Furem nocturnum qui occiderit, impune feret, fi parcere ei fine periculo fuo non potuit (t); which law, tho' like to that of the Jews and Greeks, the Roman lawyers have conftrued (u), that it is law[7] ful to kill furem nocturnum recedentem & fugientem cum rebus, licet fe non defendat telo, fed non diurnum, nifi se defendat telo.

The punishment of homicide, unless it were merely cafual, among the Romans was deportatio in infulas & omnium bonorum ademptio, fed folent hodie capite puniri, nifi honefliore loco pofiti fuerint, ut pœnam legis fuftineant; humiliores enim folent befliis fubjici (x); altiores vero deportantur in infulas (y).

Some temperaments they added in other cafes of homicide, as banishment for five years (z), deportation, &c. but regularly the punishment of homicide, unless in case of fimple misfortune (a), or defenfe of life (b), was death viz. beftiis fubjiciantur.

Among the Saxons (c) the punishment of homicide was not always, nor for the most part capital; for it might be redeemed by a recompense which went under the name of Wera and Weregild (d),

(1) 4.9.

(u) This was not a meer conftruction of the Roman lawyers, but is expressly provided by the law of the twelve tables, as appears from Digeft. Lib. IX. tit. 6. ad leg. Aquil. 1. 4. §. 1. Cic. pro Milone, cap. 3. A. Gell. Lib. 18. cap. Macrob. faturnal. Lib. I. cap. 4. The reafon of this diftinction between a night-thief and a day-thief, fee in Grot. de jur. bel. ac. pac. Lib. II. cap. 1. §. 12.

(x) Dig. Lib. XLVIII. tit. 19. de pænis. 1. 28. § 15.

(y) Dig. ad leg. Cornel. de ficariis l. 16. (≈) 1. 4. §. 1.

(a) Cod. eod. tit. l. 1.

(b) Cod. eod. tit. 1. 2. & 3.

(e) It feems to have been the general practice of most of the northern nations to commute the punishment of the most heinous crimes for a pecuniary mul&t. Lindenbrugii Codex Leg. Antiq. Lib. IV. cap. 36. Tacitus fpeaking of the antient Germans fays, it was customary among them to punith homicide with a certain number of fheep and oxen, out of which the relations of him that was flain received fatisfaction. Tac. de mor. Germ. cap, 21. From hence probably our Saxon ancestors brought the cuftom into Britain.

(d) This Weregild or capitis æftimatio, according to the laws of Ethelbert, was ufually 100s. Leg. Etbelbert, l. 21. tho' in fome particular cafes it was more, 1. 5. 6. 22. If the flayer efcaped, the relations

which

were to pay half the ordinary Weregild,

1. 23.

By the laws of Ina the Weregild was different according to the rank and degree of the perfon killed, of a man worth 200s. was 30s. of a man worth 600s. was 80s. of a man worth 1200s. was 120s. Leg. Ina. 1. 70. This rule admitted of some excep tions, l. 34. l. 74.

By the laws of Alfred, the bare attempt on the king's life was punished with death, unlefs the offender redeemed it by the payment of the king's weregild: the fame law was in cafe a flave attempted the life of his lord, unless he redeemed it by paying his lord's weregild. Leg. Alfred. l. 4. the weregilds were of the fame value, as under Ina. Leg. Alfred. 1. 9. l. 26.

By the league between Alfred and Gu tbrun, l. 2. the value of a common perfon was 2008. the fame by the league between Edward and Guthrun in fine.

By the laws of Atbeltan, whoever fhould attempt his lord's life, was to be put to death, and there is no mention made of any ranfom. Leg. Athelftan, 1. 4. but at the end of his laws, and of the fudicia Civitatis Lundonia, there is a particular account of the weregilds of all orders and degrees, from the king to the peasant, for which fee Wilkin's Leg. Anglo-Sax. p. 64.

which was a rate fet down upon the head of perfons of several ranks; and if any of them were killed, the offender was to make good that rate, or Weregild or capitis æftimatio, to the kindred of the party flain; or, as fome think, part to the king, part to the lord of the fee and part to the relations of the party flain; which if he could not do, he was to fuffer death (e). Vide Spelm. in Gloff. ad verba Wera & Weregild.

This custom continued long, even to the time of Hen. I. here in England, as appears by his laws in libro rubro, fect. 11. (f) but. shortly after grew obfolete, as being too much contradictory to the divine law (g). Vide Covarr. Tomo 2 Lib. 11. cap. 9. Sect. 2.

