Chap. I. OF t Chap. 3. Of the Infliction of Death. CONTENT S. F the Origin of Legislation. p. 1, p. 6, Chap. 4. Of Banishment. P. 18. Chap. 5. Of Forfeiture and Corruption p. 26. of Blood. Chap. 6. Of Imprisonment. p. 32. Chap. 7. Of corporal Punishment and of P. 44. Infamy. Chap. 8. Of Fines. P. 49. p. 60. Chap. 9. Of the Difpofal of the dead Body of the Criminal. p. 70. Chap. 10. A General Idea. Chap. 11. Of Crimes. P. 73. P. 74. Chap. 12. Of Crimes relative to Religion. Chap. 21. Of Suicide. p. 223. Chap. 22. Of other Crimes relative to the P. 226. Chap. 23. Of Crimes relative to Pro- p. 229. perty. Chap. 24. Of Crimes of pofitive Inftitu- p. 246. tion. Chap. 25. Of the Importance of this p. 273. Subject. Chap. 26. Of the Compofition and Pro- p. 280. Chap. 27. Of the Execution of penal p. 282. Laws. p. 291. PRINCIPLES PRINCIPLES O F PENAL LAW. §. I. CHAP. I. Of the Origin of Legislation. I N the formation of focieties mutual utility is the instinctive principle of union. But reafon co-operating with instinct carries the affociation ftill further, and points out the infufficiency of a fyftem merely gregarious. The unlimited enjoyments of Individuals are found incompatible with the exiftence of a collective Body; rules of conduct and covenants are introduced; and the moral duties of benevolence, juftice, and adherence to compacts, become as evident to human understanding, as they are effential to human happiness. Here then commences the obligation of civil laws: The impulfes of appetite cease to be the fole motives of action; power is no longer the measure of property; and the natural herd is refined into a political state. Legislation is instituted; and the baneful exceffes of the paffions are fubjected to various modifications of restraint. Magistracies are established; and the promulgation of punishments is extended to All, by the common confent of All, for the benefit of All. And thus it is, that civil liberty is the aggregate of those portions of natural liberty, which are given up by the constituent members of fociety. But it is not to be fuppofed, that this effect is inftantaneous: I fhall hereafter have occafion to fhew, that the infancy of civilization is tedious, and its progrefs towards maturity fubjected to many difficulties. The gratification of private refentment, and the pursuit of private fatisfaction are at first the fole objects of criminal procefs; and the offended party is his own avenger. It is long before the selfish paffions are softened into an habitual acquiefcence in the general difpenfations of Law; before injuries to individuals are confidered, and made punishable, as injuries juries to the fociety at large. This change, in which the public intereft is recognized to be the great end of penal jurifdiction, tho' founded in reafon, is contradictory to the most active propenfities of human nature, and therefore is fubmitted to with reluctance. It is from this affumed period of perfect civilization that I am now to proceed. §. 2. To what extent the authority of legislative regulations may be carried, and how far the obedience of the fubject is demandable, are queftions of fpeculation, which the temperate difpofition of modern governments hath rendered rather curious than useful. It is fufficient to obferve, that every causeless or unneceffary reftraint of the Will is an infringement of that political freedom, to which every member of fociety is entitled; and poffible cafes may certainly be proposed, which no authority on earth can justify. Phalaris licit imperet, ut fis Falfus, et admoto dietet perjuria tauro, Summum crede nefas animam præferre pudori, Et propter vitam vivendi perdere caufas. |