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fuch a law to the dictates of conscience and humanity. To shed the blood of our fellow creature is a matter that requires the greatest deliberation, and the fulleft conviction of our own authority for life is the immediate gift of God to man; which neither he can refign, nor can it be taken from him, unless by the command or permiffion of him who gave it; either expreffly revealed, or collected from the laws of nature or fociety by clear and indisputable demonstration.

I WOULD not be understood to deny the right of the legislature in any country to inforce it's own laws by the death of the tranfgreffor, though perfons of fome abilities have doubted it; but only to suggest a few hints for the confideration of fuch as are, or may hereafter become, legislators. When a question arifes, whether death may be lawfully inflicted for this or that tranfgreffion, the wisdom of the laws must decide it: and to this public judgment or decifion all private judgments must submit; else there is an end of the first principle of all society and government. The guilt of blood, if any, must lie at their doors, who misinterpret the extent of their warrant; and not at the doors of the subject, who is bound to receive the interpretations, that are given by the sovereign power.

2. As to the end, or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the supreme being: but as a precaution against future offences of the fame kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the dread of his example from offending in the like way, "ut poena (as Tully o expreffes it) ad paucos, metus ad omnes perveniat ;" which gives rife to all ignominious punishments, and to fuch executions of justice as are open and public: or, lastly, by depriving

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the party injuring of the power to do future mischief; which is effected by either putting him to death, or condemning him to perpetual confinement, flavery, or exile. The fame one end, of preventing future crimes, is endeavoured to be answered by each of these three fpecies of punishment. The public gains equal fecurity, whether the offender himself be amended by wholsome correction; or whether he be difabled from doing any farther harm and if the penalty fails of both these 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 particular purpose it is meant to serve, and by no means to exceed it: therefore the pains of death, and perpetual disability 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 some one crime of deep malignity, which of itself demonstrates a difpofition without hope or probability of amendment: and in such cases it would be cruelty to the public, to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps the worst of villanies.

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

HENCE it will be evident, that what fome have so highly extolled for it's equity, the lex talionis or law of retaliation, can never be in all cases an adequate or permanent rule of punishment. In fome cafes indeed it seems to be dictated by natural reason; as in the cafe of confpiracies to do an injury, or false accufations

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accufations of the innocent: to which we may add that law of the Jews and Egyptians, mentioned by Jofephus and Diodorus Siculus, that whoever without fufficient caufe 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 circumstances, may enhance or mitigate the offence; and in such cases 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 sometimes be too easy a sentence; as, if a man maliciously should put out the remaining eye of him who had loft one before, it is too flight a punishment for the maimer to lofe 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 lose both his own in return. Befides, there are very many crimes, that will in no shape admit of these penalties, without manifest abfurdity and wickedness. Theft cannot be punished by theft, defamation by defamation, forgery by forgery, adultery by adul tery, 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 same 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 decrepit 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 sentence is grounded feems to be, that this is the highest penalty that man can inflict,

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


and tends moft to the fecurity of the world; by removing one murderer from the earth, and setting a dreadful example to deter others fo that even this grand inftance proceeds upon other principles than those of retaliation. And truly, if any measure of punishment is to be taken from the damage sustained by the sufferer, the punishment ought rather to exceed than equal the injury: fince it seems contrary to reafon and equity, that the guilty (if convicted) fhould fuffer 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 frustrate or avoid the villany, as the conspirator 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 confift 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 several theoretical writers', that the punishment, due to the crime of which one falsely accuses another, should 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 fuch only as preferred malicious accufations against others; it being enacted by statute 37Edw. III. c. 18. that fuch as preferred any fuggeftions to the king's great council fhould 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 it's ftead'.

BUT though from what has been said it appears, that there cannot be any regular or determinate method of rating the

Beccar. c. 15.

• Stat. 38 Edw. III. c. 9.


quantity of punishments for crimes, by any one uniform 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 circumftances of the crime, that may be of fome affistance in allotting it an adequate punishment.

A s, first, with regard to the object of it: for the greater and more exalted the object of an injury is, the more care fhould be taken to prevent that injury, and of course under this aggravation the punishment should be more fevere. Therefore treafon in confpiring the king's death is by the English law punished with greater rigour than even actually killing any private fubject. And yet, generally, a design to tranfgrefs is not so flagrant an enormity, as the actual completion of that defign. For evil, the nearer we approach it, is the more difagreeable and shocking; fo that it requires more obftinacy in wickedness to perpctrate 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 stops even here, it is better for him than if he proceeds: for which reasons an attempt to rob, to ravish, or to kill, is far lefs penal than the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king's majefty, the bare intention will deserve the highest degree of severity: 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 sometimes alleviate a crime; as theft, in case of hunger, is far more worthy of compaffion, than when committed through avarice, or to supply 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 of fender; the repetition (or otherwife) of the offence; the time,


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