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 LIBRARY 
 
 OF   THE 
 
 Theological    Seminary, 
 
 PRINCETON,    N.  J. 
 Case,    251193    Di 
 Shelf,  ,  L3Jl1..6.3 .Sect'i 
 BooA;, V..-...4:  No 
 
 MVIEIon 
 
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COMMENTARIES 
 
 LAWS    OF    MOSES. 
 
COMMENT  AMIE  S 
 
 OK   THE 
 
 LAWS    OF    MOSES. 
 
 i.^iivViT 
 
 BY  THE   LATE 
 / 
 
 V 
 Sir  JOHN  DAVID  MICHAELIS,  K.P.S.  F.R.S. 
 
 TROFXSSOR  ©P  PHILOSOPHY  IK  THE  UNIVERSITY  OF  aOTTINQEX. 
 
 CratwIateB  from  tjje  (German, 
 BY  ALEXANDER  SMITH,  J).D, 
 
 iUKISTER  OF  CHAPEL   OF  GARIOCH,  ABERBEENSHIRE. 
 
 IN   FOUR   VOLUMES. 
 VOL.  IV. 
 
 Libera   Veritas.— Michaelis'  Motto. 
 
 LONDON : 
 
 •RTNTED   FOR   P.  C.  AND  J.  RIVINGTON,  62,   ST.  PAUL'S  CHURCH-YARD; 
 AND    LONGMAN,   HURST,   REES,   ORJIE,   AND    BROWN, 
 PATERNOSTER-ROW  : 
 AND   A.   BROWN    &   CO.   ABERDEEN  - 
 
 1814, 
 
U.  Chalmers  &  Co.. 
 Printer*,  Aberdeen.    | 
 
ANALYSIS 
 
 OF 
 
 VOLUME     FOURTH 
 
 BOOK  V. 
 
 CRIMINAL    LAW    CONTINUED. 
 
 — — — 
 
 Chap.  II. — Crimes  asrainst  God. 
 
 &• 
 
 §  1.     ART.  CCXLV. 
 
 Of  Idolatry,  or  the  Worship  of  other  Gods — wherein  it  consists,  and  how 
 it  is  to  be  distinguished  from  Image-wot  ship,  which  may  be  paid  even 
 to  the  true  God,  but  is  likewise  prohibited.     P.  1  — 9- 
 
 Idolatry,  a  crime  against  both  God  and  the  state,  p.  1. — consisted 
 not  in  opinions,  but  in  acts,  p.  2.— different  acts  of  it,  p  3. — distin- 
 guished from  image-worship,  p.  4. —  Images  even  of  the  true  God 
 prohibited,  p.  5  — Idolatry,  in  the  days  of  the  judges,  p  6. — Micah's 
 image,  p.  7. — Gideon's  idolatry,  p  8 — Jeroboam's,  ib. — Ahab's, 
 Joram's,  and  Jehu's,  p.  9. 
 
 $  2.     ART.  CCXLVI. 
 
 Of  the  Punishment  of  Idolatry.     P.  1 0—1 7 . 
 
 The  punishment  capital  p  10. — Reasons  of  this  severity  ;  its  rebel- 
 lious nature,  p  1 1 . — Its  mischievous  effects  in  a  nation,  p.  1 1. —  ex- 
 emplified in  the  Grecian  oracles,  p  12. — Xerxes'  invasion;  How 
 the  King  of  PAissia  would  have  acted,  p  13  —Idolatry  a  state-tool, 
 p.  14  —Among  the  Canaanites,  connected  with  debauchery  and  mur- 
 der, p.  1 4. — Moses  thus  vindicated,  ib. — Punishment  of  an  idolatrous 
 vol.  iv.  a 
 
11  ANALYSIS. 
 
 city,  p.  16. — The  children  probably  not  spared,  p.  J  6. —  Punish- 
 ment of  national  idolatry,  reserved  by  God  to  himself,  p.  17. 
 
 §  3.     ART.  CCXLVII. 
 
 Human  Sacrifices,  a  superstitious  custom  of  the  Canaanites,  strictly  prohi- 
 bited.    P.  18—30. 
 
 This  horrible  crime  existed  as  late  as  Jeremiah  and  Ezekiel's  time, 
 p.  18. — If passing  through  the  fire  to  Moloch,  to  be  understood  literal- 
 ly :  proof  passages,  p.  19 — 21. —  illustrated  by  quotations  from 
 Suintus  Curtius,  Diodorus,  Euripides,  &c  p.  22,  23. — Moloch,  proba- 
 bly Saturn,  p.  24. — Reference  to  Mr.  Bryant's  Dissertation,  ib. — 
 Human  sacrifices  not  to  be  understood  of  enemies,  or  malefactors 
 devoted  to  death,  p.  25,  26. — but  of  innocent  persons  offered  as 
 propitiatory  victims,  p.  27. — Punishment  of  this  crime,  summary 
 stoning,  p.  27. — Nothing  unclean,  offered  on  God's  altar,  p.  28. — 
 Israelitish  religion  unjustly  reproached  with  human  sacrifices,  though 
 the  people  offered  them  in  spite  of  it,  p.  29. — Not  even  to  be  offered 
 to  Jehovah  ;  but  C3U>  V?rr  (Lev.  xviii.  21.)  probably  misunderstood, 
 p.  30. 
 
 §  4.    ART.  CCXLVII  I. 
 
 Various  other  Idolatrous  Practices  prohibited.     P.  30  —  39.' 
 
 I.  Making  images  of  strange  gods,  p.  30 — II.  Prostration  before 
 them.  III.  Groves  or  altars  dedicated  to  them,  p.  31. — Necessity 
 of  annihilating  every  mark  of  idolatry,  p.  32. — No  fine  images  then 
 to  regret ;  but  what,  although  there  had  ?  p  33 — IV.  Offering  sacri- 
 fices to  idols,  ib. — Eating  of  meats  offered  to  them,  p.  34  — This  law 
 greatly  overstretched  in  later  times,  p.  35. — How  explained  by  St. 
 Paul,  p.  3b. — VI.  Eating  or  drinking  blood.  VII.  Prophesying  in 
 a  strange  god's  name.  VIII-  Self-dedication  to  him.  IX.  Prosti- 
 tution in  honour  of  idols,  p  37.     Imitation  of  Canaanitish  rites,  p.  35. 
 
 S  5.     ART.  CCXLIX. 
 
 Transgressions  of  the  Levitical  Lain,  ivhich  had  the  appearance  of  being  a 
 renouncement  of  the  true  God,  or  a  transition  to  Idolatry ;  and,  in 
 particular,  Profanation  of  the  Sabbath.     P.  39 — 49. 
 
ANALYSIS.  Ill 
 
 Sinning  with  a  high  hand,  what?  and  its  punishment,  p.  39,  re- 
 applied by  St.  Paul  to  contempt  of  Christianity,  p.  41. — Examples 
 of  it :  1.  Neglect  of  circumcision,  p.  41  .—  or  obliteration  of  it,  p.  42. — 
 
 2.  Neglect  of  the  passover,  or  of  purification  after  defilement,  p.  43  — 
 
 3.  Imitationofsacredincen.se;  4.  Working  on  theSabbaih,  ib. — The 
 Mosaic  sabbatical  laws  misapplied  to  our  Sunday,  p.  44. — The  Mosaic 
 Sabbath  prescribed  by  God — not  so  our  Sunday,  ib. — Its  profanation 
 a  denial  of  God,  p.  45 —but  consisted  not  in  private,  but  open  works, 
 p.  46.— Example  of  the  stick-gatherer,  p.  47. — The  punishment  de- 
 termined by  a  reference  to  God's  own  will :  the  reason  of  consulting 
 him,  p.  4S. 
 
 §  6.     ART.  CCL. 
 
 Image-Worship  a  Crime,  but  not  so,  Painting  and  Sculpture — Hierogly- 
 phic Stones  prohibited.     P.  49 — 59. 
 
 Worship  of  the  golden  calf;  how  punished,  p.  59. — That  sculpture 
 or  painting  were  prohibited,  a  mistake,  p.  51. — Only  images  for 
 worship,  p.  52. — Images  of  various  things  made  by  Moses  himself, 
 to  ornament  the  sanctuary  ;  Cherubim,  flowers,  the  brazen  serpent, 
 p.  53.  —and  by  Solomon,  the  brazen  sea,  ib  —  and  in  the  second  tem- 
 ple, p  54  — But  hieroglyphic  stones  (rTOUtta  ]in)  prohibited,  p  55. 
 — as  an  Egyptian  mystery,  and  object  of  idolatry,  p.  54  — being  the 
 god  Thoth,  p.  56 — Moses  hostile  to  all  priestcraft,  and  why,  p  5G, 
 57. — This  prohibition  alone,  a  proof  of  his  divine  mission,  p.  58  — 
 Contrast  of  the  effects  of  hieroglyphic  and  alphabetical  writing,  p. 
 58,  59. 
 
 §  7.     ART.  CCLI. 
 
 Of  Blasphemy.     P.  59—70. 
 
 Blasphemy  punished  with  death,  p.  59- — both  >n  natives  and  foreign- 
 ers, p  60 — Cursing  the  gods,  how  understood  by  Philo  and  Josephns, 
 p.  61. — Application  to  the  German  law,  as  settled  by  the  Peace  of 
 religion  p  62 — The  Mosaic  law,  however,  made  under  different  cir- 
 cumstances, p.  63. — and,  besides,  admits  of  a  different  interpretation 
 —what?  p.  63,  64.  —  Prohibition  of  uttering  the  name  Jehovah, 
 how  understood  by  the  Jews,  p.  64,  65. — Their  interpretation  not 
 improbable,  p.  65 — for  two  reasons,  p.  66. — The  Author's  opinion 
 
 n  2 
 
IV  ANALYSIS. 
 
 changed  respecting  it,  p.  67,  63.  — His  new  explanation  of  Lev.  xxirv 
 16.  p.  69.— and  its  influence  on  the  aspect  of  the  law,  p.  69,  70. 
 
 §  8.    ART.  CCLII. 
 Punishment  of  the  False  Prophet,  ivken  convicted.     P.  70 — 7  J. 
 
 Two  cases  of  conviction ;  prophesying  in  name  of  a  strange  god,  p. 
 70. — and  in  the  name  of  the  true  God,  falsely,  p.  71. — The  punish- 
 ment, death;  unless  when  the  prophet  was  insane,  p.  72  — Vindica- 
 tion of  the  severity  of  the  Mosaic  punishment,  p.  75. 
 
 §  9.    ART.  CCL1II. 
 
 Remarks  on  the  Mischiefs  which  False  Predictions,  and  Superstitious  Di- 
 vination, may  produce  among  a  Credulous  People.     P.  74 — 82. 
 
 These  remarks  limited  to  the  case  of  state-policy  being  regulated  by, 
 oracles,  p  7  k— Turkey  thus  almost  ruined  very  lately,  p  75. — Croe- 
 sus, Pj/rrhus,  and  Ariovistus,  of  old,  p.  76  — The  prediction  of  Casar's 
 death,  p.  76. — The  bewitchment  of  Gennunicus,  p  77. — The  Chal- 
 daans  and  mathematicians,  the  cause  of  imperial  tyranny  at  Rome, 
 p.  78  79  — The  conduct  of  the  emperors  not  wonderful,  p.  80.  — 
 Effects  of  divination  in  common  life,  p.  81. — Exploded  by  pure 
 Christianity,  p    S2. 
 
 §  10.     ART.  CCL1V. 
 
 The  Mosaic  Statutes  against  Divinations ;  and  the  Punishment  of  Di- 
 viners.    P.  83 — 86. 
 
 The  different  sorts  of  divinations  prohibited,  p.  83. — The  diviner 
 stoned,  p  84-.— Saul's  inconsistent  conduct,  ib. — The  witch  of  En- 
 dor,  p.  85. 
 
 §  II.     ART.  CCLV. 
 
 Of  Incantations.     P.  S6— 93. 
 
 No  such  thing  as  real  witchcraft,  p  86. — Yet  laws  necessary  to  re- 
 press imposture,  p.  87 — Witchcraft,  a  sort  of  idolatry  in  Israel,  p. 
 88  — pTM  explained,  p.  89  —1i3  1M  explained  p.  90 — Charming 
 of  serpents,  p  91.  Conjecture  respecting  Exod.  xxii.  17. — Witch 
 *f  Endor,  like  Virgil's  Sybil,  p.  92. 
 
ANALYSIS.  V 
 
 J  12.     ART.  CCLVI. 
 Of  Perjury.     P.  93-111. 
 
 The  Mosaic  law  here  resembles  the  Roman,  p  93. — An  oath  a  so- 
 lemn appeal  to  God,  p.  94.—  Sacredness  of  oaths  among  the  Romans, 
 p.  95 — Advantages  of  the  Mosaic  polity  in  respect  of  oaths,  p  90. 
 —Oaths,  in  a  state  of  natural  religion,  p  97. — under  the  Christian 
 religion,  p.  98  — Real  nature  of  the  third  commandment,  p.  99. — 
 Seme  sects  deem  oaths  unlawful,  p.  100  -God  the  declared  avenger 
 of  perjury  in  Israel,  p  101. — Swearing  by  the  kings  life,  p  102. — 
 by  the  holy  cities,  p  103. — The  expiation  of  perjury,  p.  104. — Its 
 effects  on  conscience,  p.  105. —  happily  obviated  by  Moses'  plan, 
 p.  106. — which  also  prevented  conspiracies  in  perjury,  p  107,  10S. 
 —and  ought  here  to  be  still  imitated,  p.  109. -'—When  offerings  to  be 
 made  for  perjury,  and  what,  p.  109,  110. 
 
 §  13.     ART.  CCLVII. 
 
 No  Laxis  against  unnecessary  Swearing  and  Cursing.     P    111  — 113. 
 
 English  law  here  well  meant,  but  useless,  p.  111. — Lev.  v.  I  and 
 Proy.  xxix.  2k  misunderstood,  p.  112. — Common  swearing  hardly 
 worth  notice,  p.  113. 
 
 Chap.  III. — Crimes  of  Lust. 
 
 §  1.    ART.  CCLVIII. 
 Unnatural  Sins.     P.  114  — 118. 
 
 The  statutes  respecting  them,  p.  114. — Their  punishment  capital, 
 and  justly,  p.  115 — Their  consequences,  p.  lib' — Their  punish 
 ments  in  other  countries,  p.  117. 
 
 §  2.     ART.  CCLIX. 
 Concerning  Adultery  —  W/' at  urn  are  to  understand  by  that  word.     ?■  !  IS 
 
 A  crime  only  in  the  wife,  p.  1  lz>. — v\Kl  illustrated,  p.  119  — Expla- 
 nation of  Lev.  xx  10.  p.  120. — Christ's  doctrine  respecting  adul- 
 tery, p.  121.— Critical  explanation  of  Numb.  v.  12,  20.  p.  122. 
 
 a  3 
 
VZ  ANALYSIS. 
 
 §  3.     ART.  CCLX. 
 
 Of  the  Punishment  of  Adultery.     P.  1 22 — 131. 
 
 If  theft  capital,  so  also  adultery,  p.  123.  —  It  is  capital,  in  a  state  of 
 nature,  p.  121. — The  violence  of  Oriental  jealousy,  p.  125,  126. — 
 The  Mosaic  punishment  no  less  politic  than  just,  p  127. — but  not 
 applicable  to  other  countries,  p.  128- — such  as  France,  p.  129. — 
 Mosaic  plan  for  detecting  adultery,  p    130. 
 
 §  4.     ART.  CCLXL 
 
 A  Digression,  illustrative  of  the  Mahometan  Law  respecting  the  Punish- 
 ment of  Adultery  ;  which  the  Reader,  who  has  no  curiosity  on  the  sub- 
 ject, may  pass  by.     P.  131  — 141. 
 
 Arabs  punish  adultery  only  with  blows,  p.  131. — Gross  inconsistency 
 of  the  two  laws  in  the  Koran,  p.  132,  133. — The  first  law,  however, 
 realty  does  not  refer  to  adultery,  but  to  unchastity,  p.  134. — which 
 fathers  and  brothers  used  to  punish  very  cruelly,  p.  135. — Maho- 
 met's plan  for  checking  their  cruelties,  p.  136,  137. — The  second 
 Jaw  only  sanctions  the  consuetudinary  punishment,  p.  138 — The 
 difference  between  the  Arabian  and  Israelitish  punishment  accounted 
 for,  p.  140. 
 
 §  5.    ART.  CCLXII. 
 
 Stoning,  the  Mosaic  Punishment  of  Adultery.     P.  141  — 149. 
 
 The  dispute  concerning  the  story  of  the  adulteress,  in  John  viii.  p. 
 141. — Doctrine  of  the  Rabbins,  as  to  strangling,  p.  142. — The  Evan- 
 gelist more  credible  than  the  Mischna,  p.  143. — The  Talmudical  rule 
 incorrect,  p.  144— -Even  unchastity  punished  by  stoning,  p.  145. — 
 5toning  probably  in  use  before  Moses'  time,  p.  ]  46. —  Used  in  Eze- 
 kiel's  time,  ib. — Reference  to  the  story  of  Susanna,  ib. — Illustration 
 of  the  story  of  the  adulteress,  p.  147. — Its  unlooked-for  issue,  p.  148. 
 —  I ts  authenticity,    p.  149. 
 
 §  6.    ART.  CCLXIII. 
 nf  the  Oath  ef  Purgation.     P.  149—158 
 
ANALYSIS.  VII 
 
 The  right  of  the  husband  to  exact  this  oath,  p.  1+9  — Whence  it 
 arose,  p.  150. — A  similar  right  in  Negroland,  p.  151. — God  himself 
 here  the  declared  avenger  of  perjury,  p.  152. — Moses'  procedure 
 here  a  proof  of  his  divine  mission,  p.  153. — The  Rabbinical  qualifi- 
 cation of  the  oath,  groundless,  p.  154  — The  ceremonies  of  the  oath 
 detailed,  and  accounted  for,  p.  155 — 157. — Their  probable  effects 
 on  the  guilty,  p    158. 
 
 §  7.     ART.  CCLXIV. 
 
 Of  the  Punishment  of  Adultery  in  Bondwomen.     P    158  — 163. 
 
 The  statute  of  Lev.  xix.  20 — 22  translated,  p.  159. — and  critically 
 illustrated,  p.  160. — Why  punishment  here  mitigated,  p.  I  ^ i . — It 
 consisted  of  blows  only,  p.  163. 
 
 §  S.    ART.  CCLXV. 
 Of  Incest — its  forensic  Names — and  its  Punishment.     P.  163  —  169. 
 
 Its  general  name  in  Hebrew  and  German,  p.  163. — Different  applica- 
 tions of  Zimma,  p.  164. — Thebel,  Chesed,  Nidda,  Nicahh-Elmakt,  p. 
 165. — Incest,  when  punished  capitally,  p.  166. — When,  with  extir- 
 pation, p.  167. — When,  with  unfruitfulness,  p.  168. — Punishment  in 
 same  cases  not  specified,  p.  169. 
 
 §  9.    ART.  CCLXVI. 
 Of  Rape — No  special  Punishment  annexed  to  this  Crime.     P.  169 — 174. 
 
 The  heinous  nature  of  rape,  p.  169. — The  English  law  respecting  it; 
 Lord  Baltimore's  trial,  p.  170. — Rnpe  not  referred  to  in  Deut.  xxii. 
 25.  p.  171. — Three  reasons  for  Moses'  silence,  p.  171,  172. —He 
 probably  adopted  the  law  of  usage,  p.  173. — The  case  of  Amnon  il- 
 lustrated, p.  174. 
 
 §  10.     ART.  CCLXVII. 
 
 Of  Mliorcdom,  unaccompanied  by  circumstances  of  aggravation.     P.  175 
 
 —  180. 
 
 The  statutes  of  Exod.  xxii.  15.  and  Deut.  xxii.  29.  explained,  p.  175 
 The  punishments  of  seduction,  p.  176. — Public  ecclesiastical  penances 
 
 a  4 
 
Vlll  ANALYSIS. 
 
 disapproved,  p.  177. — Reasons  for  Moses'  lenient  procedure,  p.  173. 
 — Alternative  left  to  the  unchaste,  p.  179.  — Objection  answered, 
 p.  180. 
 
 §  11.     ART.  CLXVIII. 
 
