■^'■■":^:^ 
 
 ^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. 
 
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 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<s majejlatis^ but 
 among the crhnina falfi. 
 
 We do not find, that, by the Laws of 
 any ancient kingdom, this offence was 
 adjudged treafonable ; though it muft be 
 owned, that it w^as puniHied capitally in 
 
 Egyp\
 
 CRIMINAL LAW. 37 
 
 Egypt I and likewlfe by the Jlthenian 
 Laws, all counterfeiters, debafers and 
 diminifliers of the current Coin, were 
 doomed to lofe their lives. 
 
 But in England^ clergy was formerly 
 denied only in fuch Treafons as were 
 immediately againft the king's perfon ; 
 and therefore clergy was allowed in cafe 
 of counterfeiting the Great Seal. 
 
 Having made thefe obfervations on the 
 judgment in High Treafon, it remains 
 to confider the forfeiture in High Trea- 
 fon, implied by that judgment. 
 
 D .3 SECT.
 
 38 CONSIDERATIONS 0?^ 
 
 SECT. VII. 
 
 Of Forfeiture in High 7*reafon, 
 
 T N the judgment in cafe of High Trea- 
 fon, it is implied, i. That the dehn- 
 qiient fhall forfeit to the king all his 
 lands, tenements and hereditaments in 
 fee fimple or fee tail (or for life, as to 
 the profits, during the offender's life) 
 v/hich he had at the time of the Treafon 
 committed, or afterwards. 2. That his 
 wife fhall lofe her dower, not her join- 
 ture. 3. That his blood fhall be cor- 
 rupted by becoming bafe as to his birth, 
 and that his children fhall not inherit to 
 him or any of his anceftors. 4. That 
 all his goods and chattels fhall be for-- 
 felted from the time of convidion. 
 
 SECT.
 
 CRIMINAL LAW. 39 
 
 SECT. VIII. 
 
 ReJleSiions on Forfeiture in High 
 
 'Treafon. 
 
 "LJOWEVER thefe grievous Forfei- 
 tures appear to be repugnant to the 
 principles of moral juflice and equity, as 
 they involve the innocent in the fevere 
 fate of the guilty ; yet they have been 
 juflified on the footing of policy, as the 
 moft efFedual means of reftraining de- 
 linquents from cliilurbing the peace, or 
 prejudicing the interefts of fociety. 
 
 It is true, indeed, that many of daring 
 and defperate minds, who are totally 
 rcgardlefs of their own fafety and wel- 
 fare, when under the influence of any 
 violent palTion, have nevcrthclefs a ten- 
 der conlidcration for their family, which 
 D 4 may
 
 40 CONSIDERATIONS (?« 
 
 may check their impetuofity, and deter 
 them from criminal and traiterous enter- 
 prizes. 
 
 But the number of thefe is fmall. Few, 
 very few, weigh future confiderations in 
 a juft balance ; the far greater part are 
 governed by the hope of gratifying fome 
 ruling paffion, or the profpedt of fecur- 
 ing fome immediate advantage. 
 
 Many of thofe, who do not ad from 
 a principle of party-zeal, are often be-- 
 trayed by the vain expedation of bene- 
 fiting themfelves and their families by the 
 fruits of their delinquency. 
 
 Some engage out of mere defpair. 
 Pinched perhaps by the remorfe of an 
 ill-fpent life, and driven to extremities 
 by the terrors of confcience, they lofe 
 all regard to themfelves, all attention 
 
 2 to
 
 CRIMINAL LAW. 41 
 
 to the welfare of their family, and only 
 think of procuring immediate relief from 
 pungent mlfery, by burying thought ia 
 the confufion of turbulent undertakings, 
 and the tumult of civil revolutions. 
 
 To men who move under any of thefe 
 imprefTions, the dread of diftant forfei- 
 tures are ineffedual reftraints ; fome, as 
 has been obferved, from the wretched- 
 nefs of their condition, are infenfible to 
 the care of poflerity ; and others flatter 
 themfelves with the hope of ferving their 
 families by their crimes. 
 
 However, therefore, the State may 
 fomctimes draw profit from fuch griev- 
 ous forfeitures, it derives no fecurity 
 from them ; fmce fo far from preventing, 
 they rather tend perhaps to multiply the 
 offence of High Trcafon. 
 
 If
 
 42 CONSIDERATIONS c« 
 
 If I may be allowed the expreffiorij 
 they feem to perpetuate a kind of deadly 
 feud againft the State. The defcendants 
 of a traitor, finding themfelves deprived 
 of the honours and eftate, to which they 
 were born, without any guilt of their 
 own to incur the forfeiture, naturally 
 contrad: an antipathy againft the go- 
 vernment; which, as they imagine, ha§ 
 treated them with injuftice and op- 
 preffion. 
 
 It is in vain to oppofe the arguments 
 of polic^f, againft the feelings of Na- 
 ture. We ftiall never perfuade the in- 
 nocent fon, that the good of fociety re- 
 quires him to fuff^er for the crime of a 
 guilty father. 
 
 However willingly we may accede to 
 this propofition, v/hen we ourfelves are 
 not affeded by the conceffion, yet when 
 
 we
 
 CRIMINAL LAW. 43 
 
 we become the vidims of this political 
 axiom, we inftantly revolt againft the 
 principle. 
 
 If we may judge from efFeds, we may 
 fafely conclude, that fuch rigorous pro- 
 vifions do not anfwer the end of their 
 inftitution. Notwithftanding the feve- 
 rity of our Laws in cafes of High Trea- 
 fon, yet where have been more frequent 
 rebellions than in this kingdom ? 
 
 Rebellion feems to be the growth of 
 our ille; and the rigour of the Law, 
 inftead of extirpating, rather feems to 
 give it firmer root. The defcendants of. 
 the deceafcd adopt the traiterous prin- 
 ciples of their anccflors ; and by reflect- 
 ing on his miferablc ftate, (the remem- 
 brance of which is continually revived 
 by their own opprelTion, which, as they 
 
 tonccive.
 
 44 CONSIDERATIONS on 
 
 conceive, was unmerited) they are in- 
 ceflantly excited to revenge. 
 
 In truth, however, it does not feem 
 only impolitic to involve children in the 
 fate of an offending anceflor, by thecon- 
 fequences of fuch forfeitures, but it may 
 be farther urged, that it is, in fome mea- 
 fure, unjuft ; for if the right of fucceffion 
 to patrimonial eftates, is a right of Na- 
 ture, then no Law whatever can, or at 
 leaft ought, to abridge that right. 
 
 Having therefore faid thus much of 
 the Laws refpeding High Treafon, I pro- 
 ceed to the next offence adjudged capi- 
 tal, which is Petty Treafon. 
 
 CHAP.
 
 CRIMINAL LAW. 45 
 
 CHAP. IL 
 
 SECT. L 
 
 Of Petty Treafon. 
 
 PETTY Treafon is an offence de- 
 fcribed by the Statute of 25 Ediv, 
 IIL chap. 3. and is committed when a 
 fervant kllleth his mafter, when a wife 
 killeth her hufband, or when a fecular 
 or religious (layeth his prelate, to whom, 
 he oweth faith and obedience, 
 
 SECT. H. 
 
 RefleSiions on Petty Treafon. 
 
 TT is here obfervable, that notwith- 
 
 ftanding the breach of obedience, due 
 
 to the fuperior flain, conftitutes the ef- 
 
 fence
 
 46 CONSIDERATIONS iJ« 
 
 fence of this crime, yet if a child kill 
 his father or mother, he is not within 
 the Statute ; unlefs the child ferved the 
 father or mother for wages, &c, in which 
 cafe, he fliall be indiaed by the name of 
 a fervant. 
 
 This is abfolutcly reverfingtlie degrees 
 of criminality ; for certainly the obedi- 
 ence due from a fervant to a mafter, falls 
 infinitely lliort of that due from a child 
 to a parent. If therefore the violation 
 of obedience is the circumftance which 
 makes the offence treafonable, parricide 
 is certainly the moft aggravated fpecies 
 of Petty Treafon. 
 
 Among the Romans, it was provided 
 by the Lex Pompeia, that parricides 
 ihould be fown in a fack with a dog, a 
 cock, a viper, and an ape, and thrown 
 into the fea, to perilh by the moft cruel 
 of all tortures. 
 
 B7
 
 CRIMINAL LAW. 47 
 
 By the Laws of Egypt, parricides were 
 put to the moft cruel deaths ; firft their 
 limbs were mangled, and their flefh cut 
 into fmall pieces with fharp reeds ; after- 
 wards they were laid on thorns and 
 burnt alive. Parents, on the contrary, 
 who killed their children, were not ad- 
 judged to die, but were obliged to em- 
 brace their dead bodies for three days 
 and three nights together; a guard being 
 fet over them to fee that they punctually 
 obeyed the law. 
 
 By the criminal laws of the Je%vs, it 
 was death for children to curfc or ftrike 
 their parents ; nay, if they only conti- 
 nued in a ftubborn difobedlence to their 
 commands, parents had a right to inflict 
 any punifhment on them except death ; 
 and if the punlihment they infiided 
 proved ineffedtual, they might then bring 
 them and accufe tbem before the judges; 
 5 who,
 
 48 CONSIDERATIONS on 
 
 v^ho, upon full proof, were obliged to 
 condemn them to death without mercy 
 or delay. 
 
 By the laws of China, dlfobedience to 
 parents was ranked in the next degree of 
 criminality to Rebellion and Treafon, 
 and was puniflied with the fame, if not 
 greater, feverity. 
 
 By the laws of Scotland^ it is death for 
 a child to curfe his father and mother, 
 if the offender is paft fixteen ; if he is 
 under fixteen, and above pupilarity, it is 
 punifhed at difcretion. If he kills fa- 
 ther or mother, good-fire or good- dame, 
 he is to fuffer death, and his pollerity in 
 linea reSfa are incapable of fucceeding 
 to the perfon killed, but the fucceffion 
 devolves upon the next collateral or near- 
 eft of blood. 
 
 But,
 
 CRIMINAL LAW. 49 
 
 But, among us, the crime of parricide 
 is placed in the fame degree of delin- 
 quency with that of common murder ; 
 at the fame time that offences, far lefs 
 heinous, either morally or politically con- 
 fideredj are punifhed as Petty Treafon. 
 
 This ftrange and unnatural inequality 
 is by no means calculated to infpire that 
 filial awe and reverence towards our 
 parents which the divine law enjoins, 
 and which all human laws whatever 
 ought to inculcate. 
 
 SECT. IIL 
 
 Of the 'Judgment in Petty Treafon, 
 
 'TP H E Judgment in Petty Treafon is 
 
 the fame as in capital felonies, with 
 
 this diftindion only, that a man is to be 
 
 drawn on a hurdle (inftcad of a cart) and 
 
 Vol. II. E hanged;
 
 so CONSIDERATIONS^;/ 
 
 hanged ; and a woman is to be drawn 
 on a hurdle, and burnt, inflead of be^ 
 ing hanged, as in cafes of felony. 
 
 This Judgnient for women, who killed 
 their hufbands, is of very ancient date. 
 It prevailed among the Gmils, and like- 
 wife smong the Britons before the de- 
 fcent of Julius C^far^ and was in ufe at 
 his landing, as we may learn from his 
 Commentaries, De morte marit't^ fi com-^ 
 ■pertum eft tixoran^ &c. igne Britanni 
 intetjiciunt. 
 
 It was in ufe alfo in Bra^onh time, 
 as appears, lib. iii. fol. 105. Igne cofi- 
 cremantur, qui Jaluti dominoriim fuorum 
 infidiavcrint. 
 
 We find, however, from the forego- 
 ing Judgment, that whatever diftinc- 
 tion our law has made, as to the nature 
 
 of
 
 CRIMINAL LAW. ^t 
 
 of the crime, between this crime and 
 felony, there is very little difference as 
 to the piinifhment. But no objedion 
 feems to lie againfi the Judgment. 
 
 SECT. IV. 
 
 0/ Forfeiture in Petty Treafon, 
 
 nPHE Forfeiture in Petty Treafon and 
 Felony is the fame as in High 
 Treafon, as to lands and tenements upon 
 attainder^ and as to goods and chattels 
 upon conui^ion : Except that upon at- 
 tainder in Petit Treafon or Felony, lands 
 and tenements entailed are forfeited only 
 during the life of the tenant in tail: The 
 inheritance goes to the iffuc. 
 
 It is likewilc obfervablc, that) upon 
 attainder of Petty Trealon, the wife is 
 not dowablc, hut upon attainder of fe- 
 lony fhe is dowablc. 
 
 E ^ 8 E C T.
 
 52 CONSIDERATIONS o« 
 
 SECT. V. 
 
 Obfervations on the foregoing Sec* 
 tion. 
 
 ^1X7 HAT has been faid above with re- 
 fpe£t to forfeitures in High Trea- 
 fon may be applied to forfeitures in Petit 
 Treafon; they feem to be equally im- 
 politic and fevere. It muft be obferved 
 neverthelefs, that the difference of the 
 forfeiture with refped to entailed lands 
 upon attainder, is very material ; and it 
 feems difficult to conceive, why the fame 
 diftindion ihould not hold with rerpe(S 
 to lands in fee. 
 
 CHAP.
 
 CRIMINAL LAW. 53 
 
 CHAP. III. 
 SECT. L 
 
 Of Felonies, 
 
 BEFORE we proceed to treat of Fe- 
 lonies, it may not be improper pre- 
 vioufly to take notice of the impropriety 
 of confounding crimes of a very dif- 
 ferent fpecies under one general head of 
 Felony, which is both contrary to the 
 nature of things, and the true meaning 
 of the word» 
 
 Lord Co/^^ inclines to think, that Felony 
 Is derived from the Latiiu fcl\ and he 
 defines it thus : ILx nji tennini ftgnijicat 
 quodlihet capitalc crimen fclko animo pef" 
 petratum ; and it was anciently, he adds, 
 E 3 of
 
 54 CONSIDERATIONS on 
 
 of fuch extent, as to Include high trea- 
 
 This, however, with the utmofl defe- 
 rence to fuch refpedable authority, feems 
 to be no very fatisfadory definition of 
 Felony, which does not only fignify qiiod- 
 llhct capitah crimen^ but comprizes ma- 
 ny crimes which are not capital, nor yet 
 can be faid to be perpetrated y^Z/fO an'imo\ 
 fuch as chance-mediey^fe defendendo^ petty 
 larceny^ &c. which are deemed Felonies 
 in law, but are neither capital, nor com- 
 mitted ^//^o animo. 
 
 Nay, there are capital offences which 
 cannot be faid to be done felko a?iimo ; 
 grand larceny, for inftance, or the deal- 
 ing of goods above the value of tvv^elve 
 pence, cannot be faid to be done with a 
 bitternefs of heart, which feems to imply 
 a malicious difpofition in the offender to- 
 wards
 
 CniMINAL LAW. 55 
 
 wards the perfon of the nijurcd; whereas 
 this offence may be, and is frequently 
 committed where the perfon of the in- 
 jured is utterly unknown to the delin- 
 quent: and, indeed, in all cafes of grand 
 larceny, the fraudulent intention cannot 
 be prefumed to be accompanied with what 
 is ufually underftood by the words feiko 
 nnimo, which exprefs a bittcrnefs of dif- 
 pofition. 
 
 The learned Spchnan\ diflinftlon feems 
 rather more fitisfa(5tory. He fuppofes 
 it to come from the Saxon word Jealy 
 which fignlfied a reward or eftate ; and 
 the Ger?uan word lon^ which in EngUJJj 
 means price. Felony being formerly 
 puniQied with the price or lofs of eftate; 
 many, indeed mod Felonies, before the 
 time of Hen. I. were punlflicd by pecu- 
 niary fmcs, and he was the fu-ft who or- 
 dered Felons to be hanged, a1)out the 
 vcar iioS. 
 
