proved by many other arguments, that the institution of magistrates, with civil power, is for the general benefit of mankind.

IX. We shall find, in our future inquiries, that many What crimes are actions become so criminal, in a state of civil society, as punishable by men to be punishable, which in the equality of nature men in the equality of have no right to punish. At present we shall consider nature. only what crimes are punishable by man, in a state of nature, before any civil connections were made, or any positive laws were instituted. *If the foundation of our right to punish has been truly laid, it will be obvious, that no crimes are punishable by mankind, but such as do harm; that is, none but such as contain in them some notion of injustice towards mankind. From whence it follows, that the only actions which we have a right to punish in the liberty of nature, are those, which are naturally unjust.

If a man is void of benevolence, or wholly disinclined to do us good; this is a breach of his duty indeed; but it is such a breach, as must be left to the great author of the law of nature to punish, who will undoubtedly take effectual care to vindicate the authority of his own laws: for what right can we have to make a man suffer for not doing what we had no right to demand of him: however reasonable it might be for us to expect it from him?

The law of nature commands men to be chaste and temperate; and he who established that law, will punish the breach of it. But if a man's lewdness or intemperance were to hurt no one but himself, it does not appear, that any man has a right to restrain him by force from following such evil courses.

The existence of a God is written throughout every part of nature in such legible characters; and the duty of honouring him is so plain to every capacity; that they, who disbelieve his existence, or deny him that honour, which is due to him, cannot but be understood to offend against the clearest precepts of the law of nature: they must be wilfully blind, if they do not see their duty, and perversely criminal, if they do not practice it. But till we have right to demand, that men should believe this obvious truth, and practice this plain duty; that is, till we are some way or other hurt, or some real injustice is done us by the contrary; it does not appear, that we have a right to punish those who disbelieve the one, or refuse to practice the other. Civil connections, when we are united into societies, may give us this right, as shall be shown in its proper place, they may make either atheism or irreligion punishable by us; but it will be difficult to make out, that we have any such right in the liberty of nature.

Indeed, whenever a man's want of benevolence changes, as it commonly does, into a want of justice; whenever his lewdness is attended, as it almost always is, with some harm to mankind; whenever his intemperance leads him to injure them; and whenever his irreligion is attended with its usual consequence of making him hurtful to them; as even in the liberty of nature they have a right to demand a contrary behaviour of him, they have a right likewise to use such means, as are necessary to make his behaviour what it ought to be, or to prevent it from being otherwise.

* Grot. Lib. II. Cap. XX. § XVIII, XIX, XX.

Grotius maintains, that one man is not punishable by another for any criminal intentions of any sort, not even when these intentions come to be known by some subsequent confession. And certainly the reason of the thing is on his side. The mere intentions of a man, whilst he keeps them to himself, cannot be punishable; because they are not known. And a subsequent confession of such intentions implies, that they are laid aside, before they are made public: in which case there can be no right of punishing; because there can be no right to restrain a man from doing an injury, where we have sufficient evidence, that he has already restrained himself.

We may add, that if by any means we come to the knoweledge of his intentions; whilst they subsist, but have not yet been put into execution; we have no right to punish him for them: because the proper notion of punishment is an evil inflicted upon account of some crime, which has been actually committed: and whilst the crime remains in the intention, it is not actually committed, it is only beginning. However, in these circumstances, though we have no right of punishing, we have a right of defence, which is a right of doing much the same thing under a different name.

Our author mentions another sort of crimes, which he says, are not punishable by man, and calls them such crimes, as human nature cannot avoid. It is not easy to imagine what crimes he had in his mind, when he gave them this general character. No action can be criminal, if it is not possible for a man to do otherwise. An unavoidable crime is a contradiction: whatever is unavoidable is no crime; and whatever is a crime is not unavoidable. If, indeed, he only meant, that where a criminal act is proposed to a man, though he may have a natural power of avoiding it, yet, if he is threatened, in case he will not do it, with such an evil as human nature cannot well bear up against, this circumstance will greatly abate, if not wholly remove the guilt of his compliance; this opinion can scarce be contradicted. But then an inquiry of this sort would have been made more properly, where he is treating of the manner, in which the guilt of a crime is to be estimated, than where he is enumerating the several sorts of crimes, which are not punishable by man.