 Concerning  (1  )  Public  Prostitution.  (2.)  Lenocinium  Patris  (3  ) 
 Whoredom  in  honour  of  an  Idol ;  and,  (4-.)  Whoredom  in  the  Daugh- 
 ter of  a  Priest.     P    1 80— 1 8  8 . 
 
 These,  aggravations  of  whoredom,  p.  180. — Lenocinium,  doubtful  how 
 punished,  p.  181  — Foreign  prostitutes  probably  not  toierated  ;  and 
 why  ?  p.  182,  183.  -  Prostitution  among  the  Babylonians,  in  honour 
 of  the  goddess  Mylitta,  p  I  84  — so,  among  the  Midianites,  in  honour 
 O^Baalpeor  p  18/5. — The  statute  of  Deut.  xxiii  19  p  186 — Un» 
 chastity  in  a  priest's  daughter,  capital;  and  why,  p.  186  — 188. 
 
 §  12.     ART.  CCLXIX. 
 
 Concerning  Whoredom,  (5.)  in  a  Lcviraie-  Widow.  (6  )  In  a  V/oman  be- 
 trothed; and,  (7  )  In  a  Woman,  who  afterwards,  on  her  Marriage, 
 gives  herself  out  for  a  Virgin,  and  thus  deceives  her  Bridegroom.  P. 
 189-192, 
 
 Moses  retained  the  Levirate  law  ;  but  it  probably  went  into  desue- 
 tude; Thamar,  Ruth,  p.  189. — Law  of  Deut.  xxii.  23 — 27  explain- 
 ed, p.  190.— Concealment  of  incontinence,  how  punished,  p.  191. 
 
 §  13.     ART.  CLXX. 
 
 Concerning  the  Law  of  Deut  xxii.  21,  22.,  which  denounced  the  punish- 
 ment of  Stoning  on  the  Bride,  who  falsely  pretended  to  be  a  Virgin. 
 P.  192  —  199. 
 
 The  law,  on  what  principle  formed,  p.  192  — Three  limitations  of  it, 
 p.  193  —  195 — The  real  object  of  it,  to  protect  women  against  un- 
 just accusations,  p.  196. — Probably  seldom  enforced,  p.  197, — Bat 
 Still  a  powerful  preservative  of  chastity,  p.  19S. 
 
 §  14.     ART.  CCLXXI. 
 De  Concubitu  cum  Menstrttata.    P.  199—203. 
 
ANALYSIS.  IX 
 
 Prohibited,  both  among  the  Hebrews  and  Arabs,  p.  199  — The  two 
 reasons  commonly  assigned,  incongruous,  p  199 — Two  facts  illus- 
 trative of  its  effects,  p.  200. — The  probable  real  cause  of  the  prohibi- 
 tion, p  201  — If  ever  productive  of  Lues,  p.  202. — Doubtful,  it 
 ever  punished  capitally,  p.  203. 
 
 Chap.  IV. — Crimes  of  Blood. 
 
 §  1.     ART.  CCLXXII. 
 
 Suicide  not  so  much  as  mentioned  in  the  Mosaic  Law.     P.  204- — 210. 
 
 Josephus'  harangue  against  suicide,  p.  204. — in  the  style  of  the  Py- 
 thagorean philosophy,  p  205. — On  what  occasion  delivered,  ib. — 
 He  does  not  refer  to  Moses,  but  to  the  Rabbins,  p.  206  — Achito- 
 phel'scase;  Remarks  on,  and  inferences  from  it,  p.  207. — Suicide 
 not  meant  in  the  sixth  commandment,  ib  —Suicides  presumably  in- 
 sane, p.  208. — Moses' silence  accounted  for,  p.  20S  — 216. — Moses 
 presupposes  the  knowledge  of  a  future  state,  but  does  not  threaten 
 punishments  in  it,  and  why  p.  209. — A  melancholic  temperament, 
 prompts  to  suicide,  p.  210. — If  suicide  ever  a  sin  of  ignorance?  p. 
 211  — The  Danish  punishment  of  it,  p.  212. — Causes  of  suicide  ; 
 superstitious  errors,  p.  213. — Want  of  religion  ;  Maladie  du pays,  &c. 
 p  214  —Diet,  education,  misfortune,  p.  215. — Application  to  the 
 state  of  the  Israelites  under  Moses,  ib. — Suicide  latterly  very  common 
 in  Judea,  p.  216  — Reference  to  the  book  of  Job,  as  written  bv  Mo- 
 ses, p.  209,  2 1 G. 
 
 §  2.     ART   CCLXXIII. 
 
 Concerning  Murder,  ofiuhich  the  Punishment  was  Death;  and  Homicide, 
 which,  according  to  circumstances,  was  punished  either  by  Exile,  or  not 
 at  all.     P   217—231. 
 
 Homicidhm  dolosum  —  culposum  —  casuale,  p  217.— Meaning  of  the 
 word  nxi  p  218.  — Proper  version  of  the  sixth  commandment,  p. 
 219.  -Mosaic  marks  of  murder,  hatred;  thirst  of  blood,  rmJt  ;  pre- 
 meditation, &c  p.  '^20.— Marks  of  homicide,  p.  221,  222.— Ques- 
 tion respecting  homicide  from  rage,  p  223. — The  law  of  Gen.  ix.  6. 
 only  ad  interim,  ib.— The  laws  of  Gen.  x.\i.  17  —  19.  and  23.  p.  224, 
 
X  ANALYSIS. 
 
 —Murder  determined  by  the  instrument,  p.  225. —  An  iron  tool — a 
 stone — a  club,  &c.  p.  220. — a  push  downwards,  p.  227. — Case  of 
 death  occasioned  by  a  tobacco-pipe,  p.  228. — Killing  a  nocturnul 
 thief,  lawful,  p.  229. — Hence,  lawfulness  of  resistance,  p.  230. — The 
 rights  of  the  Goel  limited  by  Moses,  p.  231. 
 
 §  3.    ART.  CCLXXIV. 
 
 Of  the  Punishment  of  Murder.     P.  232—236. 
 
 The  magistrate  aided  the  God,  and  sometimes  acted  Gobi,  p.  232.— 
 God  declared  that  murder  polluted  the  land,  p  233. — Animals  that 
 shed  human  blood  were  put  to  death,  p.  233 — True  version  of  Gen. 
 ix.  6  p.  234 — Examples  of  the  punishments  of  animals  and  inani- 
 mate things,  in  other  countries,  p.  235. 
 
 §  4.     ART.  CCLXXV. 
 
 The  taking  of  a  pecuniary  Compensation  for  Murder,  prohibited — 77:<; 
 Right  of  Pardon,  on  the  contrary,  allowed  and  exercised — The  different 
 Influence  of  these  two  species  of  Remission,  on  the  security  of  Human 
 Life,  and  the  Character  of  a  Nation,  considered.     P.  236 — 246. 
 
 The  Mahometan  law  here  the  reverse  of  the  Mosaic,  and  despised 
 even  by  the  Arabs  themselves,  p.  237.  — History  of  a  case  of  pecu- 
 niary compensation  proposed  to  a  German  widow,  p.  238. — Differ- 
 ence between  private  remission  and  legal  pardon  ;  Case  of  Lord  Fer- 
 rers, p.  239. —  George  the  Second's  conduct  contrasted  with  that  of 
 another  sovereign,  p.  240. — The  baseness  of  accepting  money  for 
 blood,  p  241. — Israelitish  monarchs  exercised  the  right  of  pardon, 
 ib. — Joab's  device  to  procure  Absalom's  pardon,  p.  242,  243. — The 
 fictitious  case  not  exactly  parallel  to  the  real  one,  p.  244.— Why 
 Moses  did  not  speak  of  a  right  of  pardon  :  the  danger  of  the  people 
 asserting  such  a  right ;  reference  to  Wilkes,  as  a  demagogue,  p.  '245. 
 ■ — Inference  from  Samuel's  conduct,  p.  240. 
 
 §  5.     ART.  CCLXXVI. 
 
 The  Mode  of  punishing  Murderers,  undetermined,  and  left  in  a  great 
 measure  to  the  Goel.     P.  246 — 249. 
 
 Murders  can  hardly  be  punished  by  retaliation,  p.  2i7. — The  Go'Ts 
 procedure  arbitrary  :  two  examples  from  Cliardin.— He  probably  re- 
 
ANALYSIS.  XI 
 
 taliated  butchery,  p.  248. — Ripping  up  probably  the  common  punish- 
 ment, p.  249. 
 
 §  6.     ART.  CLXXVII. 
 
 An  exception  to  the  Severity  of  the  Law,  in  the  case  of  a  Servant,  or 
 Maid.     P.  250—253. 
 
 Slaves  have  not  equal  rights  with  citizens,  p.  250. — Right  of  chastis- 
 ing them  necessary,  p.  251. — Masters  probably  not  put  to  death  for 
 killing  them,  ib. — The  law  did  not  apply  to  Hebrew  bond-servants, 
 p.  252. 
 
 §  7.     ART.  CCLXXVIII. 
 
 Of  the  Expiation  of  an  unknown  Murder  ;    and   the  people  s  solemn 
 Acknowledgement  of  their  Ignorance  of  the  Perpetrator.    P.  253 — 256. 
 
 Murder  represented  as  polluting  both  the  land  and  the  people,  p.  253. 
 — Statute  of  Deut  xxi  1,-9.;  ceremonial  of  expiation,  p  254.— 
 Why  to  be  made  on  a  perennial  stream,  p.  255. — The  law  unneces- 
 sary now,  but  highly  useful  then,  p.  256. 
 
 §  8.     ART.  CCLXXIX. 
 
 Hie  punishment  of  unintended  Homicide  was  Relegation  and  Confinement 
 in  a  City  of  Refuge.     P.  256—259. 
 
 An  asylum  provided  for  the  man-slayer,  p  256. — An  irksome  confine- 
 ment for  various  reasons,  p.  257. — But  absolutely  necessary  in  those 
 times,  p.  258. — Moses'  motives  for  appointing  it,  p.  259. 
 
 $  9.    ART.  CCLXXX. 
 
 Of  inexcusable  Carelessness,   as   chargeable  with  the  Blame  of  another 
 person's  Death.     P.  259—261. 
 
 The  people  answerable  for  their  beasts,  p.  259. — Law  of  Exod.  xxi. 
 28  —  32.,  p.  260. — For  their  cisterns,  ib. — For  their  unfenced  roofs» 
 p.  261. 
 
 r§  10.     ART.  CCLXXXI. 
 
 Of  the  Punishment  of  Corporeal  Injuries.     P.  262 -»264. 
 
311  ANALYSIS. 
 
 Injuries  arising  from  quarrels,  p.  262.  —  Injury  to  a  pregnant  woman, 
 ib.—  Injury  by  assault  or  artifice,  p.  263.  Rights  of  natives  and 
 strangers  here  equal ;  but  not  of  slaves,  p.  263  —Punishment  of  the 
 outrage  mentioned  in  Deut  xxv.  11,  12,  p  264-. 
 
 Chap.  V. — Crimes  against  Property. 
 
 §  I.     ART.  CCLXXXII 
 
 Restitution,  or  Slavery,  the  punishment  of  Theft  -  General  Observations 
 on  this  Law.      P.  265  —27 1. 
 
 A  preferable  punishment  to  death,  p.  265.  — Still  in  use  in  Persia; 
 Chardin,  p.  266. — Motives  of  theft ;  real  hunger  seldom  one,  p.  267. 
 — Restitution  the  best  check  to  theft  proceeding  from  desire  of  gain, 
 p.  268. — Or  from  idleness,  p  269. — Why  transportation,  as  practised 
 in  England,  proves  ineffectual,  ib.—  Farther  advantages  of  restitution, 
 p.  270. — Why  an  unsuitable  punishment  now,  p.  271. 
 
 §  2.     ART.  CCLXXXIII. 
 
 The  Punishment  of  Theft  was  probably  more  severe  before  the  time  of 
 Moses,  particularly  in  Egypt.     P.  27 1  —  27  4-. 
 
 This  illustrated  from  the  story  of  Joseph's  cup,  p.  272. — Inferences 
 from  that  story,  p.  273— shewing  the  nature  of  the  Egyptian  law, 
 p.  274. 
 
 §  3.     ART.  CCLXXXIV. 
 
 A  more  particular  Specification  of  Restitution,  according  to  its  several  gra- 
 dations, as  applicable  to  the  different  circumstances  of  Theft.     P.  274 
 
 —  277. 
 
 Two-fold  restitution,  xvhen  required,  p.  274- — Four-fold,  p.  275. — 
 fire- fold  in  the  ca<e  of  an  ox,  and  why,  p.  275.  — Thief  sold  for  a 
 slave,  when;  and  for  how  long,  p.  276.  —Stealing  from  hunger,  se- 
 verely, punished  in  Solomon's  time,  p.  277. 
 
 §  4.     ART    CCLXXXV. 
 The  punishment  of  Theft,  in  Solomon's  time,  augmented.     P.  27S,  279. 
 
ANALYSIS.  Xlll 
 
 The  Mosaic  punishment  subnisted  in  David's  time,  p.  278.—  But 
 Solomon  speaks  of  seven-fold  restitution,  p  27 8. — The  crime  of  theft 
 heinous  in  a  commercial  country,  p.  279. 
 
 §  5.     ART.  CCLXXXVI. 
 No  Statute  concerning  Highway  Robbery  or  Burglary.     P.  279,  280, 
 
 The  reasons  of  this  chasm  in  the  law,  p.  280. 
 
 §  6.     ART.  CCLXXXVII. 
 Of  Sacrilege.     P.  280. 
 
 No  statute  respecting  this  crime,  p.  280. — The  probable  punishment 
 of  it,  p.  281. 
 
 §  7.    ART.  CCLXXXVIIL 
 
 Man-stealing  punished  capitally.     P.  282 — 2S7. 
 
 The  usual  motives  to  this  crime,  p.  282. — Modern  kidnapping,  and 
 Negro  slavery,  p  2S3.  —The  sale  of  Joseph,  ib. — Man-stealing  distin- 
 guished from  similar  crimes,  p  284  — Moses' first  statute  limited  by 
 his  second,  p.  28 -t  — Mosaic  and  Roman  law  compared,  p.  285 — The 
 reasons  of  the  Mosaic  punishment,  p.  286.— Sense  of  the  word 
 Plagium,  p  287. 
 
 §  8.    ART.  CCLXXXIX. 
 
 The  Crime  of  Denying  any  thing  taken  in  trust  or  found.     P.  2S5. 
 The  statutes  on  this  subject  explained,  p.  288. 
 
 Chap.  VI. — Crimes  of  Malice. 
 
 §  1.     ART.  CCXC. 
 
 Informers  odious  in  the  Eye  of  (he  Law.     P.  289  — 29S. 
 
 The  prohibition  in  Lev.  xix.  I  G,  — 18,  p  289  — Informers  discouraged, 
 except  in  one,  or  peihaps  two  cases,  p.  !<!90. -The  law  against  false 
 aecusers,  founded  on  the  non-obligation  of  notifying  crimes,  p.  291.— 
 
XlV  ANALYSIS. 
 
 Improper  explanation  of  Lev.  v.  1.,  ib. — Malicious  informers  con- 
 demned,  p.  292. — Sense  oHoving  our  neighbour  as  ourself,  p.  293. 
 
 §  2.     ART.  CCXCI. 
 
 Of  the  propagation  of  defamatory  Untruths.     P.  29  i — 296. 
 
 This  prohibited,  but  no  punishment  annexed,  p  29+.  -  Except  in  the 
 case  of  a  husband  defaming  his  bride,  ib. —  His  punishment  three- 
 fold, p.  295. 
 
 §  3.     ART.  CCXCII. 
 Of  False  Accusation  and  False  Witness.     P.  296 — 298. 
 
 The  punishment  here,  in  the  one  case,  left  to  conscience,  p.  297.— 
 In  the  other,  inflicted  according  to  lex  talionis,  p.  29S. 
 
 Chap.  VII. — Crimes  against  Parents  and  Rulers. 
 
 §  I.     ART.  CCXCIII. 
 
 Heinous  Crhnes  against  Parents,  such  as  Cursing  or  Striking  them,  pun- 
 ished -with  death.     P.  299—303. 
 
 What  implied  in  cursing,  Vjp,  p.  299 — An  instance  in  the  Pharisai- 
 cal doctrine  of  Korban,  p.  300. — Obedience  to  parents  strongly  in- 
 culcated by  Moses,  p.  301. — The  sanction  of  the  fifth  commandment 
 local,  p.  302,  303. 
 
 §  2.    ART.  CCXCI V. 
 
 The  Drunkard,  whom  his  Parents  were  unable  to  keep  in  order,  and  who, 
 in  his  cups,  endangered  the  lives  of  others,  was  punished  with  stoning, 
 P.  303—309. 
 
 The  statute  of  Deut.  xxi.  18 — 21.  explained  ;  the  true  sense  of  V71D, 
 p.  304-. — Reasons  for  the  severity  of  punishment,  p  305. — Objec- 
 tion answered,  p.  306. — Montesquieu's  remark  on  intemperance, 
 p.  307. — Sunday  drunkenness  about  London  described,  p.  308.— Ef- 
 fects of  intoxication  in  wa;m  climates,  p.  309. 
 
ANALYSIS.  XV 
 
 §  3.    ART.  CCXCV. 
 
 Of  gross  Verbal  Injuries  towards  the  Magistrate  ;   Crimen  laesae  majes- 
 tatis.     P.  309— 312. 
 
 Cursing  the  magistrate  a  crime  against  God,  p.  309- — Treason  under 
 the  kings  punished  with  death,  p.  3W.—Shimei's  fate,  p  311. — The 
 king's  person  inviolable,  ib. — Why  David  put  the  Amalekite  to 
 death,  ib. — Cursing  a  neighbour,  p.  312. 
 
 Chai\  VIII. — Of  Judicial  Procedure. 
 
 §  I.    ART.  CCXCVI. 
 
 little  is  knoivn  relative  to  Judicial  Procedure-r-Wherefore    Moses  has 
 given  so  few  Directions  concerning  it.     P.  3 1  3  —  317. 
 
 Judicial  procedure  at  first  probably  quite  summary,  and  why,  p.  313. 
 — Subsequent  alterations;  whence  arising,  p.  3 14-.  —  Gradual  change 
 of  c/imes  and  chicaneries,  p.  316. — No  forms  of  judicial  procedure 
 can  be  permanent,  ib. 
 
 $  2.    ART.  CCXCVH. 
 Warnings  against  Partiality  and  Bribery.     P.  31S — 320. 
 
 1.  Taking  of  gifts  or  bribes  by  judges,  p.  3 IS.— 2  Respect  of  per- 
 sons, ib. — Partiality  even  to  the  poor  prohibited,  p.  31? — Justice  ad- 
 ministered gratuitously,  p.  320. 
 
 $  3.    ART.  CCXCVI II. 
 
 The  Seat  of  Public  Justice  was  at  the  City  gate.— Whether  Advocate* 
 were  employed  ?     P.  320  —  323. 
 
 This  a  well  known  custom  before  Moses'  time,  p.  320 — No  mention 
 of  advocates  in  his  writings,  p.  321. — The  later  Jews  knew  them  first 
 from  the  Greeks,  ib. — There  seem,  however,  from  Job  xxix  1 5, — 17. 
 to  have  occasionally  been  ultroneous  pleaders,  like  the  Roman  Patroni, 
 p.  322. — Reference  to  Isa.  i.  17. ;  Effects  of  Voltaire's  interference  iu 
 behalf  of  the  Calas  family,  p.  32". 
 
XVI  ANALYSIS. 
 
 §  4.    ART.  CCXCIX. 
 
 Of  Witnesses.     P.  324—328. 
 
 Witnesses  always  adjured  ;  this  essential  to  the  sure  discovery  of 
 truth,  p.  324 — Number  of  witnesses  necessary  for  proof  in  difierent 
 cases,  p  325.—  Sense  of  ny  in  Exod.  xxii  12-  p.  326. — Discordance 
 of  the  witnesses  on  Christ's  trial,  p.  326. — Witnesses  examined  sepa- 
 rately even  in  Moses'  time,  p.  327. 
 
 §  5.     ART.  CCC. 
 The  Story  of  Susannah  and  Daniel.     P.  323  —  338. 
 