 E 4 But
 
 S6 CONSIDERATIONSow 
 
 But whatever may be the etymology 
 of the word, it feems highly improper 
 to confound crimes of diftin£t fpecies 
 under one genus. This tends to con- 
 found our ideas of delinquency, and 
 eftablifh a technical divifion of offences, 
 which is inconfiftent with propriety of 
 language, as well as repugnant to na- 
 tural reafon, with which all laws fhould 
 coincide. 
 
 We muft be content, however, to take 
 the matter as it ftands, and therefore let 
 Tis return to the confideration of Felo- 
 nies; of which the firft divifion relates 
 to public offences. 
 
 SECT.
 
 CRIMINAL LAW. s'j 
 
 SECT. IL 
 
 Of Public Felonies, 
 
 AS it is not propofed to make a tech- 
 nical analyfis of criminal offences, 
 but only to take fuch a general view of 
 the fubjedt as may tend to illuftrate the 
 principles intended to be eftablifhed ; I 
 {hall therefore pafs (lightly over Public 
 Felonies, and content myfelf with a bare 
 enumeration of them. 
 
 They relate, i. To coin. q. To Felo^ 
 nies againft the king and his counfellors, 
 ci'c. 3. To Felonies of foldiers and ma- 
 riners. 4. To Felony, by embezzling 
 the king's armour. 5. To Felonies re- 
 lating to popifli pricfts. 6. To Felonies 
 by rioters. And, 7. To Felonies by 
 breach of prifon, elcape, and refcues, 
 and to the revenue and trade. 
 
 Of
 
 5^ CONSIDERATIONS an 
 
 Of thefe it will be fufficient to obfervc, 
 that moft of them are offences merely 
 political, and that none of them, for 
 reafons already affigned, ought either in 
 juftice or policy to be confidered as of- 
 fences which fhould be puniflied with 
 death. 
 
 SECT. III. 
 Of Private Felonies. 
 
 pRIVATE Felonies may be commit- 
 ted, I. Againft the life. 2. The 
 body. 3. The goods : Or, 4. The ha- 
 bitation of the iiibjed. 
 
 Private Felonies againfl: the life of a 
 fubjed may be committed by deftroying 
 him; I. By murder. 2. By man-flaugh- 
 ter. 3. By chance-medley. 4. By ne- 
 cefHty. 
 
 CHAP.
 
 CRIMINAL LAW. 59 
 
 C H A P. IV. 
 SECT. L 
 
 Of Murder. 
 
 I. '|\^URDER may be committed 
 XVi upon one's-felf, or upon ano- 
 ther. 
 
 Murder may be committed upon one's- 
 felf, when one compos mentis kills himfelf 
 with deliberation and dired: purpofe ; in 
 which cafe, the fclf-murderer is termed 
 felo defe. 
 
 If one malicioufly attempting to kill 
 another, and in purfuance of fuch at- 
 tempt unwillingly kills himfelf, he is 
 J'elo dcfc ; as when one haflening to kill 
 I another,
 
 6o CONSIDERATIONS en 
 
 another, falls upon his weapon, which 
 he held up in his own defence ; though 
 fome incline to think that he is not. felo 
 defe, unlefs he dies by his own weapon, 
 and that otherwife it is per infortunium. 
 
 But death muft enfue within a year 
 and a day. 
 
 SECT. II. 
 
 Reflexions on the foregoing SeBion. 
 
 5^^ HE good of fociety requires, no 
 doubt, that this crime fhould be 
 puniflied in as exemplary a manner, as 
 the nature of it will admit ; and perhaps 
 the ignominious method of burying fuch 
 felons is as eihcacious as any which caa 
 be devifed. 
 
 c The
 
 CRIMINAL LAW. 6r 
 
 The method, however, generally ufed, 
 of driving a flake through their bodies, 
 is a pradice, as it is faid, which hath 
 no countenance from the coroner's war- 
 rant. 
 
 The Athenian law, which ordained, 
 that they who were felos de fe fhould 
 have the hand cut off which did the 
 murder, and that it fliould be buried in 
 a place feparate from the body, does not 
 fecm to be fo fuitable and effedual as 
 our own. 
 
 The forfeiture, however, in this fpe- 
 cies of offence, is attended with a cruelty 
 and injuftice to individuals, without tend- 
 ing to any public benefit. 
 
 SECT.
 
 62 CONSIDERATIONS on 
 
 SECT. iir. 
 Of Fo?'feiture in Felo de fe. 
 
 A Felo defe forfeits all his goods and 
 chattels, real and perfonal, which 
 he hath in his own right ; and all fuch 
 chattels real, as he hath jointly with his 
 wife, or in her right. He likewife for-' 
 feits bonds or things in adlion belonging 
 folely to himfelf, and all entire chattels in 
 pofleffion. 
 
 By the laws of Scotland likewife, the 
 moveables (or perfonal eftate) of a felo 
 defe are confifcated. 
 
 As to lan^s of inheritance, he does not 
 forfeit them, not being attahited in his 
 lifetime. 
 
 SECT.
 
 CRIMINAL LAW. 63 
 
 S E C T. IV. 
 
 RefleBions on Forfeiture in Felo 
 de fe, 
 
 nnO what end, in a crime of this na- 
 ture, can fuch forfeitures avail ? 
 What advantage can the public derive 
 from this feverlty, which falls on the 
 innocent ? Is it not enough for a wife 
 and children to lofe a hufband and a fa- 
 ther, by a death attended with fuch 
 fhocking circumilances, without fuffcr- 
 ing for his guilt, and being reduced to 
 beggary by the fentence of the law ? 
 
 Is it to be fuppofed, that a man weary 
 of his being, will be deterred from fclf- 
 murdcr by the confidcration of fuch for- 
 feiture ? Will it not rather induce him, 
 
 to
 
 64 CONSIDERATIONS o« 
 
 to devife means for concealing the real 
 caufe of his death, and make that feem 
 accident which is in fad: defign ? 
 
 If we confult the feelings of human 
 nature, we fhall find reafon to conclude 
 that no motive whatever can engage the 
 wretched, who are tired of their lives, 
 to exift for the fake of others. 
 
 To thofe who are reduced to that de- 
 plorable Hate, wife and children how- 
 ever dear, are painful objeds. Every 
 thing around them aggravates their 
 infelicity, and every bleffing lofes its 
 relifli. 
 
 CHAP.
 
 CRIMINAL LAW. 6j 
 
 CHAP. V. 
 SECT. L 
 
 Of the Murder of another, 
 
 THIS kind of Murder confifts in the 
 unlawfully killing another, with 
 malice forethought. As to the nice cir- 
 cumilances and diftindions attending this 
 crime, they are foreign to the propofed 
 defign of this eiTay. There are many 
 niceties refpeding the prefumptions im- 
 plying malice, and many other points, 
 for which we refer the curious to Coke^ 
 Hale^ Hawkins, &c. and proceed to the 
 Judgment in cafe of Murder. 
 
 VoL.n. F SECT,
 
 66 CONSIDERATIONS OK 
 
 SECT. 11. 
 
 Of Jiidgfneiit in Murder, 
 
 T> 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 a<St of paflion, on the firfl 
 fudden occafion. 
 
 Nothing, however, can be inferred 
 from hence in vindication of the abomi- 
 nable practice of duelling, which has 
 lately prevailed in this country to fuch a 
 degree as calls for the immediate intcr- 
 pofition of the Legiflature. Lord Coke 
 defines Malice prepenfed as follows : 
 ** That is 'voluntary, and of fct purpofe, 
 *' though done upon a fudden occafion : 
 ** For if it be *voluntary^ the Law ira- 
 " plieth Malice^ 3 Inft. c. 13. And 
 the old writers on our Law hold, that 
 killing is only pardonable in cafes of cx' 
 treme necejfity. The duellift and his fe- 
 cond are certainly within thefe rules. 
 
 The fighting with weapons plainly 
 
 (hews the intention of killings or at leajl 
 
 G 3 doing
 
 86 CONSIDERATIONS o«! 
 
 doing fome bodily harm. And this in- 
 tention makes the guilt of Murder. 
 
 The increafe of duelling may be partly 
 attributed to the improper indulgence 
 which has crept into our courts of juftice 
 for a long time paft, where too much 
 countenance has been given to this un- 
 happy cuftom, by fufferlng the crimi- 
 nal to efcape as guilty only of Man- 
 Jlatighter, But notwithftandingthis mif- 
 taken lenity, we may venture to affirm, 
 that in moft, if not in all cafes of du- 
 elling, not only the principal, who ac- 
 tually kills the other, but alfo the fe- 
 conds, are guilty of Murder, whether 
 they fought or not ; and the feconds of 
 the perfon killed, it is faid, are equally 
 guilty by reafon of the encouragement 
 which they gave their principals by join- 
 ing with them. 
 
 By
 
 CRIMINAL LAW. 87 
 
 By the Scotch Law, both the challenger 
 and challenged werepunilhed with death 
 and confifcatlon of moveables ; and the 
 challenger made liable to fiich arbitrary 
 punifhment as the king thinks fit. 
 
 In the Laws of Canutus^ as well as 
 among the Saxons beforementioned, it 
 appears that the fame diftindion was 
 made between Murder and Man-Ilaughter 
 as prevails now ; for we find, that if a 
 man was killed wilfully and premedi- 
 tately, then the ofi^ender was to be de- 
 livered to the kindred of the llain ; but 
 if, upon his trial, the fad was proved 
 not to be wilful, then he was refigned 
 to the bifhop, i)'C, 
 
 G 4 SECT.
 
 88 CONSIDERATIONSaw 
 
 SECT. IL 
 
 Of the yudgment in Manjlaughter. 
 
 T N cafes of Manflaughter, the criminal 
 is to be burnt in the hand, 
 
 SECT. III. 
 
 RefleSiions on "Judgment in Man^ 
 Jlaughter, 
 
 TT is obfervable, that originally the 
 burning in the hand was not intended 
 as part of the Judgment by way of pu- 
 nifhment, but only that the criminal 
 might be known on the fecond offence. 
 
 At common law a criminal might have 
 bad his clergy ad infinitum j but when 
 
 thf
 
 CRIMINAL LAW. 89 
 
 the ftatute was made, which took away 
 the benefit of the clergy upon the fecond 
 arraignment, the burning in the hand 
 became neceflary to diftinguifh the cri-^ 
 minal. 
 
 SECT. IV. 
 
 Of Forfeiture in Manflaughter. 
 
 \X7 1 T H regard to the Forfeiture, more 
 may be faid in vindication of it, in 
 cafe of Manflaughter, than in moft other 
 offences ; becaufe, in cafe of Manflaugh- 
 ter, the offending party is in being, con- 
 fequently he fuffers for his own offence. 
 
 Yet, even in this inflance, the law 
 perhaps might admit of improvement: 
 an improvement too, which we may bor- 
 row from the barbarous nations. The 
 
 old
 
 90 CONSIDERATIONS^ff 
 
 old pradice of making atonement by way 
 of fine and compofition, feems to be par- 
 ticularly applicable to this fpecies of of- 
 fence. 
 
 The killing of another, though with- 
 out malice, is an injury done to the kin- 
 dred of the deceafed, as well as a pre- 
 judice to the ftate. Though there may 
 not, philofophically fpeaking, be any 
 immorality in the adl, as not being done 
 with a deliberate intention of doing mif- 
 chief, yet the good of fociety requires 
 that fuch excefles of paflion fhould be 
 reftrained, and that men fhould be pu- 
 nifhed for afluming a right of private 
 revenge. 
 
 No punifhment feems to be more pro- 
 perly adapted to offences of this kind, 
 than the lofs of property. But reafon 
 and juflice feem to require, that three- 
 fourths
 
 CRIMINAL LAW. 
 
 91 
 
 fourths of the forfeiture in this cafe 
 fhould be applied to the ufe of the kin- 
 dred of the perfon flainj by way of com- 
 pofition, and the remainder to the public 
 treafury ; and fuch forfeitures in former 
 times always were divided. 
 
 Having faid thus much of Murder 
 and Manflaughter, which are properly 
 called voluntary homicides ; the involun-^ 
 tary Ijof?iicides, fuch as thofe by chance- 
 medley and neceffity, come next under 
 confideration. 
 
 CHAP.
 
 9S( CONSIDERATIONS $n 
 
 CHAP. vir. 
 
 SECT. I. 
 
 Of Chancemedley. 
 
 3. y^HANCEMEDLEY, is whcn a man 
 V->l 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, <b'C» 
 the mifdoers, to the end that the party ag- 
 o-rieved might not be able to accufe them, 
 did cut out their tongues, or put out 
 their eyes, on pretence that the fame was 
 no felony. 
 
 To prove malice in this crime, the adt 
 muft be voluntary and of fet purpofe, 
 though done on a fudden occafion ; and 
 then the Law will imply malice. 
 
 We read in BraBon.) that the cutting 
 off a man's privy members was felony 
 by the Common Law : For he faith, &* 
 qtds alurms virilia ahfciderit^ et ilium 
 libidinis caufa^ vd conv.itii caflravprit.; 
 Tenetur fi^ue hocfecerit vokns velinvitus^ 
 
 0.
 
 CRIMINAL LAW. iii 
 
 et fequitur posna aliquando capitalist ali" 
 quando perpetuum exilium, cum omni 
 bonoriim adcmptione, Flcta faith, ^iquis 
 cajiratus fuerit^ talis pro mahcmiato po- 
 tfrit (idjudicari. 
 
 With this account the Mirror agrees, 
 and fo the Law is held to be at this day ; 
 and in the appeal and indidment of 
 Mayhem, it is faid, felonice mayhemavit. 
 Cutting off ears was no felony, as ap- 
 pears by the Statute 37 Hen, VIIT. vide 
 Staiindf, pi. coron. cap. 38. b. i. 
 
 We may here mention the crime of 
 wilfully and mc^licioufly fhooting at a 
 perfon, which is made capital by Stat. 
 9 Geo, L c. 22. which flatute compre- 
 hends the cafe of duelling with piflols. 
 
 CHAP.
 
 J22 CONSIDERATIONS on 
 
 CHAP. X. 
 
 Of Private Felonies againjl the 
 Goods of the Subje&. 
 
 nRIVATE Felonies agalnft the goods 
 of the fubjedt may be committed, 
 by I . Simple Larceny, 2. Mixt Larceny, 
 3. Piracy, 
 
 SECT. I. 
 
 Of Simple Larceny. 
 
 "l. VIMP LE Larceny is of two forts. 
 I. Grand Larceny, 2, Petit Lar^ 
 ceny, 
 
 I. Grand Larceny is a felonious and 
 fraudulent taking and carrying away, by 
 
 man
 
 CRIMINAL LAW. 123 
 
 man or woman, the mere perfonal goods 
 of another, above the value of twelve- 
 pence ; not from the perfon, or by night 
 in the houfe of the owner. This offence 
 is capital. 
 
 2. Petit Larceny is where the goods 
 ftolen do not exceed the value of twelve- 
 pence. If one is indided for ftealing of 
 goods of the value of forty fhiilings, and 
 the jury find fpecially, as they may, that 
 the value is but ten-pence, it is but Petit 
 Larceny, punifhable with forfeiture of 
 goods and chattels, tranfportation, whip- 
 ping, or other corporal punifhment. Petit 
 Larceny is felony, though not capital, 
 and agrees with Grand Larceny in every 
 thing but the value of the goods ftolen, 
 which makes the difference of punifh- 
 ment. 
 