What guilt is. X. Guilt is sometimes defined to be the obligation, which a man is under, to submit to punishment, in consequence of any crime that he has committed. But this, one would think, cannot be a true definition of it; at least it does not suit at all with our common ways of speaking about guilt. We commonly speak of guilt, as if it was capable of being greater or less: whereas, the obligation to punishment does not admit of degrees; there is no medium between being obliged and not obliged. And certainly, if this is all that we mean by guilt, many propositions relating to punishment, which we frequently hear, and which seem to have some sense in them, must be very trifling and uninstructive. When a man is said to deserve punishment upon account of his guilt; the meaning would be, if this was the true notion of guilt, that he deserves punishment, because he is obliged to submit to it. And it would be still more uninstructive to say, as we sometimes do, that a man is obliged to submit to punishment upon account of his guilt: for this would amount to no more than if we had

said, that he is therefore obliged to submit to punishment, because he is obliged to submit to it.

Let us try, whether we cannot find out some other definition of guilt, which will explain the notion of it with more exactness. Now, it seems to be an agreed point, that guilt is that quality in a criminal, which deserves punishment, or which gives mankind a right to punish him. By attending, therefore, to the foundation of our natural right to punish, we may, perhaps, be able to find out, what that quality in the criminal is, which makes him deserve it. Mankind have a right to punish any person, or he deserves punishment at their hands, when his actions have shown them, that he has a disposition to injure them, or to do them harm, unless they take care, by forcible means, to prevent him from doing it. This disposition, therefore, is what makes the criminal deserve punishment: and, consequently, as far as men are concerned in punishing, we may define guilt to be a disposition to do harm, which has shown itself by some actual harm already done.

XI. The guilt of a man is greater or less in pro- How guilt is estiportion as his disposition to do harm, appearing from mated. some harm already done, is stronger or weaker. Now, there are two ways of judging how strong or how weak this disposition is; first, from considering the nature of the crime itself, and secondly, from considering the circumstances of the criminal.

Guilt, according to the notion of it just now explained, is undoubtedly a personal quality; because the disposition to offend is in the criminal, and not in the crime. However, for the sake of speaking more distinctly upon this subject, I shall take the liberty, when we estimate the guilt of a person from considering the crime itself, which he has committed, to call it the guilt of the crime; and when we estimate it from considering the circumstances of the person who commits a crime, I shall call it the guilt of the criminal.

In general the guilt of a crime is estimated by the evil or harm which it does; not because guilt properly consists in such harm; but because any person's disposition to do harm is stronger or weaker in proportion to the greatness or the smallness of the harm which he can bring himself to do. The harm which others suffer by the crime of any person, is the immediate reason, why he should not have committed it: so that he who does more or greater harm, breaks through stronger reasons forbidding what he does, than he who does less harm: and the stronger reasons there are against offending, the stronger disposition to offend there must be in him, who can get over them. In short, there is so little difference between a disposition to do great harm, and a great disposition to do harm, that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it; and since this disposition is greater or less in proportion to the harm which is done by the crime; the consequence is, that the guilt of a crime follows the same proportion; it is greater or less, according as the crime, in its own nature, does greater or less harm. Thus, as murder deprives a man, not only of all his present happiness, but of the possibility likewise of obtaining any fu

Grot. Lib. II. Cap. XX. § XXVIII, XXIX, &c.

piness in this world; it does him the greatest possible harm, and fore, considered as a crime of the greatest guilt. The divine author of the Mosaic law places adultery in the next degree of guilt to murder; as it does a man the greatest harm that he can suffer, next to that of losing his life, by robbing him of all his domestic joy and comfort. Theft, which takes from a man some of the means of happiness by taking from him his goods, implies much harm in it towards him who suffers such a loss, and consequently a disposition to do much harm in them, who are the authors of it: the guilt, therefore, of this crime being estimated by the rule here laid down, though it does not rise so high as that of murder, is little inferior to that of adultery. False aspersions, by which a man is injured in his character or credit, may, and frequently do produce considerable harm to him; they are, therefore, crimes of some guilt: but because the harm is less certain, the guilt of such crimes is less than that of the crimes before mentioned.