 Reason  for  noticing  this  apocryphal  story,  p.  32S.  —  which  was  ori- 
 ginally written  in  Greek  at  a  very  late  period,  p.  329. — The  two  edi- 
 tions of  it;  their  history,  p.  330. — Various  improbabilities  in  it; 
 such  as  Joiakim's  ignorance,  p.  331. — The  unmosaic  procedure  of  the 
 elders,  p.  332. — Of  the  part  acted  by  Daniel,  p  333- — His  prejudg- 
 ment of  the  elders,  p.  334. —  Absurdity  of  the  question  put  to  them, 
 p.  335.— The  Schinos  tree,  and  the  pun  upon  it,  p.  336.  — Strange  ad- 
 dress to  the  second  elder,  p.  337. — The  pun  on  the  Prinos  tree, 
 p.  338.  — Inference  from  the  whole;  that  to  deduce  the  procedure 
 here  from  the  law  of  Moses,  is  grossly  to  traduce  that  law,  p.  338. 
 
 §  6.     ART.  CCCI. 
 Of  Oaths.     P.  338—342. 
 
 Reference  to  an  oath  frequent  among  the  Israelites,  p.  33S. — Not 
 accounted  sinful,  as  by  some  among  us,  p  339  — The  cause  of  this 
 mistake,  p.  340. — Moses  vindicated  from  the  charge  of  being  pro- 
 fuse of  oaths,  p.  341.— Modern  abuse  of  them,  p.  3^2. 
 
 §7.     ART.  CCCII. 
 Ceremonies  accompanying  the  administration  of  Oaths.     P.  342—345. 
 
 The  Hebrew  oath  an  adjuration,  p   342.— Christ  adjured,  p.  343 
 
 'The  Amen  p.  344 —Oaths  taken  amidst  sacrifices,  anciently  seven; 
 hence  jraw,  and  its  relatives  explained,  p.  344.  —And  hence  the 
 reference  of  oaths  to  the  altar,  p.  345. 
 
ANALYSIS*  XVli 
 
 §  8.     ART.  CCCIII. 
 
 The  Chicanery  of  the  later  Jens,  ivith  respect  to  certain  Oaths,  combated 
 by  Christ  in  his  Sennon  on  the  .Mount.     P.  34-t)  —  357. 
 
 This  chicanery  proceeded  from  a  misinterpretation  of  Exod  xx.  7. 
 p  34-6.  Swearing  by  the  kin^,  altar,  temple,  holy  city,  really  equiva- 
 lent to  swearing  by  God,  p.  3-1-7.  Passage  from  Philo,  relative  to  the 
 use  of  God's  name  in  oaths,  p.  348.  —  Mahomet's  use  of  oaths  in  the 
 Koran,  p  34-9. —  Poetical  adjurations,  p  350  —The  chicanery  of  the 
 Jews  respecting  oaths,  notorious  at  last  even  among  the  heathen  ; 
 Martial's  epigram  upon  it,  p  35  1  .-Christ's  confutation  of  the  Pha- 
 risaical doctrines  in  Matth.  xxiii.  16 — 22.  p  352.  — Origin  of  these 
 doctrines,  from  a  gloss  on  the  third  commandment,  p  353. — The 
 proper  exposition  of  iVlatth.  v.  33.  Suear  not  at  all,  &c.  p.  354. — 
 Christ  prohibits  not  oaths  in  general;  not  even  all  extrajudicial 
 oaths,  p.  35G  — but  only  their  abuse,  p.  357. 
 
 §  9.     ART.  CCCIV. 
 Of  the  Sacred  Lot.     P.  357 — 359. 
 
 The  lot,  a  divine  decision ;  used  for  judicial  purposes,  p.  358. — Re- 
 ference to  the  Author's  explanation  of  Urim  and  Tlnmanim,  ib  — The 
 lot  also  used  in  criminal  trials ;  but  only  to  discover,  not  to  convict, 
 the  guilty,  ib. 
 
 §  10.    ART.  CCCV. 
 Of  Confession  of  Crimes.     P.  359,  360. 
 
 Confession  might  criminate  capitally  :  examples  referred  to,  p.  359. 
 — Conviction  by  evidences,  without  confession.     P.  360. 
 
 §  11.     ART.  CCCVI. 
 Torture  unknown.     P.  360,  361. 
 
 At  least  until  the  captivity,  p.  S60.  —  How  they  managed  to  discover 
 accomplices,  p.  361. 
 
 §  12.     ART.  CCCVI  J. 
 
 Speedy  Infliction  of  Punishment.     P.  361,  362, 
 VOL.   iv.  h 
 
XV111  ANALYSIS. 
 
 Panisliment  inflicted  immediately  after  sentence,  p.  361. — Our  prac- 
 tice of  giving  criminals  time  to  prepare  for  death,  sometimes  produc- 
 tive of  bad  effects,  p.  362. 
 
 APPENDIX  TO  BOOK  V. 
 
 An  Essay  on  the  Nature  and  End  of  Punishments. 
 
 Advertisement!  respecting  the  design  of  the  Essay. — Reference  to 
 the  Author's  treatise,  On  the  Doctrine  of  Scripture  concerning  Sin,  as 
 a  Doctrine  consonant  to  Reason.    P.  361. 
 
 Part  I. — Of  the  Primary  End  of  Punishment. 
 
 §  I.     The  General  Principles  of  Punishment.     P.  365 — 371. 
 
 The  greatness  of  punishment,  on  what  principle  to  be  regulated,  pt 
 365. — The  end  of  punishment,  not  the  infliction  of  misery,  p.  366.— 
 God  punishes  with  the  same  view  as  man,  p.  367. — An  error  of  some, 
 in  regard  to  this  point,  ib. — The  real  enormity  of  crimes  seldom 
 truly  ascertainable,  p.  368.— Blasphemy  of  Christ,  by  a  professing 
 Christian,  ib. — Why  not  punished  ;  but  by  a  Jew — why  punished  ? 
 p.  369. — Punishment  of  perjury,  when  necessary  ?  p.  370. 
 
 i  2.     Determent  from  dimes,  the  great  End  of  Punishments.     P.  37 1 
 
 —375. 
 
 This,  and  not  the  amendment  of  the  criminal,  usually  expressed  in 
 indictments  and  sentences,  p.  311. — The  Author's  obligations  to  Mr. 
 I'u/i  Segners  oration  on  this  subject,  p.  372. — Punishments  should 
 threaten  more  evil,  than  the  crime  can  promise  good  ;  and  should 
 very  rarely,  if  ever,  be  remitted,  p  373. — The  various  motives  to, 
 and  dissuasives  from,  crimes:  the  good  and  bad  scales,  p.  374. — Pu 
 nishments  can  never  wholly  prevent  crimes,  p.  375. 
 
 §  3.     Of  Slight  Punishments.     P.  375—377. 
 
 The  least  possible  punishments  should  always  be  preferred,  p.  375.— 
 Smoking  on  the  lampaits  of  a  fortress,  how  punished,  p.  376. 
 
ANALYSIS.  XIX 
 
 §  4.     Of  Imaginary  Punishments      P.  577—279. 
 
 These,  if  effectual,  the  best  of  all,  p.  377. — Sometimes  very  happily 
 employed  by  the  magistrate,  as  well  as  by  parents;  e.  g  seizing  and 
 educating  the  children  of  Gypsies,  p  377. — and  confining  vagrants 
 in  houses  of  correction,  p  378. — They  must  always  be  made  to  ap- 
 pear formidable,  p.  379. 
 
 §  5.     Of  Severe  Punishments.     P.  379,  380. 
 
 Why  these  become  necessary,  p  379. — An  example  ;  in  restitution, 
 as  the  punishment  of  theft,  or  fraud,  p.  379. — which  is  quite  ineffec- 
 tual, unless  very  severe,  p.  380. 
 
 §  G.     Of  Capital  Punishments.     P.  380-390. 
 
 These  sometimes  necessary,  even  where  life  is  not  concerned,  p.  3SJ. 
 — An  objection  stated,  p.  381. — and  answered  by  reference  to  the 
 prevention  of  personal  injuries  in  a  state  of  nature,  p.  3S2 — Another 
 example,  respecting  the  defence  of  property,  p.  3S3 — The  case  ot 
 highway-robbery,  or  of  housebreaking,  p  384-.  —  National  retalia- 
 tions also  always  exceed  wrongs;  insults  to  ambassadors;  Jenkins' 
 ears,  p.  385. — Application  of  the  preceding  arguments  to  the  state 
 of  society,  p  385. — The  authority  of  the  laws,  p.  3Sl3  —The  conse- 
 quences of  limiting  punishments,  p.  387. — exemplified  in  assaults, 
 thttfts,  window-breaking,  &c.  p.  388  — The  greatest  punishments  not 
 excessive,  when  lesser  ones  are  ineffectual,  p.  389. — An  illustrative 
 case,  p.  390. 
 
 §7.     Of  the  Expediency  of  Impunity  in  certain  cases.     P.  390  — 392 
 
 This  exemplified  in  the  cases  of  idleness,  self-pollution,  female  un- 
 chastity,  p.  39 1.— Suicide,  duelling,  p.  392. 
 
 §  8 .  Estimation  of  the  Efects  of  Punishments.     P.  393,  394. 
 
 Exemplified  in  the  effect  of  hanging  one  thief,   p.  393  — Propel 
 of  judging  the  effects  of  punishments,  p.  39  I. 
 
 §  9-     Punishment?  should  be  proportioned  to  the  Tcvpto  ,■       •<■,. 
 
 ting  Crimes.     P.  394— 399, 
 
 b  2 
 
XX  ANALYSIS. 
 
 Exemplified  in  the  case  of  adultery,  p.  395. — of  which  the  punish- 
 ment should  be  severe,  but  hardly  capital,  p.  396. — The  gradation  ot" 
 punishments  has  limits  ;  exemplified  in  the  case  of  theft  from  hunger, 
 ib. — Punishments  should  be  inversely  as  the  strength  of  the  dissua- 
 sives  from  crimes,  p.  397  — Moderate,  where  religion  and  virtue  pre- 
 vail, and  vices  are  abhorred;   and  vice  versa,  p.  398. 
 
 §  10.     Effects  of  the  certainty  of  Punishment — The  Right  of  Pardon. 
 P.  399—401. 
 
 The  certainty  of  punishment  really  mitigates  its  severity,  p.  399. — 
 The  exercise  of  the  right  of  pardon  requires  great  discretion,  p.  400. 
 —Danger  of  pardoning  criminals  of  distinction,  p   401. 
 
 §11.     Punishments  should  be  proportioned  to  tlie  facility  of  the  discovery 
 of  Crimes,  and  the  Danger  of  Escape.     P  401 — 406. 
 
 Punishments  may  be  mild,  where  crimes  are  easily  discoverable,  p. 
 401  ;  ex.  revenue-frauds  p.  402.  -  Coining  base  money,  p.  403  — 
 But  the  punishment  of  illegal  coining  should  be  very  severe,  and 
 why,  p.  404. — Punishment  also  severe,  where  escape  is  easy,  or  the 
 people  poor,  p   405. 
 
 §  12.     Of  the  Expediency  of  Torturous  Punishments.     P.  406 — 411. 
 
 Experience  proves  them  to  be  inexpedient,  p  406. — Empaling,  cru- 
 cifixion, p.  407. — The  French  punishment  of  regicide,  p.  408. — Tor- 
 tures in  vain  applied  to  enthusiasts,  p.  409. — Contrast  here  between 
 France  and  Britain,  p.  410. 
 
 §  ]  3.     Punishments  should  be  levelled  at  the  prompting  Passion  of  De- 
 linquents.    P.  411  —  414. 
 
 This  exemplified  by  duelling,  thefts,  p.  411. — Murder,  bankruptcy 
 from  extravagance,  p.  412. — A  French  story,  ib. — The  difficulty  of 
 applying  this  rule  universally,  accounted  for,  p.  413. — Passion  and 
 prejudice  to  be  avoided  by  judges,   p.  414, 
 
 §  14.     Legislators  should  particularly  attend  to  the  Motives  front  which 
 Crimes  are  ?nost  commonly  committed.     P.  414. 
 
ANALYSIS.  XXI 
 
 This  illustrated  by  the  English  punishment  of  hackney-coachmen, 
 chairmen,  and  watermen,  guilty  of  overcharging  their  employers, 
 p.  415. — and  by  the  English  law  dispensing,  conditionally,  with 
 oaths  from  Quakers,  p   416. 
 
 §  15.     Expediency  of  regulating  Punishments  by  the  Rank  and  Station  of 
 Delinquents.     P.  417—419. 
 
 This  illustrated  by  the  case  of  revenue-frauds,  p.  417. — Their  ulti- 
 mate effects  to  a  country,  p.  418. — They  should  be  regarded  as  real 
 thefts,  p.  419. 
 
 §  16       Of  the  Influence  of  Religion  in  checking  Frauds.     P.  419 — 422. 
 
 Improper  explanations  of  various  texts  respecting  revenue-frauds, 
 p.  419.— Dr.  Less's  sermon,  and  its  effects,  p.  420. — Such  sermons  to» 
 rare;  and  why,  p.  421.  -  Clergymen  themselves  often  defrauders: 
 the  effects  of  their  example,  p.  421. 
 
 §  17.     Of  the  Influence  of  Honour  in  repressi?ig  Frauds.     P.  +22 — 427. 
 
 The  happy  influence  of  honour,  p.  422- — counteracted  by  perverse 
 ideas  of  fraud,  p.  423  — Severe  punishment  due  to  fraudulent  clergy- 
 men, and  government-officers,  ib. — Proposed  punishment  for  the  for- 
 mer :  public  apology,  or  deprivation,  p,  424. — For  the  latter,  dis- 
 mission with  disgrace,  p.  425. 
 
 Part  II. — Secondary  Ends  of  Punishment, 
 
 These  are  three,  p   427. 
 
 I.   Of  the  Extirpation  or  Re?noval  of  Delinquents,  and  the  Means  thereof. 
 P.  428  —  443. 
 
 Sense  of  extirpation  here,  p.  428. — Our  right  to  security  in  a  state 
 either  of  nature  or  society,  p  429.— Extirpation,  to  whom  applicable, 
 p.  430. — Hanging  of  thieves  attended  with  bad  effects,  ib. — Different 
 species  of  extirpation,  p.  431. — (1.)  Slavery:  remarks  on  its  expe- 
 diency as  a  punishment  in  Germany,  p.  432. — (2.)  Banishnev.t :  often 
 
XX11  ANALYSIS. 
 
 a  worse  than  fruitless  punishment,  p.  433. — How  inflicted  by  Ri- 
 chard I.  p.  434. — (3  )  Imprisonment,  ami  private  labour:  if  perpetual* 
 cruel  and  expensive,  p.  43.5. — Inexpediency  of  workhouses  for  cri- 
 minals, p.  436. — The  reasons,  p.  437.— (4.)  Opera;  publico:  ;  difficul- 
 ties attending  this  punishment,  p.  438.— The  promiscuous  confine- 
 ment of  delinquents  of  all  classes:  its  effect?,  p  439  —(5.)  Transpor- 
 tation ;  to  America;  to  Siberia,  p.  441. — Importance  of  Siberia  to 
 Russia,  p.  442.  —  Capital  punishments  unavoidable,  where  life-sparing 
 punishments  cannot  be  resorted  to,  p.  443. 
 
 II.  Avengement  of  the  Injured.     P.  443— 458. 
 
 Propensity  to  revenge,  natural  p.  443. — Motives  to  it,  and  prevent- 
 ives, p.  444.  — It  keeps  us  in  mutual  awe,  p  44.5. — How  far  it  may 
 be  lawfully  carried,  p.  446 — In  social  life,  it  belongs  to  the  state, 
 p.  447. — A  misunderstood  passage  in  Christ's  sermon,  ib.  — Field- 
 marshal  Natzmer's  reply  to  the  King  of  Prussia,  p.  448. — In  what 
 cases  revenge  should  be  regulated  by  laws,  p  419 — The  desire  of 
 revenge  often  irresistible  :  story  of  a  murder  at  Gottingen,  p  450. — 
 The  consequence  of  the  law  punishing  murder  too  slightly,  p  451. — 
 Murderers  should  never  be  pardoned,  p.  452. — Why  George  II.  par- 
 cloned  duellists,  but  punished  Lord  Ferrers,  p.  453- — Injuries  should 
 be  viewed  by  the  laws,  as  they  are  by  the  people,  p  454 — The 
 punishment  of  rape  in  Germany  and  England,  p.  455.—  Different? 
 ideas  of  female  virtue  in  Asia  and  America,  ib. — The  danger  of 
 overstretching  punishments,  p.  456. — Individuals  must  submit  to 
 the  sentiments  of  the  community,  p.  457. 
 
 J II.  The  Moral  Amendment  of  Delinquents.     P.  458 — 468, 
 
 This,  as  the  proper  end  of  all  punishments,  a  favourite  doctrine  of 
 late,  p  458. — Its  origin  and  falsehood,  p.  459. — Difference  between 
 chastisement  and  punishment,  ib. — A  case  supposed,  and  its  result, 
 p,  4.6O.— Rights  of  individuals  transferred  to  society,  p.  461. — All 
 good  governments  keep  the  amendment  of  delinquents  in  view,  p. 
 462. — It  is,  however,  often  impracticable,  and  even  dangerous,  p. 
 463. — The  amending  system  limited  in  its  operation,  p.  464. — often 
 quite  unsuitable,  p.  465. — The  best  amending  punishments  the  most 
 dangerous,  p.  466. — They  are  all  promotive  of  despotism,  p.  467- 
 
ANALYSIS.  XXiH 
 
 Part  III. — Miscellaneous  Observations. 
 
 I.  On  the  Distinctions  to  be  made  betxveen  Citizens  and  Strangers,  in  rcr 
 
 lation  to  Punishments.     P.  468—474. 
 
 What  is  here  meant  by  strangers,  p.  46 8. — We  are  under  no  obliga- 
 tion, in  punishing,  to  reform  them,  p  469. — but  have  a  right  to  ex- 
 pel them,  p.  469. — A  case  supposed,  in  illustration,  p.  470. — A  far- 
 ther distinction,  in  regard  to  the  violence  of  revenge,  p.  471. — Case 
 of  America  and  England,  p  472. — Strangers  now  treated  as  citizens, 
 when  guilty  of  crimes,   p.  473. 
 
 II.  On  the  Comparative  Expediency  of  Summary  and  Deliberate  Infliction 
 
 of  Punishment      P.  474,  475. 
 
 Their  different  effects,  p.  474. — State  of  the  world  with  respect  to  this 
 point,  p.  475. 
 
 Ill      On  the  Abolition  of  Capital  Punishments.     P.  475  —  481. 
 
 Is  this  real  clemency  ?  p.  476.  —  Many  punishments  worse  than  death, 
 p.  477  —inconsistency  of  a  sovereign  abolishing  them  as  cruel,  and 
 yet  engaging  in  war,  p.  478  —They  are  agreeable  to  the  law  of  na- 
 ture, p.  479.  —An  objection  answered,  ib. — Resignation  of  natural 
 rights  to  society  necessary,  and  advantageous,  p.  ISO. 
 
 IV.     On  Punishments  affecting  Honour.     P.  4S1 — 101. 
 
 Ignominy  should  be  attached  to  capital  punishments ;  the  gallows  in 
 England  too  little  ignominious,  p.  481.  -Suicide  of  a  condemned 
 Geiman  at  London  excited  wonder  and  horror,  p  4S2  — General  in- 
 expediency of  ignominious  punishments,  when  not  capital,  p.  483- — 
 They  blunt  the  sense  of  honour  p  48  51 — Are  apt  to  be  despised  and 
 even  deemed  honourable,  p..  486  —  Example  of  expulsion  from  a 
 university,  p  4S7  Ignominy  makes  the  sufferer  a  villain,  p.  488. — 
 Arguments  against  public  ecclesiastical  penances,  p.  4S9  — Cases  in 
 which  ignominious  punishments  are  suitable,  p.  ■ISO.— Dilemma  of  le- 
 gislators respecting  them,  190. 
 
XXIV  ANALYSIS. 
 
 V.     On  the  Punishment  of  Blasphemy.     P.  491 — 496. 
 
 Blasphemy  justly  punishable  ;  and  wherefore,  p.  492.— Others  have 
 no  right  to  insult  our  opinions  or  our  religion,  p  493. — Whether 
 religion  be  established,  or  only  tolerated,  should  make  no  difference 
 here,  p.  494. — Atheists  and  infidels  ought  not  to  be  tolerated  at  all, 
 p   491,. — How  blasphemy  should  be  punished,  p.  496. 
 