 Thus we find, that by the rigour of 
 our Law, the ftealing of the leaft trifle, 
 
 above
 
 J24 CONSIDERATIONS ^« 
 
 above twelve-pence, fubje£ls the offender 
 to lofs of life ; which feems repugnant 
 to common fenfe and reafon ; efpecially 
 if we confider, that when this Jnghf 
 Saxon Law was made, in the time of 
 Athelftan^ twelve-pence was equivalent 
 to more than three pounds now ; and 
 yet a theft, above the value of twelve-? 
 pence, is ftill liable to the fame punifh- 
 ment; upon which Sir Henry Spelman 
 juftly obferves, that while all things have 
 fifen in their value and grown dearer, 
 the life of man is become much cheaper, 
 
 From hence that learned author takes 
 occafion to wifh, that the ancient tender- 
 nefs for life was again reftored in the 
 words of the motto. Jujiu?n certe eft 
 nt collapfa legis sqiatas rejlauretur ^ lit 
 di'vludd hnag'inu vehiculujny quod fuperi- 
 ores pndem (states oh granjijjima cr'miina 
 nequaquam toUerent kvioribus hodie eoc 
 deliciis non perderetur*
 
 CRIMINAL LAW. 12 
 
 .::; 
 
 Of the different Pnmjhments of Theft* 
 
 It appears that among many well or- 
 dered governments, the crime of Theft 
 "was not capital. Among the Egyptians 
 there was a remarkable Law, or rather 
 cuftom, which had the fandtion of Law, 
 with regard to robbers and Iharpers. 
 Whoever entered himfelf of their gang, 
 gave his name to the chief, promifmg to 
 deliver to him all the booty that he 
 fhould from time to time purloin. On 
 this account, it was cuftornary for fuch as 
 had any thing flolen from them, to apply 
 to the chief of the gang, and give a 
 very particular account and dcfcription 
 in writing of what they had loft; as 
 alfo of the day, hour, and place, when 
 and where they had loft it. This in- 
 formation being given, the ftolen goods 
 were eafily found, and reftored to the 
 5 right
 
 126 CONSIDERATIONS OM 
 
 right owner, upon his paying a fourth 
 part of their value. 
 
 The inftitutors of this extraordinary 
 Law, probably thought, that fi nee it was 
 impofTible to prevent thieving entirely, it 
 would be more tolerable for the injured 
 party to lofe a fourth, by way of re- 
 demption, than the whole. 
 
 Though Theft however was tolerated 
 among them under this form, yet they 
 who refufed, or neglected to give in 
 their names, were feverely punifhed 
 for any unlawful ads. By their Laws, 
 every Egyptian was enjoined to give in 
 his name, and by what means he gained 
 his livelihood, in writing, to the gover- 
 nor of the province where he lived. But 
 if it could be proved, that he had given 
 in a wrong information, or that be gained 
 
 his
 
 CRIMINAL LAW. 127 
 
 his living in an unlawful way, he was 
 punifhed with death. This Law was 
 made by Amafts ; and Solon, who intro- 
 duced it among the Athenians^ is faid to 
 have borrowed it from the Egyptians, 
 
 Of the Athenian Laws in Theft, 
 
 By the Laws of Athens^ he who was 
 guilty of Theft, was to pay double the 
 value of the thing ftolen to the owner, 
 and as much to the public Exchequer, 
 
 If any one ftole any thing by day, 
 worth above fifty drachms, the a£lion 
 ATrafwT^Tj was profecuted againft him be- 
 fore the Ol Evhxa, or the eleven ; but if 
 in the night, any pcrfon was allowed to 
 kill him, or, upon his endeavouring to 
 efcape, to wound him, and to commence 
 a profecution againft him, by which, if 
 s he
 
 HB CONSIDERATIONS 072 
 
 he was condemned, he was to die with- 
 out any liberty for fureties to put in 
 bail for the reftitution of the ftolen 
 goods. 
 
 To pilfer any thing of the leaft value 
 ourt of the publie temples, was deaths 
 Likewife all cutpurfes, burglars, and 
 kidnappers were to fuffer death. 
 
 He who call a man Into prifon foi* 
 Theftj and could not prove it upOh him, 
 was fined a hundred drachms. 
 
 By the Laws of Draco, however^ 
 which are defervedly ftigmatized for their 
 feverity, Theft, with other lefler of- 
 fences, was death. 
 
 There v/as a Law likewife of Solon s^ 
 which made it death to fteal figs : But 
 as the Annotator on Chief Juftice Hak 
 
 obfervesj
 
 CRIMINAL LAW. 129 
 
 bbferves, this was a temporary Law, 
 made in time of dearth, when it was 
 thought neceffary to prohibit the ex- 
 portation of ligs. However, profecu- 
 tions of offenders againft this Law, foon 
 grew odious ; and from hence all mali- 
 cious informers were called fycophants. 
 
 Soloriy however, afterwards changed 
 the punifhment for Theft to the payment 
 of a fine. 
 
 By the Laws of Plato^ in his Repub- 
 lic, a Thief was to pay double the value 
 of the thing flolen. 
 
 Among the Lacedemonians, however. 
 Theft was, in a great meafure, connived 
 at, and permitted ; and it was reckoned 
 a perfcdlion to be dexterous in pilfering, 
 which, as they imagined, l\ad a tendency 
 to inftrudl the youth in the ftratagems of 
 war. 
 
 VoL.JL K Of
 
 i«o CONSIDERATIONS on 
 
 Of the Roman Law in Thefts 
 
 By the Lex JuHa^ Theft was punifh- 
 able at difcretion. 
 
 The Ro7nans, as the Annotator on Chief 
 Juftice Hale obferves, were fo far from 
 infliding capital punifhments for Thefts, 
 that, on the contrary, it was exprefsly 
 forbidden by Jiijl'mian^ that any perfon 
 fhould be put to death, or fufFer the lofs 
 of member for Theft. 
 
 By the Roman Law, a furtum jnanl- 
 fejlum was punifhed by an a^iio in qua- 
 druplum; but where it was not mani^ 
 fejium, by an a^io in ditplum only. 
 
 By a manifeji Theft was meant, not 
 
 only that wherein the Thief was taken 
 
 in the fa<a, but alfo where he was ap- 
 
 6 prehended
 
 CRIMINAL LAW. i^t 
 
 prehended with the goods upon him, be- 
 fore they were carried to the place where 
 they were to remain that night, and an- 
 fwers to the expreffion in our Law, of 
 being taken in the 7nainouvre or mainer. 
 
 It appears, therefore, that among the 
 Romam^ the greateft puniihment of Theft, 
 was fourfold reftitution. 
 
 Of the Jewifh Laiv in Theft, 
 
 Among the Jeivs the flealing of a 
 man was the only capital Theft under 
 the Law of Mofes^ and whether the fto- 
 ien perfons were fold, or were ftill in the 
 pofTefhon of the Thief, he was to be put 
 to death. All other Theft was puniflied 
 by fourfold reftitution, and the addition 
 of a fine, according to the nature of the 
 Theft. 
 
 K 2 But
 
 132 C0NSIDERATI0NS6M 
 
 But a man who broke Into the houfe 
 at night to rob, might be killed with 
 impunity, though not in the day-time. 
 
 If the Thief had not wherewith to 
 make fatisfadtion, according to the Law, 
 it was lawful for the profecutor, if he 
 was an Ifraelitey to fell him ; but not if 
 he was a profelyte of any kind ; neither 
 could the former fell him to any but an 
 Ifraelite. If he had wife and children, 
 they likewife might be fold with him, till 
 fatisfa(^ion was made to the profecutor. 
 
 Of the Laiv of China in Theft, 
 
 By the Law of China, Theft, unlefs 
 aggravated by circumftances, is not ca- 
 pital, but the offenders undergo the ba- 
 ilinadoe. 
 
 ir
 
 CRIMINAL LAW. 133 
 
 If the Theft Is of an atrocious na- 
 ture, the criminal is condemned to the 
 knoutage, or wooden ruff, fomething like 
 cur pillory. 
 
 Of the Laiv of Scotland i?i Theft. 
 
 By the Scotch Law, as with us, Theft 
 is in fome cafes punifhed with death. 
 But by the Law of Biirdenfack, no man 
 fhall fufFer for taking fo much meat as 
 he can carry on his back ; but Theft 
 committed by men of landed eftate, or 
 in the night, or attended with violence, 
 is by their Law puniihcd with death. 
 
 This diftindion of tlic Scotch Law, 
 between a Theft committed through 
 prefling ncceffity, and one done from 
 rapacity or other bad principle, is founded 
 on good fenfe, and is worthy of being 
 copied \ for it is certainly jtUl and po- 
 K 3 litic
 
 134 CONSlDERATlONSc/^^ 
 
 litic to difllnguifli between ads of ne- 
 ceffity, and ads of injuftice. 
 
 Among the ancient Spaniards^ as we 
 learn from Covarrui)ias^ a Thief was not 
 executed but for the fecond Theft. The 
 Spaniards ufed to cut off the hands and 
 ears of Thieves. 
 
 Of the ancient Laws of this kingdom in 
 Theft, 
 
 Our anceftors, the Saxons, did not at 
 firft punifh Theft capitally. The Ger- 
 mans however differed with refped to the 
 punifhment of this offence. The Saxons^ 
 at one time, punlihed it with death, but 
 the Angles with fine only. But King 
 Ina made it capital, and Canutus followed 
 his example. 
 
 By the Laws of 7/2^?, a Thief might re- 
 deem his life, capitis ^fi?natione-y which 
 
 was
 
 CRIMINAL LAW. 135 
 
 was fixty {hillings. But if a villain, 
 who had been often accufed, was taken 
 in a Theft, he was to have a hand or a 
 foot cut off. 
 
 By Alfred* s Laws, whoever ftole a 
 mare with foal, or a cow with calf, was 
 to pay forty fhillings, befides the price 
 of the mare or cow. Whoever ftole any 
 thing out of a church, was to pay the 
 value, and alfo to have that hand cut off 
 which committed the fa£t. If any per- 
 fon committed a Theft, die dom'mlco, or 
 on any other great feftival, he was to 
 pay double. 
 
 By the Laws of king Athdjlan^ a Thief 
 who was upwards of twelve years of 
 age, and Jiole more than the ualue of 
 twelve-pence^ was puniflied with death. 
 By the firft Law of this king, the li- 
 mited value was but eight-pence. But 
 K 4 by
 
 136 CONSIDERATIONS (5« 
 
 by his Laws enabled afterwards at Loiir 
 don, and thence called "Judicia Civitatu 
 Londoniie, no one was to be put to death 
 for a Theft under twelve- pence. In cafe 
 however that the Thief fled, or made 
 refiflance, then he might be put to death, 
 though it were under that value. 
 
 According to fome, Edmund his fuc* 
 eeflbr, or, as others contend, Atheljian 
 himfelf by a fubfequent Law, enlarged 
 the age of the delinquent to fifteen years. 
 And Edivard the Confeflbr reftrained the 
 capital punifhments to Thefts of twelve- 
 pence value or above ; which prevails at 
 this time, under the diftindion of Grand 
 Larceny, 
 
 William the Norman, however, ordain- 
 ed, that no one fhould be hanged or put 
 to death for any offence j but that of- 
 fenders fhould be punifhed with the lofs 
 
 of
 
 CRIMINAL LAW. 157 
 
 pf eyes, caftratlon, or cutting ofF of 
 hands or feet. And according to M^ii- 
 Ham of liamjhxiry^ Benry I. inftituted the 
 fame Law: But Florence of Worcejler^ 
 and Roger of Hoveden fay, that Theft 
 was, in their time, punifhed with death, 
 by hanging, as now ; and what we read 
 in Dugdale^s Origmes Jiiridicales con- 
 firms this laft opinion ; for he fays, that 
 flen. I. in the year 1 108, the ninth year 
 of his reign, ordered, that, for Theft 
 and Robbery, offenders fhould be hanged. 
 Brojnpton places this inftitution in the 
 year 1 103. 
 
 Selden, however, in his Epmojnis, men- 
 tions, in fupport of Malvijhiiry\ opinion, 
 a miracle reported out of Fox\ Eccle- 
 fiaflical Hiftory, of one Edward of 
 Kings Wejlon in BedfordJJjire^ attainted 
 jn the time of Hen, II. for flealing a pair 
 
 of
 
 138 CONSIDERATIONS o« 
 
 of hedging gloves and a whetftone, and 
 having by execution loll his eyes and ge- 
 nitals, had, through devout prayers, at 
 Thotnas Bechi's fhrine, in Canterbury^ 
 the members and faculties which he had 
 been deprived of, reftored to him. 
 
 Felons alfo were formerly beheaded, 
 and it is faid, that the firft inftance of 
 beheading, was that of the Earl of North- 
 jimberland^ in the year 1075 (8 Wil- 
 liam the Conqueror). 
 
 Felons, likewife, in former times, were 
 drowned, as appears by an inftance in the 
 6th year of the reign of Ediv. II. where 
 the Jury made a prefentment againft the 
 Prior of Chijl-Church Canterbury^ for 
 diverting the courfe of a certain water 
 called GefiUng^ in which felons ought to 
 fuffer Judgment by being drov^/ned. 
 
 After
 
 CRIMINAL LAW. 139 
 
 After the the Law of Hen, I. for hang- 
 ing felons, the County Palatine of C/j^/z'^r 
 adhered to the cuftom of beheading 
 them ; and the Jufllces of the Peace in 
 that county received twelve-pence from 
 the king for every one beheaded by their 
 officers. 
 
 The Cofhsy according to fome, were 
 the firft who ordered Thieves to be 
 hanged. It is to be wifhed, however, 
 that, ia thefe days of refinement, fuch 
 favage and Gothic inftitutions were abo- 
 liftied, and that we copied the more juft 
 and mild fyftem which Reafon and Re- 
 ligion recommend. 
 
 The Sacred Law makes a diftindlon 
 in the punifhment of Theft and Murder. 
 The latter was juftly deemed fo capital, 
 that the avenger of blood and the Judges 
 were exprcfsly forbidden to make any 
 
 compo-
 
 140 CONSIDERATIONS o« 
 
 compofition, or to accept of any recom- 
 pence for the crime ; and the murderer 
 was excluded from all hopes of mercy. 
 
 Our Law therefore is more mild in 
 cafes of Homicide than the Sacred Law, 
 at the fame time that it is infinitely more 
 fevere with refpe<St to the lefTer crime of 
 Theft. The latter, as has been {hewn, 
 was only punifhed by reftitution, and 
 the addition of a fine, according to the 
 nature of the offence. By this means 
 fuch offenders were not only obliged to 
 make reftitution, but they might after^ 
 wards amend their lives. 
 
 It may be objected, however, that in 
 cafes of Theft, it is often out of the 
 power of criminals to make reftitution ; 
 and, among others, the Baron Montef- 
 qu'ieu has infifted on this objedion. He 
 gives it as his opinion, that it may be 
 
 juft
 
 CRIMINAL LAW. 141 
 
 juft to make Theft capital, on account of 
 the inequaHty of fortunes, which fre- 
 quently renders delinquents unable to 
 make reftitution. 
 
 Tjie Marquis of Beccaria, in his Ef- 
 fay on Crimes and Punifhments, infifts 
 that the punifhment for this crime (hould 
 be pecuniary. He fays, that the perfon 
 who endeavours to enrich himfelf by the 
 property of others, fhould be deprived 
 of part of his own : but obferves, that 
 the crime itfelf is commonly the effeSt 
 of mifery and defpair, and is generally 
 committed by that unhappy part of man- 
 kind to whom the right of exclufive pro- 
 perty has left but a bare fubfiflence. 
 
 Whenever then this crime is commit- 
 ted under fuch circumftances, may not 
 the offender be confined to hard work, 
 till by the profits of his labour he has 
 made a recompcnce to the injured party ? 
 
