SECT. III.

muft 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 feverely, 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 obferved, bearing evidence of a difpofition fo depraved, and in appearance so 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 miftaken 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

object

CHAP. IV.
ECT. Ill.

S

PART II. 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 facred 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 state to do, when invaded by a foreign enemy, who forces his way by the deftruction of all that oppose him? What is the foldier to do, when he finds himself under the neceffity to kill, that he may not be killed? In short, what is the magiftrate himself to do, when he finds the lives of innocent subjects in danger from the profligacy of diforderly persons, 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 magiftrate, 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 reftraints or feverities, employed beyond thefe 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

Although convention be not neceffary to authorife the magistrate in the discharge of his duty for the repreffion of crimes; it is by convention that he alone is invested with the exclufive prerogative of interpofing at all times in defence of the innocent. In every well ordered community his powers are acknowledged or instituted expressly for this purpose, and fellow citizens are understood to have agreed to refer their differences to a judge, to forgo the use of force in themfelves, and recur to the magiftrate for protection.

This fundamental convention of fellow citizens is that which effentially diftinguishes their cafe from that which was confidered in the last section. It is that which conftitutes the fpecific advantage of those who have the benefit of political establishments.

The citizen, even when injured, muft not do himself right; but must have recourfe to the protection of the magiftrate for this purpose.

There are, however, exceptions to this falutary rule; either where, in the nature of things, the interpofition of the magistrate cannot be obtained to prevent a wrong, or where the injury, once fuffered, cannot be repaired by the utmost exertions of his power. In every fuch cafe the spirit of political inftitution, which is infpired by a concern for innocence, requires, that the innocent fhould be allowed to defend himself. If this were refufed him, the fociety to which he has recourse for protection would in fact become a fnare, in which he would be expofed to fuffer without any hopes of redrefs.

It is admitted accordingly, that any one affaulted in his har bitation

PART. II.
CHAP. IV.

SECT. III.
in

PART II.
CHAP. IV.
SECT. III.

bitation, or in his perfon has a right to repel the affault. The maxims of law in different countries may be unequally favourable to this act of defence, requiring unequal degrees of caution in proceeding to the last extremities. In fome it is required, that a perfon affaulted fhould endeavour to escape before he repels force with force: But as an attempt to escape may in fome circumstances augment the danger to which the perfon affaulted is expofed, it appears unjust and cruel to expofe him to this additional hazard; and the humanity which feemed to take part with the aggreffor, is indeed more properly due to the person attacked, who ought certainly to be indulged in defending himself at any neceffary hazard to the perfon who affails him.

A woman who is forcibly attacked in her chastity, or a man who is put to the trial of personal estimation or honour, may receive an injury, which the utmost power of the magistrate cannot afterwards repair. The exception is accordingly admitted, in favour of the private right of defence, on fuch occafions.

Among thefe modes of attack, there is a fingular species of injury, owing its effect to the caprice of manners in modern times; but of which the effect is extremely fevere and injurious, not fufceptible of any legal measurement, nor repairable by all the power of the magistrate.

In confequence of this fingular caprice, altogether unknown to the celebrated nations of antiquity, not only afperfions of character, but any single term of reproach, or gefture of infult, fo far impairs the estimation or credit of the person who suffers them; that, if the breach be not repaired, in the way which caprice alfo directs, he becomes an outcast from the fociety, in which his con

dition depends on the esteem in which he is held.
to the courts of juftice, for reparation, would only increase the
dishonour. False afperfions may be removed by the clearest evi-
dence of truth; but this would not remove the dishonour of ha-
ving suffered them to be made. An accufation may be known
to be true or falfe; its effect, however, in this cafe, does not de-
pend upon the degree in which it is believed, but upon the
degree of tamenefs with which it is received.
Even calumny
hurts, not by the imputation of any criminal charge, but ra-
ther by the imputation of cowardice, implied in the manner
of receiving it; and the defence which caprice has provided.
for this mode of attack, is a display of courage, not a refutation
of falfe accufation. The accufation
any
The accufation may be true; but the
courageous vindicates his honour: The accufation may be false;
but the coward is overwhelmed with difgrace. Even the inju-
red is denied the use of stratagem or surprise, in his own defence.
He must meet his antagonist, however injurious, upon equal
terms; and, if he would preferve his honour, muft pafs through
the hazard of a single combat for that purpose. His character
for integrity may be blafted or entire; but his estimation, in
point of honour, is independent of either condition.

Applications PART II.

CHAP. IV. SECT. III.

N n

In this example, the deviation from reafon is monstrous; but the dignity of justice is made to ftoop to the caprice of fafhion; and, fo long as the private injury is fuffered to have its effect, and the petulance or folly of one perfon may drive another from his place in fociety; so long as the magistrate cannot preserve the citizen in his state; fo long the injured citizen must be allowed to defend himself, and to adopt the only means which are effectual for that purpose.

VOL. II.

To