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[made. And herein we will briefly consider the power, the end and the measure of human punishments.
1. As to the power of human punishment; or the right of the legislator, to inflict discretionary penalties for crimes and misdemeanors (c). It is clear that the right of punishing crimes against the law of nature, -as murder and the like,-is in a state of mere nature vested in every individual. For it must be vested in somebody, otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution; and if that power is vested in any one, it must also be vested in all mankind, since all are by nature equal. Whereof the first murderer Cain, was so sensible, that we find him expressing his apprehensions, that whoever should find him would slay him (d). 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 which civil government was intended to remedy: and hence, whatever power individuals once had of punishing offences against the law of nature, is now vested in the magistrate alone ; who bears the sword of justice by the consent of the whole community.
As to offences merely against the laws of society, which are only mala prohibita and not mala in se (e), the magistrate is also empowered to inflict coercive penalties for such transgressions: and this, again, by the consent of individuals; who, in forming societies, did either tacitly or expressly invest the sovereign power with a right of making laws, and of enforcing obedience to them when made, by exercising upon their non-observance severities adequate to the evil.
The lawfulness, therefore, of punishing such criminals is founded upon this principle,—that the law by which
(c) See Grotius, De J. B. et P. (d) Gen. iv, 14. 1. 2, c. 20; Puff. L. of Nat. and N. (c) As to this distinction, vide b. 8, c. 3.
sup. vol. 1. pp. 35, 38.
[they suffer was made by their own consent. It is a part of the original contract into which they entered when first they engaged in society; it was calculated for, and has long contributed to, their own security (f).
This right, then, being thus conferred by universal consent, gives to the State exactly the same power, and no more, over all its members, as each individual member had naturally over himself or others; which has occasioned doubt, how far a human legislature ought to inflict capital punishments for positive offences against the municipal law only, and not against the law of nature; since no individual has naturally 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 immediate command of God himself to all mankind; as, in the case of murder, by the precept delivered to Noah, (their common ancestor and representative,)“ Whoso sheddeth man's blood by man shall his blood be shed" (g).] But as regards mere mala prohibita, capital punishment (supposing it to be lawful at all,) is a sanction never to be resorted to by the legislature, without the utmost circumspection (h). [It may be safely laid down in reference to this subject, that it is the enormity or dangerous tendency of the crime, that alone can warrant any earthly legislature in putting him to death that commits it. It is not its frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For though the end of punishment is to deter men from offending, it never can follow from thence that
(f) Vide sup. vol. 1. p. 28. (9) Gen. ix. 6.
(1) Blackstone seems neither to deny, nor to admit, the right of the legislature to inflict death in the case of merc mala prohibita ; but he justly remarks (vol. iv. p. 11), that if there is no right to inflict it,
“ the guilt of blood must lie at the “ door of the legislature, who mis
interpret the extent of their warrant; and not at the door of the
subject, who is bound to receive “ the interpretations that are given “ by the sovereign power."
[it is lawful to deter them at any rate, and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. It is manifest that where the evil to be prevented is not adequate to the violence of the preventive, a ruler that thinks seriously can never justify such 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 fullest conviction of our own authority. For life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of Him who gave it; either expressly revealed, or collected from the laws of nature or society, by clear and indisputable demonstration.
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 same kind. This is effected three ways, either by the amendment of the offender himself, for which purpose all corporal punishment, fines, and temporary exile or imprisonment are inflicted: or by deterring others, by the dread of his example, from offending in the same way, “ut pæna (as Tully expresses it) ad paucos, metus ad omnes perveniat” (i); which gives rise to all ignominious punishments, and to such executions of justice as are open and public: or lastly, by depriving 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, slavery or exile. The same one end of preventing future crimes, is endeavoured to be answered by each of these three modes of punishment. The public gains equal security, whether the offender himself be amended by wholesome correction, or whether he be dis
(i) Pro Cluentio, 46.
[abled from doing any future harm; and if the penalty fails of both these effects, (as it may do,) still 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 was meant to serve, and by no means to exceed it; therefore the pains of death and of perpetual exile, slavery or imprisonment, ought never to be inflicted but where 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 disposition without hope or probability of amendment; and in such case it would be cruelty to the public to defer the punishment of such a criminal, till he had an opportunity of repeating perhaps one of 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 absolutely determined by any 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 best calculated to answer the end of precaution against future offences.
Hence it will be evident that what some have so highly extolled for its equity, the lex talionis, (or law of retaliation,) can never be, in all cases, an adequate or permanent rule of punishment. In some instances, indeed, it seems to be dictated by natural reason ; as in the case of conspiracies to do an injury, or false accusations of the innocent(k). 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
(k) Pott. Ant. b. 1. c. 26.
[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
(1) Pott. Ant. b. 1, c. 26.