and Diodorus Siculus, that whoever without sufficient cause was found with any mortal poison in his custody, should himself be obliged to take it. But, in general, the difference of persons, place, time, provocation, or other circumstances, may enhance or mitigate the offence; and in such cases retaliation can never be a proper measure of justice. If a nobleman strikes a peasant, all mankind will see, that if a court of justice awards a return of the blow, it is more than a just compensation. (5) 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 lost one before, it is too slight 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 struck out the eye of a one-eyed man, should lose both his own in return. Besides, there are very many crimes, that will in no shape admit of these penalties, without manifest absurdity 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 same hurt he has done to his neighbour, and no more; but this correspondence between the crime and punishment is barely a consequence from some 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 assassin is a poor satisfaction 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 reason upon which this sentence is grounded seems to be, that this is the highest penalty that man can inflict, and tends most to the security [ 14 ] of mankind; by removing one murderer from the earth, and setting a dreadful example to deter others: so that even this grand instance proceeds upon other principles than those of

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

(5) See Aristotle's Ethics, b. v. ch. 5., where the same argument is pursued.

retaliation. And truly, if any measure of punishment is to
be taken from the damage sustained by the sufferer, the pu-
nishment ought rather to exceed than equal the injury: since
it seems contrary to reason and equity, that the guilty (if con-
victed) should suffer no more than the innocent has done
before him; especially as the suffering 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 consist merely in the in-
tention, and are not yet carried into act, as conspiracies 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 consist
in intention than for such as are carried into act.
It seems
indeed consonant 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. Ac-
cordingly, when it was once attempted to introduce into Eng-
land 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 sureties of taliation; that is, to incur the same pain
that the other should have had, in case the suggestion were
found untrue. But, after one year's experience, this punish-
ment of taliation was rejected, and imprisonment adopted in
it's stead'.

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

As, first, with regard to the object of it: for the greater and more exalted the object of an injury is, the more care

Beccar. c.15.

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

should be taken to prevent that injury, and of course under this aggravation the punishment should be more severe. 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 design to transgress is not so flagrant an enormity, as the actual completion of that design. For evil, the nearer we approach it, is the more disagreeable and shocking: so that it requires more obstinacy 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 stops even here, it is better for him than if he proceeds: for which reason an attempt to rob, to ravish, or to kill (6), is far less penal that the actual robbery, rape, or murder. But in the case of a treasonable conspiracy, the object whereof is the king's majesty, 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 passion, or temptation, may sometimes alleviate a crime; as theft, in case of hunger, is far more worthy of compassion that when committed through avarice, or to supply one in luxurious excesses. To kill a man upon sudden and violent resentment, is less penal than upon cool deliberate malice. The age, education, and character of the offender; the repetition (or otherwise) of the offence; the time, the place, the company wherein it was [ 16 ] committed; all these, and a thousand other incidents, may aggravate or extenuate the crime'.

Thus Demosthenes (in his oration against Midias) finely works up the aggravations of the insults he had received. "I was abused," says he, "by "my enemy, in cold blood, out of

"malice, not by heat of wine, in the
"morning, publicly, before strangers
as well as citizens; and that in the
"temple, whither the duty of my
"office called me."

(6) See post. p. 196. n.

66

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 safety 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 so easily guarded against as others, and which therefore the offender has the strongest inducement to commit; according to what Cicero observes", ea sunt animadvertenda peccata maxime, quae difficillime "praecaventur." Hence it is, that for a servant to rob his master is in more cases capital, than for a stranger: if a servant kills his master, it is a species of treason; in another it is only murder: to steal a handkerchief, or other trifle of above the value of twelve pence, privately from one's person, is made capital (7); 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 so far, that to take away an horse or an ox was there no felony, but a trespass, 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 easily done, was a capital misdemesnor, and the offender was punished with death ".

LASTLY: as a conclusion to the whole, we may observe that punishments of unreasonable severity, especially when indiscriminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more merciful in general, yet properly intermixed with due dis[17] tinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action, that crimes are more effectually prevented by the certainty, than by the severity, of punishment. For the excessive severity of laws (says Montesquieu") hinders their

Beccar. c.23.

V pro Sexto Roscio, 40.

w 4 Inst. 285.

x Beccar. c. 20.
Sp. L. b. 6. c. 13.

(7) See post. p. 242. n.

66

execution: when the punishment surpasses all measure, the public will frequently out of humanity prefer impunity to it. Thus also the statute 1 Mar. st. 1. c. 1. recites in it's preamble, "that the state of every king consists more assuredly in the "love of the subject towards their prince, than in the dread "of laws made with rigorous pains; and that laws made "for the preservation of the commonwealth without great penalties are more often obeyed and kept, than laws made "with extreme punishments." (7) Happy had it been for the nation, if the subsequent practice of that deluded princess in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government! We may farther observe that sanguinary laws are a bad symptom of the distemper of any state, or at least of it's weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished: under the emperors severe pu nishments were revived; and then the empire fell.

Ir is moreover absurd and impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest defect either in the wisdom of the legislative, or the strength of the executive power. It is a kind of quackery in government, and argues a want of solid skill, to apply the

(7) The text only abridges, and that not very successfully, this preamble, which for the soundness of its reasoning, and appropriate solemnity of language, deserves to be cited entire. "Forasmuch as the state of every king, ruler, and governor of any realm, dominion, or commonalty, standeth and consisteth more assured by the love and favour of the subject toward their sovereign ruler and governor, than in the dread and fear of laws made with rigorous pains and extreme punishment for not obeying of their sovereign ruler and governor and laws also justly made for the preservation of the commonweal, without extreme punishment or great penalty, are more often for the most part obeyed and kept, than laws and statutes made with great and extreme punishments, and in special such laws and statutes so made, whereby not only the ignorant and rude unlearned people, but also learned and expert people, minding honesty, are often, and many times, trapped and snared."