 Extract  from  Von  Segner's  Oration,  referred  to  in  the  note  on  page 
 372,  p.  497—508. 
 
 ERRATA. 
 
 The  Reader  is  particularly  requested  to  correct  with  a  pen  the  following  mistakes, 
 as  they  materially  affect  the  sense. 
 
 Page  13.  line  25.   To  were,  prefix  certainly,  from  the  next  line. 
 
 —  21.  —     2.  for  of,  read  of  their. 
 
 —  30.  —  17.  for  discard,  read  abolish. 
 
 —  33.  —  18.  for  did,  read  could. 
 
 —  —  —  19-  for  dismembered,  read  local  and  partial. 
 
 —  65.  —  13   for  n-in>,  read  nin\ 
 
 —  70.  —  25   for  the  crime,  read  this  crime. 
 
 —  102.  —   26  for  strange  idea,  read  monstrous  idea. 
 
 —  112.  —  4   5  for  law  is,  read  laws  are. 
 
 —  112.  —     6.   efe/e  quite. 
 
 —  181.  —   17   for  did,  read  did  not. 
 
 —  194.  —   15   for  be,  read  have  been. 
 
 —  205.  —   28.  for  Sxri^av,  read  Bun^ov. 
 
 —  240  —   18   for  they,  read  these  principles. 
 
 —  252.  —    17.  for  can,  read  could. 
 
 —  260.  —     8.  for  imposed,  read  sat. 
 
 —  270.  —     7  for  house-theft,  read  theft  committed  by  a  ser 
 
 vant 
 
 —  278.    —    11.  for  kept,  read  had  kept. 
 
 —  308.    —   18.  for  Our  great  Lords   read  Our  Princes, 
 
 —  337.    —   1 1,  for  Indeed,  read  In  fact 
 
 —  372.    —   14.  for  Protector,  read  Prorector. 
 ~—  360.    —   16.  rfc/e  same. 
 
COMMENTARIES 
 
 ON    THE 
 
 LAWS   OF    MOSES. 
 
 BOOK  V.  CONTINUED. 
 
 CHAPTER  II. 
 
 CRIMES   AGAINST    GOD. 
 
 ART.  CCXLV. 
 
 Oj  Idolatry,  or  the  Worship  of  other  Gods — Wherein 
 it  consists,  and  how  it  is  to  be  distinguished  from 
 Image-Worship,  which  may  be  paid  even  to  the  true 
 God,  but  is  likewise  prohibited  by  Moses  in  every 
 shape, 
 
 §  1.  As  the  maintenance  of  the  worship  of  the  only 
 true  God,  was  one  of  the  fundamental  objects  of 
 the  Mosaic  polity,  and  as  that  God  was  at  the  same 
 time  regarded  as  king  of  the  Israelitish  nation,  so  we 
 rind  idolatry,  that  is,  the  worship  of  other  gods,  occu- 
 pying, in  the  Mosaic  law,  the  first  place  in  the  list  of 
 crimes.  It  was  indeed  a  crime,  not  merely  against 
 VOL.  iv.  K 
 
2  Nature  of  Idolatry,  $c.        [Art.  245. 
 
 God,  but  also  against  a  fundamental  law  of  the  state  ; 
 and  thus  a  sort  of  high-treason.  Among  the  command- 
 ments which  God  gave  to  the  people  of  Israel,  the 
 first  was,  /  Jehovah  am  thy  God,  who  have  brought 
 thee  out  of  Egypt,  the  prison  of  slaves  ;  thoic  sltalt  have 
 no  other  gods  before  my  face  ;  Exod.  xx.  2,  3.  It  is, 
 therefore,  the  more  necessary  that  we  understand  the 
 true  nature  of  this  crime,  and  the  light  in  which  it  is 
 viewed  in  the  Mosaic  law ;  and  as  in  the  subsequent 
 details,  I  presuppose  that  the  reader  recollects  what  I 
 have  already  stated,  on  the  foundations  of  the  Israel- 
 itish  polity,  in  Arts  XXXII. — XXXIV.,  I  must  re- 
 quest that,  if  the  contents  of  these  Articles  are  not 
 fresh  in  his  memory,  he  will  take  the  trouble  to  pe- 
 ruse them  once  more,  before  he  proceeds  farther. 
 
 That  the  political  prohibition  of  idolatry,  under  the 
 sanction  of  corporal  punishment,  was  not,  properly 
 speaking,  founded  on  the  doctrine  of  the  one  true 
 God,  but  on  this  principle,  that  God  had  delivered 
 the  Israelites  from  slavery,  and  made  them  a  people  ; 
 and  that  it  consequently  bound  even  those  who,  though 
 believers  in  polytheism,  according  to  the  then  univer- 
 sal superstition  of  the  neighbouring  nations,  were  still 
 desirous  to  enjoy  the  advantages  and  protection  of  the 
 Israelitish  government,  has  been  already  remarked 
 under  Art.  XXXIII.  Hence  the  crime  itself,  to 
 which  Moses  annexed  the  punishment  of  death,  con- 
 sisted not  in  ideas  and  opinions,  but  in  the  overt  act 
 of  worshipping  other  gods.  Though  a  man  had  be- 
 lieved that  there  were  more  gods  than  one,  he  would 
 not,  therefore,  by  the  Mosaic  statute,  have  become 
 amenable  to  the  magistrate,  nor  would  an  Inquisitip 
 
Art.  245.]   Idolatry  forbidden  to  Strangers.  3 
 
 etlmicce  pravitatis  have  taken  place.  A  foreigner, 
 though  he  had  not  at  once  adopted  the  Mosaic  reli- 
 gion, might  live  among  the  Israelites,  as  a  stranger, 
 in  perfect  peace  ;  (Art.  CXXXVIII.)  And  with  re- 
 gard either  to  slaves,  of  whom  the  use  was  allowed, 
 or  to  damsels  made  captive  in  war,  the  lawgiver  could 
 not  expect  that  tliey  would,  in  consequence  of  such  a 
 misfortune,  immediately  alter  the  sentiments  of  their 
 minds,  and,  laying  aside  all  at  once  the  prejudices  of 
 education,  acknowledge  the  unity  of  God.  Accord- 
 ingly we  do  not,  in  the  case  at  least  of  female  slaves, 
 find  a  single  word  respecting  the  necessity  of  a  change 
 of  their  religion  ;  and  that  the  rite  of  circumcision,  to 
 which  servants  were  required  to  submit,  did  not  im- 
 ply any  such  change,  in  so  far,  at  any  rate,  as  the 
 opinions  of  the  heart  were  concerned,  has  been  already 
 remarked  under  Arts.  CXXVIII.  and  CLXXXIV. 
 
 On  the  other  hand,  a  person  was  guilty  of  idolatry, 
 and  punishable  by  the  penal  laws,  when  he  either, 
 
 1.  Made  images  of  strange  gods,  or  kept  such  ima- 
 ges, so  as  to  make  it  manifest  that  he  revered  them 
 as  gods  ;  or,  * 
 
 2.  Prostrated  himself  before  strange  gods  to  wor- 
 ship them  y  or, 
 
 3.  Offered  sacrifice  to  them  ;  or, 
 
 4.  Devoted  himself  to  them. 
 
 We  must,  however,  here  be  careful  to  distinguish 
 between  two  crimes,  which,  by  the  idiom  of  our  lan- 
 guage, are  sometimes  comprehended  under  the  com- 
 mon name,  Gotzendienst  (Idololatria),  and  which,  even 
 when  speaking  about  Israelitish  matters,  we  are  vtrjr 
 apt  to  confound  together.     These  are, 
 
 A    2 
 
4    Distinction  of  Idolatry  &;  Image-Worship.  [Art.  245. 
 
 1.  The  crime  of  worshipping  other  gods  beside  the 
 only  true  God,  to  whom  Moses  gave  the  name  of  Je- 
 hovah. This  was,  properly  speaking,  the  state-crime 
 already  described  ;  and  it  is  at  the  same  time  the 
 greatest  of  all  offences  against  sound  reason  and 
 common  sense. 
 
 2.  The  crime  of  image-worship  ;  which  is  not  always 
 idolatry,  because  not  merely  false  gods,  but  even  the 
 only  true  God,  may  be  worshipped  under  the  form  of 
 an  image.  Thus  the  Israelites  wanted  to  worship, 
 under  the  similitude  of  a  golden  calf,  the  God  who 
 had  brought  them  out  of  Egypt ;  and  Aaron,  in  pro- 
 claiming a  festival  on  the  occasion  of  its  being  set  up, 
 expressly  denominated  the  God,  in  honour  of  whom 
 that  festival  was  to  be  solemnized,  Jehovah  ;  Exod. 
 xxxii.  4,  5.  Image-worship,  it  is  true,  indicated  a 
 crime  against  the  true  God ;  but  then,  it  was  not,  if 
 I  may  so  speak,  high-treason,  or  a  crime  against  the 
 fundamental  laws  of  the  state  ;  nor  is  it  so  clearly  and 
 completely  repugnant  to  sound  reason,  as  the  crime 
 of  idolatry  ;  for  as  an  image  may  serve  in  some  mea- 
 sure to  prevent  the  distraction  of  our  thoughts,  and 
 to  confine  them  to  that  object  alone,  which  wTe  con- 
 ceive it  to  represent ;  and  as,  of  course,  it  may  help 
 to  make  our  devotion  more  lively  and  ardent,  that  we 
 can  in  prayer  address  the  invisible  God  under  a  cer- 
 tain form  ;  and  as  upon  the  generality  of  mankind, 
 accustomed  as  they  are  to  sensible  objects,  images 
 never  fail  to  make  a  great  impression  ;  so  it  may, 
 therefore,  be  a  question  in  philosophical  ethics,  whe- 
 ther we  ought  to  worship  the  Deity  under  the  form  of 
 an  image,  or  not  ?    That  much  danger  is  connected 
 
Art.  245.]    Images  of  the  True  God  prohibited..  Ft 
 
 with  such  a  practice  ;  that  image-worship  easily  passes 
 into  superstition,  and  sometimes  gives  religion  a  ludi- 
 crous aspect,  which  we  cannot  again  forget,  and  are 
 thereby  disturbed  in  our  devotions;  is  on  the  other 
 hand  abundantly  manifest :  and  the  question  therefore 
 wholly  hinges  upon  this  point,  whether  the  advantage, 
 or  the  risk  of  evil  consequences,  preponderates  ?  Now, 
 God  himself  has,  in  Exod.  xx.  4,  .5.,  given  a  decision 
 against  image-worship ;  and  I  think  that  philosophy 
 will,  after  a  more  careful  enquiry,  and  calling  in  the 
 counsel  of  experience,  decide  in  the  same  manner. 
 Still,  however,  the  point  might  admit  of  dispute;  and 
 at  any  rate,  image-worship,  properly  explained,  is  not 
 a  manifest  outrage  against  reason ;  but  only  rather  a 
 dangerous  means  of  promoting  devotion. 
 
 These  two  crimes,  therefore,  are  in  their  nature  ex- 
 tremely different,  and  the  one  of  them  is  much  more 
 heinous  than  the  other.  If,  however,  we  read  the 
 descriptions  given  of  them  by  Moses,  we  shall  not  be 
 apt  to  confound  them  ;  for,  to  serve  other  gods  besides 
 Jehovah,  or,  to  serve  the  gods  of  strange  nations,  and, 
 to  make  an  image  in  order  to  serve  it,  or  adore  it,  must 
 strike  us  at  the  first  glance  as  very  different  modes  of 
 expression.  And  as  our  German  word,  Gotzendienst, 
 (that  is,  the  service  of  deities,)  sometimes  prevents  a 
 proper  distinction  from  being  made,  inasmuch  as  we 
 call  an  image  of  the  true  God,  a  Gotze,  (a  deity,)  and 
 sometimes  even  an  Abgott,  (an  idol)  I  shall  abstain 
 from  the  use  of  it,  unless  when  speaking  of  the  image- 
 worship  of  a  false  god,  and  call  the  one  crime  uni- 
 formly, Abgotterey,  (idolatry,)  and  the  other,  Bilder- 
 dienst,  (image- worship.) 
 
 A    3 
 
6  Idolatry  in  the  days  of  the  Judges.  [Art.  245. 
 
 Even  in  the  Biblical  history,  we  find  the  two  crimes 
 distinguished  from  each  other.  According  to  the 
 account  given  in  the  book  of  Judges,  (chap.ii.  6, — 11.) 
 the  Israelites  continued  unpolluted  by  the  worship  of 
 strange  gods,  not  only  during  the  days  of  Joshua,  but 
 likewise  during  the  next  generation,  as  long  as  the  old 
 people  were  still  alive,  who,  in  their  youth,  had  wit* 
 nessed  the  mighty  acts  of  Jehovah,  and  the  victories 
 which  he  had  granted  to  Joshua.  But  notwithstand- 
 ing this,  the  circumstances  related  in  chaps,  xvii.  and 
 xviii.  respecting  image-worship,  as  quite  publicly  car- 
 ried on,  seem  to  belong  to  the  earlier  of  these  two  pe- 
 riods, and  to  have  begun  to  take  place  during  the  time 
 when  the  tribe  of  Dan  had  not  as  yet  any  inheritance 
 assigned  them  among  the  Israelites,  Judg.  xviii.  1. ;  and 
 yet  it  would  appear  from  Josh.  xix.  40,-46.  that  this 
 tribe  had,  in  Joshua's  time,  obtained  certain  cities 
 which  the  tribe  of  Judah  had  before  received,  over 
 and  above  their  just  share.  In  point  of  time,  they 
 seem  to  be  prior  to  the  story  of  the  Benjaminitish 
 war,  detailed  in  chaps,  xix. — xxi.  of  the  book  of 
 Judges  \  as  I  conclude,  not  merely  from  the  order  of 
 the  chapters,  (which  in  regard  to  a  collection  of  sto- 
 ries not  chronologically  arranged,  would  really  be  but 
 a  weak  proof;)  but  from  this  circumstance,  that  in 
 the  account  of  the  said  war,  Dan  is  described  as  air 
 ready  the  most  northern  boundary  of  the  Israelites  ; 
 and  all  Israel,  from  Dan  to  Beersheba,  as  gathered  to- 
 gether against  the  Benjaminites,  Judg.  xx.  1.  This 
 presupposes  the  conquest  of  Laish,  in  the  most  north- 
 ern part  of  Palestine  ;  and  its  being  named  Dan,  after 
 the  progenitor  of  the  conquerors,  (as  related  in  the 
 
Art.  245.]  Micah9  s  Image.  7 
 
 28th  and  29th  verses  of  chap,  xviii.)  to  have  previous- 
 ly taken  place.  But  in  the  time  of  the  Benjaminitish 
 war,  Phinehas,  the  grandson  of  Aaron,  was  still  living, 
 (Judg.  xx.  28.)  ;  and  he,  in  the  time  of  Moses,  was 
 already  a  full-grown  man,  (Numb.  xxv.  7, — 13.);  so 
 that  the  race  that  had  witnessed  the  wondrous  works 
 of  God,  and  the  victories  of  Joshua,  had  not  yet  be- 
 eome  extinct.  If  we  add  to  this,  that  the  first  image- 
 priest  was  a  grandson  of  Moses  *,  and  but  a  young 
 man,  we  shall  be  satisfied  that  the  circumstances  above 
 alluded  to,  and  which  I  am  now  to  mention,  must 
 have  happened  either  during  Joshua's  life-time,  or 
 immediately  after  his  death.  They  are  in  substance 
 as  follows : 
 
 Micah,  an  Ephraimite,  made  an  image  of  the  De- 
 ity, and,  without  doubt,  of  the  true  God  j  for  it  was 
 not  only  made  of  silver  which  had  been  consecrated 
 to  Jehovah,  (Judg.  xvii.  3.) ;  but  Micah  expressed 
 the  greatest  joy  in  having  got  a  Levite  to  become  its 
 priest,  in  the  expectation  that  Jehovah  would  thus  do 
 him  good,  and  bless  him,   Judg.  xvii.   13 1.      This 
 
 A  4 
 
 *  See  my  Note  on  Judg.  xviii.  30. — The  Jews,  to  prevent  any 
 reproachon  the  memory  of  their  legislator,  have  here  corrupted  the 
 text,  and  absurdly  put  Manasseh  for  Moses. 
 
 -f-  I  must  here  take  notice  of  a  mistake  in  my  version  of  this  pas- 
 sage. In  conformity  with  the  liberty  which  I  craved  in  the  first  part 
 of  my  Translation,  I  sometimes,  instead  of  (mrp)  Jehovah,  use  the 
 word  God,  that  I  may  not  too  often  repeat  the  foreign  term  Jehovah, 
 in  German.  This  liberty  I  have  craved,  and  I  mean  still  to  avail 
 myself  of  it.  But  in  the  present  instance,  I  am  aware  that  I  have 
 here  used  it  unseasonably  ;  for,  according  to  my  version,  it  is  not 
 so  clear  as  it  should  be,  that  the  image  was  erected  to  the  true  God ; 
 
8         Gideon's  Image — Jeroboam's  Image.  [Art.  245. 
 
 image,  so  far  from  being  kept  in  concealment  in  Iris 
 house,  was  actually  consulted  as  an  oracle,  and  soon 
 after,  publicly  set  up  by  the  Danites.  The  grand- 
 son of  Moses,  from  poverty,  became  its  priest ;  and 
 that  office  descended  hereditarily  to  his  posterity  for 
 a  long  period  ;  Judg.  xviii.  4, — 6.  14,- — 17.  30,  31. 
 
 Gideon  was  an  enemy  of  the  worship  of  Baal ;  cut 
 down  the  groves  of  that  false  god,  and  demolished  his 
 altars  ;  but  this  same  Gideon,  from  a  mistaken  idea  of 
 gratitude  to  Jehovah,  as  the  author  of  his  victories, 
 made  an  image  of  the  Deit}7,  with  the  gold  he  had 
 got  in  plunder  from  the  Midianites,  and  set  it  up 
 publicly  in  Ophra  ;  Judg.  vi.  25, — 33.  viii.  24, — 27. 
 
 Jeroboam,  who,  for  political  reasons,  (Art.  CLXII.) 
 wished  to  prevent  his  subjects  from  frequenting  the 
 high  festivals  at  Jerusalem,  set  up  in  Dan  and  Bethel 
 two  golden  calves,  in  which  the  God  who  had  con- 
 ducted the  Israelites  out  of  Egypt,  was  to  be  worship- 
 ped; 1  Kings  xii.  26, — 81.  It  would  seem,  the  Is- 
 raelites had  such  a  propensity  to  image -worship,  that 
 lie  thought  he  could,  by  the  erection  of  these  golden 
 calves,  the  more  easily  divert  them  from  making  pil- 
 grimages to  Jerusalem ;  for  already  in  the  desert, 
 had  the  calf  been  the  image  which  Aaron,  when  he 
 had  not  the  courage  to  prevent  image-worship,  gave 
 to  the  true  God.  This  worship  of  the  calves,  which 
 continued  under  the  kings  of  the  ten  tribes,  until  the 
 Assyrian  captivity,  and  is,  in  the  books  of  Kings, 
 termed  the  sin  of  Jeroboam  the  son  of  Nebat,  differed 
 
 and,  of  course,  that  it  implied  a  sin,  not  against  the  prohibition  nf 
 
 idolatry,  but  against  that  of  image-worship. 
 
