, and the woman was drowned. CRIMINAL LAW. 103 drowned, of which we find examples in the reign of Rich. L And this explains the ancient franchifes de furca et fijfa^ of the gallows and the pit, for the hang- ing upon the one, and drowning in the other. But y^^ is taken away, ViVidi furca re- mains ; and, at this time, the Judgment in all cafes of felony is, that the perfon attainted ihall be hanged by the neck, until he or fhe be dead. This crime is exprefsly forbidden in holy writ ; cum mafculo non commljc earls co'itu feemineo^ quia ahominatio eft. Cum cmni pecore non coibis^ nee maculaber'is cum eo. Mulier non fuccumhet jiwientOy nee mifcehitur ei, qniafeelus ejl^ &c. The adt 25 Hen. VIII. hath adjudged it felony, and hath taken away the be- nefit of clergy from the delinquent. H 4 Women 104 CONSIDERATIONS o» Women are within this ftatute, and if they commit this crime with a bead, in- cur the fame punifhment ; and the word ferfon was ufed in the ad to extend it to them. This extenfion was thought more eflentially neceflary, as fome time before the making of this ad a great lady had been guilty of this abominable beftiality with a baboon, and had conceived by it, SECT. II, Of Rape. S. \17ITH regard to Rape, the offence being capital, our tendernefs for life makes the law require fuch ftrong evidence of the crime, that the proof is extremely nice and difficult, and the law therefore, in fome meafure, ufelefs : whereas, was it more mild, it would be more CRIMINAL LAW. 105 more efficacious, and the violation of chaflity would be eafier prevented. By the law of Egypt, Rapes were pu- nifhed by cutting off the offending parts. By the Athenian laws, he who ravlfhed a virgin was obliged to marry her. By one of Solon s laws, he who committed a Rape was fined one hundred drachms ; and, by a fubfequent law, this penalty was doubled. It was a long time before this crime was punifhed capitally by the Roman law; but, at length, by the Lex yulia^ the pe- nalty of committing a Rape with force was made death. In like manner, by the yeit'i/Jj law, forcible Rape was punifhed with death ; but if a man deflowered a virgin with- 2 out 8o6 CONSIDERATIONS on out force, he was to pay her father fiftjr fhekels of filver, and to marry her, with- out having it in his power to put her away during his hfe. By the law of Scotland^ Rape is pu- iiifhable with death, and confifcatiora of moveables : anciently, in this king- dom, Rape was felony, and punifhed ■with death, efpecially if the party ra- vifhed were a virgin ; unlefs fuch virgin would accept of the offender for her hufband, in which cafe fhe might fave Jiis life by marrying him ; for, if flie demanded him for her hufband before judgment paiTed? he efcaped puniih- jnent. But by the Stat. Wejlm, 2. her eledion is taken away. Afterwards the crime of Rape was confidered as a great mifde- meanor only, and not as a felony ; but it was CRIMINAL LAW. 107 was neverthelefs dreadfully punifhed, by the lofs of eyes and privy members, as we read in a law of William the Norman^ Si quis aliquam vi oj)J)reJ/iffeti genitalibiis privabitur armis. By the Stat, of TVeJlm, 3 Edzu. I. c 13. it was reduced to a trefpafs, fubjeding the offender to two years imprifonment, and a fine at the king's will ; but the Stat. Wejlm. 2. c. 34. made it felony again ; and by the 1 8th EUz, it is ex- cluded from the benefit of the clergy. Though this offence is of the moft hei- nous nature, and, if tolerated, would be fubverfive of all order and morality, yet it feems highly* impolitic to punilli it with death. Atrocious as it is, yet it has its root in a propcnfity natural to man ; and the irregular and inordinate gratification of unruly appetite, to the injury io8 CONSIDERATIONS on injury of individuals, and the prejudice of fociety, may be properly punifhed, without deftroying the offender. Where the condition of the woman is much below that of her ravifher, might not the criminal be obliged to marry the injured party, and make an adequate fettlement upon her ? It feems reafon- able, indeed, that this punifhment fhould not be confined only to forcible violations of chaftity ; but fhould be exaded alfo in many, if not moft, cafes of fedudion without force, if the feducer fhould after- wards abandon the woman he had fe- duced. Glanvilk fays, that before judg- ment paft, a woman accufing, and a man accufedof aRape, might be reconciled to each other, by means of a marriage, with the leave of the king, and the confent of parents. But CRIMINAL LAW. 109 But where the offender is of low or fervile condition, or the injured party fhall refufe to marry, or her parents or next friends fhall not confent to her mar- rying the offender, in fuch cafe, the cri- minal ought to be feverely punifhed by fine, or by confinement to real hard labour. SECT. III. Of forcible Marriage^ or Defle- ment of TF'o7nen, 3. C\ F forcible Marriage, 6'^. it is ob- fervable, that by confining the offence to women of eftate only, moral principles are made to yield to political confidcrations ; and the fccurity of pro- perty is deemed more effcntlal than the prefervatlon of female chaftity. By no CONSIDERATIONS o« By the Stat. 3 Hen. VII. c. 2. it is en- aded, that if any perfon fhall take away any woman, having lands or goods, or that is heir apparent to her anceftor, by force and againft her will, and marry or defile her, the takers, procurers, abet- tors, and receivers of the woman taken away againft her will, and knowing the fame, fhall be deemed principal felons ; but as to procurers and accef- fories, they are, before the offence com- mitted, to be excluded the benefit of clergy by 39 EUz, c. 9. This a£t we find makes the property of the woman the meafure of the crime. But in reafon and nature, the forcible Marriage or Defilem.ent of a woman without any eftate, is, undoubtedly, as criminal as the forcible Marriage or De- filement of a woman who is heir ap- parent CRIMINAL LAW. iii parent to the inheritance of a whole county. It is true, that the offence is moft likely to be committed to fuch, as their for- tunes alone are fufEcient temptations to this violence. But if the law had been made general, their fecurity would have been included, and the principles of mo- rality v^ould not have been violated by the diftindtion. As to thofe who argue, that the im- morality of an ad: is not fo much to be confidered as its bad tendency, their ob- jedions have, it is fubmittcd, been al- ready anfwered. It Is, however, highly impolitic, and unreafonably fevere, to punlfli thcfe of- fences with death. In cafe of Defile- ment, the fame punifhmcnt might be 3 inflidcd ji2i CONSIDERATIONS on inflidled as is above propofed with re- fped to Rape. But in cafe of forcible Marriage, if, befides dooming the of- fender to the penalty of the fine, and confinement to hard labour, it might be provided that the eftate of the woman fo forced fhould be vefted in a court of equity in truft for her feparate ufe, and her hufband never to intermeddle there- with ; fuch a provifion would, probably, in moft inftances, prevent this crime, as it would take away the temptation which moves the offenders to the com- milFionof it. SECT. CRIMINAL LAW. 113 SECT. IV. Of Polyga?ny, 4. '\X7ITH refped to Polygamy, it is an ofFence created by the Sta- tute of Jmnes I. and is thereby declared felony, but not excluded from the bene- fit of the clergy. This, though at firfi: it appears only a political ofFence, is, in truth, a breach of religious and moral virtue in the higheft degree. In the early times of Greece, indeed, iPolygamy was tolerated; di\\d Ce crops W2,s the firfl who made a law, that no man fhould have more than oiie wife. We do not find, however, that this inftitution was rigidly obferved through- VoL. IL I out 114 CONSIDERATIONS o« out Greece. Even in Sparta, where, for feme time, it prevailed mod ftridly, we read that Alexandridas had two wives ; and, in many parts of Greece, upon fome emergent occafions, as when their men had been deftroyed by war or other ca- lamities, Polygamy was tolerated : Of which we have an inftance at Athens in the time of Euripides, who, it is faid, conceived a mortal hatred againft the whole fex, on account of his having been harafled by two wives at once. Socrates likewife is faid by fome to have been married to Xantippe and Myrto at the fame time : Though, it muft be confefled, this fad is controverted by others ; and, in the opinion of Plutarch in particular, thought to be falfe. It is likewife reported, that Socrates lent his wife Xantippe to Alcibiades, It CRIMINAL LAW. ii^ It is obfervable, however, that one of Soio7i*s laws feems to have countenanced Polygamy, or, more properly, to have inftituted a kind of Ucenfed adultery. For if an heirefs could not conceive children by her hufband, fhe might ad- mit the embraces of her hufband's near- eft relation. What the punifhment of Polygamy was among the Grecians^ does not ap- pear. It was probably arbitrary, as we do not find any pofitive penalty fettled by law. Among the Romans likewife, we do not meet with any pofitive law againft Polygamy ; on the contrary, it is faid to have been a cuftom among them for wives to marry more than one hufband ; and every one knows the flory