But although the cuftom of Weregild is abrogated here in England, and by the laws of this kingdom the punishment of ho[9] micide is regularly death (h), as shall hereafter be thewn ; yet fince there are in England two kinds of proceedings in punishing of homicide, the one at the fuit of the heir or wife by appeal, the other at the fuit of the king by indictment, the capital punishment of the offender may be difcharged by all parties interested, namely by the appellant by release, and by the king by his pardon.

By the laws of Cnute, whoever should lie in wait for the life of the king, or of his lord, was to fuffer death, and forfeit all he had. Leges Cnuti, l. 54. Whoever committed a public notorious murder, was likewife to fuffer death, without redemption for in l. 61. Cedes publica & demini proditio are reckoned amongft the fcelera inexpiabilia; but it should feem that common homicide was redeemable; for in 1. 6. it is faid, Homicidae inclinent, wel emendent, vel fcienter in peccatis moriantur.

(e) The weregild was ufually divided into three parts: the firft, which was called Frith bote, was paid to the king for the lofs of his fubject; the lord had another for the lofs of his man, which was called Man-bote and the kin of the flain for their lofs had the third part, which was called Mag-bote. See Spelm. life of Alfred, Book II.. 11. In the cafe of killing the king, befides the weregild, which was to be paid to the king's relations, there was also another payment called cynebot or cynegild, to be made to the public for the lofs of their king. (f) And 12. fce Wilkin's leges Anglo Sax. p. 244. But it appears from the fame laws, l. 71. ibid. p. 267. that a malicious murder, by poifon or the like, was factum mortiferam nullo modo redimendum: The genuineness of thefe laws is juftly queftioned, for that they not only are in the nature of commentaries rather than laws; but alfo in 1.5. Gregory's decretals are cited, which

were not compiled till fifteen years after the death of Henry I. however, they are allowed to be very antient, and to contain the ufages of the Anglo-Saxons. See Hickefii Diflert. Epift. p. 96.

B 3

(g) It cannot but feem ftrange to us at this time of day, that the wilful murder of any one, much more of the king, should be punished only with a pecuniary mul&t; to folve this difficulty. Mr. Rapin fuppofes that this commutation was allow'd only in the cafe of fimple homicide; or at most what is now known by the name of manflaughter, but not in the cafe of a premeditated murder: See Rapin's Hiftoire d'Angleterre, Vol. I. p. 520. This notion is in itfelf reafonable, and feems to be favoured by 1. 4. of Athelftan, and 7. 54. of Chute, which makes it capital barely infidiari regi vel domino, much more to take away the life of the king or his lord; but on the other hand it feems fomewhat hard to fuppofe, that among fo many laws againft homicide, they fhould all be levell'd againft cafual or fudden killing only, and fcarce any againft wilful murder.

(h) The offender is to be hanged by the neck till he be dead; and in cafe he was convicted on an appeal, the antient ulage was, that all the relations of the flain fhould drag him with a long rope to the place of execution. 3 Co. Inft. 131. Plowd. 306, b. 11 Hen, 4. 12. a.

And

And thus far touching the punishment of homicide.

Now I fhall confider fomewhat also of the punishment of theft, and the various laws and usages concerning the fame in feveral kingdoms and states, and at different times in the same state or kingdom.

By the Jewish law, Exod. xxii. 1, 4. If a man fleal an ox or a fleep, and fell or kill it, he shall restore five oxen for an ox, and four sheep for a fheep: If the theft be found in his hands alive, whether ox, afs, or fheep, he fhall restore double; and the like for other goods (i); so that there was no capital punishment in cafe of theft, though it were accompanied with burglary, as breaking a house, (but men-stealers were punished with death (k); but it seems by the civil conftitutions of that state the punishment thereof was fometimes enhanfed, at least in fome circumftances, fometimes to a feven-fold reftitution, Prov. vi. 31, and alfo to death, 2 Sam. xii. 5. (1)

Now as to the Attic laws: Samuel Petit de Legibus Atticis, Lib. VII. tit. 5. gives us an account of their laws concerning theft, in fome things differing, in fome things agreeing with the Jewish laws, furem cujufcunque modi furti fupplicio capitis punito. This was Dra[10] co's law; but it was thought too fevere, and therefore Solon corrected it (m) Si furtum factum fit, & quod furto perierat receperit dominus, duplione luito furtum qui fecit & quorum ope confuloque fecit ; decuplione vindicator, ni dominus rem furtivam receperit, in nervo quoque habetor dies ipfos quinque totidemque noctes, fi heliaftæ pronunciárint; pronuncianto autem, cum de pœna illius agitur.