Art.  245.]       Ahab's  Idolatry — Jehu,  $C.  9 
 
 very  materially  from  idolatry,  properly  so  called,  and 
 is  represented  as  a  less  heinous  sin. — When  Ahab  first 
 allowed  himself  to  be  led  astray  by  Ins  superstitious 
 consort,  Jezebel,  and  introduced  the  worship  of  Baal, 
 we  find  the  historian  making  use  of  the  following  lan- 
 guage :  And  as  if  it  had  not  been  enough  that  he  conti- 
 nued the  sin  of  Jeroboam  the  son  of  Nebat,  he  married 
 Jezebel  the  daughter  of  Ecbaal  king  of  Sidon,  served 
 Baal,  adored  him,  and  erected  to  him  an  image  in  the 
 
 temple,  which  he  had  built  to  him  in  Samaria. And 
 
 Ahab  did  more  to  provoke  the  wrath  of  Jehovah,  than  all 
 the  kings  of  Israel  who  had  reigned  before  him,  1  Kings 
 xvi.  31, — 33.  Concerning  his  son  Joram,  on  the  other 
 hand,  it  is  said,  that  he  did  what  was  displeasing  to 
 Jehovah,  though  not  in  the  same  measure  as  his  father 
 and  mother  ;  for  he  caused  the  image  of  Baal,  which  his 
 father  had  made,  to  be  removed  :  Only  he  still  hankered 
 after  the  sin  of  Jeroboam  the  son  ofNebat,  and  departed 
 not  from  it,  2  Kings  iii.  3.  In  the  ix.  and  x.  chapters 
 of  the  same  book,  we  find  Jehu  shewing  himself  a 
 mortal  enemy  and  violent  persecutor  of  the  worship 
 of  Baal,  which  had  been  introduced  in  opposition  to 
 the  fundamental  laws  ;  and  as  he  himself  expresses  it, 
 a  zealot  for  Jehovah  ;  on  which  account  he  was  com- 
 mended, and  obtained  a  promise  from  God,  that  his 
 descendants,  down  to  his  great-great-grand-children, 
 should  fill  the  Israelitish  throne,  2  Kings  x.  16,  30. — 
 At  the  same  time,  however,  it  is  remarked,  that  fro?n 
 the  sin  of  Jeroboam  the  son  of  Nebat,  he  had  not  ab- 
 stained ;  and  the  very  same  thing  is  repeated  of  his 
 posterity  ;  of  his  son,  chap.  xiii.  6.  ;  his  grandson, 
 chap.   xiii.    11. ;  Ins  great-grandson,   chap.  xiv.  24.; 
 
10  The  Punishment  of  Idolatry.      [Art.  246. 
 
 and  his  great-great-grandson,  chap.  xv.  9. — In  the 
 prophecies,  also,  of  the  lesser  prophets,  as  they  are 
 called,  we  see  the  same  distinction  between  calf- wor- 
 ship and  Baal-worship  duly  observed. 
 
 ART.  CCXLVI. 
 
 Of  the  Punishment  of  Idolatry. 
 
 §  2.  Idolatry,  properly  so  called,  was,  as  we  have 
 already  mentioned,  the  greatest  of  all  crimes  against 
 the  state  itself,  and  expressly  prohibited  in  the  very 
 first  of  the  commandments.  Moses,  besides,  prohibit- 
 ed every  thing  that  was  likely  to  give  any  occasion  or 
 temptation  to  it,  or  to  excite  suspicion  of  its  being 
 practised;  and  the  principal  scope  of  his  last  dis- 
 courses, in  the  book  of  Deuteronomy,  is  to  warn  the 
 Israelites  against  idolatry,  and  to  exhort  them  in  the 
 most  urgent  manner,  to  the  service  of  the  only  true 
 God.  The  curses  also,  and  blessings,  which  he  pro- 
 poses to  the  people  in  the  xxvi.  chapter  of  Leviticus, 
 and  xxvii.  xxviii.  and  xxxii.  chapters  of  Deuteronomy, 
 turn  chiefly  on  the  transgression  or  observation  of  this 
 commandment. 
 
 If  any  individual  Israelite  worshipped  strange  gods, 
 he  subjected  himself  to  the  punishment  of  stoning, 
 Deut.  xvii.  2, — 5.  Here,  as  above  remarked  in  the 
 preceding  Article,  it  is  not  mere  sentiments  of  the 
 mind  that  are  in  question,  but  overt  acts ;  and  consi- 
 dering that  the  worship  of  other  gods  generally  pro- 
 ceeded not  from  any  impulse  of  conscience,  but  from 
 a  view  of  supposed  temporal  advantages,  and  there* 
 
Art.  246.]    Question  respecting  its  Severity.  1 1 
 
 fore  from  avarice,  or  fear ;  (Art.  XXXIII.)  no  re- 
 straint was  imposed  on  either  opinion  or  conscience ; 
 and  this  punishment,  consequently,  was  in  no  respect 
 unjust.  But  was  it  not,  I  may  be  asked,  unnecessa- 
 rily severe  ?  Should  a  piece  of  folly,  that  rather  claims 
 our  pity,  have  been  punished  with  death  ? 
 
 In  answer  to  these  questions,  I  can,  first  of  all,  only 
 repeat  what  has  been  already  very  often  said  by  others, 
 viz.  that  as  the  only  true  God  was  the  civil  legislator 
 of  the  people  of  Israel,  and  accepted  by  them  as  their 
 king,  idolatry  was  a  crime  against  the  state,  and  there- 
 fore just  as  deservedly  punished  with  death,  as  high- 
 treason  is  with  us.  Whoever  worshipped  strange 
 gods,  shook,  at  the  same  time,  the  whole  fabric  of  the 
 laws,  and  rebelled  against  Him  in  whose  name  the 
 government  was  carried  on. 
 
 But  we  must,  besides  this,  consider  the  numberless 
 miseries  which  idolatry,  with  all  its  train  of  supersti- 
 tions, brings  into  the  world.  I  mean  the  present  world, 
 for  with  a  future  world,  when  civil  laws  are  in  ques- 
 tion, I  have  nothing  to  do.  What  lamentable  dupes 
 of  priestcraft  does  it  render  nations  !  and  more  espe- 
 cially, the  nearer  they  are  to  the  infant  state  of  the 
 human  race,  the  more  unenlightened,  honest,  and 
 conscientious  ?  To  what  avaricious  exactions  does  it 
 subject  them,  under  the  pretext  of  sacrificing,  or  of- 
 fering gifts  to  one  God  to-day,  and  to  another,  to- 
 morrow ?  Add  to  this,  that  it  torments  them  with 
 numberless  foolish  terrors,  and,  by  the  frauds  of  the 
 priests  in  returning  answers  in  the  name  of  the  Deity, 
 not  unfrequently  diverts  them  from  measures  politi- 
 cally advantageous  or  necessary  j  or  involves  them  in 
 
12  Mischiefs  of  Idolatry  io  a  Nation.  [Art.  246. 
 
 dangers,  when  the  crafty  oracle,  whether  in  distinct, 
 or  (like  Apollo,  when  consulted  by  Crcesus  and  Pyr- 
 rhus)  in  ambiguous  terms,  counsels  them  to  embark  in 
 war.  The  idol-priest,  who  thus  gives  a  mischievous 
 oracle,  perhaps  does  not,  unless  when  bribed  by  their 
 enemies,  mean  to  bring  any  misfortune  on  his  coun- 
 trymen, and  still  less  on  himself;  but  then  he  may 
 not  know  what  he  ought  to  answer,  and  so  in  his  per- 
 plexity he  perhaps  chuses  what  is  wrong  :  Nay,  even 
 when  he  really  happens  to  light  on  what  is  most  advis- 
 able, he  may  still  be  the  cause  of  error  by  his  counsels. 
 Where  any  counsel  is  suggested  by  a  judicious  and  cre- 
 ditable man,  it  may  be  examined  and  proved  ;  but  the 
 very  same  counsel,  as  it  proceeds  from  the  mouth  of  an 
 idol-priest,  acquires  an  infallibility  which  is  dangerous 
 to  the  state,  because  it  must  be  followed  implicitly, 
 and  without  examination,  and  may  be  so  in  a  sense 
 different  from  what  he  had  in  view.  What  the  Py- 
 thian priestess  might  mean,  in  counselling  the  fright- 
 ened Greeks,  (whom  I  consider  as  on  that  occasion  no 
 better  than  poltroons,)  to  defend  themselves  against 
 the  attack  of  Xerxes,  with  wooden  walls,  is  very  uncer- 
 tain. As  to  what  these  wooden  walls  might  allude  to, 
 a  variety  of  conjectures  were  formed  :  the  most  natu- 
 ral exposition  would  perhaps  have  been,  that  they  should 
 retire  into  the  woods,  some  of  which  in  Greece  are  al- 
 most impenetrable  ;  that  they  should,  in  the  first  place, 
 take  possession  of  the  pass  of  Thermopylae,  and  thence, 
 if  dislodged,  withdraw  into  the  forests  of  the  Morava, 
 in  which,  to  this  day,  the  descendants  of  the  Spartans, 
 under  the  name  of  Mamotes,  maintain  a  certain  degree 
 of  independence  against  the  Turks.     A  very  different 
 
Art.  246.]  TJie  Grecian  Oracles.  13 
 
 explanation  of  the  oracle  was  however  adopted,  and 
 happily,  the  issue  was  fortunate.  But  what  would 
 have  become  of  Greece,  if  that  explanation  had  been 
 preferred,  which  made  the  wooden  walls  mean  an  old 
 wooden  castle  at  Athens.  Upon  the  whole,  the  con- 
 sultation of  the  oracle  was,  in  this  instance,  by  no 
 means  very  creditable  to  the  character  of  the  Greeks, 
 in  point  of  courage  ;  at  least  the  present  king  of  Prus- 
 sia would  neither  have  given  nor  listened  to  it,  but 
 have  at  once  attacked,  in  the  plains,  the  great  army 
 of  the  Persians,  of  which  the  Greek  historians  have 
 given  such  exaggerated  and  gasconading  accounts ; 
 and  as  they  certainly  were  not  such  good  soldiers  as 
 the  French,  he  would  in  all  probability  have  succeeded 
 even  still  more  completely  than  he  did  at  Rosbach. — 
 But  without  directly  specifying  Rosbach,  he  would, 
 as  at  Hokeiifriedberg,  have  manoeuvred  so  as  to  bring 
 the  enemy  into  the  plains,  and  in  there  attacking  him, 
 have  had  the  advantage,  which,  when  an  army  exceeds 
 an  hundred  thousand  men,  a  smaller  force  has  over  a 
 larger,  from  its  not  being  possible  to  bring  it  all  pro- 
 perly into  action.  Such  a  force,  it  is  true,  he  had  not 
 against  the  Austrians  at  Hohenfriedberg,  of  whom 
 there  were  but  80,000,  while  his  army  consisted  of 
 60,000.  But  the  Greeks  and  Persians  were,  on  the 
 present  occasion,  certainly  in  the  circumstances  now 
 mentioned,  unless  all  the  accounts,  which  the  Grecian 
 historians  have  left  us  of  the  immense  numbers  of  the 
 Persian  army,  be  nothing  but  Grecisms. 
 
 But  to  return.  A  pious  and  honest  people,  who  b} 
 their  laws  ought  to  enjoy  political  liberty,  may  ima- 
 gine that  they  do  enjoy  it.     But  the  craft  of  those  in 
 
24  Effects  of  idolatry  in  surrounding  nations.  £  Art.  246, 
 
 power,  who  understand  how  to  manage  superstition, 
 while  it  leaves  them  in  quiet  possession  of  the  name  of 
 Kberty,  will  contrive  to  rule  them  most  arbitrarily  by 
 the  aid  of  mere  superstitions,  oracles,  and  divina- 
 tions, as  we  see  exemplified  in  the  history  of  the  Ro- 
 mans ;  only  it  must  take  care,  when  the  people  begin 
 to  grow  a  little  more  knowing,  not  to  make  too  fre- 
 quent use  of  these  .instruments  of  authority,  lest  by 
 the  constant  sameness  of  its  measures,  and  their  ef- 
 fects, the  suspicions  of  the  people  should  be  awakened. 
 The  particular  mischiefs  which  divination  is  wont  to 
 occasion,  will  be  noticed  in  the  sequel ;  but  I  must 
 here  observe,  in  the  meantime,  that  polytheism  gives 
 rise,  not  merely  to  one  oracle,  whose  impostures  may, 
 by  judicious  plans  and  due  foresight,  be  rendered  in  a 
 great  measure  harmless,  but  to  a  variety  of  petty  ora- 
 cular artifices,  the  authors  of  which  will,  for  a  little 
 gold,  though  often  without  any  bad  intentions,  be  the 
 causes  of  infinite  mischief. 
 
 Such,  in  general,  is  the  natural  aspect  of  that  super- 
 stition which  heartily  believes  in  many  gods;  but 
 among  the  nations  contiguous  to  the  Israelites,  super- 
 stition was  combined  with  still  grosser  abominations. 
 Of  these,  whoredom,  and  the  defloration  of  young  wo- 
 men before  they  durst  be  married,  (both  of  them  in  ho- 
 nour of  a  false  god,)  were  among  the  most  tolerable; 
 and  human  sacrifices  was  the  most  horrible ;  for  super- 
 stition compelled  parents  to  devote  their  children,  not 
 merely  to  death,  but  to  the  most  dreadful  of  all  deaths. 
 Was  it  then  too  severe  in  Moses,  to  keep  the  people 
 from  a  religion  so  abominable,  even  by  the  terrors  of 
 capital  punishment  ?     Were  idolatry  as  harmless  as 
 
Art.  246.]    Punishment  of  an  Idolatrous  City.  13 
 
 some  false  religions  are,  such,  for  instance,  as  that  of 
 Mahomet,  as  it  is  adopted  by  the  Persians,  we  might 
 wonder  at  the  severity  of  the  Mosaic  punishments. 
 But  this  is  by  no  means  the  case.     We  must  always 
 take  into  consideration  the  mischiefs  which  a  false  re- 
 ligion may  occasion  to  the  state.      Even  we  Chris- 
 tians do  not  blame  the  Japanese  for  having  prohibited 
 the  exercise  of  the  Christian  religion  within  their  ter- 
 ritories,  under  the  pain  of  death,   considering  with 
 what  dangers  it  threatened  their  government,   from 
 those  errors  with  which  its  preachers  polluted  it ;  al- 
 though the  very  severe  and  torturous  punishments 
 annexed  in  Japan  to  the  profession  of  Christianity,  give 
 us  no  very  favourable  impression  of  the  character  of 
 that  people,   who,  not  satisfied  with  prohibiting  the 
 exercise,  required  besides  the  utter  disavowal  of  it, 
 or  rather  the  blasphemous  calumniation  of  its  divine 
 author. 
 
 When  a  whole  city  became  guilty  of  idolatry,  it  was 
 considered  as  in  a  state  of  rebellion  against  the  govern- 
 ment, and  treated  according  to  the  laws  of  war.  Its 
 inhabitants,  and  all  their  cattle,  were  put  to  death. 
 No  spoil  was  made,  but  every  thing  it  contained  was 
 burnt  with  itself;  nor  durst  it  ever  be  rebuilt ;  Deut. 
 xiii.  13, — 19.  Whether  the  children  were  also  to  be 
 put  to  death,  is  not  expressly  specified  in  the  statute. 
 The  circumstance  of  their  innocence  is  rather  unfa- 
 vourable to  such  a  supposition ;  to  which  we  may 
 add,  according  to  what  has  been  stated  under  Art. 
 CCXXIX.,  that  children  were  not  to  suffer  for  the 
 faults  of  parents  y  but,  on  the  other  hand,  it  must  be 
 remembered,  that,  in  a  case  like  this,  procedure  was 
 
16  Children  probably  not  Spared.        [Art.  246, 
 
 regulated  by  the  law  of  war,  according  to  which, 
 when  a  city  was  stormed,  the  innocent  suffered  with 
 the  guilty,  not  even  sucklings  being  spared ;  and, 
 moreover,  that  in  the  war  carried  on  against  the  Ben- 
 jaminites  for  a  refusal  of  justice,  (Judg.  xx.  xxi.)  the 
 children  seem  to  have  been  put  to  death  with  the 
 rest ;  else  would  not  the  difficulty  of  procuring  wives 
 for  the  COO  Benjaminites  that  had  escaped,  have  been 
 so  embarrassing  as  it  proved  ;  because  they  had  only 
 to  wait  for  some  years,  until  those  of  their  daughters, 
 who  were  then  reckoned  among  the  children,  should 
 become  marriageable. — Here,  therefore,  I  shall  not  po- 
 sitively decide. — The  appropriate  term,  by  which  the 
 punishment  denounced  against  any  such  idolatrous 
 city  was  expressed  in  the  law,  is,  (Onnn*)  Hacharim, 
 to  consecrate  to  Jehovah,  or  as  Luther  renders  it, 
 Verbannen,  (to  put  under  ban,  to  outlaw,  or  pro- 
 scribe.) It  was  regarded  as  wholly  consecrated  to 
 Jehovah,  for  the  execution  of  its  punishment ;  the 
 people,  being  devoted  to  the  sword,  and  the  city 
 itself  consigned  to  the  flames,  by  way  of  an  offering 
 for  its  sins  ;  according  to  what  is  said  on  the  subject 
 of  spoil  in  Deut.  xiii.  15, — 1 7.  It  shall  be  consumed  as 
 a  burnt-offering,  of  which  nothing  remains.  This,  as  I 
 have  already  remarked,  was  much  the  same  idea,  as  that 
 which  the  Romans  attached  to  the  phrase,  sacer  esto, 
 or,  Jovi  sacer  esto. 
 
 It  is  not  likely  that  this  law  was  very  particularly 
 enforced  ;  at  least,  in  the  history  prior  to  the  Babylo- 
 nish captivity,  we  find  no  example  of  any  such  thing. 
 
 *  The  word,  in  Arabic,  means  to  be  sacred,  to  consecrate. 
 
Art.  246.]    Punishment  of National  Idolatry.  17 
 
 It  would  appear  that  the  rest  of  the  Israelites,  in  most 
 cases,  overlooked  the  crime  of  a  city  that  became  no- 
 toriously idolatrous,  from  their  having  themselves  such 
 a  strong  and  general  hankering  after  the  principles  of 
 that  polytheism  which  then  prevailed  almost  univer- 
 sally throughout  the  earth  ;  and  thus  it  came  to  pass, 
 that  idolatry  was  not  confined  to  any  one  city,  but 
 soon  overspread  the  whole  nation. 
 
 When  it  thus  happened  that  the  people,  as  a  people, 
 brought  guilt  upon  themselves  by  their  idolatry,  God 
 reserved  to  himself  the  infliction  of  the  punishments 
 denounced  against  that  national  crime  ;  which  con- 
 sisted in  wars,  famines,  and  other  national  judgments  ; 
 and,  when  the  measure  of  their  iniquity  was  complete, 
 in  the  destruction  of  their  polity,  and  the  transporta- 
 tion of  the  people  as  slaves  into  other  lands,  Lev.  xxvL 
 Deut.  xxviii.  xxix.  xxxii.  To  a  person  who  does  not 
 admit  the  divine  mission  of  Moses,  it  cannot  but  ap- 
 pear strange  that  these  denunciations  were  actually 
 fulfilled. 
 
 For  the  crime  of  seducing  others  to  the  worship  of 
 strange  gods,  but  more  especially  where  a  pretended 
 prophet,  who  could  often  naturally  anticipate  what 
 would  come  to  pass,  uttered  predictions  that  tended 
 to  lead  the  people  into  idolatry,  the  appointed  punish- 
 ment was  stoning  to  death,  Deut.  xiii.  2, — 12.  Con- 
 cerning such  prophets,  more  will  be  said  in  the  sequel ; 
 but  with  regard  to  private  seducers,  although  Moses 
 in  other  cases  was  far  from  encouraging  informers,  yet 
 such  is  here  the  rigour  of  his  law,  that  it  enjoins  in- 
 forming, without  reserve,  upon  every  such  seducer ; 
 even  although  it  were  an  uterine  brother,  a  son,  » 
 
 vol.  n%  R 
 
18  Human  Sacrifices.  [Art.  24T- 
 
 daughter,  a  wife,  or  one's  best  friend  ;  but  it  would 
 seem,  at  the  same  time,  that  no  one  was  bound  to  im- 
 peach a  father,  mother,  or  husband  ;  at  least  they  are 
 not  particularized  along  with  the  others  mentioned  in 
 Dent.  xiii.  7,  8,  9. 
 
 ART.  CCXLVII. 
 
 Human  Sacrifices,  a  superstitious  custom  among  the 
 Canaanites,  most  strictly  prohibited. 
 