of Cato of [Utica^ who, to oblige his friend Hor^ 1 % Unftust ii6 CONSIDERATIONSo;^ tenfiusy gave up his v^xitj^art'ia to him $ and not only fufFered him to marry her, but adually aflifted at the ceremony him- felf, together with Philip, the father of Martia. This ftory is, however, by Plutarch, conlidered as romantic. Among the Jeijjs, Polygamy was to- lerated ; and we learn from the facred writings, that Lamech was the firfl who- took two wiveSr By the law of Scotland, Polygamy, which the Scotch with greater propriety call Bigamy, is punilhed only with con- fifcation of moveables, and an incapacity of holding any ofEce, Ever fince the inftitution of matri- mony under the prefent form. Polygamy muft have been allowed to be criminal, had no ftatute been made to prohibit it. It CRIMINAL LAW. 117 It is true, among our anceftors in this kingdom it was formerly no crime. We read that our BritiJJj forefathers had fometimes twelve wives in common, but the children were reputed to belong to him who firft trefpalfed qvv the maid's virginity : and we are told that Theomaiw tins, an ancient Brltiflo king, being cen- fured by parliament for leaving his Scott'i/Jj queen, and marrying the daugh- ter of Claudius Ciefar^ anfwered, That he did not know it was unlawful for him to have more wives than one ; eo quod leges Br'itannorum hucufque id nunquam prohibiiijfcnt^ for that the laws of Britain had not yet forbidden it. Marriage, it mull be allowed, on the footing of its prefent inflitution, is an engagement of the moft lolemn nature, and the facred pledge of mutual con- I 3 ftancy ii8 CONSIDERATIONS ort flancy given at the altar, cannot be vi- olated by any who have a due fenfe of religion and morality. It is therefore highly juft, that the law fhould puniih fuch violation; but it mufl be confeft, that there is great difficulty in pointing out the moll efredual means of anfwer- ing the purpofes which the law ought to have in contemplation in this refpeiSt, If the offending party be the hufband, and he has any property to forfeit, does it not feem juft and expedient that a great part of it fhould be allotted to the feparate ufe of the innocent wife ; or, in cafe he derives that property from his marriage, that it be refunded to the wife. Again, If the wife be the offender, and pof- felTed of property, which the Law vefls in the hufband, might not the guilty wife be punifhed with imprifonment, and CRIMINAL LAW. 119 and a lefs allowance for provifion, ^i\ than her rank and condition intitled her to ? And in all cafes where the offenders have no property, might they not be obliged to labour for the benefit of the injured party, as likewife for a fine to the Fifk ? SECT. V. Of Mayhem. 5. \X7ITH regard to Mayhem, in- deed, the Law does not appear to be too fevere : For in the Statute which makes it capital, there is a juft and prudent provifo, that there fliall be no corruption of blood, lofs of dower, or of lands, goods, or chattels of the offender. • I 4 Th« 120 CONSIDERATIONS (?« The Statutes refpeding Mayhem are S Hen. IV. chap. 5. and 22 ^ 23 C^r.II. c. I. Before the making of the firft a£t, fays lord Coke^ when any one had been beaten, wounded, maimed, or robbed, IRACY is a felony againfl the goods of the fubjedt, by a depredation or robbing at fea. This is a capital offence by the Civil Law ; but by a6t of par- liament it is enquired of, heard, and de- termined, according to the courfe of the Common Law, as if it had been done upon the land. It ftill, however, remains an offence by the Civil Law, and therefore a par- don of all felonies doth not difcharge it; for, as it is a fpecial offence, it ought to be fpecially mentioned. The method of trial in this offence is regulated by the ^"^Ah Henry VIIL CHAP. CRIMINAL LAW. 149 CHAP. XI. Of private Felonies agai?tfl the Dwelling ^ 8cc, PRIVATE Felonies agalnft the Dwel- ling or Habitation of a man, are of two kinds, i. Burglary. 2. Arfon. SECT. L Of Burglary, I. gURGLAR Y is a felony at Com- mon Law; and it is dcfcribed to be, where a perfon, by night, breaketh and entereth into the manfion of ano- ther, to the intent to commit fome fe- lony there, whether the felonious in- tent be executed or not. L 3 By I50 CONSIDERATIONS on By the 1 8th Eliz, this offence is ex- cluded clergy. By the 5th and 6th Edw, VI. *' to rob any body in a booth or tent, in a fair or market, the owner being within the fame, is to be punifhed in like manner as Burglary, and without benefit of cler- gy, though without his, his children, or his fervants notice or hearing." By 3 and 4 W. and M. he that fliall counfel, hire, or command any perfon to commit any Burglary, fhall not have the benefit of clergy. By the 12th Ann, ** if any perfon fhall enter the manfion-houfe, or dwel- ling-houfe, of another, by day or night, without breaking the fame, with an in- tent to commit felony ; or being in fuch houfe. CRIMINAL LAW. 151 houfe, fliall commit any felony, and iliall in the nicrht-tinie break the faid houfe to get out of the fame, fuch perfon ihall be taken to be guilty of Burglary, and fhall not have the benefit of clergy." A man may lawfully kill a Burglar. Braclon faith, Si quis fiirem nociurniivi Occident t it a demum iinpunc foret^ Ji par- cere ei fine perictdo non potuit, Ji aute?2z potuit, aliter erity in manibiis ctwn regis funt vita et mors homimwi. Agreeable hereto was the law of the Twelve Tables, Si nodii furttini fa^um Jit-, jure C£fus eji, Likcwife, as we have fcen above, the Mhenian and Jeiviflj laws allowed of tlie killing a Burglar. K 4 By 152 CONSIDERATIONS on By a law of king Ina^ Burglary was declared felony. In king Edmund^s time, Indeed the Danes made it fineable only ; poffibly from a confcioufnefs of their own propenfity to rapine and plunder- ing. This privilege of the dwelling- houfe was anciently called Ham/oka^ or Hamefeckeiu It is, without doubt, highly expedi- ent, that this offence fhould be more fe- verely punifhed than any other kind of Theft, fmce, befides the lofs of pro- perty, the terror it occafions often proves of moft fatal confequence ; and it is ob- fervable, that the ancient laws above cited make a difference between a houfe- robbery in the night, and a robbery in the day. There is good reafon likewife why any one ihould be permitted to kill a Burglar ; CRIMINAL LAW. 153 Burglar ; but where the Burglar has not been the occafion of death, by the dread- ful alarm with which the Burglary is attended, it feems too fevere to pu- nifh the offender capitally. For, though it fhould be lawful for a perfon to kill one whom he difcovers in the attempt, fmce his defigns may be as bloody as un- juft, yet, after the fadt committed, and no injury fuftained befides lofs of pro- perty, the offender may be condemned to make reftitution, as in other cafes of Theft; with this difference only, that his fine fhould be heavier, and his confine- pient longer. SECT. J54 CONSIDERATIONS on SECT. II. Of Arfonry, ARSON, or hoLife- burning, is a fe- lony at Common Law, and is a ma- licious and voluntary burning the houfe of another by night or by day ; or if one malicioufly burns his own houfe, to the intent to burn others, if the intention is executed ; but if only his own is burnt, it is not felony, but a great mifdemea- nour, punifhable by fine, pillory, (6^r. , By the 23d lien. VIIL for burning of houfes or barns wherein any corn is, the principals and accefibries are excluded clergy. By the 43d Eliz. to burn, cr caufe to be burnt, wilfully or of malice, (or to aid, CRIMINAL LAW. 155 aid, procure, or confent to the burning of) any barn, ftack of grain, or corn, in the counties of Northumberland-, Cum- berland, Wejimoreland^ or Durhamy is felony without clergy. By 22 and 23 Car. 11. it is felony to burn any rick or ilack of corn, hay or grain, barns, or other houfes or build- ings, or kilns malicioufly in the night- time ; but the offender may make elec- tion to be tranfported for feven years. But by flatutc 9 Geo. I. c. 22. which Is * made perpetual by Stat. 31 Geo. 11. c. 42. the crime of Arfonry is made felony without benefit of clergy. By the Roman law, ihey who were guilty of this crime were burnt to death, being wrapped up in a cloke, dawbed over with pitch, which was fct on fire. - Thus, 156 CONSIDERATIONS on Thus, when Nero, out of brutal curi- ofity, fet fire to Rome, he contrived to lay the odium on the Chriftians, who yvere at that time generally difliked ; and, feizing on all he could difcover, he or- dered them to be lighted up in this man- ner, to ferve as tapers in the dark. To this cuftom Juvenal alludes in the fol- lowing verfe : Aiifi quod liceat tunica pin'ire molejia. Martial likewifc has an allufion to the fame cullom, Na'in cum d'lcatur tVfUica pnefen^e molejla* This puniihment^ however, though chiefly appropriated to this crime, was inflicted on other very heinous offences. By the Scotch law, Jrfonry, or, as they call it, Fire-raifing, is declared treafon by Stat. James V. pari. 3. c. 8. 