 When
 
 142 CONSIDERATIONS ofi 
 
 When he has made a reparation to the 
 perfon injured, he fhould afterwards be 
 obliged to labour for the benefit of the 
 State, for a certain fixed time, according 
 to the nature and degree of the Theft. 
 
 Such an inftitution would be a real fc* 
 eurity to property; whereas, according 
 to our prefent fyftem of Laws, the of- 
 fender lofes his life, and they whom he 
 has injured lofe their property ; the one 
 is excluded from fociety, and the other 
 remains in it unrecompenfed for the in- 
 jury he has fuftaine<i. 
 
 It is to be imputed to the fevere pu- 
 nifhment of Theft, that men of tender 
 feelings coni'cientioufly fcruple to pro- 
 fecute delinquents for inconfiderable 
 Thefts, when they know that death is 
 the penalty of convidion. 
 
 Hence
 
 CRIMINAL LAW. ii- 
 
 o 
 
 Hence it arifcs, that Pilferers too often 
 efcape with impunity, and that property- 
 is infecure. The feverity of the punifh- 
 ment, which is intended to leflen, con- 
 tributes to multiply the offence. 
 
 SECT. II. 
 
 Of mixed or co?npUcated Larce?2y, 
 
 TiyJIXE D or complicated "Larceny has 
 a farther degree of guilt in it, and 
 is either a taking, i. from the perfon of 
 a man, or 2. from his houfe. 
 
 Larceny from the perfon is of two 
 kinds ; of which one puts the party rob- 
 bed in fear, and the other does not. 
 
 That Larceny from the perfon which 
 puts him in fear, is Robbery \ which is 
 
 defined
 
 144 CONSIDERATIONS (?^ 
 
 defined to be a felonious and violent af- 
 fault upon the perfon of another, taking 
 from his perfon, goods or money, to any 
 value, and putting him in fear ; though, 
 in an enlarged fenfe, it fignifies any 
 wrongful taking away of goods. Rob" 
 hery is felony without Clergy. 
 
 Selden is of opinion, that Robbery 
 and Theft were punifhed by hanging 
 even in William the Normans time, as he 
 concludes from the following paffage: 
 " Let it be lawful for the Abbot of the 
 " Church, if he comes in the God-fpeed, 
 *' to acquit any Highwayman or Thief 
 *' from the gallows." Thefe, fays he, 
 are the words of the patent with which 
 William, to expiate the flaughter of Jla-^ 
 roldy confecrated a Monaftery to St. Mar- 
 tin, near Hajlings^ on the fea-coaft of 
 ^ujjex, and privileged it with choice and 
 fmgular rights. 
 
 By
 
 CRIMINAL LAW. 145 
 
 By the Law of Scotland^ likewife, 
 Robbery is punlfhed with death. 
 
 Larceny from the perfon which does 
 not put the party robbed in fear, is either 
 done privately without the party's know- 
 ledge, or openly with his knowledge. 
 Privately, and without his knowledge, is 
 by picking the pocket or cutting the 
 purfe, and ftealing from thence to the 
 value of twelve-pence. 
 
 If this offence is laid in the indid- 
 mcnt purfuant to the 8th of EUz. c. 4. to 
 be done cla7n ct fecrete^ the offender is 
 excluded from his clergy ; if thofe words 
 are wanting, a private Larceny from the 
 perfon (hall have the benefit of clergy. 
 This ftatute in its preamble fays, that it 
 is made to the end that the fraternity or 
 brotherhood of cutpurfes and pickpockets 
 may not continue to luve idle, by the fecret 
 Vol. II. L fpoil
 
 146 CONSIDERATIONS o« 
 
 fpoil of good and true fubje^ls. This 
 preamble itfelf feems to intimate, that the 
 proper remedy is to oblige the criminal 
 to hard labour. 
 
 The Larceny committed openly, and 
 with the party's knowledge, in his fight 
 and before his face, is, when one takes 
 off another's hat or wig, c^t. from his 
 head, and runs away with them, with- 
 out paying for them, &c. In all thofe 
 cafes of open Larceny with knowledge, 
 the offenders are by the Common Law 
 •within the benefit of clergy. But with 
 refpedl to dwelling-houfes, &c, the Com- 
 mon Law has been altered by 12 Ann, 
 c. 7, which ordains, That 
 
 " If any perfon fhall fi:eal any money, 
 goods, <;^'c. of the value of forty fliil- 
 lings, or more, being in any dwelling- 
 houfe, or outhoufe thereunto belonging, 
 though fuch houfe be not broken by fuch 
 
 offender,
 
 CRIMINAL LAW. 147 
 
 offender, and though any perfon be or 
 be not in fuch houfe, <^'C. or if any per- 
 fon fhall affift another to commit fuch of- 
 fence, he fhall be debarred the benefit of 
 clergy." 
 
 This ad, however, does not extend to 
 apprentices under the age of fifteen years, 
 •who Ihall rob their mailers. 
 
 2. Larceny from the houfe ^ is a mixed 
 and complicated felony, and debarred of 
 clergy, though it was but fimple Larceny 
 at the Common Law. In this offence, 
 clergy is taken away by feveral ftatutes. 
 
 La SECT.
 
 148 CONSIDERATIONS on 
 
 SECT. HI. 
 
 Of Piracy. 
 
 T>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 <?w 
 
 why fhould a defendant be liable to be 
 oppreffed, even to ruin, for an offence, 
 perhaps flight and trivial ? Both incon- 
 veniencics might be prevented, if, after 
 proof of the wrong fuftained, repara- 
 tion was adjudged to the injured in the 
 firll inflance, by the fame fentence which 
 gives a fine to the King. 
 
 In moft criminal cafes the profecutor 
 is the party firll aggrieved (except in 
 offences arifing on penal Statutes, where 
 the profecutors are not aggrieved at all). 
 The injury to the State ftands only in the 
 fecond degree, and arifes from the bad 
 example fet by the delinquent to the in- 
 citement of future offenders. 
 
 The profecutor's claim to fatisfadion 
 being prior ^ ought to he potior ^ whereas 
 his private right to reparation, is no point 
 of regard within criminal cognizance. 
 
 2 It
 
 CRIMINAL LAW. 221 
 
 It appears to have been the fenfe of 
 our forefathers, that the profecutor's claim 
 was principally to be regarded ; for in 
 antient times, among the Saxons, the 
 pra(flice of Indictment was fubfequent to 
 the method of appeal. 
 
 In cafes, fays Nat. Bacon, which con- 
 cerned damage, injury, or violence, done 
 to the body of a man or his eftate, the 
 King was found to be prejudiced, be- 
 fides the prejudice immediately done to 
 the fubjedt ; for a man difabled in body 
 or eftate, is difabled to ferve the King 
 and public ; and upon this ground a way 
 was found out to punllh the offender by 
 Indidment, befides the fatisfadion to the 
 party wronged. 
 
 The impropriety of the prefcnt mode 
 of proceeding is the more ftriking, fmce, 
 with rcfpedt to crimes on penal Statutes, 
 
 the
 
 232 CONSIDERATIONS (?K 
 
 the profecutor or informer is, on con- 
 vidion of the offender, adjudged to fliare 
 one half of the fine with the Fifk, 
 though he has perhaps fuftained no par- 
 ticular injury whatever from the offence: 
 whereas in cafes where the profecutor is 
 the party originally aggrieved, the fen- 
 tence affords him no redrefs whatever. 
 
 Thus the Law opens the door to inform- 
 ers, who are frequently aduated by ma- 
 licious or felf-interefted motives, and bars 
 thofe who are immediately injured in 
 their perfons or properties, from prompt 
 and adequate juflice. 
 
 I am fenfible that fpecious political 
 reafons may be given to colour over and 
 vindicate this kind of profecution. It 
 may be faid, that the good of the State, 
 which is the fupreme Law, requires en- 
 couragement to be given to informers ; 
 
 whereas
 
 CRIMINAL LAW. 223 
 
 Vv'hereas the compenfation for an injury 
 to an individual is a private concern. 
 
 But when diftindions are thus artfully 
 made, to the prejudice of moral equity, 
 is it not an indirect confeffion, that juftice 
 and moral virtue in general is not re- 
 garded for itfelf^ but for the convenience 
 df the State ? A principle which will 
 lead bad men to conclude, that their 
 adlions not being regarded as unjuft or 
 immoral in themfelves, they have no- 
 thing more to do than to elude the de- 
 tection of the Law. 
 
 Thus this principle undermines the 
 foundation on w^hich all political diftinc- 
 tions are founded; for when men are 
 once perfuaded that the immorality of 
 their adions is not the objedt of legifla- 
 live attention, they will commit every 
 crime which they can perpetrate with 
 
 fccrciy.
 
 324 CONSIDERATIONS 
 
 on 
 
 fecrefy. And nothing can be more op- 
 pofite to the good of the State than fuch 
 a difpofition. 
 
 CHAP. V. 
 
 EefleSiions on penal Statutes, 
 
 IT will not be foreign from the defign 
 of this EiTay, to take notice of ano- 
 ther imperfediion in our Criminal Laws, 
 which often bears hard upon the inno- 
 cent, and leaves them remedilefs after 
 f]gnal oppreffion. 
 
 I mean the pradice of preferring In- 
 dictments on penal Statutes^ wherein the 
 profecutor is often fome mean wretch, 
 who is merely nominal, without pro- 
 perty, without reputation, and often 
 without any fixed abode. 
 
 The
 
 CRIMINAL LAW. 225 
 
 The confequence of this practice is, 
 that after a defendant has been unjuftly 
 harrafled, perhaps totally ruined, both 
 in fame and fortune, he has no remedy 
 againll this phantom of a profecutor, 
 but is left to mourn the injury done to 
 him in the gloom of defpair, and fe- 
 cretly to vent his complaints againft the 
 Laws of his Country. 
 
 It may, as I have already obferved, be 
 urged, that it is for the good of the State, 
 to encourage informations. — Grant it : — 
 Yet it cannot be for the good of the State 
 to encourage the opprellion of innocence. 
 If informers are ncceflary, at leafl let 
 them be obliged to find fecurity that ihey 
 will make good their accufation ; that if 
 it fhould not appear to the court, that 
 there was a juft, or at lead a probable 
 caufe of information, they may be re- 
 fponfible for the malice and falfehood of 
 their charge. 
 
 Vol. II. Q^ Cut
 
 226 CONSIDERATIONS on 
 
 But in truth, the encouragement given 
 to fuch vagrant and worthlefs mifcreants, 
 is of great prejudice, and contributes to 
 rivet that infamy, which is annexed to 
 the charader of an informer. 
 
 The charader of an informer, in it- 
 felf, is far from being odious or defpi- 
 cable. It is the unqueftionable duty of 
 every good and public-fpirited citizen to 
 give information of all offences which are 
 committed againft the Laws of the Land, 
 and to the prejudice of the community. 
 
 But men of fpirit and probity are de- 
 terred from doing their duty in this re- 
 fpedt, when the loweft and moft difre- 
 putable members of the State are invited 
 to become public accufers, and not only 
 countenanced, but rewarded with half 
 the penalty arifmg from the conviction 
 of the offender. 
 
 The
 
 CRIMINAL LAW. 227 
 
 The evidence of thofe who will not 
 give information for the fervice of the 
 public without a gratuity, is little to be 
 relied on. It feems to be repugnant to 
 all rules of found policy, to hire or bribe 
 men to turn public informers in a free 
 flate : And it only ferves to caft tempt- 
 ations in the way of the wicked to ex- 
 tort money from timorous innocence, un- 
 der terror of an information ; or in cafe 
 of non-compliance, emboldens them to 
 prefer a falfe accufation, in hopes of 
 {haring the penalty with the Crown. 
 
 Indeed, under arbitrary and oppreflive 
 governments, where the intereft of tlie 
 State, or more properly fpeaklng of the 
 Tyrant, is diflindl from that of the 
 people, policy may recommend fuch bad 
 means as beft conduce to the moft op- 
 preflive purpofcs. Wc learn from hif- 
 tory, that they have been pradifed ac- 
 Q^i cordingly
 
 aaS CONSIDERATIONS<?« 
 
 cordingly under the worfl reigns, fuch 
 as that of Tiberius and others. 
 
 We cannot without horror reflect on 
 the fhoals of informers in the reign of 
 Tiberius^ who were encouraged, and even 
 bribed to prey on the lives and fortunes 
 of the innocent, and who forced many 
 brave and guiltlefs citizens to undergo 
 voluntary deaths for the benefit of their 
 families, in order to avoid confifcation, 
 of their eftates, 
 
 Tacitus has tranfmitted to pofterity the 
 characters of this noxious race with that 
 indelible flain of infamy which will ever 
 attend them. Delatores hominum genus 
 peffimum. And fuch they will ever re- 
 main, while they are fuffered to reap 
 any other advantage from their infor- 
 mation, than the fatisfadion of having 
 difcharged their duty, in giving notice 
 6 of
 
 CRIMINAL LAW. 229 
 
 of ofFences againft the Law of the Land, 
 and the interefts of the community. 
 
 But as there is the (Irongefl reafon for 
 excluding informers from any pecuniary 
 benefit arifing from the convidion of 
 offenders on penal Statutes, inftead of 
 rewarding them with a fliare of the pe- 
 nalty, fo there are reafons equally power- 
 ful for making compenfation to profe- 
 cutors who have been a^ually aggrieved, 
 inftead of leaving them to fue for a pre- 
 carious recompence by expeufive and 
 circuitous proceedings. 
 
 0^3 CHAP.
 
 230 CONSIDERATIONS o« 
 
 CHAP. VI. 
 
 Of Informations » 
 
 THE method of proceeding by way 
 of Information^ havingteen greatly 
 objected, to as unconf!:itutional and op- 
 prefFive, and inits confequences fiibverfive 
 of the liberty of the fubjedt ; and the 
 clamour on thefe occafions. having been 
 Joud, and frequently repeated, it may 
 not be thought foreign from the fubjedl 
 of this Eflay, to examine how far it is 
 founded on reafon and juftice. 
 
 Many writers have extolled the ex- 
 cellence of our Conftitution, by which 
 they obferve no criminal can be con- 
 demned but by the unanimous verdid of 
 twenty-four men : For in the ufual mode 
 
 of
 
 CRIMINAL LAW. 231 
 
 of proceeding, there muft be twelve, 
 who are called the Grand Jury^ to find 
 the Bill of Indldlment againft the per- 
 fon accufed, and twelve more called the 
 Petit Jury^ to try him upon that Bill, 
 and enquire whether he is guilty of the 
 charge fet forth in the Indidment. 
 
 But, neverthelefs, in cafes not felonious, 
 offenders may, by means of an information^ 
 be brought to trial without any previous 
 inquifition by a Grand Jury. Thefe in- 
 formations are either preferred by the 
 Attorney General ex officio^ or granted 
 upon 7f20tion in courty at the inftance of 
 the profccutor. 
 
 They w^ho are jealous of this kind of 
 proceeding alledge, that informations be- 
 gan in the reign of Hen. VII. and that 
 they are relidts of the Star Chamber op- 
 prefTion ; that they are innovations with 
 0^4 rcfpc<fl
 
 232 CONSIDERATIONS en 
 
 refped to Indictments, and carry great 
 hardHiips with them. 
 
 To which it is repHed, that the old 
 Statutes enadt, that the proceedings fhall 
 be by Prefentment or Indictment. Now 
 it is faid, that an Information by the At- 
 torney General is no more than a Pre- 
 fentment ; and confequently that there 
 v/ere Informations at the Common Law. 
 
