PART II. In what, then, we may be asked, is the right of the magistrate conventional and peculiar to himself? It is conventional and peculiar, in fo far as he alone is entitled to employ his power to this effect, and fo far as every other person is restrained from like application of power, wherever recourfe can be had to that of the magiftrate. In the abfence of the magistrate, or where his aid cannot be obtained, the fubject may defend himself and his fellow citizens; and every individual man, to the utmost of his power, may interpofe in the prevention of crimes. The right of the magistrate, therefore, to repress crimes, and to protect the innocent is prior to convention. His obligation, at the fame time, not to employ means unneceffarily deftructive or fevere, even against the person who has incurred his oppofition or his cenfure, is alfo prior to convention; and there is, as we obferved upon the foundations of the law of nature, prior to any concert or agreement of parties, a rule for the application of various restraints, and the gradation of punishments. Crimes, we have obferved, are unequally pernicious and dangerous, and unequally alarm the community. The more forcible efforts of defence are juftified by the higher degree of alarm which the crime is naturally fitted to give. Some disorders are more easily restrained than others; and to these an inferior meafure of punishment being fufficient, the magistrate is not entitled, by the law of nature, to employ punishments of fuperior degree. Different defcriptions of men, we have obferved, are governed by different motives. The law of nature will not authorife, with respect to any one clafs or order of men, an higher measure of punishment, CHAP. IV. nishment, than is fufficient to restrain them. The fear of torture PART II. or death may be necessary to restrain those who are insensible to any other confiderations; while fhame, or the fear of difgrace alone, may be fufficient to restrain, or to reclaim another order or clafs of the people. As nations, by statute or custom, are found to depart from the conditions which the law of nature, prior to convention, has impofed; fo they have feldom been found to obferve any regular gradation of punishments, or at least to remain within the bounds which fimple justice, in every particular cafe, would prescribe. They have departed from the law of nature, in the terms of their convention or practice; and, in the refult, fometimes find themfelves engaged in forms of administration no less inexpedient than cruel and unjuft. If, to the maxims of strict law we may be allowed to fubjoin confiderations of expedience, it is evident that, by withholding distinctions in the measure of punishment, we inure the minds of men to confound the higher and lower measures of guilt. And, if a criminal be to incur the higher measure of punishment, even for crimes of a less heinous nature, his cafe, in proceeding to infringe the law, is the fame as if no punishments were to be inflicted for the higher crime; and he will therefore prefer it to the lower, if his temptations incline him fo to do. By the law of nature, a magistrate, in restraining a crime, may proceed to the ufe of means that may be neceffary for that purpofe; but this law, instead of being strained to the utmost pitch of feverity, ought rather to give way to confiderations, which hu ~ PART II manity no lefs than expedience, in many instances, will fug CHAP. IV. geft. The conceptions of men, on the gradations of demerit and criminality, may be greatly affected by the promiscuous application of punishments. And, although the principle of defence, strictly applied, would juftify that measure of punishment, whatever it may be, which is neceffary to reprefs the crime, yet prudence, as well as humanity, would in some instances reject this authority, and reprobate the application of a punishment, against which human nature would revolt more than even against the crime itself. A licentious intercourfe of the fexes is highly pernicious, and the highest measure of punishment might perhaps be neceffary, and still ineffectual to reprefs it entirely; but it is evident that, if the punishment of murder were to be applied in this cafe, the remedy or the antidote might be more shocking to human nature, and even more pernicious to mankind, than the evil itself. It may be more difficult to restrain a theft committed under the preffure of famine or want, than one committed for gain. It may be more difficult ftill to reftrain a theft committed for the relief of a perishing family, than one committed for the supply of perfonal want; yet human nature must revolt at the fupposed application of ftrict law in fuch cafes; and indeed it is admitted, in the ordinary jurisprudence of all nations, that the extreme neceffity of one perfon may fo far fuperfede the right of another, as to difarm the power that is provided in civil fociety to enforce this right. To fucceed in establishing a just gradation of punishments, we muft SECT. III. must come with reluctance to the ufe of extreme feverities and a- PART II. void a precipitant application of punishment in the treatment of CHAP. IV. the lower offences. When flight offences are punifhed too fevere- m ly, it becomes difficult properly to increase the measure of punishment for the higher crimes. When under the Roman empire, for inftance, a farcafm on the perfon of the emperor was punished with death; it was not poffible to find a proportionate degree of severity for the crimes of perfidy or murder. But whatever may be the gradation of punishments adopted, it is evident that the higher measure of fuffering, may on occafion, be neceffary, and cannot be replaced by the lower or any intermediate degree. There may be crimes, we have observed, bearing evidence of a difpofition fo depraved, and in appearance fo incorrigible, that it may be neceffary, by exile or death, to remove the criminal from the fociety whofe peace he alarms. And even, according to the circumstances of his crime, it may be neceffary to diftinguish this facrifice with peculiar marks of reprobation and horror, to operate as an example against the indulgence of fimilar difpofitions in other men. It is no doubt poffible in the application of punishments to err on the fide of remiffness as well as rigour. Mercy to the affaffin is cruelty to the innocent, who may be expofed to fuffer by the commiffion of his crimes. We hear of fovereigns to whom the executive powers of law are committed, who, either from mistaken lenity, or from an apprehenfion of fomewhat too facred in the life of man to be taken away by any human authority, have declared against capital punishments; or refolved for a time to fufpend the ufe of them. The objec object of government, in the mean time, is not mercy to criminals, but the repreffion of capital crimes which indanger the life as well as other rights of the innocent. And there is furely no wisdom in declaring, that criminals alone, for the future, fhall take the life of a fellow creature. If the life of a man is too fa cred to be taken by any human authority, what is the innocent traveller to do, when attacked on the high way with weapons that threaten his life? what is the ftate to do, when invaded by a foreign enemy, who forces his way by the deftruction of all that oppofe him? What is the foldier to do, when he finds himself under the neceffity to kill, that he may not be killed? In fhort, what is the magiftrate himself to do, when he finds the lives of innocent fubjects in danger from the profligacy of diforderly perfons, who are ready to facrifice the peace of their country to the gratification of their vicious paffions? If a life must be exposed, either that of the innocent at the difcretion of criminals, or that of criminals at the judgement of the magistrate, it is furely evident on whom the choice fhould fall. We plead for a just gradation of punishment, not that the guilty may efcape, but that the innocent may be fafe, and that no one may be exposed to greater severity than he has actually incurred by his crimes. From the whole of this argument, then, it appears, that the law of nature, where there is no convention to the contrary, limits the right of the magiftrate to the ufe of fuch means as are neceffary to the defence of the innocent or the prevention of wrongs; that all restraints or severities, employed beyond these limits, are unlawful; and that, even prior to convention, a rule may be found upon which to erect a just gradation of punish ments. Although |