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fome correction, or whether he be difabled from doing any
farther harm and if the penalty fails of both thefe effects,
as it may do, ftill the terror of his example remains as a
warning to other citizens. The method however of inflicting
punishment ought always to be proportioned to the particu
lar purpose it is meant to ferve, and by no means to exceed
it: therefore the pains of death, and perpetual difability by
exile, slavery, or imprisonment, ought never to be inflicted,
but when the offender appears incorrigible: which may
be collected either from a repetition of minuter offences; or
from the perpetration of fome one crime of deep malignity,
which of itfelf demonftrates a difpofition without hope or
probability of amendment: and in fuch cafes it would be
cruelty to the public, to defer the punishment of fuch
minal, till he had an opportunity of repeating perhaps the
worst of villanies.

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3. As to the measure of human punishments. From what has been obferved in the former articles we may collect, that the quantity of punishment can never be abfolutely determined by any ftanding invariable rule; but it must be left to the arbitration of the legiflature to inflict fuch penalties as are warranted by the laws of nature and fociety, and fuch as appear to be the beft calculated to answer the end of precaution against future offences.

HENCE it will be evident, that what fome have fo highly extolled for it's equity, the lex talionis, or law of retaliation, can never be in all cafes an adequate or permanent rule of punishment. In fome cafes indeed it feems to be dictated by natural reason; as in the cafe of confpiracies to do an injury, or falfe accufations of the innocent: to which we may add that law of the Jews and Egyptians, mentioned by Jofephus [ 13 ] and Diodorus Siculus, that whoever without fufficient cause was found with any mortal poison in his cuftody, should, himself be obliged to take it. But, in general, the difference of perfons, place, time, provocation, or other circumftances, may enhance or mitigate the offence; and in fuch

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Book IV. cafes retaliation can never be a proper measure of juftice. If a nobleman ftrikes a peafant, all mankind will fee, that if a court of justice awards a return of the blow, it is more than a just compenfation. On the other hand, retaliation may, fometimes, be too easy a sentence; as, if a man maliciously fhould put out the remaining eye of him who had loft one before, it is too flight a punishment for the maimer to lose only one of his and therefore the law of the Locrians, which demanded an eye for an eye, was in this instance judiciously altered: by decreeing, in imitation of Solon's laws, that he who ftruck out the eye of a one-eyed man, should lofę both his own in return. Besides, there are very many crimes, that will in no fhape admit of these penalties, without manifeft abfurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adultery, and the like. And we may add, that those instances, wherein retaliation appears to be used, even by the divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the fame hurt he has done to his neighbour and no more; but this correspondence between the crime and punishment is barely a confequence from fome other principle. Death is ordered to be punished with death; not because one is equivalent to the other, for that would be expiation, and not punishment. Nor is death always an equivalent for death: the execution of a needy decrepid affaffin is a poor fatisfaction for the murder of a nobleman in the bloom of his youth, and full enjoyment of his friends, his honours, and his fortune. But the reafon upon which this fentence is grounded feems to be, that this is the higheft penalty that man can inflict, [14] and tends moft to the fecurity of mankind; by removing one

murderer from the earth, and fetting a dreadful example to deter others: fo that even this grand instance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage fuftained by the fufferer, the punishment ought rather to ex

4 Pott. Ant. b. 1. c. 26.


ceed than equal the injury: fince it feems contrary to reafon and equity, that the guilty (if convicted) should suffer no more than the innocent has done before him; especially as the fuffering of the innocent is past and irrevocable, that of the guilty is future, contingent, and liable to be escaped or evaded. With regard indeed to crimes that are incomplete, which confift merely in the intention, and are not yet carried into act, as confpiracies and the like; the innocent has a chance to fruftrate or avoid the villany, as the confpirator has also a chance to escape his punishment: and this may be one reason why the lex talionis is more proper to be inflicted, if at all, for crimes that consist in intention, than for fuch as are carried into act. It seems indeed confonant to natural reason, and has therefore been adopted as a maxim by feveral theoretical writers', that the punishment due to the crime of which one falfely accufes another, fhould be inflicted on the perjured informer. Accordingly, when it was once attempted to introduce into England the law of retaliation, it was intended as a punishment for such only as preferred malicious accusations against others; it being enacted by statute 37 Edw. III. ch. 18. that such as preferred any suggestions to the king's great council should put in fureties of taliation; that is, to incur the fame pain that the other should have had, in cafe the fuggeftion were found untrue. But, after one year's experience, this punishment of taliation was rejected, and imprisonment adopted in its ftead s.

