9

SECT. III.

Of the Criminal Laws of England,

HE feverity of our Criminal Laws is

THE

not only an object of horror, but the difproportion of them is a fubject for cenfure. All degrees of offence are confounded; all proportion of punishment is destroyed. They breathe too much the spirit of Draco, who used to say, that he punished all crimes with death, because small crimes deserved death, and he could find no higher for the greatest.

But if we attend to Reason, the mistress of all Law, she will tell us, that punishments fhould, as nearly as poffible, bear proportion to the offences committed; and that it is both unjuft, and injurious to fociety, to inflict death, except in cafes where the offender appears to be incorrigible.

Two

Two questions naturally occur, on the examination of this subject:

1. Whether the magiftrate has a right to take away the life of a delinquent, otherwife than in cafes which would endanger the public safety.

2. Admitting fuch right, whether there is a neceffity for exercising it.

CHA P. IV.

SECT. I.

Of the Right of inflicting Capital Punishments.

WITH

ITH refpect to the right of Punishment in general, it must be allowed, that the magiftrate can have no power, but what he either derives originally from the people, who, by common confent, agreed to refign their natural rights for certain purposes, and under cer

tain conditions; or what he acquires by neceffary implication, as means requifite to the end of government for the common good; upon the principle, Salus populi fuprema lex.

Now, it is clear that the people could not poffibly transfer a right which they could not lawfully claim themselves. It will be allowed, that no one has a right to take a way his own life; confequently, fince he himself can, in no extremity whatever, put an end to his own being, he cannot have given the magiftrate a right of inflicting death upon him; and the arguments which would endeavour to prove the affirmative, might with equal force be applied in vindi cation of fuicide,

It is indeed alledged by the writers on this fubject, that the right in question is not transferred, but relinquifhed, which is a nicety not readily conceived.

Puffendorf argues, that as Punishment is fomething inflicted on the unwilling, and

as

as that cannot happen against a man's will which he brings upon himself, therefore it is difficult to explain how a man can have the faculty of punishing himfelf, and be capable of making a transfer of it to another.

This difficulty he endeavours to folve thus;-As, fays he, in natural bodies, by the mixture of many fimples, a compound may be produced, in which qualities are discovered not to be found in any of the fimple ingredients; fo bodies politic, compofed of several members, may have rights" refulting from their union, which are not inherent in any individual: therefore, continues he, the magiftrate or fupreme body politic may have a right of inflicting punishments, which was not before in any individual: and this, he adds, is easily accounted for, if we fuppofe that every one binds himself, not only to protect others, but to bend his whole force against him whom the magistrate deems worthy of pu

nishment:

Το

To this it may be objected, That in this obligation, by which every one is fuppofed to be bound, the Criminal himself muft be included; and Puffendorf had before very justly obferved, that no one can be under an obligation of devoting himself to punishment; confequently this way of reasoning does not folve the difficulty. His arguments indeed, on the whole of this point, seem rather fpecious than fatisfactory, and his objections rather verbal than fubftantial.

It is true that the right of inflicting punishments, eo nomine, was not in any individual previous to civil institutions; for Punishments, strictly confidered, are creatures of Civil Society.

Nevertheless, individuals in a State of Nature, having a right of private revenge, though every exercise of such right is, properly speaking, an act of hoftility, and not a punishment; yet Punishment, or the civil right of public vengeance, was fubstituted in lieu of fuch natural right of private revenge,