5 By CRIMINAL LA\y. 157 By 1 law of king Ina^ burning of woods was fineable ; and we learn from, ancient authorities, that in this king- dom one article of the Eire was, de in- cendiariis nociurnis vel diiiniis et com- biiftionilms tempofe pads neqiiiter perpe^ tratis. Bra^on faith. Si qiiis turhata fiditi- one, incejidiiwi fccer'it ncqiiiter, et in fe- lonia, 'vel oh inm'iatiam, "vel alia dc can- ■fa, capitalifententia pun'ietur. Neqiiiter dicOy quia incendiafortuita vel per negli- gentiamfada, et non mala confcientia, non Jic puniuntiu'y quia civiliter agitiir contra tales. It appears from a paflagc in Britton, that he who fclonioufly fet fire to ano- ther's corn or lioufe, and was convicted of the offence, was to be burnt, to the intent ijS CONSIDERATIONS on intent that he might fuffer in the fame manner he offended. Fleta faith. Si qu'is (sdes alienas nc" quiter oh ifiimicitiaf?ty 'vel predce caiija^ tempore pacts comhujferit, et inde conuiclus fuerit per apellum^ veljine^ capitali debet fententia puniri. According to the Mirrour, Ardours font que ardent citie, viile, maifon, hommey bete, 021 autres cateux, de kur felonies en temps de pace, pur haine on vengeance ; and the Mirrour further fays, that if a man is put into the fire, whereby he is burnt or hurt, it is a Capital Crime ; but it is a fufficient plea that the mifchief came by mifchance, and was not pre- meditated. So heinous was this offence, that in Anno 3 Edw. I. it was declared by par- liament, CRIMINAL LAW. JS9 liament, ^le cciix que font prifes pour arfon felonioKftnent fa'it^ ne fount en au-r cune 7naniere replev fable. The difperfing of bills threatening to burn houfes, <^>c. was made High Trea- fon by Henry VI. but that a6l is repealed by I Ediju. VI. chap. 12. and i Mar. The offence of Arfonry ought un- doubtedly to be mod feverely puniflied, as being a crime of the deepeft die; and where death enfues in confequence of it, the punifhment ought always to be ca- pital. But where no death enfues, and wherever by fparlng the life of the de- linquent reparation can be made to the pcrfon or perfons injured, however flowly and imperfectly, it may be qucftioned whether it is good policy to execute the offender. Tiicre i6o CONSIDERATIONS o« There are other private felonies im-* mediately hurtful to the fubjed, which are made capital by the Statute Law, and which are not properly reducible under the heads of felonies againfl the life, body, goods, or habitation. Thefe chiefly relate to Records, Cattle, Ships, Bankrupts, and Forgery. Steal- ing and defacing of Records is felony. Killing, &c. of Cattle is death. De- ftroying of Ships is capital. Bankrupts not furrendering themfelves, or conceal- ing their effects, are felons without be- nefit of clergy. Forgery, of which there are various kinds, is capital. By the Law of Egypt^ Forgery of all forts was punlilied by cutting off the offending parts; that is, both the hands. CHAP. CRIMINAL LAW. 161^ C „H A P. XII. Reflexions on the foregoing Heads,- FROM the above brief enumeration of Capital Offences, we may fee in what a vafi: variety of inftances Crimi- nals may forfeit their lives. .They arc indeed fo numerous, that theinfrequency of executions is rather matter of furprize : but the necefiity, if any there is, of put- ting offenders to death in fuch a num- bcr of cafes, rather arifes from an pfl- ginal defe£t in our Criminal Laws, than from the nature of the crimes themfelve§. It does not appear that any of thefc Capital Offences, except fome fpecies of Treafon, and alfo Murder and Mayhem, and, in fome cafes, Arfonry, ought to Vol. n. M be i62 CONSIDERATIONS^ be punlfhed with fuch indifcriminate ri- gour. By punifhing a petty Theft, above the value of twelve-pence, with the fame feverity as Murder, and other atrocious Crimes, the Laws do, in fa(3:, break through the boundaries of Mora- lity, and take away thofe diftindtions which Reafon and Nature fuggeft to every intelligent mind. There is a cruelty in fuch indifcri- minate Punifhments, which often ren- ders offenders defperate; and makes them inhuman where they would other- wife be only unjuft. Thus the Laws, which ought to foften the ferocity of obdurate minds, tend to corrupt and har- den them. It is univerfally allowed, that men's difpofitions are, in a great meafure, formed by education j and what educa- tion CRIMINAL LAW. 163 tion is to every individual, the Laws are to fociety, Mr. Hume, in his 3d Eflay, part i ft, fays, very truly, " That the force of Laws and " of particular Forms of Government is *' fo great, and they have fo little depen- ** dence on the humours and tempers of ** men, that confequences almoft as ge- '' neral and certain may be deduced from ** them, as any which the mathematical *' Sciences afford us.'* Where the Laws are fanguinary, de- linquents will be hard-hearted and bar- barous. As the right of Punifhment is now taken from private hands, and veiled in the public Magiftrate, why fliould the rigour of Punifhments be increafed ? Though Crimes againft the peace and fafety of fociety fhould be exemplarily puniflied, yet the order and fecurity of M 3 fociety i54 CONSIDERATIONS 072 fociety does not require that the Laws fhould be fanguinary. When the right of private revenge was firil wrefted from individuals, there was certainly more reafon for the fe- verity of punifhments, than now that mankind are grown liipre civilized. When men had but newly refigned the privilege of revenging their own wrongs, it behoved the Magiftrates to make Punifhments very exemplary and fevere ; or, the offended party, in thofe days when revenge had its full fcope, would have deemed them inadequate re- parations of his wrongs. Yet, in fad, they were then much milder than in thefe days of refinement. The reafon of their lenity is very acutely traced by a late ingenious writer, al- ready CRIMINAL LAW. 165 ready quoted. To induce individuals to part with their right of private revenge, the Magiftrate wifely pradifed on their pafhons, and fubdued the lefl'er, by gra- tifying the greater. Avarice has at all times been the paf- fion moll univerfally prevalent, as it is indeed the means of indulging the red. The Magiftrate therefore inflicted large fines, which were paid by the delinquent to the injured party or his relations, by way of compofition for the crime. Even murder, as has been fliewn, was expi- ated by compofition. In proccfs of time, however, as the idea of fociety began to ripen, thefe com- pofitions were not paid wholly to the party injured, but part was applied to the Fifk, or Treafury, as an atonement for the offence committed againft the public. M 3 At i66 CONSIDERATIONSflrt At length the idea of fociety grew flrong, and the power of the Magiftrate •was fo confirmed, that Crimes were pu- nifhed as if they affected the community alone, and no reparation was provided for the injured. The order of govern- ment, or, to fpeak more freely, the in- tereft of the governors, came to be the fole confideration. This principle operates to this day, in Capital and many other Offences. Cri- minals are executed, their lands and goods are forfeited, and the injured party is left without any other reparation than the blood, banifhment, or imprifonment of the offender. Nay, more, the injury is aggravated by the expence of a pro- fccution. The very form of our indidments feems, at firfl fight, to point out, that the CRIMINAL LAW. 167 the offence againfl the State is the fole confideration in Law, fince they conclude with alledging the Crime to be ** con- *' trary to the peace of our Sovereign ** Lord the King, his crown and dignity,'* Gfr. but in truth the detriment done to the injured party, is the primary wrong: And the offence is faid to be againfl the king*s crown and dignity, becaufe it is a difhonour to the king's government, that his fubjeds fhould not, while they live within the Law, enjoy peace and fecurity : And furely it is no lefs difho- nour to government, that the fubjeds when injured Ihould remain without re- paration. Right Reafon, in this, and in all other cafes, avoids extremes, and delights in a medium; fhe direds us to fleer be- tween the fimplicity of rude regula- tions, and the refinement of modern in- Hitutions. M 4 Much, i68 CONSIDERATIONS o;2 Much,- no doubt, is due to fociety ; but the good of fociety is beft promoted by a regard for individuals. Human wif- dom muft rife from individuals to the whole; whereas modern policy takes a contrary direction, and aggravates the •wrong done to individuals, under pre- tence of avengipg the public. It may, indeed, in civil concerns, be neceflary to rellrain individuals from purfuits of private in tereft, which may be of detriment to the general -welfare; but in criminal cafes it can never be re- quifite, on the principles of juft policy, that an injured individual fhall be ftiU farther aggrieved, to aggrandize and en- rich the State. In civil concerns, the advantage of an individual may be oppofite to the good of the whole; but in criminal matters, the CRIMINAL LAW. i6^ the benefit of the whole can only be pro- moted by an attention to the fafety and profperity of individuals. By making the State the fole objedl of attention in the Punifhment of Crimes and the forfeiture of property, in con- fequence of convidlion, Society actually fuffers. In fliort, by this policy the State and Society are confidered as twodiftin6t objetSts ; and the latter is prejudiced to enrich the former. Few people have fuch enlarged no- tions