[in the case of conspiracies to do an injury, or false accusations of the innocent (). To which we may add the law of the Jews and Egyptians mentioned by Josephus and Diodorus Siculus,-that whoever, without sufficient cause, was found with any mortal poison in his possession, 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. 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 (1). 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 a consequence from some other principle.] Murder is punished with death, as the appropriate manner of visiting an offence of the highest enormity, but not as an equivalent; 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 on which this sentence is grounded seems to be, that this is the highest penalty that man can inflict; and tends most to the security 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 retaliation. We may remark that it was once attempted to introduce into England the law of retaliation, as a punishment for such only as preferred malicious accusations against others; it being enacted by stat. 37 Edw. III. c. 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 suggestions were found untrue. But, after one year's experience, this punishment of taliation was rejected; and imprisonment adopted in its stead (m). But though from what has been said, it appears that there cannot be any regular or determinate method of rating the quantity of punishment 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 to 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 should be taken to prevent that injury; and of course, under this aggravation, the punishment should be more severe. Therefore treason, in conspiring the death of the sovereign, is made punishable with death, which is all that can be inflicted should any private subject be actually printed in the Revised Edition of the Statutes. (m) Stat. 38 Edw. 3, st. 1, c. 9; neither of these statutes are 2 [killed; 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, that it is never too late to retract; and that if a man stops even at the last stage of any crime, it is better for him than if he proceeds:] for which reason an attempt to commit an offence, is in general less severely punished than its actual perpetration. But in the case of a treasonable conspiracy, the object whereof is the sovereign, the bare intention, where there is any overt act, that is, anything in the conduct of the parties to prove that it was entertained by them, 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 than when committed through avarice, or to supply the means of 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 committed-all these, and a thousand other incidents, may aggravate or extenuate a crime (o). (n) 4 Bl. Com. 15. (0) Thus Demosthenes (in his oration against Midias) finely works up the aggravation of the insults he had received:-"I was abused," says he, "by my enemy in cold VOL. IV. "blood, out of malice, not by heat "of wine, in the morning, pub"licly before strangers, as well as "citizens; and that in the temple, "whither the duty of my office "called me." C [Further, 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 (p). 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 maximè, quæ difficillimè præcaventur" (q).] Hence it is, that to steal a handkerchief or other trifle privately from the person of another has been considered more culpable than a more open theft, though of much greater value, as of a load of corn, standing in a field. [And in the Isle of Man this rule was formerly carried so far, that to take away an ox or an ass was there no felony, but a trespass; because of the difficulty, in the little territory, to conceal them or carry them off; but to steal a pig or a fowl, (which is easily done,) was a capital crime, and the offender punishable 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 distinctions 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 (s). For the excessive severity of laws,—says Montesquieu (t)-hinders their execution: when the punishment surpasses all measure, the public will frequently, out of humanity, prefer impunity to it. Thus, also, the stat. (p) Beccar. c. 6. (4) Pro Sexto Roscio, 40. (r) 4 Inst. 285. (8) Beccar. c. 7. [1 Mary, sess. 1, recites in its 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." Happy had it been for the realm, if the subsequent practice of that deluded princess, in matters of religion, had been correspondent to the sentiments of herself and parliament, in matters of state and government. We may further observe, that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. 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 punishments were revivedand then the empire fell. The laws It is, moreover, absurd and impolitic, to apply the same punishments 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 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 same universal remedy, the ultimum supplicium, to every case of difficulty. It is, it must be owned, much easier to extirpate than to amend mankind; yet that magistrate must be esteemed both a weak and a cruel surgeon, who cuts off every limb, which, through ignorance or indolence, he will not attempt to cure. It has been, therefore, ingeniously proposed, that in every state a scale of crimes should be formed, with a corresponding scale of punishments, descending from the greatest to the least (u); but if that be too romantic an (u) Beccar. c. 6. |