There are some circumstances attending the criminal act itself, which will aggravate the guilt of it; such as impiety towards a parent, inhumanity towards a friend, or ingratitude towards a benefactor. The want of piety, or of humanity, or of gratitude, does not, indeed, seem to be punishable in itself, where men live in the liberty of nature: but if murder, or adultery, or theft, or slander, are attended with such circumstances; the guilt of these crimes is reasonably esteemed to be much greater than it would have been otherwise: because, where the same harm is done, a man's hurtful disposition must be greater, if he not only breaks through the obligations of justice, but such obligations likewise, as would, if he had listened to them, have engaged him to hold directly the opposite conduct, to advance the good and welfare of those, to whom he has done evil.

Thus far we have seen how the guilt of a crime is to be estimated: in which estimation we consider only the act itself, and the circumstances of it. But when an act is done by some particular person, in order to determine his degree of guilt, regard must be had to the situation and circumstances of the agent, as well as to the nature and circumstances of the act. What is chiefly to be considered in respect of the agent, relates either to his knowledge, or to his freedom. As his understanding is more clearly informed, and enables him to see his duty more plainly; or as his will is less forcibly restrained, and enables him to perform his duty more readily; his guilt, in transgressing that duty is so much the greater. He must have the strongest disposition to offend, who offends against the clearest evidence, and with the fewest restraints upon his freedom of choice. On the contrary, as entire and invincible ignorance of what ought not to be done, or an absolute impossibility of doing otherwise, would clear a man of all guilt; so in proportion as he is nearer to such a state as this, his guilt will be less. That where the same crime is committed by different persons, their guilt should be considered as greater or less, in proportion as their knowledge and freedom were greater or less, seems to be agreeable to the common notions of mankind. When a person is driven by some great provocation to commit a crime, or when he is tempted to commit it in order to avoid some great evil, which he could not otherwise have easily avoided; these are generally looked upon as circumstances in his favour, which lessen his guilt. But if a reason was to be asked, why

these circumstances should have such an effect; no reason can be given for it, but what is taken from the principle here advanced: the provocation which he received, or the temptation which he was under, have, either by clouding his understanding, prevented him from seeing his duty, or by putting a force upon his will, prevented him from performing it. And in proportion as his view of what he is obliged to is less distinct, or his liberty of doing it is more restrained, his acts, however criminal they may be in themselves, have so much the less guilt in them, when considered as done by him in these circumstances: because they do not arise so much from any disposition in him to do harm, as from his ignorance, or his restraint, from his want of understanding, or his want of freedom.

But then it is to be remembered, that if ignorance or restraint are admitted in alleviation of a man's guilt, as rendering his act in some sort the result of necessity, rather than of his own disposition to offend, this ignorance or restraint must be such as have not originally been owing to himself. An involuntary act, if the necessity which drives us to it, was brought upon us at first by our own free choice, must, in all reason, be considered as a voluntary act. Thus, though madness might clear a man from any guilt in what he does, yet drunkenness, notwithstanding he, who is drunk, may be really mad for the time, would be no alleviation of it. If a man is provoked by blows and other ill usage to kill the person, from whom he receives them, whilst the smart is upon him; such a provocation may be thought to lessen his guilt; but if he, by striking the first blow, was the occasion of what followed; his guilt would not be lessened by what he felt himself at the time of committing the fact, and by the provocation to commit it, which he brought upon himself.

XII. By these rules we may be assisted in judging Measure of punhow far the guilt of one person exceeds the guilt of ishment, how adanother, not only where they have committed different justed.

crimes, but likewise where they have committed the same crime. But in judging what punishment should be inflicted upon a criminal, another comparison may be thought necessary, a comparison between the guilt of the criminal and the evil which is to be inflicted upon him; that we may from thence be enabled to proportion the punishment to the guilt.

It is commonly said to be a proper rule of justice, that as much as the guilt of one person exceeds the guilt of another, so much the punishment of the former should exceed the punishment of the latter. If there was no other exception to this rule, yet it certainly does not come up to the point in question. For in this proportion guilt is compared with guilt, and punishment with punishment: whereas, the question is, what rule we are to observe in comparing guilt with punishment. However clear we may think it, that of two persons who have committed different crimes, and in different circumstances, he is to bear the greater punishment, whose guilt is the greater, and he the less punishment, whose guilt is the less; this rule will never help us in determining what particular sort or degree of punishment is to be inflicted upon either of them. We may know, certainly, that theft is a crime of greater guilt than slander; and, consequently, that in like circumstances, a thief may justly be punished more than a slanderer.