of public good, as to prejudice thcmfclves for the fake of Society, much lefs for the fake of the public Treafury, which is called the State. Severe punifhmcnts, therefore, and forfeitures to the Fifk, have thefe ill ef- feds3 fomc, out of tcndernefs of difpo- fition, I70 CONSIDERATIONS o» fitlon, are deterred from profecuting of- fenders, from a perfuafion that their Punifhment will exceed the meafure of their guilt ; and many defift from profe- cutions, becaufe nothing but expence and trouble is to be their lot, as all the fruits arifmg from the convidtion of the cri- minal, accrue to the State. The real good of the State, however, I requires not only that adequate Punilh- ments be impartially inflicted on the of- fenders, but that the injured fhould ob- tain adequate and fpeedy reparation of their wrongs. If the profecutor remain without re- paration, and the State, whether by for- feiture or fine, is the only immediate gainer, how can fuch a pradice be jufli- fied upon the principles either of equity or policy ? Will CRIMINAL LAW. 171 Will men in general labour for the State, without feme view to private emo- lument ? Why then fhould we expeft them to profecute their injuries for the benefit of the State, while their private wrongs remain unrcdreffed ? In fhort, as the State, in moft cafes of felony, can only be faid to be prejudiced in confequence of the injury done to the profecutor, it feems reafonable that the forfeiture fhould, in the firft place, be applied to make him fatisfadion ; and that an overplus, according to the hei- noufnefs of the Crime, be appropriated to the Fifk, as an atonement to the State, for the bad example fhewn to focicty. This provifion would, in truth, be agreeable to the old rule we read of in the Laws of King Lia^ Pars imd^a regi *uel ci'vitati ; pars ipfi qui v indie at ur^ 'vel ftropinquis fuis. 3 The 172 CONSIDERATIONS o« The adage, that " Honefty is the befl it p/ i;c/," as it is afluredly the beft di- rection in private life, fo it is hkewife moft certainly the fureft guide in public adminiftration. By attempting, in fuch inflances, to make the right of the State independent of, and prior to, the claim of an injured individual, we in fadt teach individuals to prefer their own private and diftin^t interefts to that of the community. BOOK CRIMINAL LAW. 173 BOOK IV. CHAP. I. Of fuhordinate Offences] and pu^ nijhing Offenders by Whippings Pillory^ h7Jprifo7iment^ and Irajtfportation. IT is not propofed In this Book to en- ter into a particular enumeration of the fevcral Oftcnccs and Mifdemcariors of a fuhordinate nature, which are nvide criminal hy our Law ; the intention of this Eflay being rather to confider our Criminal Law in a philofophical, .than In in a technical light. It 174 CONSIDERATIONS ^« It will be fufEcient, therefore, for this purpofe, to take notice of thofe Crimes which are moft frequent, and particu- larly of fuch, wherein the punifhments do not feem to be properly adapted to the nature of the offence committed, or cal- culated to prevent the commiffion of the like crime by others. Here It Is obfervable, that In the lefTer offences a like difproportion of punKh- ment is manifeft as in capital crimes. Petty Larceny, for inftance, is punifhed more feverely than Perjury ; and even a Libel incurs the fame penalty a8 Per- jury. But furely there Is no comparifon be- twixt thefe offences. With refped to what the Law deems Petty Larceny, and which anfwers to the CRIMINAL LAW- 173 the viodkus fiirtus of the Civilians ; it was a queftion among them, whether petty thefts were properly cognizable by the criminal jurirdldion, or whether they ought to be referred to civil cogni- zance. But in truth, the value of the thing ftolen is not to be regarded, but the in- tention of the thief. The law fhould make no difference in crimes of the fame genus, and in all fuch the nature of the punifhment fliould be the fame. But as there are different degrees of crimes cf the fame genus, fo there may be diffe- rent degrees of the fame kind of pu- nifhment. Thus, fuppofmg theft to be punifhed by recompence for the thing flolen, fine to the Stale, and confinement to labour ; this punifhment might be apportioned according 176 CONSIDERATIONS ^« according to the value of the theft, and the atrocloufnefs of the circumftances attending It, by infliding a heavier fine and a longer duration of labour and confinement. But when greater and lelTer thefts, thefts committed without force, under circumftances of extreme indigence, and thefts perpetrated with circumftances of grievous violence, are all puniftied alike, it contradlds every principle of diftri- butive juftice, which, as has been infifted, ought to be the meafure of puniiliment : for juftice demands equality, ncc patltur Jcuticd digVMm^ horrihiU jiagello c^d}, , , But the fentence of our Law in Petty Larceny is too rigorous and difpropor- tionate to the offence. It is puniftied by ivhipping or other corporal puniftiment ; by imprifonment^ and fometimes by tranfport' CRIMlNx\L LAW. 177 trwifportation, which modes of punifh- ment appear to be very impoUtic and improper in all cafes whatever. With regard to whippings it feems totally inconfiftent with the nature of a free government. Among the ancients, and even among the Saxons^ it was ne-^ ver iniiided but on flaves. It has indeed a manifeft tendency to render offenders defperate in fociety : for what good can poffibly be expected from thofemiferable wretches, who have groan- ed under the lafh of the public execu-* tioner, and been openly exhibited as fpedlacles of the loweft infamy ? After they have been thus expofcd, they can never hope to acquire a degree oi credit fufficlent to get into any ufeful or honeft employment ; fo that being enured to bafenefs, they become utterly profligate and abandoned. Vol. II. N In 178 CONSIDERATIONS cm In whatever light we confider fuch punifhment, it will appear highly im- politic: for they who really dread it, and have yet fome fenfe of fhame re- maining, might be deterred by more mo- derate punifhments, inftead of being ren- dered quite defperate and abandoned by undergoing fuch infamy. As to thofe who are dead to all fenfe of fhame, it is to them little or no punifliment. With refped: to hnprifonment^ where it is inflrdted by itfelf merely as a pu- nifhment, it does not appear to anfwer any good intent whatever. It locks up a member of fociety, and renders him a dead weight to the community, and has generally a very bad effed upon his morals.. At Common Law a man could not be imprifoned in any cafe, unlefs he had been CRIMINAL LAW. 1.79 Deerl guilty of forae force and violence, for which his body was fubjedl to im- prifonment, as one of the higheft exe- cutions of the law. Imprifonment, how- ever, is now inflided by Statute in a va- riety of cafes. But furely it is dgainft all principles of found policy to immure men within a loathfome prifon^ where they are of no fervice to fociety, and where their punifhment and fufferings are fo fecret as not to operate on others by way of example; It Is to be confidered likewlfe, that this method of punifhing trivial mifde- meanors, often involves the innocent fa- mily of an offender in ruin, by depriv-^ ing them of that fupport which they derived from his induftry. N a It i8o CONSIDERATIONS^);^ It is Indeed often a greater punifliment to his family than to the delinquent himfelf ; the confinement perhaps is the moft he endures, while they are not only precluded from his aflillance, but are fometimes almofl reduced to beggary by maintaining him. To make 'hnprlfonment an effedual punijQiment, labour fliould be fuperadded, and delinquents fhould be obliged to work for the benefit of the party injured and of the State. But to make it a pu- nifliment merely as a confinement, feems to be againfl all principles of reafon and policy. Lord Coke fays, Imprifonment muft be Cujlodia et non pxna ; for career ad ho- mines cujlodiendos^ non ad puniendos dar'i debet. But in how many inftances of daily practice is Imprifonment directed merely CRIMINAL LAW. i8i merely as a puiiifhment ? In all mifde- ineanors which are linable, for inftance, Imprlfonment is generally added as an aggravation of punifhment. The confequence is, that where a de- linquent is mailer of any confiderable property, or can, by means of his partl- zans and adherents, be fupplled with money, his Imprlfonment, in many in- ilances, becomes a matter of triumph, inftcad of puniiliment. He lives with cafe and elegance, entertains his friends, laughs with them at his fentence, and, to the reproach of government, infults the law, by which he has been tried and condemned. Examples of this kind have a more dangerous tendency than is readily con- ceived. No delinquents whatever fhould have it in their power to defy or elude N 3 the j8^ CONSIDERATIONSoif the law, by making that which was in-? tended as a punifhment to theniy become a ridicule to the laivs thetn/el'ves. With regard to Tr an/port ation^ it was not a punifhment at Common Law, but offenders were in antient times permitted to abjure the realm, in like manner as the Roman citizens, when accufed, might go into voluntary exile. This punifh- ment was firfl introduced into Englattd by Statute 29 Eiiz, c. 4. which enads, that " dangerous rogues, and fuch as ** will not be reformed of their roguifh *' courfe of life, might lawfully be ba- " nifhed out of the realm and all other " the dominions thereof, into fuch parts '' beyond the feas as fhall be for that pur- " pofe afligned by the Privy Council : " or otherijuife be adjudged perpetually to '* the g allies of this realm,''' And by Sta- tutes 4 Geo. I. c, 1 1, and 6 Geo. I. c, 23. 