Wrong Redressed and Crime Punished. Upon the whole, in taking cognizance of all wrongs, the law has a double view, viz: not only to redress the party injured, by either restoring to him his rights, if possible, or by giving him an equivalent; but also to secure to the public the benefit of society, by preventing or punishing every breach of those laws, which the sovereign power has established.

2. PUNISHMENTS.

Defined, These are evils or inconveniences consequent upon crimes, being devised, denounced and inflicted by human laws, in consequence of disobedience or misbehavior in those, to regulate whose conduct, such laws were made. Herein we will consider the power, the end and the measure of human punish

ment.

(1.) Power of Human Punishment. This means the right of the legislator to inflict discretionary penalties for crimes. The right of punishing crimes against the law of nature, as murder, is in a state of nature vested in every individual. In a state of society, this right is transferred from individuals to the sovereign power, whereby men are prevented from being judges in their own causes, which is one of the evils that civil government was intended to remedy. The power which at one time individuals had of punishing offences against the law of nature is now vested in the magistrate alone, who dispenses justice by the consent of the entire community.

Offenses Against Society. As to offences against the laws of society, which are only mala prohibita and not mala in se, the magistrate is also empowered to inflict coercive penalties, and this by the consent of individuals, who in forming societies, distinctly or expressly iuvest the sovereign power with the right of making laws, and of enforcing obedience to them when made, by exercising upon their non-observance, severities adequate to the evil. The law, by which men suffer, was made by their own consent; it is a part of the original contract into which they entered, when first they became members of society, and which heretofore has contributed to their own security.

Extent of the Power. The right conferred by consent upon the state, gives it the same power and no more over all its members, as each individual had naturally over himself or others.

Capital Punishment. How far then ought legislators to inflict capital punishments for positive offences; offences against the municipal law only, and not against the law of nature, since no individual naturally has a power of inflicting death upon himself or others for actions in themselves indifferent? With regard to offences mala in se, capital punishments are in some instances inflicted by the command of God himself to all mankind, as in the case of murder, "whoso sheddeth man's blood, by man shall his blood be shed." So also in the Creator's positive code of laws for the regulation of the Jewish republic. But they are sometimes inflicted, without such express warrant, for offences that are not against natural but only against social rights.

Death Penalty Defended. The practice of inflicting capital punishment for offences of human institution, is justified by that great and good man, Sir Matthew Hale, that "when offences grow enormous, frequent and dangerous to a kingdom or state, destructive or pernicious to civil societies, and to the insecurity of the kingdom or its people, severe punishment and even death itself is necessary to be annexed to laws." Every humane legislator should be extremely cautious of establishing laws that inflict the death penalty. A better reason should be assigned, than that no lighter remedy will be effectual.

(2,) The End or Final Cause of Human Punishments. This is not by way of expiation, for the crime committed, for that must be left to God's determination, but as a precaution against future offenses of the same kind.

Preventing a Recurrence of the Crime. This is effected in three ways: By the amendment of the offender, for which purpose 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, which gives rise to all ignominious punishments; or lastly, by depriving the offender of the power to do future mischief, which is effected by either putting him to death or condemning him to perpetual confinement or exile. The object of preventing future crimes is the end of all these species of punishments. The method of inflicting punishment ought always to be proportioned to the particular purpose it is meant to serve, and not to exceed it, and the more severe punishments should not be inflicted, but when the offender appears incorrigible, which may be inferred by the act being one of deep malignity, or from a repetition of minuter offenses.

(3) The Measure of Human Punishment. The quantity of punishment can never be absolutely determined by any standing invariable rule, but it must be left to the arbitration of the legislature to inflict such penalties, as are warranted by the laws of nature and society, and such as appear to afford precaution against future offences.

Law of Retaliation. The lex talionis, or law of retaliation, cannot in all cases be an adequate or permanent rule of punishment. In some cases, it apparently is dictated by natural reason, as in the case of conspiracies to do an injury, or false accusations of the innocent. The Egyptians compelled a man to swallow the poison, which, without good reason, was found in his custody. 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. Sometimes retaliation may be too easy a sentence, as if a man put out the remaining eye of one 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 altered, 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.