 But admitting this, it would only prove 
 that Informations exhibited by the At- 
 torney General were according to the an- 
 tient ufe and practice, and would not 
 fhew Informations upon motion of Court 
 to be according to the courfe of the Com- 
 mon Law. 
 
 In fad, the preamble to the 1 1 Men, 
 VII. c. 3. which inftitutes Informations 
 in particular cafes, indiredly confefTes,
 
 CRIMINAL LAW. 233 
 
 that they are againft the courfe of Com- 
 mon Law : for it recites, that for fo much 
 before this time the faid offences, c^r. 
 might not, nor as yet may be cowueyiiently 
 punijhed by the due order of Laiv, ex- 
 cept they ivere frjl found and prefented 
 by the oaths of twelve men duly fworn, 
 &c. And then enads, that from thence- 
 forth the Juftices fhall have full power 
 to hear upon information, ^c. 
 
 S E C T. II. 
 
 Argume?2ts for and againjl Infor- 
 mations, 
 
 /^N behalf of Informations it may be ar- 
 gued, that there are cafes in which it 
 is for the benefit of the public to proceed 
 by way of Information. Many offences 
 or mifderaeanors may appear indifferent, 
 
 or
 
 234 CONSIDERATIONS o« 
 
 or even venial, to an unlkilful obferver, 
 which are enormous in themfelves, and 
 deflrudive in their confequences. But 
 to difcover their evil tendency, it may be 
 neceiiary to form our examination upon 
 
 abftra£l and fcientific principles. ■ 
 
 Though it is true that ihe Grand Jury 
 being compofed of perfons of more than 
 ordinary property and influence, may be 
 prefumed to have a fufBcient fhare of ca- 
 pacity and difcernment to diftinguifli the 
 nature of offences, yet cafes may arife, 
 in which the mifc;iiev6us and illegal cir^ 
 cumflances may be fo complicated and 
 involved, that it may demand the fkill 
 of one well verfed in judicial fludies to 
 point out hov^ far the delinquency under 
 confideration is infra£lory of the princi- 
 ples, and deftrudive or dangerou-s to the 
 frame of the conftitution ; and a Grand 
 Jury being deflitute of fuch aiTiftance, 
 may, by injudicioully rejecling a Bill, 
 
 do
 
 CRIMINAL LAW. 2^5 
 
 do great detriment to the public- 
 
 Befides, clrcumftances may be fuppofed, 
 in which a contravention to the Lav^s of 
 the Land may unhappily become popu- 
 lar; and fuch violations fhould be checked 
 
 by the moft early interpofition. In 
 
 fuch cafes, a Grand 'Jury may poffibly 
 be fo far unduly influenced by public pre- 
 judice, as not to perceive or regard the 
 fatal confequences of fuffering fuch li- 
 centious abufes to efcape with impunity. 
 
 In thefe . inftances, and in many 
 
 others which may be , conceived, it isi 
 highly expedient there Ihould be a me- 
 thod of bringing fuch offences to trial, 
 by way of Information, without having 
 recourfe to a Grand Jury;, that men. 
 Ikilled in Jurifprudence, and acquainted 
 with the Conftitution, may. have an op- 
 portunity of defcribing the offence in its 
 proper colours and confequences, to thofe 
 who are fworn to judge between the de- 
 linquents and their country. 
 
 This
 
 S3^ CONSIDERATIONS on 
 
 This method of proceeding, it may 
 be urged, cannot properly be deemed 
 injurious to liberty; fince the ifTue upon 
 an Information muft be tried by a Jury. 
 All the difference is, that the Informa- 
 tion is not founded upon the inquifition 
 of the Grand Jury^ ss an indi^ment is. 
 
 In anfwer to thofe arguments in fa- 
 vour of Informations it may be faid, that 
 a Grand Jury cannot ignorantly fuffer 
 public abufes to efcape with impunity ; 
 and if we fuppofe them fo far unduly in- 
 fluenced by public prejudice, how much 
 ftronger reafon have we to imagine that 
 a Petit Jury will a£t under fuch influ- 
 ence ? And in that cafe, the arguments 
 of the moft {kilful lawyers are not likely 
 to overcome their prepoffeflions. 
 
 It can feldom happen that an offence, 
 attended with fatal confequences to the 
 
 public^
 
 CRIMINAL LAW. 137 
 
 public, can be of fuch a complicated na- 
 ture, as to be beyond the conception of 
 a Grand Jury : and even fuppofing fuch 
 an one ever to happen, yet it muft be 
 remembered that the Law is not made 
 for fmgular inftances, but is adapted to 
 general cafes. The Grand Jury are 
 fworn to prefent the truth; they may 
 freely examine the witnefles in private; 
 they hear no Evidence but what is in 
 proof of the fad : therefore they are 
 more likely to incline againft the of- 
 fender than for him. 
 
 It may 'alfo be obferved, that there is 
 one great inconvenience attending the 
 pradice of Informations : If the Infor- 
 mation appears to have been exhibited 
 without juft grounds, yet in fome cafes 
 the defendant has no way of reimburfing 
 himfelf the expences incurred in his 
 defence againft the profecution"; for 
 
 the
 
 338 CONSIDERATIONS <?« 
 
 the Crown pays no cofls. Whereas, in 
 proceedings by way of Indidiraent be- 
 fore a Grand Jury, if there appears to be 
 no juft caufe of profecution, the bill is 
 difmiffed, and the defendant receives no 
 injury ; and if the defendant is acquitted 
 by the Petty Jury, and it appears upon 
 the trial that the profecution was mali- 
 cious, he will then be intitled to his 
 adion, and will recover damages in pro- 
 portion to the injury he has fuflained 
 from the malice and injuftice of the pro- 
 fccutor. 
 
 CHAP.
 
 CRIMINAL LAW. 239 
 
 CHAP. VIL 
 
 Of Adultery. 
 
 TO feduce another man's wife, and 
 to commit Adultery with her, is 
 not, in the eye of our Law, an offence 
 of a criminal nature, cognizable in the 
 temporal Courts, but is only punifhable 
 by the fpiritual jurifdidlion. Yet furely 
 to alienate a woman's affedlions from her' 
 hufband, to defile her perfon, and to 
 difhonour his bed, is a crime much more 
 prejudicial to the peace of fociety, than 
 to rob him of a trifle exceeding a (hil- 
 ling. 
 
 Though the influence of bad example, 
 
 which alone is fuppofed to make an ad: 
 
 criminal with rcfped to fociety, may not 
 
 3 be
 
 540 CONSiDEftATiONS c« 
 
 be fo extenflve in the former cafe as la 
 the latter, yet certainly it is more fatal. 
 Admitting, which neverthelefs may be 
 difputed, that there are a greater num- 
 ber of delinquents 'ready td make your 
 purfe their booty, than to make yout 
 wife a prey to their fenfuality ; yet the 
 injury received by the one, is inconfi- 
 derable in comparifon of that fullained 
 by the latter. 
 
 A man's wife may be deemed no lefs 
 his property than his money ; and if fhe 
 be the wife of his choice, may be con* 
 fidered as the moll valuable of his pof-» 
 feflions ; an attempt therefore to rob him 
 of fo ineftimable an enjoyment, is far 
 more criminal in the eye of Reafon, than 
 to deprive him of a few pence. He muft 
 have but a faint experience of conjugal 
 endearments, and muft indeed be totally 
 loft to all fenfe of honour, who does 
 
 not-
 
 CRIMINAL LAW. 241 
 
 iiot rate his wife's afFedion and fidelity 
 at a higher price than the wages of a 
 hangman. 
 
 The crime of AduUery was puniflied 
 with great feverity by the Grecian an4> 
 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^ %<T/wy, *uiz, to be 
 floned to death. Rich Adulterers were* 
 however, fomctimcs allowed to redeem 
 themfelvcs by a fine (called Mo/;^ap'>'<a) 
 paid to the hufband of the Adulterefs ; 
 whence Homer\ gods all agree, that 
 Marsy when caught with Fetius^ ought 
 
 Vol. IL R to
 
 242 CONSIDERATIONS on 
 
 to pay this fine to Vulcan, who would 
 not confent to his enlargement, till Nep^ 
 tuns had engaged for the payment of it. 
 
 By the Jeivijh Law, Adultery was 
 punifhed with death. 
 
 By the Egyptian Laws, an Adulterefs 
 was deprived of her nofe, that fhe might 
 not again tempt men to commit that 
 crime with her. 
 
 By the ancient Laws of England, this 
 crime was punifhed very feverely; but 
 at prefent it is only punifhed by fine and 
 penance in the Spiritual Court, or by an 
 adion at Common Law, for damages. 
 However, Adultery, as a temporal of- 
 fence, being againfl the peace and good 
 order of Society, it fhould feem reafon- 
 able to fuppofe, that it was under the 
 
 cogni-
 
 CRIMINAL LAW. q^^ 
 
 cognizance of the Criminal Jurifdiftion, 
 and confequently indidtable. 
 
 As to the Adulterefs, by our Law fhe 
 undergoes no temporal punifhment what- 
 ever, except the lofs of her dower ; and 
 fhe does not lofe even that, if her huf- 
 band is reconciled to her, and cohabits 
 with her after the offence committed, 
 according to the following diftich : 
 
 Spent e vlrum fugiens mulier, & adultera faSla 
 Dotefud careat, nifi fponfi fponte retraSIa, 
 
 Thus we may perceive, that while our 
 Laws have been ftretched to an unrea- 
 fonable degree of feverity in points of 
 property, and with refpecSt to offences 
 deemed merely political, they are become 
 ihamefully lax and remifs with refpcdt 
 to moral crimes. This is certainly coun- 
 teradling the very principles of our con* 
 ftitution J for a free ftate lik? ours, which 
 R 2 is
 
 i?44 CONSIDERATIONS ^« 
 
 IS a kind of Royal Republic, cannot be 
 fuftained without the fupport of Moral 
 Virtue. 
 
 In Scotland^ where a more ftrid: at- 
 tention is paid to the duties of Religion 
 and Morality, we find that the common 
 people are much more regular and vir- 
 tuous in their condud: than ours, and 
 likewife more intelligent and ufeful mem- 
 bers of the community. Adultery there 
 was always ranked among the criminal 
 offences, and was punilhed by fine till 
 the fixteenth century ; but by a Statute 
 in 1563, notour Adultery was made 
 capital. 
 
 There is no doubt but that public in- 
 attention to Morality, tends to render 
 the common people ignorant and dif- 
 folute; for the want of rehgious and 
 moral principles leads to a habit of dif- 
 
 fipation,
 
 CRIMINAL LAW. 24^- 
 
 fipation, which is the parent of vice and 
 flupidity. 
 
 Our temporal Laws pay fo little re- 
 gard to Moral Virtue in the provifions 
 againft Adultery, that people in low de- 
 gree may, and in fact often do, live in 
 common, and commit the moft flagrant 
 violations of conjugal rights with im- 
 punity. It is in vain for the injured 
 party to attempt the recovery of damages 
 againft the Adulterer, who probably has 
 no fubftance, out of which he can make 
 fatisfadlion : Add to this, that the in- 
 jured hufband likewife is not in circum- 
 flances to purfue a legal remedy. 
 
 It feems reafonable, therefore, that 
 Adultery fhould be cognizable by the 
 Criminal JurifdiQion. Such offenders 
 might be proceeded againft by way of 
 indidmcnt, and if found guilty, might 
 R 3 be
 
 246 CONSrDERATIONS(?w 
 
 be adjudged to pay a fine, to be rated 
 according to their ftation and circum- 
 flances; part thereof to be applied to- 
 wards fatisfad:ion of the party injured, 
 and the remainder to be paid to the Fifk, 
 as a compenfation for the breach of the 
 peace, and the injury done to Society ; 
 and in default of payment, the offender 
 to fuffer imprifonment. 
 
 The Adulterefs might undergo fome 
 public ftigma, or be imprifoned for fome 
 time, at the difcretion of the court, ac- 
 cording to the circumftances of the 
 cafe. 
 
 Some provlfions of this kind would 
 fhew, that our Laws have a regard to 
 the Morals of the fubjeft, which, in all 
 Laws, ought to be the primary confide- 
 ration ; fince Laws without morality are 
 but weak guardians of our perfons and 
 property.
 
 CRIMINAL LAW. 247 
 
 Is it not a refledlion on our Laws, that 
 to obtain a divorce from th>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 
 <juitting his pofl, corrcfponding with ene- 
 mies or rebels, flriking or ufing vio- 
 lence towards fupcrior OfHcers, and dif- 
 obcdiencc to lawful Commands ; any of 
 which Crimes may be punilhed with 
 
 Death,
 
 25© CONSIDERATIONS (?M 
 
 Death, by the fentence of a general Court 
 Martial. The other Military Offences 
 are Drunkennefs, Quarrelling, creating 
 dilbrders in Camp or Quarters, together 
 with fome other offences which remain 
 undefined by the Mutiny Ad: and i^r- 
 ticles of war, and are improperly fub- 
 mitted to the difcretion of the Court Mar- 
 tial. 
 
 By feveral Statutes In the Reigns of 
 Henry VI. Eliz, and Edw, VI. Defertion 
 in time of ivar is made felony, which, 
 with other crimes of an inferior nature, 
 are triable by a jury ; and by the laft of 
 thefe Statutes, clergy is taken away from 
 the crime of defertion. 
 
 Whether all Military Punifliments 
 ought not to be relaxed in time of peace, 
 and as little power as poffible left to dif- 
 cretion, is well worth the confideration 
 
 of the Leo;iflature. 
 
 ^ It
 
 CRIMINAL LAW. 251 
 
 It is indeed prefumed, that unlefs du- 
 ring adual war, or when danger is im- 
 minent, or upon other extraordinary 
 occafions, more moderate fentences are 
 generally given by Courts Martial ; be- 
 fides, that a remiffion or mitigation of 
 the fentence of fuch Court lies with the 
 Sovereign, as alfo with our governors 
 and chief commanders abroad, by vir- 
 tue of his Majefty's delegation to them, 
 in purfuance of the Mutiny Ad. 
 
 It is here to be obferved, that the form 
 or pradice of regimental Courts Mar- 
 tial, which I have alluded to below, ap- 
 pears to be very exceptionable ; never- 
 thelefs, general Courts Martial feem to 
 be carefully framed for the doing of 
 equal juftice, and proceeding with fomc 
 degree of conformity to the judicial pro- 
 ceedings in the Common Law Courts; 
 for befides fundry jufl: rcflridions and 
 
 regulations
 
 2^2 CONSIDERATIONS o?2 
 
 regulations previous to, and at the time 
 of the trial, the prefident, members, and 
 judge advocate are always obliged to take 
 an oath de fideli adminijlratione before 
 they fit in judgment, and each witnefs 
 is examined upon oath; and although 
 an abfolute unanimity of voices is not 
 required, as upon the verdi<^s of our 
 juries, and that a fimple majority is fuf- 
 ficient to determine in all cafes not ca- 
 pital, yet in capital cafes no number lefs 
 than nine out of thirteen, or two thirds 
 of the whole, (if the number of the court 
 exceeds thirteen) can pafs fentence of 
 death. 
 
 The punllhment of death in time of 
 peace for the crimes before mentioned is, 
 however, a feverity that exceeds that of 
 the moft ancient Military Nations. 
 
 SECT.
 
 CRIMINAL LAW. 255 
 
 SECT. II: 
 
 Of the Military Crimes and Pu^ 
 nijhments in other Nations^ 
 
 A MONO the Egyptians^ Mutiny and 
 
 Defertion were punifhed only by 
 
 degradation and difcharge ; the difgrace 
 
 of which could never be wiped off but 
 
 by fome brave adion. 
 