3 ^^y CRIMINAL LAW. 183 any perfons convi£ted of Grand or Petit Larceny, may, at the difcretion of the Judge, be tranfported for feven years. This punifhment islikewlfe inflidedby feveral other Statutes, but it feems very difficult to juftlfy it on the footing of found policy. To banifh notorious of- fenders from one part of the King's do- minions to another, is only to fliift, not to remove the grievance. But it will be urged, that by being re- duced to flavery in the Plantations, they are prevented from doing mifchief, and are not fuch a nuifance there, as they would be were they fuffered to remain in the Mother Country. There does not appear, however, to be any great weight in this argument : for, notwithftanding the diftance, the N 4 incon- i84 CONSIDERATIONS on inconvenience will be ftill felt ; fince the Mother-Country has an hitereft in the order and welfare of the Colonies, which is interrupted and prejudiced by the pro- fligacy of thefe abandoned convidls. Why might not a certain number of thefe criminals be condemned to hard la- bour at home, under proper regulations, •where they might work for the benefit of Society, for a time to be limited ac- cording to the enormity of the offence ? ' How ufeful might they be made, were they employed in repairing the roads, in mines, falt-works, and quarries; or fet to work in thofe trades or employments which require intenfe labour, or are of a noxious nature ? Might not the ^reat- efl criminals be fent to our factories in Africay or to difcover and eftablifh new colonies in the South Seas^ or be em- ployed in any other enterprizes at^ tended CRIMINAL LAW. 185 tended with danger and difficulty ? Such punifhments would be of benefit to the public, and the criminal, inftead of be- ing excluded from Society, might, after forfaking the habitude of evil, at length be reclaimed, and become a good fub- jed. CHAP. IL Of Per jury » PERJURY is, by the Common Law, defined to be a crime com- mitted, when a laivful oath is admini- ftcred, by one who hath authority, to any perfon in a judicial proceeding, who fwears ivilfully^ ahfolutely^ and falfely^ in a matter material to the iflue or caufe in qucftion, of his own accord, or by the fubornation of another. Perjury i86 CONSIDERATIONS on Perjury may be committed, not only in a Court of Record, but in any other lawful Court, as a Court Baron, &c. Where an oath is taken before one .who hath not authority to adminifter it, or where a court hath no authority to hold plea of a caufe, there Perjury can- not be committed. It may be colle<5ted from hence, that our Law in cafes of Perjury is merely political, and pays no regard to the im- morality of the crime : for it is not the falfe oath alone, but the falfe oath taken before one who has authority to admini- fler it in a judicial proceeding, ii'c, which makes the crime* It was formerly a matter of debate among the Civilians, whether Perjury was properly a crime or not, cogni- zable CRIMINAL LAW. 187 .?able at a human tribunal. It was de- clared by the ordinance of the Emperor Jllexandey\ that God was the proper avenger of Perjury, and many of the an- cients feem to have been of opinion that T>eorum injurlast Dl'is ciircc. But the bet- ter opinion is, and has ever been, that Perjury is a public crime, properly pu- niihable by human Laws, as nothing can be more injurious to Society t And, unhappily for this nation, it is a crime fo frequently committed, that it feems to be one of the charaderlilic vices of the times. Perhaps the frequency of this crime may, in fome degree, be attributed to the multiplying of oaths, and to the little folemnity with which they are ad- miniftered. So facred an appeal ought not to be made on flight occafions ; and when requifite, it fliould be made with jhe highcft awe and reverence. The i88 CONSIDERATIONS on The mariner therefore of admlnifter- ing oaths on moft judicial proceedings is highly inexcufable. What impreffion can be received from words unintelligibly muttered over in a hurry, merely as it •BTre for the fake of form ? And what reafon can be given why the perfon w^ho is about to take the oath, Ihould not in all cafes whatever repeat the words in a diftindt and folemn manner, as is done by thofe who take the oaths to the Go- Yernment, or by fuch as are cjcamined as "witncfles in the Courts of Scotland, or upon commiffions iffuing from any of their Courts. The crime of Perjury, "by the Laws of fome nations, was capital. It was pu- nifhed with death by the Laws of i^^r/)^ The Egyptians, we are told, efteemed this crime equally impious to the Gods and Men. To the Gods, by bringing their CRIMINAL LAW. 1S9 their majedy into contempt; to men, by dellroying the ftrongeft bonds of Society and good Faith. By the Grecian Laws it was likewife in fome places punifhed with death; in others, the perjured fuffered the fame puniflimcnt which was due to the crime with which they charged any innocent perfon. In fome places they only under- went a pecuniary fine. But if they efcaped punifnmcnt, it was thought, neverthelefs, that the Di- vine vengeance would not tail to over^ take them : And we have a remarkable inftance in Herodotus^ of the punhnment of Glaucus^ who con fulled the Oracle of Apollo^ whether it was lawful to per- jure himfelf in order to detuin fome money which had been intrnfted to him, whcfe whole family was utterly cxlIniSt ia 190 CONSIDERATIONS 0^ in a few generations, though he after- wards returned the money. The Roman Law was very uncertain tvith refpeifl to Perjury : Sometimes it Was punifhed with fome mark of infamy^ as degradation, &c. fometimes the per- jured were puniflied with the fujies ; at other times they have, according to fome, been punifhed as traitors by the Lex yulia de Majefiate. And we find an idle diflindion between thofe who fwore by the Deity, and thofe who fwore by thd Emperor, which has occafioned much controverfy in the civil codes, not worth taking notice of here* By tKe Law of Scotland, Perjury i« punifhable by confifcation of moveables, holding the perfon in ward for a year and a day, and incapacity to hold any office* CRIMINAL LAW. 191 In this Kingdom, Perjury, at the time of the Saxons, was a crime of ecclefiafti- cal cognizance, and punlHied with eternal difcredit of tcftimony, and fometimes with banifhment, and with grievous fines to the king, as likewife to the judge. According to Lord Coke, Perjury before the Conqueft was punifhed fometimes with death, fometimes by banifhment, and fometimes by corporal punifhment, C^v. Some, he tells us, had their tongues cut out. But he very juftly obferves. Severe Lazvs are never duly executed. Afterwards the punifhment came to he more mild; for Fleta faith, Atrox in- juria ejl qUie omnium 77iobiliu7n omijfionem confert, ^'c. de perjiirio co?tviefis. At length it was puniflied with fine, imprifoft- ment, and difability to bear teflimony. At iga CONSIDERATIONS 072 At Common Law, Perjury and Sub- ornation of Perjury are punifhed by fine, imprifonment, pillory, O'c. and incapa- city of ever being a witnefs. By the Stat. 5 Eliz. c. 9. perfons fub- orning witnefles, forfeit 40/. and if the offender hath not wherewithal to fatisfy the faid forfeiture, he fhall fufFer fix months imprifonment without bail, Hand in the pillory one hour, and be for ever after difabled to give teftimony in any Court of Record : And he who commits wilful Perjury fhall forfeit 20 L fuffer fix months imprifonment without bail, and be ever after difabled to give evi- dence. Here alfo, if he hath not where- withal to. pay the fine, he is to ftand in the pillory, with both his ears nailed. The forfeitures are to be divided between the King and the party grieved. By CRIMINAL LAW. 193 By Stat. 2 Geo, II. c. 2^, perfons guilty of Perjury fhall, over and above the pu- nifhment already inflicted by Law, be fent to the houfe of corredion for a time not exceeding feven years, or may be tranfported to the Plantations for feven years in like manner as felons. Perjury being a crime of the moft heinous nature, ought undoubtedly to be punifhed in the moft exemplary man- ner. It does in fa£l bear in it the feeds of all other crimes, and the perjured wretch muft either have no belief in the Deity, or be fo abandoned as to fet the Supreme Being at defiance. As the breach of an oath is one of the higheft offences againft God, fo the purpofes for which oaths are violated, are gene- rally attended with the moft flagrant in- juftice to man. Vol. II. O The 194 CONSIDERATIONS (?