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those who are dangerous to the existence of others. A tree that brings forth no fruit, is cut down and burnt; a furious animal is killed; and a dangerous fellow may, on the same principle, be extirpated. Yet I am also of opinion, that capital punishment might be abolished, and replaced by other means which would be more effectual to protect society. There is an inconsistency in the present practice of inflicting death as a punishment for a great variety of offences; for certainly crimes differing greatly in atrocity do not merit exactly the same retribution. If it be true that crimes must be judged of according to the perversity of the malefactor, and according to the mischief which results from the offence; and if it be established as an axiom, that a crime consists in the intention and not in the action; all crimes which are at present capitally punished, cannot be considered as equal in guilt. A man who intentionally kills his benefactor, or another who kills one who has excited his jealousy and disturbed the peace of his family; an inexperienced girl who, in a moment of despair, destroys her offspring, the cause of her misery for life; the horrid monster who strangles an old father to enjoy his inheritance the sooner; the prostitute who assassinates the companions of her debauchery; and the highwayman whose whole

life is only a succession of robberies and murders, who spreads desolation and devastation in whole districts, cannot be considered as equally guilty. Either, therefore, the minor offences should be visited with a less punishment than death, or, to preserve consistency, the greater offences should be followed by death aggravated by increased horrors; a proposition at which even the sanguinary spirit of legislation would revolt. But as it is said, that death is the ultimate extent of judicial authority over malefactors, and that every punishment beyond it is cruelty, it ought not to be inflicted on individuals who might be prevented from doing evil by other means, such as confinement and education; nor on those equally, who are guilty in very different degrees, particularly since it does not prevent others from committing similar offences.

If the proper means of education and correction were employed according to the law of nature, the injustice in criminal legislation, now mentioned, might be avoided; and, indeed, there would soon be no occasion for capital punishment at all. There ought to be a particular establishment for those who are confined for life, regulated by sound principles. It may be found necessary to treat some with severity, yet by far

the greater number will be kept in order by just

treatment.

The idea of punishment is closely connected with that of the different degrees of guilt. If the reformation of malefactors were the principal object of the penal code, the possibility and means of correction would be the first object to be considered, and the extent of the guilt only the second. Punishment would then be viewed as one of the means of correction, but all the others would likewise be examined and employed. The greater the villain, the more care would be taken to correct him. At the same time, it is natural to consider the different degrees of guilt. On this point, many ideas may be communicated which are not adequately understood by legislators, because they are not sufficiently acquainted with human nature.

It is scarcely possible for human intelligence to decide with perfect justice, in regard to the precise extent of guilt and innocence in every particular case. All the motives and causes

which have determined a malefactor to commit a crime, cannot be known by man, and without such a knowledge, it is impossible to form a perfectly just estimate of the exact degree of guilt.

Such a judgment must be remitted to Him alone, who is all-wise. Although, however, human wisdom has limits, it must extend itself as far as possible. In penal legislation, extenuating and aggravating motives are admitted; and indeed some individuals, the fatuous and insane, are not held as answerable at all for their actions. In other cases, actions may be clearly illegal, which nevertheless admit of extenuating motives. I shall speak of several grounds of extenuation which appear to me to be founded in nature, but which nevertheless are not considered as such in different countries.

ON ILLEGAL ACTIONS WITHOUT GUILT.

Here

The first condition upon which a man is answerable for his actions, is that he is free. I take it for granted, that my ideas on moral liberty, such as they are developed in The Philosophical Principles of Phrenology, are known to the reader. Whenever moral liberty is wanting, there is no guilt. This is the case at those periods of life when the human faculties have not acquired strength enough to exercise will, viz. in infancy, or when the influence of will is suppressed by the state of disease. In all countries, a certain

age is fixed when punishment may be inflicted. It is also admitted, that the diseased state of the manifestations of the mind excludes culpability; but the extent and appearances of this state are not sufficiently understood.

I.-Illegal actions of Idiots.

Idiocy is Complete or Partial: Instances of the former kind are rare; of the latter numerous. Complete idiotism is easily distinguished, and does not require a detailed elucidation; but the common manner of judging of incomplete idiotism is frequently very erroneous. Legislators and judges are not yet convinced that there are various faculties of the mind, and that the manifestations of each power depend on a particular part of the brain; that one or several organs may be very active, while others are in a state of idiotism. These facts, however, which, although not generally admitted, are true, explain why, in some individuals, the perceptive faculties and the inferior propensities may be very active, while the powers of the moral will are silent. Such individuals are like animals, and cannot be moved by moral motives. They act only according to the feelings which they possess, without

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