 By the Laws of Athens, they who 
 maintained their poft with courage were 
 advanced, and others were degraded. All 
 who refufed to go into the army, cow- 
 ards, and run-aways, were expelled the 
 forum, were not crowned, and could not 
 go to the public temples. They were 
 put into bonds by the Ev^exa (or Eleven), 
 and carried before the HeUaJIc^y who pro- 
 nounced
 
 S54. CONSIDERATIONS 5K 
 
 nounced fentence againft them, either of 
 fine or corporal punifhment, as the na- 
 ture of the crime required. 
 
 They who caft away ^their arms, or 
 quitted their fhip during a war by fea, 
 or refufed to go to the war, were declared 
 aTi[Jioii or infamous. 
 
 To counterbalance thefe punifhments, 
 many excellent rewards were inftituted, 
 to encourage foldiers and failors to be- 
 have gallantly. 
 
 All difabled and wounded foldiers were 
 maintained by the public. The parents 
 and children of thofe who fell in battle 
 were taken care of. If parents were 
 killed, their children were educated and 
 provided for in the army at the public 
 eharge. 
 
 By
 
 CRIMINAL LAW. 255 
 
 By the Ro7nan Laws, Indeed, the pu- 
 nifhment in thefe cafes was fomewhat 
 more fevere. They who abandoned their 
 poft in battle, who dole any thing out 
 of the camp, who gave falfe evidence, 
 who falfely pretended to have done fome 
 great exploit out of hopes of a reward, 
 or who fought without the general's or- 
 ders, who loft their weapons, 6v. were 
 put to death by the baftinado. 
 
 If a great number had offended by 
 running away from their colours, mu- 
 tiny, or other great crimes, the common 
 way of proceeding to juftice was by deci" 
 matio?i, or putting all the criminals names 
 together in a jQiicld, or vefTel, and draw- 
 ing them out by lot ; every tenth man 
 being condemned to die without reprieve. 
 By this means, though all did not fujffer, 
 yet all were terrified into obedience. In 
 the latter authors on the Roman hiftory, 
 
 wc
 
 jj56 CONSIDERATIONS oil 
 
 we fometlmes meet with mcefimatio and 
 centcfimatioy which words require no ex- 
 planation. 
 
 Similar to this, and founded on the 
 fame laudable principles of fparing the 
 efFufion of human blood, in as far as 
 the fafety and indifpenfable difcipline of 
 an army can admit, is the modern prac- 
 tice among us, in mitigation of capital 
 fentences pafled on a number of offenders 
 equally guilty, when a permiffion is 
 granted for them to throw dice or to 
 draw lots for their lives, with the defti- 
 nation of only one, or a fmall proportion, 
 to fufFer execution ; and as this degree 
 of pardon is ufually concealed, until the 
 criminals are at the very point of being 
 executed, and they are often put to fo 
 dreadful a decifion, the deterring ex- 
 ample, without doubt, ftrikes as ftrong 
 as if the whole of them were im- 
 I placably
 
 CRIMINAL LAW. 2^7 
 
 placably facrificed : and, with regard to 
 the unhappy wretches, it is an obferva- 
 tion too remarkable to be here omitted, 
 that while thofe gaining life feldom 
 efcape fainting away on drawing their lots, 
 the others deemed to die, ufually ihew 
 little or no change from their former 
 ftate and appearance. How great then 
 muft have been their fixed defpair and 
 ftupefadion ? 
 
 SECT. IIL 
 
 Of Regimental or Garrifon Courts 
 Martial — Petty Offences and 
 Preventive Meafures, 
 
 TDY one of the articles of war, all 
 
 crimes not capital^ and all d'lforders 
 
 cr negleSIs to the prejudice of good order 
 
 and military difcipline, are to be taken 
 
 Vol. IL S cogni^
 
 2sB CONSIDERATIONS on 
 
 cognizance of by a Court Martial, and to 
 be pinijlded at their difcretion. 
 
 Under this authority, Garrifon or Re- 
 gimental Courts Martial, which in fome 
 cafes confifl only of a prefident and two 
 members, all perhaps young and unex- 
 perienced, who are not upon oath them- 
 felves, nor examine wltnefTes upon oath, 
 are intrufted with a difcretionary power, 
 under which they are to try and deter- 
 mine upon offences undefined, and in- 
 deed unknown to our Courts of Law. 
 
 This power certainly contradids the 
 genius of our Laws, which leaves as little 
 as poflible to the difcretion of the Judges, 
 who are to pronounce, and not to 7nake 
 the Law. Here, however, the Judges 
 are to determine, as well what is the 
 crime, as what fhall be the Punijhment, 
 a power which ought not to be dele- 
 
 gatedj
 
 CRIMINAL LAW. 
 
 259 
 
 gated, though we truft that, from the 
 liberal education of the officers of our 
 army, it is very feldom abufed. 
 
 The punifhments generally inflided 
 by inferior Courts Martial are ivhippingy 
 riding the 'wooden horfe^ or confinement 
 to barracks^ quartersy or prifon. On 
 Ibme of thefe punifhments I have al- 
 ready obferved, and furely the infamy 
 which they ftamp on the criminal, makes 
 it neceflary to be very cautiouS'-in ufmg 
 them. 
 
 Officers in the army, particularly the 
 commanding officer, either in garrifon 
 or at quarters, by whofe orders punifh- 
 ments arc inflicted, ought, in duty to 
 "their King and Country, and indeed to 
 Humanity, to pay the greateft attention to 
 preventive meafures, and to make it their 
 principal object tofupport good difcipHne, 
 S 2 with
 
 g6o CONSIDERATIONS o« 
 
 with as few punilliments as polTible. Thl& 
 conduct alone will have the proper effect 
 of preventing diflipation and diforder 
 among the foldiery, and muft neceflarily 
 redound to the real honour and fatil^ 
 fadion of the officers. 
 
 Haw much may be happily effeded 
 by an amduous zeal and attention to pre- 
 ventive meafures, I have had an oppor- 
 tunity of informing myfelf from the 
 mofl authentic intelligence relating to a 
 regiment flationed at Antigua in 175B. — 
 The common men of this regiment had 
 been many of them taken from prifons, 
 and enlifted by magiftrates.— From this- 
 eircumflanee, as well as that of their 
 ftation, where rum was very cheap, 
 they had been much addicted to drunk- 
 ennefs, and confequently to many dif- 
 orders arifmg from that vice. — This oc- 
 cafioned frequent punifhments, by whip- 
 ping
 
 CRIMINAL LAW. 261 
 
 ping and otherwife, without any effei^. 
 The eonimanding officer, in 1758, find- 
 ing the former methods inefFedtual to 
 reform the regiment, difcontinued them, 
 and made the experiment of preventive 
 meafures ; by a fteady adherence to 
 which, and by the hearty concurrence of 
 the other officers, he introduced a courfe 
 of fobriety and regularity; fo that in a 
 fhort time punilliments were hardly 
 known among them. The ambition of 
 each company was to be the moft fol- 
 dierly ; their comparative good or bad 
 behaviour was publifhcd in orders at the 
 end of every month, which created an 
 emulation for character among the fol- 
 diers in each company. The regiment 
 in the fpace of a few months was im- 
 proved in fobriety, cleanlinefs, and dif- 
 cipline, to that degree, that it procured 
 them the good will of tlie principal in- 
 S 3 habitants
 
 262 CONSIDERATIONS 
 
 OJt 
 
 habitants of the Ifland, who were before 
 totally averfe to them. 
 
 After being thus reformed, they were 
 called upon duty againft the enemy, 
 when they recovered their reputation for 
 courage, which had been much hurt in 
 a former adion, during their ftate of 
 difTipation. 
 
 The different fteps taken by the com* 
 manding officers, in order to produce 
 this reformation, were fuch as tended to 
 difcourage the prevalent vices of the 
 corps, and to encourage a decent, or-" 
 derly behaviour among the foldiers. 
 
 The Romans had punifhments like- 
 wife, which only affeded the credit of 
 the delinquents, by expofing them to 
 public fhame; fuch as by degrading 
 them from a higher ftation to a lower, 
 
 ^7
 
 CRIMINAL LAW. 263 
 
 by giving them a fhort allowance, and 
 taking away their belt; making them 
 ftand all fupper-time, while the reft fat 
 down ; "with other fuch trivial marks of 
 difgrace. 
 
 Befides thefe punlfhments, A. Gellius 
 has recorded a very fmgular one, which 
 was the bleeding the delinquent : he 
 imagines that in ancient times this was 
 prefcribed to the drowfy and fluggifh 
 foldiers, rather as a medicinal remedy 
 than a punifhment ; and that in after- 
 ages it might have been applied in mod 
 other faults, upon this confideration, that 
 all thofe who did not obferve the rules 
 of dlfcipline, were to be regarded as 
 ftupid or mad ; and for perfons in fuch 
 a condition, bleeding is generally deemed 
 an efficacious remedy. The critic Mm- 
 retiis has obliged us with another very 
 fenfible rcafon : He fuppofcs the dcfign 
 S 4 of
 
 264 CONSIDERATIONS OM 
 
 of this punlfliment to have been, that 
 tliofe mean-fpirited wretches might lofe 
 that blood with fhame and difgrace, 
 which they were afraid to fhed nobly 
 and honourably in the fervicp of their 
 country. 
 
 With refped to the Military Rewards 
 among the Romans, they are too nume- 
 rous to be particularly mentioned. The 
 different fpecies of crowns they diftri- 
 buted, their triumphs and orations, i)'C, 
 are well known to perfons converfant in 
 the Roman Hiftory, and were well cal- 
 culated to infpire the foldiers with cou- 
 rage and patriotifm. 
 
 But the feverity of our Military Laws 
 do not feem by any means adapted to 
 anfwer the ends propofed. 
 
 1%
 
 CRIMINAL LAW. 265 
 
 It is In vain to think of obliging men 
 to face inftant death, by the terror of 
 future apprehenfions : Cowards will al- 
 ways fly the prefent danger, as it were 
 by inftind:, and will hope either to con- 
 ceal their cowardice, or to elude the pu- 
 nilhmcnt due to it» 
 
 As to the puniHiments for inferior 
 offences, I have already obferved, that 
 the ftamp of ignominy Ihould be fparingly 
 ufed ; rewards for the encouragement of 
 fobriety and good behaviour would pro- 
 bably have a very good effed. 
 
 c n A p.
 
 ^bb CONSIDERATIONS o« 
 
 CHAP. IX. 
 
 Of th& Criminal Laws of this 
 Kingdom before^ and imhiedi- 
 ately after the Coiiquefl, 
 
 AVING already ment;ioned the 
 fubftance of the Criminal Laws 
 of this country in ancient times, with 
 regard to the particular offences before 
 treated of, it will not be improper to 
 give the reader fome account of the Laws 
 concerning criminal matters, which, as 
 Ingulphus the Abbot of Croyland fays, 
 William the Conqueror ordered by Pro- 
 clamation, under moft grievous penalties, 
 to be kept inviolably throughout the 
 whole Kingdom of England, Thefe 
 Laws were for the moft part taken from 
 the Laws which prevailed in the time of 
 I King
 
 CRIMINAL LAW. 267 
 
 King Edivard and his predecefTors. Such 
 of thefe Laws as relate to criminal mat- 
 ters, will exhibit a fhort view of the 
 penal Code of this Country, as it had 
 •been altered and amended, down to the 
 period of their promulgation. 
 
 The title given to this Colledion of 
 Laws is, The Laivs and Ciijloms ivhicb 
 William the King has granted to all the 
 ■people of England after the Conqueji ; 
 being the fame lohich King Edward his 
 Coufin had obfcrved before hinu 
 
 I. 
 
 The firft Law relates to the Right of 
 Sanciuary 'within Churches, which it efta- 
 blifhes, and inflidts fines upon offenders, 
 and alfo upon thofc who broke the King's 
 peace in Merchenlage ; that is, the diftriiSt 
 where the Law of the Mercians was in 
 force. 
 
 The
 
 568 CONSIDERATIONS on 
 
 II. 
 
 The fecond Law relates to the Privi- 
 ledge of the Men of the Kings Bailiwick, 
 
 This Law directs, that whoever fhould 
 trouble or evil intreat the Men of the 
 King's Bailiwick, and fhould be convidled 
 thereof by the King's Juftice, Ihould 
 forfeit double to what any other man 
 Ihould forfeit in the like cafe. 
 
 in. 
 
 The third concerns Violators of the pub' 
 lie Peace, 
 
 He who breaks the King's peace in 
 Danelege (the diftrid: where the Danifh 
 Law prevailed) fhall make amends by 
 payment of 144/. and the King's for- 
 feiture, which belongs to the Sheriff, is 
 40 J. by Mercian Law, and 50 jr. by Wefi' 
 Saxon Law ; and if any Freeman, hav- 
 6 ing
 
 CRIMINAL LAW. 26^ 
 
 ing fcic andy^r, and toll and tontrt and 
 infangetbeofhe Impleaded and condemned 
 to forfeiture in the County Court, then 
 there belongs to the Sheriff a fine of 
 40 ores in Danelege ; and from another 
 man that is not of that liberty, 32 ores. 
 Of thefe 32 ores, the Sheriff ihall have 
 10 to the King's ufe ; and he who im- 
 pleads the peace-breaker, fhall have 12 
 ores more, for fatlsfadion agalnft him ; 
 and the Lord within whofe limits he 
 dwells, {hall have the other 10 ores. 
 
 K. B. Mr, Somner thinks that 1 2 ores 
 made a pou7id, 
 
 IV. 
 
 The fourth Law is about one accufed of 
 Thefts and his Surety. It runs thus : 
 
 The Mercian Law is, that if any one 
 be appealed of Robbery or Theft, and 
 be bailed to appear to Juftice, and (hall 
 
 after-
 
 370 CONSIDERATIONS on 
 
 afterwards fly for it, his Pledge fliall 
 have four months and one day to fearch 
 for him, and if he cannot find him, he 
 fhall then purge himfelf by the oath of 
 twelve men, that he was not a known 
 Thief at the time he bailed him, nor 
 that he did efcape through his means, 
 and that he cannot find him. 
 
 The reft of this Law directs what for- 
 feiture he fhall pay to the King, and that 
 he fhall pay twenty fhillings for the head 
 of the party abfenting himfelf; and if 
 within one year and four days he can 
 find the Thief, and bring him to Juflice, 
 the twenty fhillings which was paid for 
 his head, fhall be reflored to his Pledge 
 or Surety. 
 
 V. 
 
 The fifth Law is about the Apprt- 
 henfion of a Thief \ and is to the follow- 
 ing efFed: 
 
 He
 
 CRIMINAL LAW. 271 
 
 He that fhall apprehend a Thief, 
 without any purfuit or clamour, whom 
 he fhall deliver up to the perfon rob- 
 bed, and fhall afterwards appear to de- 
 mand juftice, he fhall pay ten fhlUings 
 for his firfl efcape, by way of Hengwite, 
 and fhall appear to juflice at the firfl 
 court ; but if he fail, he fhall forfeit 
 forty fhillings. 
 
 VIIL 
 
 The eighth concerns Ho7nicide^ and the 
 Were or Price of each Mans Head\ and 
 fays, 
 
 If any one kill another, and con- 
 fefs, and yet deny to make fatisfadion, 
 he fhall give unto the lord, for his Mmi" 
 botCy for a freeman ten fhillings, for a 
 fervant twenty fliillings, as a Were or 
 Price for the Life. The Were of a thane 
 
 by
 
 S72 CONSIDERATIONS <?;^ 
 
 by the Mercian or Wefl-Saxon Law is 
 twenty pounds, and the Were of a vil- 
 lain an hundred fhillings by the fame 
 Law. 
 
 IX. 
 