« The punifhment therefore of this crime feems to be extremely inadequate, and totally inefFedtual to reflrain the offence. How trifling is the forfeiture of twenty pounds, or of a larger fum, for a crime of this nature ? As to the pillory^ the other part of the punifhment, the fame objedlions may be made to it, as are above urged againfl ivhipping, Befides, how can we expert that they who cannot be awed by a fenfe of the duties of religion, jujiice, and humanity i can be fufceptible oijhame* The Grecian Law feems to be, in fome refpeds, a good guide for infliding pu- nifhments in cafes of Perjury. By that Law it was provided, in fome places, that the Perjurer fhould fuffer the fame pu- nifhment which was due to the crime 3 where- CRIMINAL LAW. 195 wherewith they charged any innocent perfon. This we apprehend might be the proper ' punifhment in cafes where the Perjury refpeds any criminal matter; but here we muft make a diftindion. Where the Perjury is difcovered before the injured party has undergone the pu- nifhment due to the crime he is unjuftly accufed of, there the above punifliment of the perjured feems to be a juft equi- valent ; but when the innocent party has fufFered puniihment in confequence of the Perjury, there the forfworn wretch, befides undergoing the fame punifhment, fhould be obliged to make all poflible re- paration to the innocent party, or his rcprefentatives. Where the Perjury would fubjed the party wrongfully accufed to capital pu- O 2 nilliment, 196 CONSIDERATIONS OM nifhment, there the perjured perfon fhould fufFer death, as being guilty of deliberate murder, which Britton tells us he was fubjed to by our ancient Law. And it may be queftioned, whether the perjured perfon does not deferve death, even though the Perjury fhould be de- tected time enough to fave the life of the innocent : For as the intention of the Perjurer to take away the life of an innocent perfon is manifeft, he ought to fufFer death, though the effeds of his intention are prevented. In this inftance, nonfa^um^ fed mens agentis attenditur. Where the confequence of the Per- jury may only afFedl the property of the injured party, there the Perjurer fhould be obliged to make good the lofs fuf- tained, or which might have been fuf- tained, and fhould moreover pay a fine to the State, and be confined to hard la- bour, CRIMINAL LAW. 197 hour, for a certain time, at the difcretioQ of the Court. In all cafes there fhould be a recom- pence for the injury, befides the fine to the State, agreeable to the practice of the Civil Law, by which the injured party was intitled to a civil adion againft the perjured, befides the criminal accufa^ tion. CHAP. III. SECT. I. Of Libels. BY our Law, a Libel is defined to be a malicious defamation exprefled cither in printing or writing, and tend- ing either to blacken the memory of one O 3 who J98 CONSlDERATIONSo« who is dead, or the reputation of one who is alive, and to expofe him to ha- tred, contempt, and ridicule. In a larger fenfe, a Libel lignifies any defamation whatever, exprefled either by figns or pidures, as by fixing up a gallows againft a man's door, or paint- ing him in a fhameful and ignominious manner. The caufe for which the Law punifhes offences of this nature, is their dired tendency to a breach of the public peace : And it is for this reafon, that the Law will not allow a juflification of a Libel, by alledging, that the contents thereof are true, or that the perfon upon whom it is made is of bad reputation ; fmce the greater appearance of truth there is in any malicious invedive, fo much more provoking it is. The CRIMINAL LAW. 199 The Law, however, makes a very juft diftindlion in this cafe. If the offender be profecuted by information or indict- ment, it is not material whether the matter be true or falfe ; but in an adion on the cafe, the defendant may juftify that the matter is true. The reafon is, that in the proceeding by information or indidmcnt, the ad- vantage of the public is confidered ; for the public is interefted in the preferva- tion of the peace ; therefore the truth or falfehood of the Libel is not there the point to be confidered ; but an adion on the cafe is for the benefit of the party libelled or defamed, and it would be againfl: reafon and juftice that he fhould obtain any redrefs where the matter al- ledgcd againft him is proved to be true. The Civil Law, neverthelefs, took no- tice of a difference with refpeCt to de- O 4 f amatory soo CONSIDERATIONS on famatory truths, which is very obferv- able. If the defamation was of a nature in which the Commonwealth was con- cerned, as if one charged another with theft, or any crime which concerned the Republic ; in that cafe, if the charge were true, the libeller was abfolved : If the defamatory matter refpeded fome vice of nature, in which the public was not interefted, in that inftance, the d&^ famation, though true, was punifhed. Some writers, however, difapprove of this diftindion, and fay, that defamation does not anfwer the end of conviction ; fince the courts are open, and there is a legal way of accufation, and proof for the difcovery of crimes ; and therefore that all defamation, whether the fads al- ledged be true or f^ilfe, A^ould be liable to punifhment, Tq CRIMINAL LAW. 901 To this, neverthelefs, it may be an- fwered, that many perfons, fometimes through fear, at other times from wil- ful connivance, are backward in com- mencing public profecutions ; but when inflamed by anger, or any fudden trans- port of paffion, they often difcover the criminals, whom before they partially concealed. Now, as it is the intereft of the State, that all crimes fhould be difcovered, it is confequently for the public intereft to avail itfelf of the pafTions of mankind, and to take advantage of their unguarded moments, in order to dete(!^ thofe crimes which might otherwife never be brought ^o light. Add to this, that when men know they are liable to be reproached with the crimes and vices of their nature, it is an 5 addition^ 202 CONSIDERATIONS on a<3ditIonal reflralnt on their conclu£^, and perhaps the tongue of invedive, when gukled only by truth, is a proper fup- plement to the Law; as it ftigmatizes thofe offenders with infamy, who might be artful enough to elude the cognizance, or at leafl to efcape the puniflimcnt of the Law. It may be a queftion therefore, whe- ther the good which may refult from fuch a reftraint on men of bad difpofi- tions and fcandalous lives, docs not more than counterbalance the mifchief which jnay now and then enfue from occafional breaches of the peace, in confequence of upbraided guilt ? or indeed whether the former does not preponderate ? Befides, though it be admitted the greater appearance of truth there is in any malicious invedive, fo much the more CRIMINAL LAW. 203 more provoking it is; yet it does not therefore follow, that the more likely it is to tend to a breach of the peace : for fuch accufatlons, though they fink deeper into the mind, and occalion greater in- ternal difquictude, than if they were falfe, yet they do not provoke fuch rc- fentment as tends to a breach of the peace ; for confcious guilt is generally timid and averfe from oppofition. Was the dodrlne of Libels, as fet forth in our Law Books, rigidly adopted in pradice, there is fcarce any refledion which might not be deemed libellous : For# according to fome, fcandalous matter is not neccflary to conftitute a Libel ; it is enough if the defendant induces an ill opinion to be had of the plaintiff. But this makes the offence fo uncer- tain, and admits of fuch a latitude of conllruc- «04 CONSIDERATIONS (?« conftrudion, as opens the way for the gratification of malice, and expofes the fubjei^ to oppreffion. It was formerly likewife held criminal to write againft any known Law; which, if literally enforced, would put a flop to all improvement ; for though as citi- zens we are bound to yield obedience to known Laws, yet as men we may never- thelefs point out their inexpedience, and give reafons for their repeal ; and unlefs reproaches on the Legiflature are mixed with objections againft the Law, it can- not, or at leait ought not, to be deem»d Jibello^s, But fmce the Revolution, the dodrine of Libels has received milder conftruc-? tions, though, in fome cafes, they may yet be deemed too rigorous. In all well conftituted States, however, Libels ought t© CRIMINAL LAW. 20^ to be punifhed in an exemplary manner ; for the reputation of the fubjed: ought to be held moft dear ; fince on that the order of Society in a great meafure de- pends. SECT. II. Same SuhjeB continued, A LL States which have arrived to any eminent degree of refinement, hav« provided punifhments againft Libellers. By the Laws of Egypt^ a calumniator was condemned to the fame punifhment the perfons calumniated would have fuf- fered, had the defamation been true. The imperfedion of this inftitutlon, however, is obvious : for this regards thofe kinds of defamation only by which another 2o6 CONSIDERATIONS d7« another is upbraided with fome crime againft the Law, and does not fecure the fubjed: from thofe defamations which only wound his reputation. Befides, there is this inconvenience attending it, . that it may deter timid and cautious men from accufmg dehnquents, left for want of evidence, or through craft of the accufed, or the inattention, miftake, or partiality of the Judges, or any other accident, they fhould fail in their accufation, and be condemned to fuffer the punifhment of the guilty. By