accuſations of the innocent : to which we may add that 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 cuſtody, 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[1], that he who ſtruck out the eye of a one-eyed man, ſhould loſe both his own in return. 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 barely a conſequence from ſome other principle. Death is ordered to be puniſhed with death ; not becauſe one is equivalent to the other, for that would be expiation, and not puniſhment. Nor is death always an equivalent for death : the execution of a needy decrepid 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 upon which this ſentence is grounded ſeems to be, that this is the higheſt penalty that man can inflict,
- ↑ Pott. Ant. b. 1. c. 26.