 §  3.  All  idolatrous  ceremonies,  and  even  some 
 which,  though  innocent  in  themselves,  might  excite 
 suspicions  of  idolatry,  were  prohibited.  Of  these, 
 human  sacrifices  are  so  conspicuous,  as  really  the 
 most  abominable  of  all  the  crimes  to  which  superstition 
 is  capable  of  hurrying  its  votaries,  in  defiance  of  the 
 strongest  feelings  of  humanity ;  that  I  must  expatiate 
 a  little  upon  them.  For  this  species  of  cruelty  is  so 
 unnatural,  that  to  many  readers  of  the  laws  of  Moses, 
 it  has  appeared  incredible.  Against  no  other  sort  of 
 idolatry,  are  the  Mosaic  prohibitions  so  rigorous,  as 
 against  this  ;  and  yet  we  rind  that  it  continued  among 
 the  Israelites  to  a  very  late  period ;  for  even  the  pro- 
 phets Jeremiah  and  Ezekiel,  who  survived  the  ruin  of 
 the  state,  and  wrote  in  the  beginning  of  the  Babylo- 
 nish captivity,  take  notice  of  it,  and  describe  it  not  as 
 an  antiquated  or  obsolete  abomination,  but  as  what 
 was  actually  in  use  but  a  little  before,  and  even  during 
 their  own  times.  For  a  father  to  see  his  children  suf- 
 fering, is  in  the  highest  degree  painful ;  but  that  he 
 should  ever  throw  them  to  the  flames,  appears  so  ut-. 
 
Art.  24-7.]  Passing  through  the  Fire  to  Moloch.  1 9 
 
 terly  improbable,  that  we  can  hardly  resist  the  temp- 
 tation of  declaring  any  narrative  of  such  inhuman 
 cruelty  an  absolute  falsehood.  But  it  is  nevertheless 
 an  undoubted  fact,  that  the  imitation  of  the  neigh- 
 bouring nations,  of  which  Moses  expresses  such  an- 
 xious apprehensions  in  his  laws,  had,  in  spite  of  all 
 the  punishments  denounced  against  it,  kept  up  the 
 abominable  custom  of  offering  children  in  sacrifice ; 
 and  hence  we  see  how  necessary  it  was  to  enact  the 
 most  rigorous  laws  against  that  idolatry,  which  re- 
 quired sacrifices  of  such  a  nature.  The  lives  of  chil- 
 dren were  to  be  secured  against  the  fury  of  avaricious 
 priests,  and  the  fears  of  silly  fools  ;  and  if  the  punish- 
 ments of  the  law  did  not  completely  produce  that 
 effect,  we  can  hardly  avoid  thinking,  how  much  it  is 
 to  be  regretted  that  they  were  not  more  severe. 
 
 To  many,  both  Jewish  and  Christian  expositors,  it 
 has  appeared  so  incredible  that  the  Israelites  should 
 have  sacrificed  their  own  children,  that  wherever,  in 
 the  laws,  or  in  the  history,  they  find  the  expression, 
 making  their  sons  pass  through  the  fire  to  Moloch,  (for 
 it  was  chiefly  to  that  god  that  human  sacrifices  were 
 offered,)  they  are  fain  to  explain  it  on  the  more  hu- 
 mane principle  of  their  merely  dedicating  their  sons 
 to  Moloch,  and,  in  token  thereof,  making  them  pass 
 between  tuo  sacrificefires.  In  confirmation  of  this 
 idea,  the  Vulgate  version  of  Deut.  xviii.  10.  may  be 
 adduced  ;  Qui  lustretfihum  suum  autfiliam,  ducens per 
 ignem.  In  this  way,  the  incredible  barbarity  of  hu- 
 man sacrifices  would  appear  to  have  had  no  founda- 
 tion in  truth  ;  and  I  very  readily  admit,  that  of  son  e 
 other  passages,  such  as  Lev.  xviii.  21,  2  Kings  xxi.  6. 
 
 B    2 
 
20  Passages  in  Proof  of  this  Practice.  [Art.  247. 
 
 xxiii.  10.  Jer.  xxxii.  35.  an  explanation  on  the  same 
 principle  may  be  given  with  some  shew  of  truth. — 
 More  especially  with  regard  to  the  first  of  these  pas- 
 sages, I  may  remark,  as  Le  Gere  has  done  before  me, 
 that  we  find  a  variety  of  lection  which  makes  a  mate- 
 rial alteration  of  the  sense  ;  for  instead  of  (^3^) 
 JIaobir,  to  cause  to  pass  through,  the  Samaritan  text, 
 and  the  LXX.,  read,  (TOyn)  Haabid,  to  cause  to  serve, 
 or,  to  dedicate  to  the  service  of.  In  my  German  ver- 
 sion, I  have,  on  account  of  this  uncertainty,  here 
 made  use  of  the  general  term  Weihen,  to  dedicate,  as 
 the  Vulgate  had  already  set  me  the  example,  in  ren- 
 dering the  clause,  De  semine  tuo  non  dabis,  ut  consecre- 
 tur  idolo  Moloch.  I  was  the  less  inclined  to  employ 
 the  term  burn  here,  because  no  mention  is  made  of 
 fire,  transire  jacere  per  ignem,  as  in  other  passages  ; 
 but  it  is  merely  said,  transire  Jacere.  At  the  same 
 time  I  really  believe,  from  the  strain  of  other  passages 
 to  be  mentioned  immediately,  that  burning  is  here 
 meant. — With  regard,  in  like  manner,  to  2  Chron. 
 xxviii.  3.  where  it  is  expressly  said,  that  Ahaz  had,  in 
 imitation  of  the  abominable  practice  of  the  nations  whom 
 Jehovah  drove  oat  before  the  Israelites,  burnt  his  sons 
 icithfre,  the  weighty  objection  may  be  made,  that 
 there  is  a  various  reading,  and  that,  instead  of  pjW) 
 Veibor,  he  burnt,  almost  all  the  ancient  versions*, 
 such  as  the  LXX.,  Syriac,  Chaldee,  and  Vulgate,  had 
 read  ("^P"1)  Veiober,  he  made  to  pass  through,  by  the 
 mere  transposition  of  the  second  radical  into  the  place 
 of  the  first. 
 
 *  The  Arabic  alone  here  follows  the  reading  of  the  printed  text. 
 
Art.  247.]  Passages  in  Proof  of  this  Practice.  21 
 
 The  following  passages,  however,  are  decisive  of 
 ihe  reality  of  sacrificing  their  children. 
 
 ft.  Ezek.  xvi.  21.  (where  we  find  the  first-mentioned 
 expression,)  Thou  hast  slain  my  sons,  and  given  them, 
 to  cause  them  pass  through  to  them.  Here  it  is  evi- 
 dent that,  to  -pass  through,  or  to  cause  to  pass  through 
 thejire,  can  be  nothing  else  than  burning,  because  the 
 sons  were  previously  slain. 
 
 2.  The  passages  where  the  word  (rp^*)  Sarqf,  to 
 burn,  is  used  ;  and  where  no  suspicion  of  any  various 
 reading  can  take  place  j  Deut.  xii.  31.  Jer.  vii.  31. 
 xix.  5. 
 
 3.  Psalm  cvi.  37,  38.   Their  sous  and  daughters  they 
 sacrificed  unto  devils.     They  shed  the  innocent  blood  of 
 their  children,*  and  offered  it  to  the  gods  of  Canaan,  and 
 the  land  teas  profaned  with  blood. 
 
 But  that  we  may  not  only  the  better  understand  the 
 laws  of  Moses  against  human  sacrifices,  but  likewise 
 be  able  to  account  for  the  continued  transgression  of 
 them,  notwithstanding  their  severity,  during  no  less 
 than  eight  hundred  years  after  his  death  *,  we  must 
 bear  in  mind,  that  the  use  of  sucli  sacrifices,  and 
 those  too  of  the  most  barbarous  description,  and 
 wherein  not  merely  enemies  or  strangers,  but  even 
 
 b  3 
 
 *  In  2  Kings  xxiii.  10.  we  find  Josiah  causing  a  certain  part  of 
 the  valley  of  Hinnoni  to  be  defiled,  that  they  might  there  no  longer  offer 
 zip  their  children  to  Moloch.  This,  of  course,  had  been  heretofore  the 
 practice,  down  to  the  time  of  Josiah.  According  to  the  common  com- 
 putation, this  event  took  place  in  the  S22d,  but  according  to  another, 
 supported  by  Josephus  and  St.  Paul,  in  the  0°>4th,  Vear  after  the 
 death  of  Moses. 
 
22  Human  Sacrifices  of  the  Canaanites.  [Art.  247. 
 
 the  most  beautiful  and  best  beloved  of  their  own  chil- 
 dren, yea  even  an  only  child,  was  brought  to  the  abo- 
 minable altar  of  the  cruel  Moloch,  formed  the  peculiar 
 superstition  and  frenzy  of  the  Phoenicians,  (or,  as  they 
 were  called  in  their  own  language,  Canaanites,)  and 
 likewise  of  their  descendants,  the  Carthaginians. — 
 Many  of  my  readers  will,  from  their  boyish  days,  re- 
 collect the  passage  of  Quintus  Curtius  *,  relative  to  the 
 Tyrians,  when  they  dreaded  the  siege  of  their  city  by 
 Alexander ;  Sacrum,  quod  quidem  Diis  minime  cordi 
 esse  crediderim,  mult  is  seculis  intermissumf,  repetendi, 
 auctores  quidam  erant,  tit  nempe  ingenuus  puer  Saturnu 
 immolaretur  ';  quod  sacrilegium  verms  quam  sacrum 
 Carthaginienses  a  cortditoribus  tradition  usque  ad  excU 
 alum  Urbis  succfccisse  dicuntur.  Ac  nisi  Senior es  ob- 
 stttissent,  quorum  consilio  cuncta  agebantur,  humanitatem 
 dira  superstitio  vicisset.  In  order  to  give  some  idea  of 
 the  rigour  and  absurdity  of  this  superstition,  I  shall 
 here  quote  a  passage  from  Diodorus  Siculus,  in  which 
 he  relates  how  the  Carthaginians,  who,  as  just  now 
 mentioned,  wTere  Tyrians,  that  is,  Canaanites  by  des- 
 cent, behaved  on  occasion  of  a  calamity  that  befel 
 their  city.  After  mentioning  that  the  Carthaginians, 
 on  being  vanquished  by  Agathocles,  believed  that  the 
 intermission  of  certain  religious  services,  in  use  among; 
 their  ancestors,  had  brought  down  the  anger  of  the 
 
 *  In  lib.  iv.  cap,  3     §23. 
 
 f  It  is  probable  that  during  the  200  years  that  Tyre  was  subject 
 to  the  Persians,  they  had  put  a  stop  to  this  abominable  sacrifice,  for 
 they  were  such  enemies  to  human  sacrifices,  that  Darius  threatened 
 the  Carthaginians  witfi  a  war,  if  they  did  not  give  them  up. — Justin 
 'ib.  xix.  c.  1. 
 
Art.  247.]  Proofs  from  Justin  §  Diodorus  Siculus.    25 
 
 gods,  and  this  great  misfortune  upon  them  ;  because 
 in  place  of  paying,  as  they  originally  did,  the  yearly 
 tythe  of  all  their  gains  to  the  Hercules  of  Tyre,  they 
 had  for  some  time  past  merely  transmitted  him  a  few 
 trifles,  which  had  provoked  his  indignation  ;  Diodorus 
 thus  proceeds  :  "  They  likewise  considered  the  wrath 
 *'  of  Saturn  as  one  cause  of  their  misfortune.  For  in- 
 "  stead  of  sacrificing  to  him,  as  formerly,  the  sons  of 
 "  their  most  distinguished  citizens,  they  had  for  some 
 **  time  been  in  the  practice  of  buying  boys  privately, 
 "  whom  they  brought  up,  and  then  sent  as  offerings. 
 ?'  And  now  when  an  enquiry  was  made  into  this  matter, 
 "  it  was  actually  found  that  some  of  those  sacrificed  had 
 "  been  substitutes  of  this  description  ;"  that  is,  had 
 not  been  sons  of  persons  of  distinction,  but  bought 
 .slaves,  represented  as  their  children.  "  When  there* 
 "  fore  they  saw  the  enemy  before  their  walls,  they 
 "  upbraided  themselves  in  their  hearts,  for  having  in 
 "  any  measure  departed  from  the  religion  of  their  h- 
 "  thers,  and  by  way  of  making  atonement,  they  sacii- 
 "  ficed  two  hundred  boys  for  the  state,  taking  care  to 
 "  select  those  of  the  first  quality  for  the  purpose.  Be- 
 "  sides  these,  there  were  given  up  for  sacrifice  three 
 "  hundred  impeached  persons  ;"  that  is,  as  I  under- 
 stand it,  persons  accused  of  having  shunned  the  sacri- 
 fice of  themselves,  and  of  having  allowed  bought  slaves 
 to  be  substituted  in  their  room.  "  There  was  at  Car- 
 *'  thage  a  brazen  image  of  Saturn,  which  let  its  open 
 "  hands  down  to  the  ground,  and  threw  the  children 
 "  that  were  laid  upon  them  into  a  pit  full  of  fire.  It 
 *'  would  stem  as  if  Euripides  had  borrowed  from  this 
 •'  circumstance  what  he  says  of  the  sacrifice  of  Iphi- 
 
 ?,  4 
 
24  Moloch  probably  Saturn.         [Art.  247. 
 
 "  genia  in  Tauris,  where  he  introduces  her  addres* 
 "  sing  Orestes  in  the  following  terms : 
 
 "  But  say,  Orestes,  when  I  die, 
 "  In  what  a  grave  shall  I  be  laid  ?" 
 
 "To  which  question  his  reply  is, 
 
 "  Low  in  the  earth  thy  corpse  shall  lie, 
 "  The  sacred  fire  thy  burial  bed." 
 
 "  The  Grecian  fable  of  Saturn  killing  his   children, 
 "  seems  likewise  still  to  be  realized  in  this  Carthagi- 
 "  nian  custom.,, — This  account  very  much  resembles 
 what  is  elsewhere  related  of  Moloch  *  ;  and  Moloch 
 appears  to  be  the  Oriental  name  of  that  Phoenician 
 deity  whom  the  Greeks  call  Saturn,  (and  probably  of 
 the  planet  Saturn   itself,)  who  was  a  principal  object 
 of  veneration  to  the  Phoenicians,  and  by  them  honour- 
 ed with  the  appellation  of  Kevan  (Chiun),  or  the  Just. 
 Considering  how  much  the  right  understanding  of 
 the  Mosaic  jurisprudence  respecting  idolatry,  depends 
 on  our  knowledge  of  the  human  sacrifices  of  the  Phoe- 
 nicians, and  having  found,  in  Mr.  Bryant's  Dissertation 
 on  the  Human  Sacrifices  of  the  Ancients,  a  large  and 
 important  collection  of  original  documents  on  that 
 subject,  I  have  taken  care  to  have  that  Dissertation 
 translated  into  German,  and  printed  in  the  same  form 
 with  the  present  work,  that  my  readers  (as  it  is  not 
 included  therein,  being  published  by  a  different  per- 
 son, .  viz.  Mr.  Dieterich  of  Gottingen,)  may,  if  they 
 please,  procure  the  two  sheets  of  which  it   consists, 
 
 •   .Qee  Seldcn,  De  Diis  Syris,  Syntagma  j.  c.  6. 
 
Art.  247.]  Human  Sacrifices,  hotv  to  be  understood.    25 
 
 and  bind  it  along  with  it.  Its  title  is,  Jacob  Bryant 
 von  den  Menschenopfern  der  Alien.  Ausdem  Englischen, 
 1774.  The  passages  of  this  small  but  valuable  Dis- 
 sertation, that  relate  to  the  Phoenicians,  and,  of  course, 
 bear  more  particularly  on  the  Mosaic  law,  will  be  found 
 from  page  26.  to  the  end. 
 
 As,  however,  some  authors,  and  Bryant  among  the 
 number,  use  the  phrase,  human  sacrifices,  in  a  more 
 extensive  sense  than  I  do,  I  must  here  explain  how  it 
 is  to  be  understood  in  relation  to  the  laws  of  Moses. 
 
 If  a  person  who  might  lawfully  be  put  to  death,  as, 
 for  instance,  an  enemy  in  war,  or  a  malefactor  of  any 
 description,  was  devoted  to  the  Deity,  or  consecrated, 
 with  the  express  view  that  the  former  should  have  no 
 quarter  given  him,  and  the  latter  find  his  punishment 
 irremissible,  there  are  some  who  would  denominate 
 the  fates  of  such  persons,  human  sacrifices.  I,  for 
 my  part,  do  not ;  for  in  fact,  if  accompanied  by  no 
 ceremonial  usages,  although  a  Roman  would  have 
 said  of  them,  Saccr  esto,  or,  Jovi  sacrum  esto,  such 
 deaths  were,  according  to  the  common  way  of  think- 
 ing, by  no  means  sacrifices.  It  was  neither  injustice 
 nor  cruelty  to  deprive  such  persons  of  life ;  and  the 
 devotement  or  consecration  of  their  deaths  to  the 
 Deity,  was  only  a  means  of  rendering  their  punish- 
 ment irremissible.  In  certain  cases,  and  on  occasion 
 of  some  crimes,  to  divest  one's  self  of  the  power  of 
 pardon,  is  a  duty  which  one  owes  to  the  general  good. 
 In  a  monarchy  or  aristocracy  this  may  be  done  by 
 a  promise  made  to  the  people ;  but  in  a  democracy, 
 it  can  scarcely  be  done  otherwise  than  by  an  oath 
 
26  Sacrifice  of  Malefactors  §  Captives.  [Art.  24V. 
 
 sworn,  or  a  vow  made,  by  the  whole  people  to  the 
 Deity ;  and  in  such  cases  the  criminal  may  be  pro- 
 perly said  to  be  consecrated.  So,  in  like  manner, 
 may  we  proceed  with  an  enemy,  whose  life  the  general 
 good  requires  us  not  to  spare.  If  we  are  to  call  this  a 
 sacrifice,  it  is  at  any  rate  one  against  which  the  strict- 
 est morality  will  find  nothing  to  object,  if  the  motives 
 which  have  determined  us  to  give  him  no  quarter, 
 nor  to  shew  to  certain  species  of  crimes  any  indul- 
 gence, be  just  and  reasonable.  Nor  has  Moses  prohi- 
 bited the  consecration  of  enemies  and  malefactors  to 
 God,  in  this  sense  5  on  the  contrary,  his  own  law  in- 
 cludes an  appropriate  term  for  it,  viz.  Cherem,  that 
 which  is  consecrated,  and  its  denominative,  Ilacharim, 
 to  consecrate. — See  Arts.  CXLV.  and  CCXLVI. 
 
 Were  we  to  lead  malefactors  or  captives  to  the  al- 
 tar, and  there  with  certain  ceremonies  put  them  to 
 death,  as  is  the  case  in  some  nations,  this  might  no 
 doubt,  according  to  the  common  usage  of  the  term, 
 be  called  a  sacrifice ;  and  yet,  although  we  have  a 
 right  to  deprive  such  persons  of  life,  this  mode  of 
 doing  so,  would  in  various  respects  be  extremely 
 shocking.  It  would  seem,  however,  as  if  sacrifices  of 
 this  description  had  not  been  in  use  among  the  Ca- 
 naanites,  because  their  maxim  was,  to  offer  up  to  the 
 gods  persons  of  the  most  illustrious  birth,  and  the 
 dearest  objects  of  their  love.  Hence  perhaps  it  comes, 
 that  Moses  nowhere  speaks  of  such  sacrifices.  They 
 are,  indeed,  without  any  express  prohibition,  forbid- 
 den by  his  law  ;  for  to  strange  gods  nothing  durst  be 
 offered,  and  to  the  altar  of  Jehovah  no  unclean  animal 
 
Art.  247.]  Punishment  of  Human  Sacrifice,  Stoning.  27 
 
 could  be  brought,  and  least  of  all,  a  man,  who  was  ac- 
 counted of  all  animals  the  most  unclean. — See  Arts. 
 CXLV.  CCXV.  CCXVI. 
 
 Of  such  sacrifices,  therefore,  I  do  not  here  speak  ; 
 but  only  of  those  wherein  innocent  men,  who  did  not 
 deserve  death,  were  offered  up  as  propitiatory  sacri- 
 fices ;  as  was  annually  done  by  the  Canaanites,  who, 
 moreover,  on  occasion  of  any  calamity  overtaking  the 
 state,  always  augmented  the  number  of  those  unhappy 
 victims. 
 
