The accomplished Athenians enacted, that ir Sieges the aged and infirm should be put to death an Englishman would not think himfelf compellable by any Law to plunge the poniard into the bofom of his helpless Father. The fame Athenians in the height of the moft refined effeminacy confidered the Expofition of their children as a practice juftifiable, and blameless; and Solon, the most celebrated of the Sages of Greece, gave it the facred permiffion of law. Among the Spartans this unnatural fpecies of murder was conducted by a ftate-committee, appointed to determine, whether the child were proper to be reared, as likely to become ufeful to the community; or to be deferted, as of an infirm, and unpromifing conftitution. Vain were the fimiles of innocence, and the cries of helpleffness. Cuftom had murdered natural affection; and the

b

The force of habitual prejudices is wonderful; a truth, which will frequently recur to the Reader in the courfe of the following enquiry. Plutarch, the humane, good natured Plutarch, recommends it as a virtue in Attalus, that he exposed all his own children, in order to leave the crown to the son of his brother Eumenes; fignalizing in this manner his gratitude and affection to Eumenes, who had left him his heir in preference to that fon.

Perhaps (fays Mr. Hume) by an odd connection of caufes, this barbarous cuftom might contribute to render thofe times more populous. By removing the terrors of . too numerous a family it would engage many people in

marriage;

Babe was abandoned by its Parents to the Mercy of Wolves and Bears. The hearts of modern mothers bleed at the idea.

§. 3. As to the more confined queftion, to what degree punishments may be carried; or how far a Man may fubject himself and his fellow-citizens to the infliction of pains, the lofs of honors and property, the horrors of imprisonment, and the deprivation of life; the answer may in fome measure be collected from those writings of Divine authority, to which I fhall hereafter refer: At prefent it may be sufficient to appeal to the unwritten law of God imprinted on the heart of Man ; to that natural fympathy better felt than expreffed, which forbids us to give unneceffary Pain to each other; or in fuller words, to extend the feverity of punishments beyond what is effentially neceffary to the preservation and morality of fociety; general terms, of which a definition will refult from the fubfequent detail.

marriage; and fuch is the force of natural affection, that very few in comparison would have refolution enough, when it came to the point, to carry into execution their former intentions. China, where this practice ftill prevails, is the most populous country that we know.

Effays 4° p. 218.

State-punishments are to be confidered then as founded on, and limited by, first, natural Justice; fecondly, public Utility: and it will be shewn, that, in the pursuit of those great ends, Wisdom and Mercy fhould go hand in hand.

5. 1. T1

CHA P. II.

Of penal Laws.

HE prevention of crimes should be the great object of the Lawgiver; whofe duty it is, to have a fevere eye upon the offence, but a merciful inclination towards the offender. It is from an abuse of language, that we apply the word “ punish"ment" to human inftitutions: Vengeance belongeth not to man. Criminals, faid Plato, are punished, not because they have offended, for what is done can never be undone; but that for the future the criminals themselves, and fuch as fee their punishment, may take warning, and learn to fhun the allurements of vice." Meti Suffeti, inquit Tullus, fi ipfe "difcere poffes foedera ac fidem fervare, viva

De Legibus 11. pa. 977. d Liv. Hift. L. 1. ca. 28.

"tibi

* tibi ea disciplina a me adhibita effet: nunc, "quoniam tuum infanabile ingenium eft, Tu "tuo fupplicio doce humanum genus ea fanta

credere, quae a te violata funt." It is the end then of penal laws to deter, not to punish.

§. 2. But let not for this purpose the severity of the penalty be augmented in proportion to the increase of the temptation; which is a cruel and mistaken policy.

f

Qui vi rapuit, fur improbior videtur." Such was the maxim of the Roman law, which punished the open, daring thief with whipping, and the pilferer by fine only. The English law, adopting a lefs equitable idea, hath made it death to take privately from the pocket a hankerchief, or other thing of the value of twelvepence; but any Larceny (below the degree of robbery by putting in fear) committed openly, and avowedly on the perfon, to any extent, and even in a dwellinghoufe or out-house, under the value of forty hillings, is within the benefit of clergy.

Ff. 4. 2. 14. 12.

1 Hawk. P. C. pa. 97.

B 4

* 8. Eliz. ch. 4

Under

Under the fame perverfion of diftributive justice it is made only a transportable offence, "to affault another with an offenfive weapon, or by menaces, demanding money, goods, or chattels, with a felonicus intent to rob": whereas by another act it is death without benefit of clergy, merely "to write an anonymous Letter, figned with a fictitious name, demanding money, venifon, or other valuable thing".

§. 3. The punishment should be proportioned to the flagitioufnefs of the crime; but the flagitioufnefs of the crime diminishes in proportion to the facility, with which it may be committed *.

Were I to leave the fupport of this pofition to the internal evidence of its own truth, or to the mere unaffifted dictates of moral fentiment, it might appear perhaps presumptuous; because contradictory to the most ingenious and elegant writer on the law of England.

h 7. Geo. ii, ch. 21.

19. Geo. i, ch. 22.

C'eft le triomphe de la Liberté, lorfque les loix criminelles tirent chaque peine de la nature du crime: Tout l'arbitraire ceffe; la peine ne defcend point du caprice du legiflateur, mais de la nature de la chofe; et ce n'eft pas l'homme qui fait violence à l'homme.

L'Efprit des Loix 12. 4.

"The