 The ninth concerns thofe to luhom the 
 Were *was to be paid; and runs thus ; 
 
 The Murflay fhall pay to the widow 
 and orphans ten fhillings, and what re- 
 mains, the orphans and kindred fhall di- 
 vide among them. 
 
 X. 
 
 The tenth is of the Vahie of certain 
 Animals^ when they are taken in Were, 
 
 By this Law a flone-horfe is valued at 
 twenty flilllings, a bull at ten fhillings, 
 and a heifer at five fhillings. 
 
 XL
 
 CRIMINAL LAW. 273 
 
 XL 
 
 The eleventh treats of Afl'ault, and 
 appoints a penalty on him that wounds 
 another. 
 
 XIL 
 
 The twelfth orders four pence to be 
 paid by any one who (hall wound ano- 
 ther fo as that the bone is laid open ; 
 and further compofition to be paid, un- 
 lefs the offended perfon exprcfs,.gr;fat re- 
 gard for the aggrefTor, in which cafe he 
 is to accept whatever is offered by the 
 offender. 
 
 XIIL 
 
 The eighteenth orders what Prices or 
 Rates JIj all he paid for the Lofs of a Limh 
 or Joint. 
 
 The lofs of a hand or foot was to 
 coft the half of a Were ; a thumb, 
 the half of that ; the fore-finger, fifteen 
 
 Vol. IL T Ihillings;
 
 274 CONSIDERATIONS OK 
 
 fhll lings ; the middle- finger, fixteen fliil- 
 lings; the ring-finger, feventeen fhili- 
 lings; and the little-finger, five fhillings ; 
 and in proportion fiDr the lots of the nails, 
 
 XIV. 
 The fourteenth relates to the Vio/atioit 
 of a married Womati. 
 
 The fine for which offence is the fame 
 as for death. 
 
 XV. 
 
 The fifteenth, makes the^^i? for Falfi 
 Judgment the fame as for death, unlefs 
 the Judge fhall fwear upon the Gofpel 
 that the fentence was according to the 
 beft of his knowledge. 
 
 XVI. 
 
 The fixteenth Law efiahlifhes the mart" 
 tier in ivhich one accufed of Theft fjjall 
 purge himfelfi which is as follows : 
 
 If
 
 CRIMINAL LAW. 275 
 
 If one accufes another of Theft, and if 
 the party accufed be a freeman, and have 
 clear teftimony of his good fame, he fliall 
 purge himfelf by his oath ; but he that 
 has been infamous, muft do it by the ex- 
 prefs oath of fourteen lawful men ; or if 
 he cannot have fo many, by the oath ot 
 twelve ; and if he cannot have thofe, he 
 muft ftand his trial, and the appellant, 
 with feven other men, muft fwear, that 
 he did it not for malice, or any other 
 caufe but to come at his own right. 
 
 XVII. 
 
 The feventecnth treats of Gmrch or 
 Houfe-br caking ; and runs thus : 
 
 If any one is accufed of the breaking a 
 Monaftery orDwelling-houfe, and has not 
 before been infamous, hefhall purge him- 
 felf by the oath of twelve lawful men ; 
 T 2 but
 
 276 CONSIDERATIONS on 
 
 but if he has been of bad fame, then 
 he is to purge himfelf by the oaths of 
 forty-eight men, and if he cannot pro- 
 cure them, then by trial. The arch- 
 bifhop fhall have forty Shillings forfei- 
 ture by the Mercian Law ; the bifhop, 
 twenty fhillings ; and the county, twenty 
 fhilHngs ; the baron, ten {hillings ; and 
 the villain, forty pence. 
 
 XVIII. 
 
 The eighteenth Law concerns the Pay- 
 ment of Peter'j Pence ; and fays, 
 
 A freeman, who has the value of thirty 
 pence in chattels, fhall pay to St. Peter 
 one penny ; but if any lord fhall pay down 
 four pence, all his cottagers, villains, 
 and fervants fhall be acquitted : but a 
 burgefs who has chattels to the value of 
 half a merk, as alfo a freeman being un- 
 der
 
 CRIiMINAL LAW. 277 
 
 der the Dan'ifJj Law, who has chattels 
 to the fame value, fhall pay likewife one 
 penny. 
 
 XIX. 
 
 Tlie nineteenth Law is conceniinsr a 
 Rape, 
 
 'd 
 
 By which the offender forfeits the of- 
 fending member : the throwing a woman 
 to the ground, and attempting her chaf- 
 tity, forfeits ten fhillings to her lord and 
 
 mailer. 
 
 XX. 
 
 The twentieth provides for the Fay- 
 ment of Peter'j Fcnce^ by a forfeiture of 
 thirty pence to the bifliop, and forty 
 fhillings to the king for non-payment. 
 
 XXL 
 
 The twcnty-firft concerns the put ting out 
 an eye. 
 
 T 3 If
 
 2;8 CONSIDERATIONS(?« 
 
 If any one puts out another's eye, 
 he fhall forfeit feventy Engli/h ihillings, 
 and if the fight fhall be reftored, the 
 half only (hall be returned to him, 
 
 XXV. 
 
 The twenty-fifth Law is very obfcure; 
 but the purport of it feems to be, that 
 if any one fhall challenge any ware or 
 merchandife taken from him by ftealth, 
 and flill find pledges t^ purfue his claim, 
 then he in whofe hands the thing is 
 found, fhall name for his guarantee the 
 perfon from whom he had the thing, if 
 he has any fuch to name, but if he hath 
 not, he fhall name his headborough and 
 his witnefles, that the thing fhall be 
 forthcoming at a certain day or time 5 
 but if he have no guarantee or witnefles, 
 he Ihall forfeit his goods, and pay a 
 IVere to his lord, as it is by the Mercian^ 
 DaniJJjy and Wcjl- Saxon Laws. 
 
 6 XXVL
 
 CRIMINAL LAW. 279 
 
 XXVI. 
 
 The twenty-fixth relates to fining the 
 Hundred ivhere the Homicide cannot be 
 brought to Jufiice. 
 
 By this Law, if a Frenchman was 
 murdered, and if the men of the Hun- 
 dred could not take the Murderer, and 
 bring him to juftice within eight days, 
 then the Hundred ihall pay forty-feven 
 merks. 
 
 XXX. 
 
 The thirtieth relates to the fafcty of 
 the public Ways. 
 
 This Law enads, that whoever fhall 
 
 kill a perfon travelling in either of the 
 
 three roads of WatUng-fireet, Ermittg- 
 
 fireet, or Fo/s, breaks the King's peace. 
 
 XXXI. 
 
 The thlrty-firfl relates to a Robber 
 taken in the Fa^L 
 
 T 4 This
 
 28o CONSIDERATIONS on 
 
 This Law fays, that if a thing ftolen 
 fliall be taken with the Thief within any- 
 one's lands, the lord of the lands his 
 wife fhall have the moiety of the Rob- 
 ber's goods, and the claimants the other 
 moiety : but if the Thief be found with- 
 mfack 2in^ fock^ the lord's wife fhall lofe 
 her moiety, and the lord Ihall have it. 
 
 ' XXXV. 
 
 The thirty fifth relates to Female Con-. 
 'uiEls icho are with. Child. 
 
 This Law exempts Women who are 
 with Child, and under fentence of death, 
 from being executed before delivery; 
 and the fame with regard to lofs of 
 limbs. 
 
 This Law is ftill in force. 
 
 XXXVIL 
 
 The thirty-feventh Law relates to Wo- 
 men taken in Adultery, 
 
 By
 
 CRIMINAL LAW. 281 
 
 By this Law, if a father fhall take his 
 daughter in Adultery in his own houfe, 
 or in that of his fon-in-law's, he is then 
 ^t liberty to kill the Adulterer, 
 
 XXXVIIL 
 
 The thirty-eighth Law relates to Crimes- 
 corn jiiit ted through NeceJJlty. 
 
 If one fhall kill another from ne- 
 Geflity, or throw goods over-board, for 
 the better management of the fhip, or 
 for fear of death, there fhall be no plea 
 for fuch adtion. 
 
 The reft of the Law is very obfcure, 
 
 XLI. 
 
 The forty-firft Law treats of 'Jiidg- 
 merits. 
 
 By this Law, Judges are recom' 
 mended to judge as they petition, wher^ 
 they dcfire God to forgive their Debts y 
 
 ancj
 
 2S2 CONSIDERATIONS on 
 
 and it is forbidden to fell any Chnjlian 
 out of the land, efpecially into a Heathfen 
 country. Let man take care that a lif6 
 be not loft which Chrijl redeemed with 
 his blood. He that promotes an injury, 
 or promulges a falfe Judgment, either 
 for hatred or avarice, fhall forfeit to the 
 King forty Ihillings, and if he cannot 
 prove that he could do no harm^ he Ihall 
 lofe his freedom, if he cannot redeem it 
 at the King's pleafure : and if he be with- 
 in the Danijh Law, fhall forfeit Lahfiile^ 
 (which was a muld) if he cannot prove 
 that he could do no better. And if any 
 one fhall refufe right Law and Jadgment, 
 he fhall forfeit to him to whom the right 
 belongs ; if to the King, fix pounds ; 
 to an Earl, forty fhillings ; if he be in a 
 Hundred, thirty fhillings ; which, to all 
 thofe who fue in England, were to be 
 paid in Englijh money. In the diftrid 
 of Danelege^ if any one fhall refufe right 
 
 Judg-
 
 CRIMINAL LAW. 283 
 
 Judgment, he fhall be obnoxious to the 
 Lahjlik : nor fhall it be well if any com- 
 plaint is made to the King of failure of 
 Judgment in Hundred or County. 
 
 XLV. 
 
 The forty-fifth Law treats of Sureties 
 dejerted. 
 
 He who is convided of rebellion by 
 witnefles, and being impleaded three 
 times, makes default, and the fummoner, 
 on the fourth time he is impleaded, 
 fhews his three defaults, he fhall be com- 
 manded to find Pledges to take his trial \ 
 and if he will not, and cannot be found, 
 alive or dead, let all he hath be feized, 
 and let the accufer have his chattels, and 
 the lord the moiety of what remains, 
 and the hundred the other moiety. 
 
 The
 
 284 CONSIDERATIONS o« 
 
 The latter part is obfcure, but feems to 
 lay a forfeiture on his kindred^ and an 
 outlawry on the convid;. 
 
 XLVIII. 
 
 The forty-eighth Law relates to thofi 
 yoho fnffer a Thief to efcafe. 
 
 By this Law, he who meets a Thief, 
 and fuffers him to efcape without cry, 
 unlefs he can clearly prove that he did 
 not know the party to be a Thief ; and 
 he that (hall hear a cry and remove him- 
 felf, fliall be fined to the King for his 
 removal, uplefs he can purge himfelf. 
 
 L. 
 
 The fiftieth Law relates to the Manner 
 of Purgation of one accifed in a Hundred. 
 
 By this Law, if any perfon accufed 
 be within the Hundred, and four men 
 
 arraign
 
 CRIMINAL LAW. 285 
 
 arraign him, he may purge himfelf by 
 the oaths of twelve men ; and if he fly, 
 pending the accufation, his lord ihall pay 
 his Were; and if his lord be accufed of 
 permitting him to fly, he fhall purge 
 himfelf by the oaths of fix men ; and if 
 he cannot, he fhall be fined to the King, 
 and be outlawed. 
 
 LIII. 
 The fifty-third Law concerns the Mur- 
 der of a Norman or Frenchman j and is 
 to this effedt : 
 
 We will and firmly enjoin, that all 
 thofe whom we brought with us, or who 
 fhall come here after us, be under our pro- 
 tection, and in our peace, throughout our 
 whole kingdom ; and if any of them fhaU 
 be killed, the man-flayer fiiall be produced 
 within five days, by his lord, if he can ; 
 but if not, the lord fhall begin payment 
 5 to
 
 386 CONSIDERATIONS o« 
 
 to us of forty-fix merks of filver, fo far 
 as the fubflance of that lord can hold 
 out; and in cafe of that failirig, the 
 Hundred in which the Murder was com- 
 mitted, (hall pay what remains in Common. 
 
 LXVII. 
 
 The fixty-feventh Law relates to the 
 Modes of PuniJJmient ; and runs as fol- 
 lows: 
 
 We forbid any one to be put to death, 
 or hanged, for any fault ; but let their 
 eyes be put out, their feet or their tef- 
 ticles, or their hands be cut off, fo that 
 the obtruncated man remain a living mo- 
 nument of his treachery and roguery: 
 for punifhment ought to beinflided upon 
 evil-doers in proportion to the offence. 
 
 SECT.
 
 CRIMINAL LAW. 287 
 
 SECT. II. 
 
 Obfervai207js on form of the forc^ 
 going Laws. 
 
 *npHE appendix to the fourth book of 
 the Life of King Henry the Second, 
 contains a few obfervations upon fome 
 of the Laws of JVilliafti the Firft, which 
 are mentioned in the laft chapter; which 
 obfervations have been of great ufe in 
 getting at the fenfe of fome of thefe 
 Laws, many of which are obfcurely 
 worded, and others have been rendered 
 obfcure by the ftops being improperly 
 placed in the Lathi tranflation, which 
 Lord Littleton has tranfcribed from Viil- 
 kins, p. 219; but has taken great care 
 to alter the ftops, and reftore the fenfe, 
 where the words were intelligible. Many 
 
 of
 
 JJ.88 CONSIDERATIONS on 
 
 of his Lordflilp's other obfervations on 
 fome of thefe Laws or Statutes are worthy 
 of attention. 
 
 On the fecond Law he obferves, that 
 it is rather obfcure in the original, but 
 the fenfe of it is, that for any ill treat- 
 ment, of the King's tenants in his baili- 
 wick, the forfeiture fhould be double to 
 what it would be in the cafe of any other 
 man. And obferves, that this and fome 
 other of the Laws and Statutes of King 
 William^ mentioned in the lafl chapter, 
 were not in ufe under Henry the Second^ 
 when Glanvilles treatife was wrote. 
 
 On the third Law he obferves, that 
 the different muld;s in the different parts 
 of the kingdom, fet forth in this Law, 
 were fuch as had been eflablifhed by the 
 
 Danes or Saxons inhabiting there. 
 
 On
 
 CRIMINAL LAW. 289 
 
 On the word villains, in the eighth 
 Law, he obferves, that this word muft 
 be underflood to mea.n farmer's y and not 
 flaves ; and that Were fignifies the price 
 of a man's life. 
 
 On the tenth Law he obferves, that 
 the prices of cattle at the time of this 
 Law fhew the high value of money in 
 thofe days. 
 
 On the thirtieth Law he fays, that he 
 does not underftand why alTaults and 
 murders were to be more breaches of the 
 peace, in the three roads mentioned in 
 this Law, than in other places ; for that 
 all homicides and aifaults were breaches^ 
 of the King's peace. 
 
 On the 37th Law; Mr. Tyrrcly in 
 commenting upon this Statute, expreifes 
 his furprifc that it fliould not have 
 
 Vol. II. U given
 
 290 CONSIDERATIONS on 
 
 given to the hufband the power it 
 has given to the father. Upon which 
 Lord Littleton obferves, that he prefumed 
 that the hufband had it by the common 
 or cuftomary Law, which William the 
 Firft did not abrogate, but made this 
 addition to it, for the better fecuring of 
 the chaftity of the wives of his baron* 
 and military tenants, and of thofe whQ 
 held under them by knights fervice, 
 when the hufbands fhould attend him in 
 foreign wars. 
 
 On the fifty-thirdLaw he obferves, that 
 this and fome other Statutes of this King 
 were extraordinary precautions taken to 
 prevent the murdering of foreigners^ 
 whom he had brought over with him, 
 or who came upon his encouragement to 
 fettle in England under hi$ prote^ion. 
 