 These  then  are  the  human  sacrifices  interdicted  by 
 Moses,  and  commonly  represented  as  a  custom  among 
 the  Canaanites,  whicli  the  Israelites  were  not  to  imi- 
 tate ;  Lev.  xviii.  21.  compared  with  ver.  2,  3,  24, 
 — 30.  xx.  1, — 5.  Deut.  xii.  30.  xviii.  10.  And  it  is 
 to  be  observed,  that, 
 
 In  Lev.  xx.  2.  he  particularly  declares  that  such 
 sacrifices  were  not  to  be  allowed  to  be  offered  even 
 by  foreigners  ;  although  indeed,  from  the  analogy  of 
 other  laws,  this  would  have  been  almost  obvious,  with- 
 out any  positive  declaration. 
 
 The  punishment  of  those  who  offered  human  sacri- 
 fices was  stoning  ;  and  that,  as  I  think,  so  summarily, 
 that  the  bystanders,  when  any  one  was  caught  in  such 
 an  act,  had  a  right  to  stone  him  to  death  on  the  spot, 
 without  any  judicial  enquiry  whatever.  Whatever  Is- 
 raelite, says  Moses,  in  Lev.  xx.  2.  or  stranger  dwelling 
 among  you,  gives  one  of  his  children  to  Moloch,  shall 
 die ;  his  neighbours  shall  stone  him  to  death.  These 
 are  not  the  terms  in  which  Moses  usually  speaks  of 
 the  punishment  of  stoning  judicially  inflicted  ;  but, 
 all  the  people  shall  stone  him  ;  the  hand  of  the  witnesses 
 
28  Nothing  unclean,  offered  to  God.     [Art.  247. 
 
 shall  be  the  Jirst  upon  him.  Besides,  what  follows  a 
 little  after,  in  verses  4,  and  5.,  does  not  appear  to  me 
 as  indicative  of  any  thing  like  a  matter  of  judicial  pro- 
 cedure ;  If  the  neighbours  shut  their  eyes,  and  trill  fiot 
 see  him  giving  his  children  to  Moloch,  nor  put  him  to 
 death,  God  himself  ivill  be  the  avenger  of  his  crime, 
 I  am  therefore  of  opinion,  that  in  regard  to  this  most 
 extraordinary  and  most  unnatural  crime,  which,  how- 
 ever, could  not  be  perpetrated  in  perfect  secrecy, 
 Moses  meant  to  give  an  extraordinary  injunction,  and 
 to  let  it  be  understood,  that  whenever  a  parent  was 
 about  to  sacrifice  his  child,  the  first  person  who  ob- 
 served him  was  to  hasten  to  its  help,  and  the  people 
 around  were  instantly  to  meet,  and  to  stone  the  unna- 
 tural monster  to  death.  In  fact,  no  crime  so  justly  au- 
 thorises extrajudicial  vengeance  as  this  horrible  cruel- 
 ty perpetrated  on  a  helpless  child  ;  in  the  discovery 
 of  which  we  are  always  sure  to  have  either  the  lifeless 
 victim  as  a  proof,  or  else  the  living  testimony  of  a 
 witness  who  is  beyond  all  suspicion ;  and  where  the 
 ■mania  of  human  sacrifices  prevailed  to  such  a  pitch  as 
 among  the  Canaanites,  and  got  so  completely  the  bet- 
 ter of  all  the  feelings  of  nature,  it  was  necessary  to 
 counteract  its  effects  by  a  measure  equally  extraordi- 
 nary and  summary. 
 
 On  the  altar  of  the  true  God  nothing  unclean  could 
 be  offered,  of  course,  no  human  sacrifice  ;  nothing  in 
 short,  but  oxen,  sheep,  goats,  and  clean  birds.  The 
 blood  or  carcases  of  all  other  animals  profaned  it.  But 
 Moses,  besides  this,  took  care  to  prevent  the  Israelites 
 from  transferring  into  the  worship  of  the  true  God, 
 what  the  Canaanites  did  in  honour  of  Moloch,     IVhcn 
 
Ait.  247.]  Mosaic  Religion  unjustly  reproached.       29 
 
 Jekovak,  says  he,  in  Deut.  xii.  29, — 31.,  shall  have  ex- 
 terminated  these  nations,  beware  thou  of  falling  into  the 
 like  snare  ajler  them.  Enquire  not  after  their  gods,  nor 
 ask,  How  they  were  wont  to  serve  them.  To  Jehovah 
 thi}  God  thou  shatt  do  no  such  service  ;  for  all  that  lie 
 hates,  did  they  to  their  gods ;  insomuch  that  they  burnt 
 even  their  sons  and  daughters  in  their  worship. — We 
 really  cannot  but  wonder,  how  it  has  been  possible, 
 that  some  of  the  adversaries  of  the  revealed  religion 
 of  the  Israelites  (or,  as  they  call  them,  the  Jews) 
 should  have  imputed  to  it  the  use  of  human  sacri- 
 fices, and  on  that  account  cast  a  reproach  upon  Moses. 
 Jn  charging  the  Mosaic  religion  with  this  imputation, 
 they  are  guilty  of  much  the  same  ridiculous  piece  of 
 injustice,  as  were  once  the  people  of  Spain  and  Portu- 
 gal, and,  more  lately,  those  of  Poland,  in  supposing, 
 that  the  Jews  drank  the  blood  of  Christian  children, 
 when,  in  fact,  they  dare  not  taste  blood  :  for,  accord- 
 ing to  the  ideas  of  the  Israelites,  human  bones  pro- 
 faned an  altar.  If,  however,  they  only  mean,  that  the 
 Israelites  often  imitated  the  Canaanites,  and  offered 
 human  sacrifices  in  opposition  to  their  own  religion 
 and  the  laws  of  Moses,  they  are  perfectly  correct ; 
 for  this  fact  is  distinctly  stated  in  several  parts  of  the 
 bible  •,  but  then  it  is  no  ground  of  reproach  against 
 either  Moses  or  revealed  religion. 
 
 The  words  of  Lev.  xviii.  21.  may  likewise  be  consi- 
 dered as  prohibitory  of  such  human  sacrifices  to  God, 
 as  were  wont  to  be  offered  to  Moloch,  provided  we 
 translate  them  in  these  terms,  Thou  sh alt  give  none  of 
 thy  children  to  Moloch,  to  burn  them  to  him,  nor  shall 
 thou  profane  the  name  of  Jehovah,  thy  God ;  for  here 
 
SO  Making  Images.  [Art.  248. 
 
 it  would  seem  that  Moses  meant  to  forbid  the  profana- 
 tion of  the  name  of  Jehovah,  by  offering  such  sacrifices 
 unto  him.  But  I  have  my  doubts  of  the  propriety  of 
 this  translation,  and  therefore  I  have  preferred  a  dif- 
 ferent one.  On  the  reasons  for  these  doubts  I  can- 
 not here  fully  expatiate,  as,  probably,  but  few  of  my 
 readers  are  conversant  in  Hebrew  ;  but  I  will  so  far 
 trespass  on  their  patience,  as  to  make  the  following 
 remarks.  The  phrase  (W  ^H)  HUM  Shem,  may 
 certainly  signify  to  profane  the  name  ;  but  it  may  also 
 have  a  different  meaning,  and  most  probably  it  is  here 
 to  be  understood  in  the  same  sense  as  in  chap.  xx.  3., 
 where  it  occurs  in  a  similar  connection.  But  there  it 
 is  certainly  not  spoken  of  those  who  offer  human  sa- 
 crifices to  the  true  God,  but  to  Moloch.  Now,  T?n 
 signifies,  1.  to  dissolve,  2.  to  discard,  3.  to  profane. 
 I  therefore  render  it  in  both  passages,  discard  (abzus- 
 chaffen)  the  name  of  Jehovah,  which  is  equivalent  to 
 denying  his  name,  and  embracing  heathenism,  or 
 doing  as  much  as  in  us  lies  to  prevent  the  true  God 
 from  being  revered,  or  his  name  mentioned. 
 
 ART.  CCXLVIII. 
 
 Various  other  idolatrous  practices  prohibited. 
 
 §  4.  The  other  practices  prohibited  by  Moses  as  idola- 
 trous, or  as,  at  any  rate,  suspicious,  on  account  of  ido- 
 latry, are  the  following, 
 
 1 .  The  maJdng  images  of  strange  gods. — This  was 
 already  forbidden  in  the  case  of  the  true  God :  but 
 
Art.  248.]       Prostrations — Altars — Groves.  51 
 
 the  curse,  in  Deut.  xxvii.   15.  seems  to  be  specially 
 levelled  against  idolatrous  images. 
 
 2.  Prostration  before,  or  adoration  of,  such  images, 
 or  of  any  thing  else  revered  as  a  god,  such  as  the  sun, 
 moon,  and  stars  ;  Exod.  xx.  5.  xxxiv.  14.  Deut.  iv.  19. 
 But  prostrations  before  men,  not  held  as  gods,  which 
 the  Hebrews  call  Hischthachavot,  (mnrcn)  incurva- 
 tions, were  by  no  means  prohibited ;  but,  as  we  see 
 from  the  writings  of  Moses  himself,  were  very  com- 
 mon. Adorare  is  the  Latin  term  applied  to  the  actoi 
 prostration  ;  and  the  Greeks,  who,  out  of  national 
 pride,  commonly  refused  to  pay  that  honour  to  the 
 Persian  kings,  expressed  it  by  the  word  Trponcwav.  It 
 consisted  in  falling  down  on  one's  knees,  and  at  the 
 same  time  touching  the  ground  with  the  forehead. 
 
 3.  Having  altars  or  groves  dedicated  to  idols,  or 
 images  ihereoj*.  By  the  Mosaic  law  these  were  all 
 expressly  to  be  destroyed;  Exod.  xxxiv.  13.  Deul. 
 vii.  5.  xii.  3.  ;  and  considering  the  strange  propensity 
 of  mankind  in  those  days  to  idolatry,  it  became  neces- 
 sary to  obliterate  every  such  memorial  of  idolatrous 
 practices ;  else,  in  after  times,  the  sight  of  the  image 
 of  an  idol  god  might  have  excited  such  ideas  of  its 
 divinity,  or,  at  any  rate,  according  to  the  celebrated 
 observation  of  the  poet, 
 
 Jam  turn  religio  pavidos  terrebat  agresics 
 
 Diva  Loci;  jam  turn  silvam  saxumque  tremebant, 
 
 have  impressed  men's  minds  with  such  superstitious 
 
 *  The  reason  why  idol-temples  are  not  mentioned  here,  will  be 
 found  in  my  note  upon  Exod.  xxxiv  13. ;  and  somewhat  more  cir- 
 cumstantially in  my  Dissertation,  Dc  Judceis  Salomonis  tempore  drchi- 
 Jecturie parvm  peritis,  p.  ft. 
 
32  Rudeness  of  the  earliest  Images,       [Art.  248, 
 
 terrors,  as  in  a  consecrated  grove,  would  soon  pas? 
 into  prayer  and  veneration. 
 
 This  rigour  in  the  extermination  of  every  remnant 
 of  idolatry,  was  carried  so  far,  that  by  the  statute  of 
 Deut.  vii.  25,  26.,  the  Israelites  durst  not  even  keep, 
 nor  bring  into  their  houses,  the  gold  and  silver  that 
 had  been  upon  any  image,  lest  it  should  prove  a  snare, 
 and  lead  them  astray ;  because,  having  been  once 
 consecrated  to  an  idol-god,  considering  the  prevalent 
 superstition  as  to  the  reality  of  such  deities,  some  idea 
 of  its  sanctity,  or  some  dread  of  it  might  still  have 
 continued,  and  have  thus  been  the  meiuis  of  propa- 
 gating idolatry  afresh  among  their  children.  Moses, 
 therefore,  declared  it  an  abomination  in  the  sight  of 
 God,  and  warned  them  against  bringing  it  into  their 
 houses,  lest  it  should,  being  itself  accursed,  bring  a 
 curse  upon  them.  Conformable  to  the  Mosaic  prohi- 
 bition is  the  language  of  a  prophecy  of  Isaiah,  in  chap, 
 xxx.  22.,  where  he  says,  The  silver  and  gold,  wherewith 
 your  graven  and  molten  images  were  coated,  you  shall 
 account  unclean,  and  turn  from  them  with  aversion,  as 
 from  a  mcnstruous  woman,  saying,  Be  gone. — Here, 
 perhaps,  the  admirer  of  ancient  sculpture  will  be 
 ready  to  drop  a  tear  of  regret  over  the  fine  statues, 
 and  other  monuments  of  antiquity,  that  must  have 
 been  destroyed  in  consequence  of  the  Mosaic  man- 
 date ;  but  he  may  safely  dry  it  up,  for  the  chefd 'ceuvres 
 of  this  period  were  not  worth  sparing ;  the  wooden 
 images  being  much  in  the  same  style  as  those  which 
 we  term  Blocks  ;  and  those.of  stone  certainly  not  bet- 
 ter than,  perhaps,  not  so  good  as,  the  ancient  Egyp- 
 tian ones.     Those  fine  specimens  of  sculpture,  whose 
 
Art.  248.]        Offering  Sacrifices  to  Idols. 
 
 destruction  is  more  to  be  regreted,  were  of  much  la- 
 ter date,  and  proceeded  originally  from  the  hands  of 
 the  Greeks  ;  and  yet  were  we  to  chuse  between  works 
 of  art,  and  the  suggestions  of  sound  reason,  that  is, 
 were  fine  statues,  such  even  as  the  Mcdiccean  Venus 
 herself  only  preserved  at  the  manifest  risk  of  making 
 posterity  relapse  into  senseless  and  gloomy  idolatry, 
 a  wise  legislator  would  not  hesitate  to  annihilate  them 
 at  once,  rather  than  the  natural  religion  of  future  ages. 
 But  I  again  repeat,  that  the  statute  before  us  annihi- 
 lated no  works  of  art ;  for  perhaps  many  a  wig-block 
 of  the  last  century,  with  a  human  face  cut  upon  it, 
 looks  much  better  than  did  the  Canaanitish  gods  of 
 those  days. 
 
 IV.  Offering  sacrifices  to  idols. — The  religion  of  the 
 heathen  principally  consisted  of  sacrifices.  There 
 was  little  devotion  in  it ;  for  they  wanted  the  chief 
 materials  for  prayer,  and  did  not  hold  converse  with 
 their  dismembered  deities,  on  the  subject  of  eternal 
 happiness,  or  to  supplicate  the  gifts  of  virtue :  they 
 could  at  most  sing  hymns  in  their  praise,  or  make 
 them  acquainted  with  their  various  corporeal  wants; 
 which  will  always  be  the  case  where  mankind  acknow- 
 ledge more  than  one  god.  The  more  effectually  to 
 prevent  private  sacrifices  to  other  gods,  the  two  ordi- 
 nances illustrated  in  Art.  CLXIX.  andCLXXXVUI. 
 were  made ;  the  one  enjoining  them,  while  in  the  wil- 
 derness, to  kill  no  ox,  sheep,  or  goat,  that  was  not 
 made  an  offering  to  the  true  God  ;  and  the  other,  only 
 to  make  their  offerings  at  one  particular  place,  where 
 they  would  be  under  inspection  \  in  order  that,  under 
 
 VOL.  iv.  c 
 
34  Tar  tahng  of  Idol  Offerings,  §c.    [Art.  248. 
 
 pretence  of  sacrificing  to  the  true  God,  offerings  might 
 not  be  made  to  other  gods. 
 
 V.  Eating  of  offerings  made  to  idols  by  other  people, 
 who  invited  them  to  their  offering-feasts  ;  in  other 
 words,  attending  the  festivals  of  other  gods.  It  is 
 true  no  special  law  was  given  to  prevent  this  ;  but 
 then  it  is  quite  manifest  that  it  must  have  been  unlaw- 
 ful ;  because  for  a  person  to  have  gone  to  any  such 
 offering-feast,  was  just  as  solemn  a  declaration  of  his 
 religion,  and  that  he  held  the  God  in  honour  of  whom 
 it  was  made,  to  be  really  God,  as  our  attendance  at 
 the  Lord's  supper  can  be,  that  we  are  Christians.  In 
 the  following  passage,  however,  this  practice  is  pre- 
 supposed as  in  itself  unlawful ;  Beware  lest  thou  make 
 any  covenant  pith  the  inhabitants  of  the  land,  and  they 
 commit  idolatry  (literally,  whoredom  with  their  gods,} 
 &nd  sacrifice  to  them,  and  invite  thee  to  the  feast,  and 
 thou  eat  of  their  sacrifices,  Exod.  xxxiv.  15. ;  for  here 
 it  is  represented  as  the  dangerous  consequence  of  spa- 
 ring the  Canaanites,  and  certainly  therefore  as  some- 
 thing evil  and  forbidden.  At  the  same  time  we  see 
 from  this  passage,  wherein  the  crime  of  eating  things 
 offered  to  idols,  which  was  afterwards  so  far  extended 
 by  the  Jews,  properly  consisted.  If  an  offerer  invited 
 me  to  his  feast,  and  I  went,  this  was  (for  who  ever 
 considered  it  in  any  other  light  ?)  a  participation  in 
 his  religion.  In  1  Cor.  x.  14, — 23.  the  apostle  repre- 
 sents it  in  the  very  same  point  of  vjew,  and  illustrates 
 it  from  the  Lord's  supper,  as  I  have  just  done. 
 
 But,  on  the  other  hand,  where  any  part  of  what  had 
 been  offered  unto  an  idol  came  into  my  hands  in  a 
 different  manner,  as  by  purchase  in  the  public  market, 
 
Art.  248.]  Real  Crime  of  eating  Idol  Offerings.         33 
 
 or  by  plunder,  it  certainly  would  have  been  no  parti- 
 cipation of  idolatry  in  me,  to  have  appeased  my  hunger 
 by  eating  it,  nor  any  duty  on  my  part,  either  to  have 
 let  it  spoil,  or  to  have  restored  it  again  to  the  idolater, 
 that  he  might  himself  eat  it  as  an  offering.  Nor  do  I 
 find  in  Moses  the  smallest  trace  of  any  prohibition  so 
 impolitic,  and  which  in  war  might  have  been  attended 
 with  such  disastrous  consequences  to  the  Israelites. 
 For  had  they  been  under  an  absolute  obligation  to  eat 
 nothing  whatever,  that .had  been  offered  or  consecrated 
 to  idols,  their  idolatrous  enemies  had,  in  the  time  of 
 war,  only  to  dedicate  all  their  fruits  and  cattle  to  their 
 gods,  or  to  perform  idolatrous  ceremonies  with  them, 
 to  make  an  Israelitish  army,  that  was  invading  their 
 country,  perish  with  hunger.  Yet  to  this  absurd  ex- 
 treme did  the  Jews  of  later  times  extend  the  meaning 
 of  the  Mosaic  mandate,  through  their  excessive  scru- 
 pulosity ;  and  although  this  is  a  point,  of  which  the 
 consideration  does  not  strictly  belong  to  our  present 
 work,  I  am  nevertheless,  from  its  importance  to  the 
 right  understanding  of  the  doctrine  of  the  New  Tes- 
 tament on  this  subject,  tempted  to  subjoin  a  few  re- 
 marks upon  it» 
 
 The  first  case  that  occurs  of  the  extension  of  the 
 sense  of  this  law,  although  it  is  doubtful  whether  it 
 proceeded  from  conscientious  motives  or  not,  is  in  the 
 first  chapter  of  Daniel ;  where  we  find  that  he  and 
 his  young  friends  refused  to  partake  of  the  flesh  and 
 wine  sent  them  from  Nebuchadnezzar's  table,  because 
 offerings  were  commonly  made  therefrom  to  the  Ba- 
 bylonish gods.  This,  it  is  true,  was  not  altogether 
 the  case  specified  by  Moses,  for  they  were  not  invited 
 
 c  2 
 
86  The  Case  of  Daniel,  $c.         [Art.  24S. 
 
 to  any  sacrificial  banquet ;  but  still  they  were  aware, 
 as  it  would  seem,  of  the  flesh  and  wine  being  offered, 
 before  it  came  to  the  king's  table.  Now,  they  are 
 by  no  means  represented  to  us  as  infallible  persons, 
 and  projects,  but  merely  as  conscientious  youths. — 
 Their  scruples  of  conscience,  therefore,  can  decide 
 nothing,  where  the  exposition  of  the  Mosaic  law  is  in 
 question  ;  but  still  they  merit  commendation,  in  abus- 
 ing the  safe  side,  when  their  conscience  hesitated  ; 
 which  indeed  is  the  moral  duty  of  every  man. — In 
 after-times,  however,  the  matter  was  carried  much 
 farther.  Conscientious  Jews  who  lived  among  the 
 heathen,  abstained  from  all  flesh,  even  though  bought 
 in  the  shambles,  or  presented  at  a  common  meal,  if, 
 on  enquiry,  which  they  always  made  with  anxious  care, 
 they  discovered  that  it  had  been  offered  to  idols  ;  nay 
 more,  from  all  flesh  whatever,  because  it  perhaps  might 
 be  of  that  description  ;  and  from  all  wine,  because  in 
 the  preparation  thereof,  some  idolatrous  usages  took 
 place.  For  they  regarded  it  as  absolute  idolatry  to 
 taste  any  thing  that  was  consecrated  to  idols.  Since, 
 therefore,  idol-offerings  appeared  so  abominable  to 
 the  Jew,  (not,  indeed,  like  other  unclean  meats, 
 which  he  did  not  consider  as  forbidden  to  the  hea- 
 then, but)  as  indicating  a  participation  in  their  idola- 
 try ;  the  apostles  ordained,  that  the  heathen  converts 
 should,  for  the  sake  of  the  Jews,  abstain  from  meats 
 offered  to  idols,  Acts  xv.  20, — 29.  How  this  injunc- 
 tion is  to  be  understood,  we  see  from  various  parts  of 
 the  epistles  of  St.  Paul,  especially  from  Rom.  xv.  and 
 1  Cor.  viii.  and  x.  The  propositions  which  he  lays 
 down  are  these  : 
 
Art.  248.]         St.  Paul  on  ldoloffcritigs.  37 
 
 1.  Idol-offerings,  eaten  in  an  idol-temple,  or  at  an 
 idol-banquet,  form  a  participation  in  idolatrous  wor- 
 ship.    But, 
 
 2.  Exclusive  of  this  case,  it  is  lawful  to  eat  of  idol- 
 offerings  ;  for  the  idol  is  a  non-entity,  and  has  no  pro- 
 perty ;  for  every  thing  on  the  face  of  the  earth,  even 
 the  idol-offering  itself,  belongs  to  the  true  God. 
 