Si lucri furtum cujus æftimatio fit fupra 50 drachmas faxit, ad undecim viros rapitor; fi nox furtum faxit, fi im aliquis occifit, jure cæfus efto:-Manifeftum hujufmodi furtum qui faxit, etiamfi vades dederit, non noxæ facta farcitione, fed morte luito. Si quis item ex aliquo gym nafio veftis aut lecythi aut alicujus vel mynimæ rei, aut fupellectilis è gymnafio, aut ex balineo, aut è portubus, quod excedat 10 drachmarum æfti mationem, furtum faxit, morte luito.

Manifefti faccularii (n) morte luunto.

(i) Exod. xxii. 7, 9. The reafon why

the reftitution of an ox was more than of a fheep is fuppofed by Maimonides more Nevochim Par. 111. cap. 41. to be becaufe sheep are more eafily guarded against thieves than oxen, who feed at a greater diftance one from another.

(k) Exod. xxi. 16.

This paffage from the book of Sanuel does by no means prove what it is brought for, viz. that theft was punishable with death by the Jewish law; for the cafe

there put of taking away a poor man's lamb, was attended with violence and other aggravating circumftances, which provoked king David to fay, The man that hath done this fhall furely die; and fome render the words, Does deferve to die; but at moft it only proves the vehemence of David's anger at the man, and not what was the law of the Ifraelites

(m) See A. Gellium, Lib. XI. cap. 18. £3 Plutarch, in Vitä Solonis.

(7) Bahartiotouiwy, A cut-purfe.

Nitticularii

Veicularii (0) manifefti morte luunto.

Plagiarii (p) manifefti morte luunto.

In hortos irrumpere ficofque deligere capital efto (q): So that the quantity of the thing ftolen, the place, the feafon, the manner and other circumstances heightened theft into a capital punishment, that otherwite by Solon's laws was only pecuniary and imprisonment (r). Now as to the Roman laws: For a theft that was not fur[11] tum manifeftum, there is given actio in duplum; but if it were furtum manifeftum, actio in quadruplum (J); furtum autem manifeftum eft, cum fur deprehenditur in furto (t).

But now as to punifliments among the Romans, there were these degrees or orders: I. Capital punishments, (viz ultimum fupplicium) (u) which were 1. Damnatio ad furcam. 2. Vivi crematio. 3. Capitis amputatio. 4. Damnatio ad feras. II. Others, that were in the next degree, were 1. Coercitio ad metalla. 2. Deportatio ad infulas. III. Others again of a lower aliay were, 1. Relegatio ad tempus vel in perpetuum. 2. Datio in publicum opus. 3. Fuftigatio (x). I find not among the Romans any greater punishment of theft, than four-fold reftitution (y) unless in thefe cafes:

1. Si quis ex metallo principis vel ex monetâ facrâ furatus eft, pœna metalli exilii punitor (z).

(0) Toxwpuxar, A house-breaker,

(p) 'Ardgavodiqueros, Sive Plagiarius, is eft, qui fine vi, dolo malo fciens abducit homines liberos ingenuos, venditque pro fervis, aut fappremit: vel is eft, qui alienos fervos abducit ne vi, & plerumque fine furto, & fugam perfuadet, aut fugitivos celat. Petit, Comment. ad Lib. VII. tit. 5. de furtis.

(4) But this was a temporary law, made in a time of dearth, when it was thought necceffary to prohibit the exportation of Figs. However, profecutions of offenders against this law foon grew odious: from hence all malicious informers were eailed Sycophants. Vide Athenæi Deipnofophift. Lib. III. & Scholiaft, in Ariftophanis lutum ad 31. & 874.

(r) Among the Lacedæmonians all manmer of theft was permitted, as a practice which tended to inftruct their youth in the ftratagems of war. A. Gel. Lib. XI. cap. 18. It was alfo unpunished among the antient Egyptians. A Ġel, ubi fupra. But we learn from Diodor. Sic. Lib. 1. that it was allow'd only on certain conditions, for it was provided by a law, that whoever was minded to follow the trade of thieving, fhould first enter his name with the captain of the gang, and should bring in all his booty to him, that fo the right owner might know where to apply for the Recovery of his goods, which were re

ftored to him on paying the quarter of the value.

(f) Inft. Lib. W. tit. 6. §. 5. Digef. Lib. XLVII. tit. 2. de furtis, i. 46. §. 2. Herein the Roman law greatly refembied the Jewish, with this difference that by the Jewish law the punishment of fourfold was to be inftead of reftitution; whereas by the Roman law the thing ftolen was recoverable over and above the pana quadrupli. Dig. eod. tit. 1. 54. §. 3.

(t) Dig, eod. tit. 1. 2. l. 3. pr. By this was meant not only if he was taken in the fact, but alfo if he was apprehended with the goods upon him before he had carried them to the place, where they were to remain that night, and anfwers to the expreffion in our law, of being taken in the mainouvre.