 CHAP,
 
 CRIMINAL LAW. 291 
 
 CHAP. X. 
 
 Of Criminal Proceedings by the 
 Law of Scotland. 
 
 HAVING, in the confiderations of 
 many of the crimes made punifh- 
 able by the Law of England, given fome 
 fliort account of the puniihments allot- 
 ted by the Law of Scotland to the fame 
 fpecies of crimes; it will not be improper 
 to give fome fhort obfervations on crimi- 
 nal proceedings by the Law of Scotlandj 
 from the Inftitutesof that Law, publilhed 
 by the learned Mr. Erfkine, which will 
 fliew that the Law there has been from 
 ancient times very cautious and guarded in 
 refped: to criminal accufations and trials. 
 
 The Statute 1535, chap. 35. made 
 
 for fccuring perfons from groundlefs pro- 
 
 U 2 fecutions
 
 292 CONSIDERATIONS ow 
 
 fecutions for alledged crimes, direds the 
 profecutor to give fecurity that he will 
 bring the accufed perfon to trial ; and 
 the more ancient Law of that kingdom, 
 laid him under a neceffity of making 
 good his charge under a penalty. This 
 was agfeeable to the Roman Law. 
 
 In the year 1587, a Statute paft, by 
 which, where the prifoner was acquitted, 
 the profecutor was to be condemned in 
 cofts, to be taxed by the judge, and alfo 
 to be fined ; and where the King's Ad- 
 vocate (the Attorney General for Scot^ 
 land) was the profecutor, the informer 
 was fubjeded to the payment of cofts 
 and fine by Statute 1579, c. 78. It is ob- 
 ferved by Mr. Erfiine, that thefe Statutes 
 are juftly confidered as a fufEcient war- 
 rant for the prefent pradlice of condemn- 
 ing vexatious profecutors in fines far ex- 
 ceeding the ftatutory fine. 
 
 Our
 
 GRIMINx^L LAW. 293 
 
 Our proceedings on tlie trial of treafon 
 are now in fome degree adopted in Scot- 
 land^ where the Court of Jujticiary^ or a 
 fpecial Qouiioi Oyer andTerminer, created 
 by the King's commiffion, in which there 
 muft be named three lords of jufticiary, 
 one of which muft be of the quorum, are 
 to try commoners accufed of treafon in 
 the following manner: The fheriff fum- 
 mons to this court twenty-four men, of 
 whom feventeen, nineteen, or twenty- 
 one are fworn, and are called the Grand 
 Jury. Before them all bills of indict- 
 ment are exhibited ; and if twelve, or a 
 greater number, concur that the evidence 
 laid before them is a fiifRcIent ground 
 for a trial, the bill is found j if not, it 
 is rejedcd. 
 
 If the bill is found, the accufed per- 
 
 fon is brought upon his trial before the 
 
 Petty Jury, or Jury of Life and Deaths 
 
 U q before
 
 294 CONSIDERATIONS 
 
 on 
 
 before whom the witnefles are examined, 
 and who mufl agree unanimoufly in one 
 verdidt. 
 
 The change made by the Statute of 
 Queen Anne, in the mode of trial for 
 treafon, was a great improvement in the 
 Law of Scotland ; for before this method 
 of trial for treafon was adopted from the 
 EngliJJj Law, the King's Advocate alone 
 examined the witneffes, and was the fole 
 judge whether the evidence laid before 
 him vv^ere or were not fufEcient to fup- 
 port a criminal profecution, and a majo- 
 rity of the Petty Jury were fufEcient to 
 ^condemn o" acquit. The perfon againfl 
 whom a bill of indidment for treafon is 
 found, is intitled, five days before his 
 trial comes on, to be furnifhed with a lift 
 of the Jury by whom he is to be tried, 
 and has the privilege of challenging, as 
 by the EngliJJj Law. 
 
 As
 
 CRIMINAL LAW. 295 
 
 As to the trial of other crimes before 
 the Jufticlary Court, or other inferior 
 Judges: By Statute 1701, c. 6. every 
 prifoner committed for trial may be bailed 
 in all cafes not capital, and the bail 
 was not to exceed 6000 merks Scots 
 for a nobleman, 3000 for a landed 
 gentleman, 1000 for any other gentle- 
 man or a burgefs, and 300 for any 
 other perfon of inferior rank ; but by 
 II Geo, 2. c. 26. § II. the Judge may 
 extend the bail to the double of thefe 
 fums. 
 
 The above-mentioned A6t of 1701, 
 is, however, fo favourable to perfonal 
 liberty, that to the end that perfons who, 
 either from the nature of the crime with 
 which they are charged, or from their 
 low circumftances, cannot be difcharged 
 upon bail, may not lie for ever in prifon 
 untried, it is made lawful by the faid 
 U 4 Statute,
 
 896 CONSIDERATIONS on 
 
 Statute, to every fuch prifoner to apply 
 to the criminal Judge that his trial may 
 be brought On ; and the Judge muft, 
 within twenty-four hours after fuch ap- 
 plication, under the pains of wrongous 
 (falfe) imprifonment, ifliie letters di- 
 reded to mcffeiigers, for intimating to 
 the profecutor to fix a diet for the pri- 
 foner's trial, within fixty days after the 
 intimation ; and if the profecutor does 
 not infill: within that time, or if the trial 
 is not finifhed in forty days more, when, 
 carried on before the juiticiary, or in 
 thirty, when before any other Judge, 
 the prifoner, upon a fecond application, 
 wherein he is to fet forth that the legal 
 time is elapfed, is intitled to his dif- 
 charge, under the fame pains of wrong- 
 ous imprifonment. 
 
 Upon one's committing any of the 
 groffer crimes, it is ufual for a juftice 
 
 of
 
 CRIMINAL LAW. 297 
 
 of the peace, fherlfF, or other judge, to 
 take a precognition of the fa£ts, i. e. to 
 examine fuch who were prefent at the cri- 
 minal adt, upon the fpecial circumftances 
 attending it, in order to know whether 
 there is ground for a criminal trial, and 
 to ferve as a direction to the profecutor, 
 how to fet forth the fadls in the libel ; 
 but the perfons examined may infift to 
 have their declarations cancelled, before 
 they give teftimony at the trial. Juftices 
 of the peace, fheriffs, and magiftrates 
 of burghs are alfo authorized to receive 
 informations concerning crimes to be 
 tried in the circuit-courts; which informa- 
 tions are to be tranfmitted to the juftice- 
 clerk, forty days before the fitting of the 
 refpedive courts. 
 
 In all criminal trials the defendant is 
 intitled to a copy of the indictment, or 
 criminal letters, which muft fpecifically 
 
 fct
 
 298 CONSIDERATIONS on 
 
 fet forth the fads the defendant is ac- 
 cufed of, and when and where they were 
 done or committed ; and is alfo intitled 
 to a lift of the witnefTes to be produced 
 againft him, and the Jury who are to 
 try him. 
 
 The confideration, whether the fads 
 charged are relevant, belongs to the 
 judges of the court, and whether they 
 are true, to the jury. By the old prac- 
 tice, informations on the relevancy were 
 given into the Court in writing, after 
 hearing counfel on both fides ; but now, 
 by the Jurifdidion Ad, 20 Geo. 2. c. 43. 
 the perfon accufed is direded, the day 
 before the trial, to exhibit in writing a 
 ftate of the flids, and fubjoin thereto the 
 heads of his defence;' and after plead- 
 ings on the relevancy 'viva voce, and 
 minutes thereof made up by the clerk, 
 the court may forthwith proaounce their 
 
 inter-'
 
 CRIMINAL LAW. 299 
 
 inferlocutor-, ov decree; w.hlch, if it finds 
 the libel not relevant, the prifoner is 
 difcharged ; but if they find it relevant, 
 he is put on his trial before a jury, in 
 whofe prefence the witnefTes produced 
 on each fide, are examined. 
 
 After all the witnefTes have been ex- 
 amined in court, the Jury are fhut up 
 alone till their verdid: is figned by their 
 foreman (or chancellor) and clerk, and 
 according to this verdidl the court pro- 
 nounces fentence, abfolving or condemn- 
 ing the pannel ; by which name the ac- 
 cufed perfon is called after appearance. 
 
 It is not ncceflary by the Law of Scot- 
 land^ that a jury fhould be unanimous 
 in finding the pannel guilty or not guilty ; 
 the narrowed majority is as fiifficient 
 againft the pannel as for him. Juries 
 copld not, by the ancient Laws of Scot- 
 land.
 
 500 CONSIDERATIONS on 
 
 land-, be punifhed for finding a pannel 
 guilty, which continues now to be the 
 Law ; but they might be punifhed for 
 acquitting a pannel againft clear evi- 
 dence ; upon this ground, that though 
 they are not prefumed capable, from any 
 motives, of finding an innocent perfon 
 guilty, yet they may, from an ill-judged 
 and criminal compaffion, ftraiii a point 
 to fave a perfon's life or fortune who 
 ought to be condemned. This crime of 
 wilful error in abfoiving a criminal, was 
 tried by a Grand AJ/tze, which confided 
 of twenty-five noble perfons, Stat. 1475, 
 c. 64. which was afterwards explained 
 to be twenty-five perfons of landed pro- 
 perty ; and if the jury were found 
 guilty, they were punilhed with infamy, 
 the forfeiture of perfonal eftate, and im- 
 prifonment for a year at leaft. But as 
 no judge ought to be under any reftraint 
 that may cramp his judgment, alfizes of 
 
 error
 
 CRIMINAL LAW. 301 
 
 error were little ufed when authorized by 
 Law, but in 1689 they were declared a 
 grievance by the convention of eftates ; 
 and though no Statute was afterwards 
 enaded for redrefling the grievance, 
 affizes have been fince that time totally 
 difcontinued. 
 
 Though the proper bufmefs of a jury 
 be to inquire into the truth of the fads, 
 in many cafes they judge alfo in rnatters 
 of Law or Relevancy: thus, though an 
 objedion againft a witnefs fhould be re- 
 pelled by the court, the jury are under 
 no neceflity of giving more credit to his 
 teftimony, than they think jufi; ; and in 
 all trials of art and part, where fpecial 
 fads need not be libelled, the jury, if 
 they return a general verdid, thereby 
 really make themfelves judges of the re- 
 levancy, as well as of the 'ruth of the 
 fads fworn to by the witnelfcs. A ge- 
 neral
 
 302 CONSIDERATIONS on 
 
 neral verdict finds, in general terms, that 
 the pannel is guilty or not guilty, or that 
 the libel or defences are proved or not 
 proved. A fpecial verdidl finds fome 
 certain fads contained in the libel proved, 
 without determining upon their efFedt 
 againft or for the pannel ; the import of 
 which fadts is to be confidered and de- 
 termined upon by the court. 
 
 That condemned criminals might have 
 an opportunity, if their cafes deferved 
 favour, of applying to the foverelgn for 
 mercy, it was enafted by Stat, ii Geo, i. 
 c. 26. § 16. that no fentence of any court 
 of judicature fouth of the river Forth, 
 importing either capital or corporal pu- 
 nifhment, Ihould be put into execution 
 in lefs than thirty days ; and if north of 
 it, in lefs than forty days after fentence 
 pronounced. This Ad:, in fo far as it 
 relates to corporal puniihoieiitS; lefs than 
 
 death
 
 CRIMINAL LAW. -,o 
 
 :)^o 
 
 death or difmembering, e. g. whipping, 
 pillory, <i^c, is altered ; fo that thefe 
 may be now inflided by the judge eight 
 days after the date of the fentence, if 
 pronounced on the fouth fide of the Forth, 
 and twelve days after fentence, if pro- 
 nounced on the north of it, 3 Geo. 2. 
 c. 32. 
 
 Lefler injuries, which do not afFed 
 the public peace, may by the Law of 
 Scotland be barred of any profecution, 
 either by the party injured exprefsly for- 
 giving them, or by his being reconciled 
 to the offender after the injury j but in 
 offences of a deeper die, though the 
 party injured may pafs from the profe- 
 cution in fo far as his private intereft is 
 concerned, he cannot, however preclude 
 the King's Advocate from proceeding ad 
 vmdiciam publicam, 1587, c. 16. 
 
 CHAP.
 
 304 CONSIDERATIONS on 
 
 CHAP. XI. 
 
 Co7tcluJion. 
 
 IF we attend to the hiftory of the va* 
 rious revolutions which have hap- 
 pened in this country, and to the rife 
 and progrefs of a certain fpeclcs of learn- 
 ing, to which courtefy has given the 
 name of philofophy, we may, perhaps, 
 in fome degree, be able to account for 
 the difregard to religion and morality, 
 which has been too prevalent in this 
 kingdom. The abfurdity and extrava- 
 gance of fome of the principles of this 
 pretended philofophy has been expofed by 
 many learned and good men ; more par- 
 ticularly by Dr. Beattid who, in his late 
 excellent EJpiy upon Truths has laid the 
 axe to the root of thofe dangerous doc- 
 trines
 
 CRIMINAL LAW. 305 
 
 trines which, as he fays, if it were not 
 for their flimfinefs, might tend to over- 
 throw all belief, fcience, religion, virtue, 
 and fociety from the very foundation. 
 
 The profefTors of this pretended phi- 
 lofophy have indeed unhappily mifled a 
 few among the unwary and inconfide- 
 rate, who imagined, that thofe men muft 
 have uncommon penetration ivho could 
 find nothing on ivhich to reji their belief \ 
 while thofe very profefTors were at the 
 fame time entering into inquiries which 
 far furpaffed the reach of the human un- 
 derftanding ; and admitting propofitions 
 in fome inftances incredible, and in others 
 unintelligible. It is, however, happy 
 for this age that moral and religious 
 principles arc in an improving ftate ; and 
 the following conjcdures are fubmitted, 
 as partly accounting for the difregard to 
 
 Vol. II. X thofe
 
 3o6 CONSIDERATIONS on 
 
 thofe principles which has lately pre- 
 vailed with us. 
 
 When the imprudent and unfortunate 
 King Charles had provoked his fubjeds 
 to refiftance, and had at length fallen a 
 vidim to a fet of lawlefs ufurpers, the 
 perpetrators of that inhuman ad found 
 it neceffary to cover their daring attempts 
 under the appearance of extraordinary 
 fandity and decorum of manners. 
 
 At length, however, one more artful 
 and diflembling than the reft found the 
 means to ered himfelf into an arbitrary 
 fovereign, under the gentle title of Fro- 
 teSior. He impioufly pretended to im- 
 plore the Divine influence on his coun- 
 cils; but, in fad, trufted only to the 
 power of the fword. 
 
 Happily
 
 CRIMINAL LAW. 307 
 
 Happily for this kingdom, the Ufurp- 
 cr's fon did not inherit the bold vices of 
 the father. His weaknefs, and the for- 
 tunate diflenfions among the petty com- 
 petitors for tyranny, who fucceeded him, 
 opened a paffage for the Reftoration. 
 
 It is the nature of mankind to run 
 into extremes, and to difregard and con- 
 demn the moft laudable qualities, when 
 abufed by the flagitious arts of thofe 
 who make them fubfervient to the vilcfl: 
 purpofes. Thus the people of this na- 
 tion, who had been harafTed with va- 
 rious and fucceflive fcenes of oppreflive 
 calamity, under the mafk of godlincfs 
 and holy zeal, received with open arms 
 an eafy and voluptuous monarch, in 
 whom the pafiion for luxury and diflipa- 
 tion was fo firmly rooted, that neither 
 his father's melancholy fate, nor his ov>^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<f. 
 
 231. penult, for rf'//(f?^, read relicks. 
 
 257. 6. for deemed, read doomed. 
 
 264. II. for orations, read ovations. 
 
 302. "17. dele /«. 
 penult, dele /w.
 
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