damnatum exponere poenas!
Devotum hostiles Decium pressere catervae:
Me geminae figant acies, me barbara telis
Rheni turba petat: cunctis ego pervius hastis
Excipiam medius totius vulnera belli.
Hic redimat sanguis populos: hac caede luatur
Quicquid Romani meruerunt pendere mores.
L. 2. l. 306.8 <17>
And the following passage of Horace, seems to be founded on the same notion.
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At tu, nauta, vagae ne parce malignus arenae
Offibus et capiti inhumato
Particulam dare. Sic, quodcunque minabitur Eurus
Fluctibus Hesperiis, Venusinae
Plectantur sylvae, te sospite.
CARM. l. 1. ode 28.9
That one should undertake a debt for another, is a matter of consent, not repugnant to the rules of justice. But with respect to the administration of justice among men, no maxim has a more solid foundation or is more universal, than that punishment cannot be transferred from the guilty to the innocent. Punishment, considered as a gratification of the party offended, is purely personal; and, being inseparately connected with guilt, cannot admit of substitution. A man may consent, it is true, to suffer that pain which his friend the offender merits as a punishment; but the injured person is not satisfied with such transmutation of suffering: his resentment is not gratified but by retaliating upon the very person who did the injury. Yet, even in a matter obvious to reason, so liable are men to error when led astray by any bias, that to the foregoing notion concerning punishment, we may impute the most barbarous practice ever prevailed among savages, that of substituting human crea-<18>tures in punishment, and compelling them to undergo the most grievous torments, even death itself. I speak of human sacrifices, which are deservedly a lasting reproach upon mankind, being of all human institutions the most irrational, and the most subversive of humanity. To sacrifice a prisoner of war to an incensed deity, barbarous and inhuman as it is, may admit some excuse. But that a man should sacrifice his children as an atonement for his crimes, cannot be thought of without horror(4). Yet this savage impiety can rest upon no other foundation
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than the slight resemblance that punishment hath to a debt; which is a strong evidence of the influence of imagination upon our conduct. The vitious hath ever been solicitous to transfer upon others the punishment they themselves deserve; for nothing is so dear to a man as himself.
Wherewith shall I come before the Lord, and bow myself before the high God? <19> shall I come before him with burnt offerings, with calves of a year old? Will the Lord be pleased with thousands of rams, or with ten thousand rivers of oil? shall I give my first-born for my transgression, the fruit of my body for the sin of my soul?
But this is not an atonement in the sight of the Almighty.
He hath shewed thee, O man, what is good; and what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?*
I beg indulgence for a reflection that arises naturally from this branch of the subject; that the permitting vicarious punishment is subversive of humanity, and no less so of moral duty. Encourage a man to believe that without repentance or reformation of manners he can atone for his sins, and he will indulge in them for ever.10 Happy it is for mankind, that by the improvement of our rational faculties, the open profession of compounding for sin is banished from all civilized societies: And yet from the selfishness of human nature this doctrine continues privately to influence our conduct more than is willingly acknowledged, or even suspected. Many men give punctual attendance at public worship, to compound for hidden vices; many are openly charitable, to compound for private oppression; and many are willing to do God good service in <20> supporting his established
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church, to compound for aiming at power by a factious disturbance of the state. Such pernicious notions, proceeding from a wrong bias in our nature, cannot be eradicated after they have once got possession; nor be prevented, but by early culture, and by frequently inculcating the most important of all truths, That the Almighty admits of no composition for sin; and that his pardon is not to be obtained, without sincere repentance, and thorough reformation of manners.
Having discoursed in general of the nature of punishment, and of some irregular notions that have been entertained about it, I am now ready to attend its progress through the different stages of the social life. Society, originally, did not make a strict union among individuals. Mutual defence against a more powerful neighbour, being in early times the chief or sole motive for joining in society, individuals never thought of surrendering to the public, any of their natural rights that could be retained consistently with mutual defence. In particular, the privileges of maintaining their own property and of avenging their own wrongs, were reserved to individuals full and entire. In the dawn of society accordingly, we find no traces of a judge, properly so called, who hath power to interpose in differences, and to force persons at variance to submit to his opinion. If a dispute about property, or about <21> any civil right, could not be adjusted by the parties themselves, there was no other method, but to take the opinion of some indifferent person.11 This method of determining civil differences was imperfect; for what if the parties did not agree upon an arbiter? Or what if one of them proved refractory, after the chosen arbiter had given his opinion? To remedy these inconveniencies, it was found expedient to establish judges, who at first differed in one circumstance only from arbiters, that they could not be declined. They had no magisterial authority, not even that of compelling parties to appear before them. This is evident from the Roman law, which subsisted many centuries before the notion obtained of a power in a judge to force a party into court. To bring a disputable matter to an issue, no other means occurred, but the making it lawful for the complainer to drag his party before the judge obtorto collo, as expressed by the
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writers on that law: And the same regulation appears in the laws of the Visigoths.* But jurisdiction, at first merely voluntary, came gradually to be improved to its present state of being compulsory, involving so much of the magisterial authority as is necessary for explicating jurisdiction, viz. power of calling a party into court, and power of making a sentence effectual. And in this <22> manner, civil jurisdiction in progress of time was brought to perfection.
Criminal jurisdiction is in all countries of a much later date. Revenge, the darling privilege of undisciplined nature,12 is never tamely given up; for the reason chiefly, that it is not gratified unless the punishment be inflicted by the person injured. The privilege of resenting injuries, was therefore that private right which was the latest of being surrendered, or rather wrested from individuals in society. This revolution was of great importance with respect to government, which can never fully attain its end, where punishment in any measure is trusted in private hands. A revolution so contradictory to the strongest propensity of human nature, could not by any power, nor by any artifice, be instantaneous. It must have been gradual; and, in fact, the progressive steps tending to its completion, were slow, and, taken singly, almost imperceptible; as will appear from the following history. And to be convinced of the difficulty of wresting this privilege from individuals, we need but reflect upon the practice of duelling, so customary in times past; which the strictest attention in the magistrate, joined with the severest punishment, have