(u) Dig. Lib. XLVIII. tit. 19. de pænis.

1. 21.

(x) Dig. cod. tit. l. 28. pr. §. 1. l. 11. 9.3.

(y) So far were the Romans from infting capital punishments for theft, that on the contrary it was exprefsly forbidden by Juftinian, that any perfon fhould be put to death, or fuffer the lofs of member for theft. Novel CXXXIV. cap. uit.

(z) Dig. Lib. XLVIII. tit. 13. ad leg. Jul. peculatus, l. 6. §. 2. Lib. XLVIII. tit. 19. de pænis 1. 38.

2 Graffatores

2. Graffatores qui cum ferro aggredi & fpoliare inftituunt, capite puniuntor (a).

3. Famofi latrones ad beftias vel furcas damnanter. Digeft. de pænis (b).

If we come to the laws and customs of our own kingdom, we shall find the punishment of theft in feveral ages to vary according as the offence grew and prevailed more or less (c).

Among the laws of king Athelftan, mentioned by Brampton, [12] p. 849, 852, 854. Non parcatur alicui latroni fupra 12 annos & fupra 12d. quin occidatur (d). Edmund his fucceffor *, præcepit nè infra 15 annos, vel pro latrocinio infra 12d. occidatur, nifi fugerit, vel fe defenderit: Malmbury tells us, that in the time of William I. theft was punished with caftration, and lofs of eyes (e); but in the time of Henry I. the antient law, which continues to this day, was ut fiquis in furto vel latrocinio deprehenfus fuerit fufpenderetur (f).

(a) Dig. eod. tit. 1. 28. §. 10. (b) Dig. eod. tit. 1. 28. §. 15.

(c) By the laws of Ethelbert, if one man ftole any thing from another, he was to reftore three-fold, befides a fine to the king, 1. 9. If he ftole any thing from the king, he was to restore nine-fold, 7. 4.

By the laws of Ina a thief was punifhed with death, unless he redeemed his life capitis eftimatione 1. 12. which wes 60s. 1.7. but if a villain, who had been often accufed, fhould be taken in a theft, he was to have a hand or foot cut off, l. 18.

By the laws of Alfred whoever stole a mare with the foal, or a cow with the calf, was to pay 40s. befides the price of the mare or cow, l. 16. Whoever flole any thing out of a church, was to pay the va lue, and a fine according to the value; and alfo was to have that hand cut off, which committed the fact, I. 6. If any perfon committed a theft die Dominico, or any other great feftival, he was to pay double l, 5.

(d) By the first law of Athelstan it was but 8d. Wilkins leges Anglo-Sax. p. 56. but afterwards by the laws of the fame king, enacted at London, and thence called judicia civitatis Lundonia, no one was to be put to death for a theft under 12d. Ibid. p. 65. But in cafe the thief fled, or made refinance, then he might be put to death, tho' it were under that value, Ibid. p. 70. By the law of Chute theft was punified with death, Ibid. p. 134. l. 4. and p. 143.

1. 61.

(*) This is a miftake, for no fuch law is found among the laws of that king, but it is among the later laws of king Athelstan,

Vide Judicia Civ, Lond. Wilk. leg. Anglo.
Sax. p. 70.

(e) By the laws of Willam I. it was exprefly prohibited, that any nould be hanged or put to death for any offence, but that his eyes fhould be pull'd ou', his tefticles, hands or feet cut off, according to the degree of his crime, 1. 67. apud Wil kins Leg. Anglo-Sax. p. 229. p. 218.

(f) In former times, tho' the punifhment of death was capital, yet the criminal was permitted to redeem his life by a pecuniary ranfom; but in the 9th year of Hen. I. it was enacted, that whoever was convicted of theft (or any other felony, Co. Inftit. 53.) fhould be hanged, and the liberty of redemption was entirely taken away. Wilk. leg. Anglo-Sax. p. 304. This law ftill remains at this day; but confidering the alteration in the value of money, the feverity of it is much greater now than then, for 12d. would then purchase as much as 40s. will now; and yet a theft above the value of 12d. is ftill liable to the fame punishment; upon which Sir Hen. Spelman juftly obferves, that while all things elfe have role in their value and grown dearer, the life of man is become much cheaper. Spelm. in verbo laricinium; from hence that learned author takes occafion to wifh, that the antient tenderness of life were again reftored Juftum certé eft, ut collapfa legis aquitas reftauretur, & ut divine imaginis vebiculum, quod fuperiores pridem atates ob graviffima crimina nequaquam tol lerent, levioribus bodic ex delictis non perde

retur.

And