the Laws of Greece, defamation was punifhed by fine. By one of Solon\ Lav;s he who calumniated or defamed any perfon, while alive, in the temples, judicial courts, treafuries, or places where games are celebrated, was to pay three drachms to the injured party, and two to CRIMINAL LAW. 207 to the public treafury. We find another Law of his which provides, that he who rebuked another with committing a hei- nous offence agalnfl the Laws, fhall be fined a hundred drachms. Likewife he who upbraided another with cafting away his buckler, was to be fined. We meet with many other Laws againft defamation which are merely prohibitory, and to which we do not iind any punllhment annexed ; fo that they muft have been punilhed difcretlonally. Even the orators, we arc told, were liable to be fined, if they were abufive on any one in their harangues. The Athenians had one Law of a very fingular nature, which was purely poli- tical : for at Athens any one might bring an adion of flandcr againft him who dirpa raged or ridiculed any man or wo- man 2o8 CONSIDERATIONS ow man for being of a trade. Trade at Athens was vaftly encouraged, and per- fons of the highefl quality did not dif- dain to engage in merchandife. Even Solon himfelf, as Plutarch informs us, applied himfelf to merchandife. The ancient Roman Law, in cafes of' defamation, appears to have been the fame with the Egyptian, and to have in- flicted punifhments by way of retaliation. Afterwards flanderers, who upbraided another of any grievous or capital of- fence, were punifhed with death. By the Law of the Twelve Tables, Libels were capitally punifhed ; but be- fore the time of Augujius this Law was altered, and the puniihment was made corporal. By the conftitutions of Theodoftus^ all Libels were to be burned. The Empe- rors CRIMINAL LAW. 209 rors Valentinianns and Valens again made the punifhment capital, not only to write and publiih a Libel, but if the perfon who found it, publifhed the contents, in- Head of deftroying the Libel. The Law of England, as is very well obferved by a modern author, in this and many other refped:s, corrcfponds rather with the middle age of Jurifprudence, when liberty, learning, and humanity were in their full vigour, than with the cruel edicts that were eftablifhed in the dark and tyrannical ages of the antient Decejuviriy or the later Emperors. But here it is to be obferved, that Li- bels which related to private pcrfons, were only to be capitally pun i died when they put the life of the perfon defamed in danger. Vol. it. P A« 210 CONSIDERATIONS on As to thofe Libels which only con- cerned another's fame and reputation, they feem to have been punifhed at dif- cretion. The only pofitive penalty we find in this cafe is, that the Defamer was by Law declared incapable of making a Will. The Law of Scotland, with regard to this offence, in fome degree agrees with the Roman Law : The punifhment of Libels being arbitrary, except where the Prince was abufed, or where a capital crime was alledged againft any man ; in which cafes it was capital. By our Law this offence Is punilhable by fine, imprifonment, pillory, or other corporal punifhment, at the difcretion of the court, according to the heinoufnefs of the crime. But indeed for offences of this nature, the punifhment by fine feems CRIMINAL LAW. qii feems of all others the moft proper: And the inftitution of SoloJi^ by which three parts of the fine were appropriated to the party defamed, and two to the public Treafury, may ferve as a good guide in offences of this nature. If the offender is unable to pay the fine, he fhould, in this and all fuch cafes, be fentenced to hard work, till the fine is raifed from the profits of his labour, to be diftributed in manner as aforefaid. For, ^11 non hahct in cruviena^ luet in corpore. P 2 CHAP, 212 CONSIDERATIONS oM C FI A P. IV. Of AJfaults and Batteries, AS profecutions for Aflaults and Batteries too frequently come un- der the cognizance of the criminal ju- rifdldion, and are often made inftru- ments of oppreffion, it may not be im- proper to make fome few animadverfions on this fubjed. An aflault is defined to be an attempt to offer with force and violence to do a corporal hurt to another ; as by ftriking at him with or without a weapon, or prefenting a gun to him at fuch a dif- tance to which the gun will carry, or pointing a pitchfork at him, ftanding within the reach of it, or by holding up one*s CRIMINAL LAW. 213 one's fift at him, or from any fuch like a£t done in an angry and threatening manner. A Battery is faid to be any injury whatever, be it ever fo fmall, done to the perfon of a man, in an angry or revengeful, rude or infolent manner; as by (pitting in his face, or any way touch- ing him in anger, or violently joflling him out of the way. We fee by thefe definitions, in what flight cafes a man may incur the penalty of the Law : Even an involuntary mo- tion, which may proceed from a man in a fit of paffion, is liable to be con- ftrued into an aflTault. The Law, it is true, cannot be too careful of tlic prefervation of the peace ; and the order of Society requires that all P 3 ads 214 CONSIDERATIONS^?? ads tending to provocation fhould be checked. But ftill it ought to be ex- tremely cautious how it deems motions and geftures criminal, left, while it en- deavours to reftrain the ill confequences of ungoverned paflion on one hand, it fliould open the door to cool malice and revenge on the other 5 for defigning people may, and frequently do, pur- pofely exafperate men of choleric tem- pers, in order to provoke them to fome unlawful ad, of which they may take advantage. It fhould feem moft reafonable, there- fore, to confine Aflault to an a5lual at- tempt to do hurt, i)'c. and not extend it to a mere threat, fuch as holding up the iift, ^c, or ufmg menacing geftures. Perhaps likcwife it would not be im- proper to make the Law more moderate 5 i« CRIMINAL LAW. 215 in profecutions for Aflaults. At prefent the profecutor may prefer an Indictment, and if the defendant is found guilty, he may afterwards bring an adion at Law for damages. Aflaults upon Indictment are ufually punifhed by fine to the King; and the profecutor is left to recover damages by adion at Common Law. But thefe pro- ceedings are very expenfive, and confe- quently in many cafes extremely oppref- five ; fmce a defendant, unlefs he is in more than moderate circumftances, may be abfolutely ruined, even for a flight Aflault ; which is a punlfhment ex- tremely inadequate to the Offence. And, on the other hand, the profecutor and plaintiff will obtain little or no redrefs, befides the gratification of revenge. Indidments, it is true, are fometimcs neceffary, othcrwife x^ffaults and Bat- p 4 terics ai6 CONSIDERATIONS on teries might be committed fecretly, and with impunity : for where the party af- fauhed has no witnefs, he would be without remedy ; fmce in an adion at Common Law, no man can give evidence in his own caufe : but in a profecution by Indidment, the profecutor is evidence for the King. But, neverthelefs, as he may afterwards have an adion at Com- mon 1 aw, in v\'hich the record of the Gonvidion upon Indidment is evidence, he is virtually giving evidence in his own caufe. Why, therefore, cannot thefe proceed- ings be fhortened, fo as to anfwer the ends of juftice, without becoming inftru- ments of opprefTion ? Why cannot the profecution on the Indidment be final, and include the punifhment of the De- fendant and the recompenfe to the pro- fecutor at the fame time, by adjudging a tine CRIMINAL LAW. qi; a fine according to the circumftances of the ofrence, and appropriating one third part to the King, and the remainder to the profecutor ? This would be a fhorter way of re- drefling the injury and punifhing the guihy, and would prevent the multiply- ing of fuits, which, in flight offences, becomes cruel and oppreffive. Befides, there are many offences of this nature, which are fo trivial, that where the defendant is found guilty, he is only liable to an inconfiderable fine ; and in an adtion at Law he would be liable to no damages which can affect him, if he happens to be in good cir- cumftances ; which is an encouragement to men who have money at command to be quarrelfome and infulting. But Ii8 CONSIDERATIONS on But was the greatefl part of the for- feiture to be applied to the profecutor, it would in fa£t aggravate the punifh^ ment of fuch delinquents ; for no cir- cumftance is fo grating to a malevolent and vindidive fpirit, as to be obliged to benefit the objed of its revenge. SECT. IL Same SubjeB continued* ^T~^HE prefent method, as has been ob- ferved, is not only oppreffive to de- fendants, who may be ruined by ex- penfive profecutions for the flighteft of- fences, but is often an inadequate re- compenfe to the party injured. All the trouble and expence of the profecution lies upon him, and after he has made proof of the injury done to him, the fine accrues to the Fifk. CRIMINAL LAW. 219 As to his remedy for damages by adion at Common Law, unlefs the in- jury is very enormous, he will fcarce rcr cover damages fufficient to reimburfe his charges ; for fhould the damages ad- judged be, as they fometimes are, barely fufficient to intitle him to his