Retaliation Inexpedient. Theft cannot be punished by theft, and so with other crimes. Even those instances, where retaliation appears to be used by divine authority, do not really proceed upon the rule of exact retribution, by doing to the criminal the same injury and no more; but this correspondence between the crime and punishment is barely a consequence from some other principle. Even death is not always an equivalent for death, the life of one party being infinitely more valuable to society in many cases, than the life of the other, hence the death sentence proceeds upon other principles than retaliation.

Retaliation Inadequate. The punishment ought rather to exceed than equal the injury, as it is contrary to equity, that the innocent should suffer as much as the guilty.

Retaliation for Incomplete Injuries. With regard indeed to crimes that are incomplete, which consist merely in the intention, as conspiracies and the like, the villany may be frustrated, or the conspirators may have a chance to escape punishment, and this may be one reason why the lex talionis is more

proper to be inflicted, if at all, for a crime intended, but not effected. The law of retaliation was introduced into England by statute of Edward III, to punish such only as preferred malicious accusations against others, the law being, that the party incur the same pain, that the other should have had, in case the suggestions were found untrue. This act was repealed, after a single year's trial.

General Principles. There are some general principles, drawn from the nature and circumstances of the crime, that may assist in allotting it an adequate punishment.

Object of the Crime. The more exalted the object of an injury is, the more care should be taken to prevent that injury, and the more severe the punishment. Therefore treason in conspiring the king's death is punished with greater rigor, than even killing a private subject. And yet generally a design to transgress is not so flagrant as the actual completion of that design. It requires more obstinacy in wickedness to perpetrate a crime, than barely to entertain the thought of it, and it is an encouragement to repentance, that it is never too late to retract; for which reason an attempt to rob or kill, is far less penal than actual robbery or murder.

Mitigation of a Crime. Again, the violence of passion or temptation may sometimes alleviate a crime; as theft, in case of hunger, is more worthy of compassion, than when committed through avarice or to supply a luxurious excess. To kill a man upon sudden resentment is less penal, than upon cool, deliberate malice. The age, education and character of the offender, the repetition of the offence, the time, place and company, wherein it was committed, may aggravate or extenuate the crime.

Grades of Punishment. Further, as punishments are chiefly intended for the prevention of future crimes, it is reasonable, that among crimes of different natures, those should be most severely punished, which are the most destructive of public safety and happiness; and among crimes of equal malignity, those which a man has the most easy opportunities of committing, and hence has the strongest inducement to commit. Hence for a servant to rob his master is a greater crime, than for a stranger to do so. Formerly, in the Isle of Man, it was not a felony to steal an ox or an ass, as it was difficult to conceal so large an animal, but to steal a pig or a fowl was a capital offence.

Harsh Punishments. Lastly, we may observe that pun

ishments 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, yet properly intermixed with due distinctions of severity. Crimes are more effectually prevented by the certainty than by the severity of punishment. Montesquieu asserts, that the excessive severity of laws hinders their execution. When the punishment surpasses all measure, the people out of humanity will frequently prefer immunity to it. It is said, that laws made for the preservation of the commonwealth without great penalties are more often obeyed, than laws made with extreme punishments. Sanguinary laws indicate the weak constitution of a state.

Roman Punishments. The laws of the Roman kings, and the twelve tables of the decemvirs were full of cruel punishments, but 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 punishments were revived, and then the empire fell.

Variety of Punishments. It is moreover impolitic to apply the same punishment to crimes of different malignity. A multitude of sanguinary laws show a manifest defect either in the wisdom of the legislature or the strength of the executive power. It is a kind of quackery in government to apply the same universal remedy in every case of difficulty. True, it is much easier to extirpate than to amend mankind; yet that magistrate must be deemed a cruel surgeon, who amputates every limb, which through ignorance or indolence he will not attempt to cure.

Scale of Punishments Necessary. It has been ingeniously proposed, that a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least. In any event, a wise legislator will mark the principal divisions, and not assign penalties of the first degree to offences of an inferior rank. Where men see no distinction made in the nature and gradations of punishment, they will be led to conclude, there is no distinction in the guilt. Thus, in France, the punishment of robbery, with or without murder, is the same, hence robbery is usually accompanied with murder. In China, murderers are cut to pieces and robbers not, hence robbery often occurs on the highway, while murders are unusual.

Capital Offences. It is difficult to justify the frequency of