BUT though from what has been said it appears, that there cannot be any regular or determinate method of rating the quantity of punishments for crimes, by any one uniform [15] rule; but they must be referred to the will and difcretion of the legislative power: yet there are fome general principles, drawn from the nature and circumstanees of the crime, that may be of fome affiftance in allotting it an adequate punish


* Beccar. 6. 15.

s Stat. 38 Edw. III. c. 9.


As, firft, with regard to the object of it: for the greater and more exalted the object of an injury is, the more care should be taken to prevent that injury, and of courfe under this aggravation the punishment should be more fevere. Therefore treason in conspiring the king's death is by the English law punished with greater rigour than even actually killing any private subject. And yet, generally, a defign to tranfgrefs is not fo flagrant an enormity, as the actual completion of that defign. For evil, the nearer we approach it, is the more difagreeable and shocking; so that it requires more obftinacy in wickedness to perpetrate an unlawful action, than barely to entertain the thought of it: and it is an encouragement to repentance and remorse, even till the last stage of any crime, that it never is too late to retract; and that if a man ftops even here, it is better for him than if he proceeds: for which reafon an attempt to rob, to ravish, or to kill, is far lefs penal than the actual robbery, rape, or murder. But in the cafe of a treasonable confpiracy, the object whereof is the king's majefty, the bare intention will deferve the highest degree of feverity; not because the intention is equivalent to the act itself; but because the greatest rigour is no more than adequate to a treasonable purpose of the heart, and there is no greater left to inflict upon the actual execution itself.

AGAIN: the violence of paffion, or temptation, may fometimes alleviate a crime; as theft, in cafe of hunger, is far more worthy of compaffion, than when committed through avarice, or to fupply one in luxurious exceffes. To kill a man upon fudden and violent refentment is lefs penal than upon cool deliberate malice. The age, education, and character of the offender; the repetition (or otherwise) [16] of the offence; the time, the place, the company wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime t

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FARTHER: as punishments are chiefly intended for the prevention of future crimes, it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public fafety and happiness: and, among crimes of an equal malignity, those which a man has the most frequent and easy opportunities of committing, which cannot be fo easily guarded against as others, and which therefore the offender has the ftrongest inducement to commit: according to what Cicero obferves", "ea funt animadvertenda peccata maxime, quae difficillime praecaventur." Hence it is, that for a fervant to rob his mafter is in more cafes capital, than for a stranger: if a fervant kills his mafter, it is a fpecies of treafon; in another it is only murder: to steal a handkerchief, or other trifle of above the value of twelvepence, privately from one's perfon, is made capital; but to carry off a load of corn from an open field, though of fifty times greater value, is punished with transportation only. And, in the island of Man, this rule was formerly carried fo far, that to take away an horse or an ox was there no felony, but a trefpafs, because of the difficulty in that little territory to conceal them or carry them off: but to steal a pig or a fowl, which is eafily done, was a capital misdemesnor, and the offender was punished with death ".

LASTLY, as a conclufion to the whole, we may obferve that punishments of unreasonable severity, especially when indifcriminately inflicted, have lefs effect in preventing crimes, and amending the manners of a people, than fuch as are more merciful in general, yet properly intermixed with due distinctions of severity. It is the fentiment of an ingenious [ 17 ] writer, who seems to have well studied the fprings of human action, that crimes are more effectually prevented by the certainty, than by the feverity, of punishment. For the exceffive feverity of laws (fays Montefquieu) hinders their

▾ Beccar. c. 6.

pro Sexto Rofcio. 40.

w 4 Inft. 285.

x Beccar. c. 7.
y Sp. L. b. 6. c 13.




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