colls, he muft, neverthelefs, lofe a great part of the money difburfed : for by the rules of taxation, he will not be allowed many articles which he muft necelTarily expend. But this is a practical nicety, foreign from the prefent enquiry. There feems, therefore, to be no valid reafon why fatisfadion to the State, and redrefs to the injured party, fhould be made difi;in61: points of confideration, and be cognizable by different jurifdidions. Why fhould the injured be obliged to have recourfe to fuch a circuity of pro- ceeding, in order to obtain redrefs ? And why 220 CONSIDERATIONS Roman laws. In the earlier times of AtheiiSt the punifhment feems to have been arbi- trary. Homer makes He^or^ in rebuking Pa- ris^ tell him, that his crinie, in ftealing another man's wife, deferved no lefs pu- nifhment than "kociv^ %'e Bond of Matrimony, in cafe of Adultery, the in- jured party muft have recourfe to the Ecclefiaftical Court and to Parliament, at an expence which confines this re- medy to the opulent alone ? Is this do- ing equal juftice to the rich and to the poor ? Violations of connubial faith are of great prejudice to Society ; they leflen that regard and attachment which man and woman, who cohabit together, ought mutually to entertain. They are the bane of domeftic tranquillity, which is the fureft pledge of Social Virtue ; for a perturbed mind is always dangerous to Society. Adultery, by confent of the woman, is in fome cafes more heinous, philofo- R 4 phically S4S CGNS'IDHRATIONS «;? phically confidered, than a rape ; for the hufband hath certainly a greater ia^ jury done him, if the woman be de- bauched and made willing, than if fhe were ravifhed by force ; for in the fir ft cafe her mind is eftranged from her huf-^ band, in the other it is not. It is true, that next to the fafcty of our perfons, the prefervation of our pro- perty is the moft immediate and import- ant confideration. Thefe purpofes, nar- row as they feem, were the firft and fole inducements to Civil Society : but in its prefent improved ftatc, they are too li- mited to be any longer regarded as the only objeds of confideration. Befides, Adultery may be deemed a perfonal injury, and the Law itfelf, in Ibme inftances, thinks fo feverely of this invafion CRIMINAL LAW. 249 invafion of right, that it goes fo far as to conftrue it only man-flaughter when a hufband kills a man taken in adultery with his wife. CHAR VIIL Of Military Offejtces. AFTER the foregoing reflexions upon the fubjed of Criminal Laws, particularly thole of our own Country, it will not be improper to take notice of the different offences created by our Military Law : which are Mutiny, Defertion, a Soldier lleeping upon, or ^n X 2 early 3o8 CONSIDERATIONS on early fufFerings, could teach him to pre- ferve even the femblance of virtue. Religion and morality foon became the favourite topics of mockery. Profane- nefs and indecency were openly avowed. Every thing ferious was deemed fanati- cal ; the diflblutenefs of the court fpread itfelf through all ranks of the people ; and in a very fhort time the man who ventured to cenfure the general depravity was ftigmatized as a Puritan, and perfe- cuted as a Republican zealot. In the fucceeding reign, men were too attentive to the juft defence of their poli- tical rights, to pay a due regard to reli- gious and moral confiderations ; and not long after the happy revolution, idle but dangerous difputes arofe between high church and low church, and the very il- liberal CRIMINAL LAW. 309 liberal and inclifcriminate farcafms which were thrown out in the courfe of thefe ungoverned controverfies, by the clergy of the different parties, upon each other, were the occafion, that many among the laity loft all reverence for the church, and even for religion itfelf ; from this time free-thinking became more than commonly fafhionable. Sceptics arofe of all fpccies, and of all perfuafions. Some of thofe fceptics not only at- tacked our holy religion, but rofe in arms againft human Nature itfelf; and with all the intrepidity of philofo- phic prefumption, concluded that man was but a mere material machine. But it is not only the extravagance of infidelity, which has injured the caufe of religion ; there has great mifchief arofe to it from the indlfcrect zeal of fome un- fkilful advocates, who, by attempting to prove too much, have ferved the caufe X 3 of 310 CONSIDERATIONS on of unbelievers, who deny, or at leaft afFed to doubt of, every thing. To former abufes therefore of the name and femblance of religion and vir- tue, by fanatical hypocrites and ufur- pers, to the dangerous infidelity which enfued, and to the intemperate and ill- direded zeal with which this infidelity has been oppofed, we may attribute that light regard which was too long paid to piety and morality; and which even - made a pretence to thofe principles, a matter of fufpicion and ridicule. Men in general are too apt to con- clude againft the ufe of things, from the abufe of them. But, properly confidered, the abufes of religion and virtue, ferve as proofs of their excellence. There cannot be a ftronger argument in favour of religious moral principles, than that tad men are forced to diffemble their appearance, CRIMINAL LAW. 311 appearance, when they would gain cre- dit with the world. What permanent advantages might they enfure, did they really polleis thofe qualities which they thus bafely counterfeit ? We have however great reafon to hope, that piety and morality arc at prefcnt gaining ground among us. This there- fore is the feafon of reformation, which cannot be properly effected but by fram- ing good and wholefome civil inftitutions ; and more particularly, by fixing a juft and equitable proportion between crimes and punifliments. Severity may perhaps pro- duce a temporary fufpenfion, but it hath certainly a tendency to add defpair to depravity. To fliew the propriety of introducing a more mild and equal fyflcm of penal Laws was the chief defign of this EfTay; from which it may perhaps appear, that the 312 CONSIDERATIONS on the Law, as it now ftands, is very ri- gorous and unequal : the confequence of which is, that offenders either efcape with impunity, or are punifhed with exceflive rigour. Good laws, as has been obferved, Ihould not fo much regard punifhment as prevention. They fhould not only be calculated for the prefervation of the lives and properties of the fubjed, they ought alfo to confult the happinefs of individuals, to provide for their fubfift- ence, and to form their minds, by in- fpiring them with fuch fentiments as may tend to promote the harmony and order of the community. Every art fhould aim at the advan- tage of that object to which it is di- reded. The art of government there- fore fhould aim at the advantage of the governed : CRIMINAL LAW. 313 governed : but this end is not to be attained by penal laws alone; they pu- nlfh or remove the offender, but do not take away the offence. The only way to banifh or leffen crimes, is to eilablifh wholefome moral inflitutions, and to endeavour to form good habits among the members of the community. Even men moft capable of philofophical refinement cannot, upon all occafions, regulate their actions accord- ing to the juft principles of fpeculative truth. If the wifefl: men, in the general tenor of their condu(51:, a£l more from habi- tude than refledion, what can we ex- pert from thofe poor wretches who have no opportunities to improve their minds, and are bred up from their childhood in indolence and vice ? If fuch poor wretches do not become criminal, it proves that 4 mankind 314 CONSIDERATIONS on mankind are not naturally fo corrupt and depraved as they are generally fup- pofed to be ; and it may be inferred from hence, that men may be led by gentle and moderate inftitutions, more efpecially in thefe days which are civilized to to fuch a degree of refinement* In the firft ages, when the manners of men were favage, the laws were rigo- rous and fevere; but as manners arc now more civilized, the laws ought to be proportionally milder. The wifdom of a good politician is difcovered in adapting, varying, and cor- recting his regulations, as times and circum fiances require. — Inftitutions pro- perly adapted to the different degrees of criminality, to the reparation of the in- jured, and the prevention of delinquency, would probably be attended with fure and 6 lading CRIMINAL LAW. 315 lafting efFeds. — The apprehenfion of death is not, as has been obferved, a fufficient motive of terror to men of depraved minds, under the powerful temptation of guilt. — To them the ftrongeft obje(fts of terror are Poverty^ Labour^ and Confinement. — Thefe evils therefore, to avoid which they commit crimes, ought to be infli6led in propor- tion to the feveral degrees of delin- quency ; and death fhould never be the punifhment but in fuch cafes where the criminal, by being permitted to live, can make no reparation to the injured or to fociety. END OF THE SECOND VOLUME. ERRATA. VOL. II. Page 20. line 12. for are, read were. 83. 10. for or, read nor. 137. 3. for Mamjbury, read Malm/bury, 139. I. dele the. 183. 10. for remove, read remedy. 203. II. for uwj, read w^r^, .212. II. dele /(? (j^r. 218. ^ I. for was, read w^r