 3.  Yet  ought  we,  for  the  sake  of  the  weak,  to  ab- 
 stain from  eating  of  any  such  offering,  if  they  are 
 thereby  scandalized,  and  tell  us  for  warning,  that  it 
 is  an  idol-offering. 
 
 VI.  Eating  or  drinking  of  blood.  This  naturally 
 created  strong  suspicions  of  idolatry,  and  was  there- 
 fore absolutely  prohibited  ;  as  has  been  already  no- 
 ticed at  great  length,  under  Art.  CCVI.  The  punish- 
 ment annexed  to  the  transgression  of  this  prohibition 
 was  extirpation  from  among  the  people  ;  and  besides 
 that,  God  threatened  himself  to  punish,  and  to  perse- 
 cute with  an  avenging  providence,  every  man  who  eat 
 blood. 
 
 VII.  Prophecying  in  the  name  of  a  strange  god. 
 This  was  forbidden  under  pain  of  death,  as  were  like- 
 wise all  manner  of  divinations  and  sorceries  ;  con- 
 cerning all  which,  particular  notice  will  be  taken  in  the 
 sequel. 
 
 VIII.  All  usages  and  ceremonies  whereby  a  man  de- 
 dicated himselj  to  a  strange  god.  These  are  prohi- 
 bited in  Lev.  xix.  28.  and  have  been  already  treated 
 of  under  Art.  CCXXV. 
 
 IX.  Prostitution  in  honour  of  an  idol,  and  where 
 the  wages  of  sucli  iniquity  usually  went  to  the  re- 
 venue of  the  idol  and  its  temple.     Concerning  this 
 
 c  3 
 
38         Imitation  of  Canaanitish  idolatries,     f  Art.  248, 
 
 crime,  of  which  some  notice  has  already  been  taken 
 in  Art.  XCIL,  we  shall  afterwards  speak  more  fully, 
 when  treating  of  crimes  of  hist. 
 
 X.  Imitation  of  the  idolatrous  ceremonies  of  the  Ca- 
 naanites, and  attempting  to  transfer  them  into  the 
 worship  of  the  true  God. — This  is  prohibited  in  Deut. 
 xii.  29, — 3 1 . ;  and  the  whole  passage  here  deserves 
 our  perusal.     When  Jehovah,  thy  God,  shall  have  ex- 
 terminated those  natiotis,  whose  land  thou  art  about  to 
 subdue,  and  thou  dxvellest  in  their   land,  beware  lest 
 thou,  in  imitation  of  them,  and  after  they  are  destroyed, 
 put  thy  foot  into  the  like  snare ;  enquire  not  after  their 
 gods,  and  ask  not,  how  they  were  wont  to  serve  their 
 gods,  in  order  to  do  the  same.     Thou  shalt  not  offer 
 any  such  service  to  Jehovah,  thy  God ;  for  every  thing 
 that  he  hateth,  did  they  in  honour  of  their  gods,  inso* 
 much  as  even  to  burn  their  sons  and  daughters  before 
 them.     His  meaning  here  is  not,  by  any  means  to  de- 
 clare every  thing  prohibited  to  the  Israelites,  which 
 heathens  did  in  honour  of  their  gods :  for  it  is  cer- 
 tain, that  he  has  prescribed   them  many  sacrificial 
 usages,  and  other  ceremonies  in  use  among  idolatrous 
 nations  ;  and  besides,  this  law  properly  speaks  only  of 
 the  Canaanites,  whose  idolatry  was,  by  the  multitude 
 of  human  sacrifices,  and  other  abominations  which  it 
 enjoined,  remarkably  different  from  that  of  other  na- 
 tions.    Nay,  even  with  these  very  Canaanites,   the 
 Israelites  had  many  usages  in  common  ;  such  as  sacri- 
 fices ;  and  probably  also,  the  festival  of  the  seventh 
 day  ;  only  that  the  Canaanites  solemnized  it  in  honour 
 ofKevan  or  Saturn,  their  supposed  tutelary  deity.    His 
 meaning  rather  was,  to  prevent  the  Israelites  from  at- 
 
Art.  249.]  Indications  of  Idolatry.  39 
 
 tempting  to  transfer  into  the  worship  of  the  true  God 
 any  of  those  Canaanitish  ceremonies,  which  were  not 
 already  in  use  and  established  by  law  ;  because  there 
 were  so  many  of  them  extremely  abominable  and  dis- 
 pleasing to  God,  (of  which  he  himself,  by  way  of  ex- 
 ample, specifies  human  sacrifices,)  that  Moses  was 
 afraid  lest,  by  the  imitation  of  them,  new  species  of 
 vice  and  cruelty  might  be  introduced  among  the  peo- 
 ple, and  even  into  their  religion.  No  doubt,  some  of 
 the  Canaanitish  ceremonies  might  be  quite  innocent : 
 but  still  imitation  was  attended  with  danger,  and. 
 therefore,  in  general  prohibited. 
 
 ART.  CCXLIX. 
 
 Transgressions  of  the  Levitical  Itrw  which  had  the  ap- 
 pearance of  being  a  renouncement  of  the  true  God, 
 or  a  Transition  to  Idolatry  ;  and  in  particular,  Pro- 
 f ana  Hon  of  the  Sabbath. 
 
 §  5.  Every  audacious  transgression  of  the  ceremo- 
 nial law,  in  other  words,  of  that  law  which  prescribed 
 the  usages  of  divine  worship,  and  the  different  cere- 
 monies of  purification  that  were  to  be  performed  in 
 different  cases,  was  regarded  as  an  abandonment  of 
 the  service  of  the.  true  God ;  and,  of  course,  as  a  tran- 
 sition to  the  service  of  other  gods,  punished  with  ex- 
 tirpation, that  is,  in  the  sense  wherein  the  word  seems 
 here  to  be  taken,  xcilh  death.  The  principal  passage 
 relative  to  this  point  occurs  in  Numb.  xv.  SO,  31. 
 where  it  is  expressly  stated  as  the  cause  of  the  seve- 
 rity of  the  punishment,  that  such  transgression  indi- 
 
 c  4 
 
40  Sinning  with  a  high  hand — what?  [Art.  249. 
 
 cates  a  contempt  of  Jehovah. — Whoever  transgresseth 
 the  law  presumptuously,  he  hath  despised  the  word  of 
 Jehovahi 
 
 That,  in  this  passage,  wilful  transgressions  of  all  and 
 every  Mosaic  commandment,  cannot  be  meant,  but 
 only  of  the  ceremonial  law,  is  evident  from  this,  that 
 to  many  crimes  which  cannot  possibly  be  committed 
 without  deliberate  intention,  such  as  theft,  adultery 
 with  a  woman  not  free,  perjury,  personal  injury,  &c.  a 
 capital  punishment  is  not  annexed.  This,  therefore, 
 may  be  considered  as  unquestionable ;  but  then,  what 
 is  here  meant  by  the  term  presumptuous,  or,  as  it  is 
 expressed  in  the  Hebrew  idiom  (HO"!  T^),  with  a  high 
 hand,  may  perhaps  admit  of  a  doubt.  I  cannot  think 
 that,  in  a  criminal  law,  this  should  imply  the  very 
 same  thing  which,  in  theology  or  morals,  is  termed 
 deliberate,  or  wilful.  If  a  boy,  for  instance,  had  had 
 a  nocturnal  pollution,  or  had  even  been  guilty  of  self- 
 pollution,  and  had  from  modesty,  or  from  fear  of  his 
 parents,  concealed  it,  and  consequently  neglected  the 
 purification  prescribed  by  the  Levitical  law,  the  theo- 
 logian, no  doubt,  and  the  moralist,  could  not  call  this 
 any  thing  else  than  a  deliberate  and  wilful  sin  ;  and 
 the  greater  the  anguish  of  conscience,  with  which  the 
 said  neglect  was  attended,  so  much  the  more  wilful 
 would  the  sin,  in  a  moral  sense,  become :  but  to  an 
 aggravation  or  variation  of  the  crime,  which,  like  this, 
 merely  lies  hid  in  the  mind  of  the  transgressor,  and 
 can  with  difficulty  be  discovered  by  a  court,  and  is  in 
 other  respects  harmless,  a  civil  legislator  will  never 
 pay  any  attention,  or  at  any  rate,  he  will  never  apply 
 to  it  the  expression  of  sinning  with  a  high  hand,  which 
 
Art.  249.]  Neglect  of  Circumcision.  4! 
 
 at  the  very  least  imports,  that  the  sinner  has  no  desire 
 whatever  to  conceal,  that  he  has  trespassed  the  law  ; 
 nay,  he  will  hardly  say  in  any  such  case,  that  the  person 
 thus  anxious  to  conceal  his  guilt,  has  despised  Jehovah. 
 It  therefore  appears  to  me,  that  transgressing  the  law 
 presumptuously,  or  with  a  high  hand,  is  here  to  be 
 understood  of  transgressions  committed  publicly  in 
 defiance  of  the  law,  in  contemptum  legis ;  and  there- 
 fore amounting  to  a  sort  of  renouncement  of  religion. 
 And,  in  fact,  the  apostle  Paul,  in  Heb.'x.  27, — 29., 
 makes  an  application  of  this  severe  law  of  Moses,  to 
 those  who  disown  the  Christian  religion,  or,  as  he  ex- 
 presses it,  tread  underfoot  the  Son  of  God,  and  account 
 the  blood  of  the  covenant,  whereby  they  are  purged  from 
 sin,  unclean.  What  I  am  about  to  observe  concerning 
 the  neglect  of  circumcision,  will  be  a  farther  confirma- 
 tion of  this  opinion.  Suffice  it,  in  the  meantime,  to 
 remark  in  general,  that  capital  punishments  on  account 
 of  transgressions  of  the  ceremonial  law,  must  have 
 been  very  frequent  indeed,  if  we  are  to  understand 
 the  phrase,  with  a  high  hand,  as  equivalent  to  wilful 
 or  deliberate,  in  a  moral  sense  ;  and  yet  in  the  Biblical 
 history,  we  find  but  very  little  notice  of  the  infliction 
 of  such  punishments. 
 
 I  am  now  to  specify  some  examples  of  those  trans- 
 gressions, which  Moses  expressly  mentions  as  coming 
 under  this  description,  and  to  which  he  annexes  the 
 punishment  of  death. 
 
 1.  The  neglect  of  circumcision,  Gen.  xvii.  14.  Here 
 it  is  evident  that,  as  children  were  ordered  to  be  cir- 
 i'umcised  when  eight  days  old,  and  are  at  that  age 
 incapable  of  any.  thing  like  presumption,  the  punishr 
 
42  Neglect  of  Circumcision.  [Art.  249, 
 
 mentof  this  neglect  could  not  affect  the  child,  but  the 
 parent  who  had  been  guilty  of  it ;  but,  on  the  other 
 hand,  it  is  also  evident,  that  it  was  not  the  omission 
 of  circumcision  from  carelessness,  excess  of  tender- 
 ness, or  groundless  fear  of  danger,  but  only  from  ab- 
 solute contempt  of  the  law,  that  subjected  the  trans- 
 gressor to  the  punishment  of  extirpation.     I  will  not, 
 in  proof  of  this,  appeal  to  the  example  of  Moses  him- 
 self, who  neglected  the  circumcision  of  his  son  for  a 
 long  time,  Exod.  iv.  24, — 26. ;  for  at  that  time,  there 
 was  no  Israelitish  polity,  nor  any  magistrate  that  could 
 inflict  punishment ;  and  people  do  not  usually  punish 
 themselves,  at  least  capitally.     But  it  is  here  import- 
 ant to  remark,  that  the  Israelites  did  not  circumcise 
 the  greater  part  of  the  children  born  to  them  in  their 
 march  through  the  desert;  which  could  hardly  proceed 
 from  any  other  cause,  than  from  unbecoming  appre- 
 hensions that  it  might  prove  dangerous  to  them  while 
 travelling ;    and,  as  the   camp   often   continued  for 
 months  and  years  in  the  same  place,  it  can  only  be  re- 
 garded as  a  neglect  of  the  law,  which  gradually  became 
 more  and  more  prevalent  under  that  pretext ;  and 
 yet  we  find,  from  Josh.  v.  1, — 9.,  that  Moses  had  al- 
 lowed this  all  along  to  pass  unpunished. 
 
 The  Jews,  in  later  times,  contrived  a  plan  to  render 
 their  circumcision  imperceptible,  and  to  form  a  new 
 prepuce,  when  they  were  desirous  to  make  the  com- 
 pletest  possible  renunciation  of  the  religion  of  their 
 fathers;  see  1  Mace.  i.  15.  Of  this  artificial  and  chi- 
 rurgical  crime,  the  Mosaic  laws  knew  nothing ;  but 
 according  to  their  spirit,  there  is  no  doubt  that  it 
 would  have  been  capital. 
 
Art.  249.3  Neglect  of  the  Passover  <$  Purification.    4S 
 
 2.  Neglect  of  eating  the  paschal  lamb,  although  at 
 home,  and  engaged  in  no  business,  which  gave  a  legal 
 excuse,  Numb.  ix.  9,  14. 
 
 3.  An  unclean  person  eating  of  a  sacrifce,  Lev.  vii. 
 20,  21. 
 
 4.  The  neglect  of  par  if  cation  after  a  Levitical  dcf  le- 
 nient. This  became  a  capital  crime,  when  in  such 
 circumstances,  a  person,  as  just  observed,  frequented 
 the  sacrifice-feasts,  or  even  came  to  the  sanctuary, 
 Numb.  xix.  20.  It  was  considered  as  a  profanation 
 and  contempt  of  both  the  sanctuary  and  sacrifice. 
 
 5.  Eating  the  fat  pieces  or  blood  of  oxen,  sheep,  and 
 goats ;  Lev.  vii.  23,-27.     See  Art.  CCVI. 
 
 6.  Imitating  the  sacred  incense,  which  was  to  be  of- 
 fered to  none  but  God,  Exod.  xxx.  38.  Other  sorts 
 of  perfumes  they  might  make  and  employ  as  they 
 chose ;  and  if  they  made  but  the  least  variation  in 
 the  proportion  of  the  spiceries,  it  was  no  longer  sacred 
 incense ;  but  to  employ  the  very  same  incense  which 
 was  offered  to  God,  for  any  other  purpose,  was  a  capi- 
 tal crime ;  just  as  we  now  find  it  in  some  parts  of 
 India,  considered  as  the  crime  of  treason  (Icesce  mqjes- 
 tatis),  and,  of  course,  subjecting  the  offender  to  death, 
 for  any  person  to  make  use  of  the  best  sort  of  Calam- 
 lak,  which  is  for  the  service  of  the  king  alone. 
 
 7.  Profanation  of  the  sabbath  by  working.  This  is 
 in  a  particular  manner  to  be  numbered  with  those 
 transgressions  of  the  ceremonial  law,  which  were  pu- 
 nished with  death  ;  Exod.  xxxi.  14, — 16.  xxxv.  2. 
 
 The  severity  of  punishment,  in  this  instance,  has 
 given  offence  to  many  people  who  have  speculated  on 
 the  laws  of  Moses  ;  for  they  have  conceived  that  every 
 
4-1?  Profanation  of  the  Sabbath,  $c.     [Art.  249. 
 
 one  who  but  once  worked  on  the  Sabbath,  was,  with- 
 out distinction,  to  be  put  to  death  ;  and  then,  in  con- 
 templating the  Mosaic  statutes  prohibitory  of  the  pro- 
 fanation of  the  Sabbath,  they  have  thought  of  our  laws 
 relative  to  the  profanation  of  Sunday,  which  we  some- 
 times call  sabbath-laws,  and  which,  to  sanction  by  capi- 
 tal punishment,  would  certainly  be  the  height  of  ab- 
 surdity.— I  shall,  to  clear  up  this  point,  begin  with  the 
 consideration  of  the  latter ;  only  I  must  first  shew  how 
 great  the  distinction  is,  between  what  are  called  sab- 
 bath-laws, and  profanations  of  the  Sabbath. 
 
 1.  The  civil  laws  of  Moses  presuppose  a  Sabbath 
 prescribed  by  God  himself  to  the  Israelites,  and,  of 
 course,  a  law  not  to  be  altered  by  man.  This  our 
 legislators  can  never  presuppose ;  for  although  it  be 
 undeniable,  that  for  the  service  of  God,  and  religious 
 instruction,  it  is  necessary  that  a  certain  time  should 
 be  set  apart,  either  by  the  community  themselves, 
 who  profess  any  particular  religion,  or  by  the  church 
 that  wishes  to  propagate  it  among  their  posterity  j  yet 
 the  New  Testament  expressly  teacheth  us,  (Rom.  xiv. 
 1,— :6.  Col.  ii.  16.)  that  at  present  God  has  to  us  pre- 
 scribed  no  such  time,  nor  instituted  any  Sabbath,  but 
 left  all  this  to  be  regulated  by  men  themselves.  Even 
 our  celebration  of  Sunday,  although  a  very  early  prac- 
 tice, and  originating  probably  with  the  apostles  them- 
 selves, is  never  mentioned  in  their  epistles  as  a  com- 
 mand ;  and  with  the  very  same  right,  whereby  we 
 have  altered  other  parts  of  the  divine  service  of  this 
 day,  as,  for  instance,  in  the  abolition  of  the  love-jeasts, 
 we  might  still,  without  any  trespass  of  a  divine  com- 
 mand, appropriate  any  other  day,  or,  as  we  actually 
 
Art.  249.  j  Resurrection  commemorated  by  Sunday.     4.5 
 
 do,  but  half  a  day,  or  even  less,  for  the  public  worship 
 of  God. — Should  these  positions  be  doubtful,  as  in- 
 deed some  religious  sects  really  entertain  different 
 ideas  on  this  point,  one  thing  is  certain,  that  it  is  not 
 in  the  symbolic  books  of  the  Lutheran  church  ;  for 
 there  it  is  quite  explicitly  declared,  that  the  observ- 
 ance of  Sunday  is  not  an  ordinance  of  divine,  but  of 
 ecclesiastical,  law. — We  shall  now  easily  see  how  great 
 the  difference  is  to  be  accounted,  between  the  keep- 
 ing holy  a  day  by  divine  command,  and  only  by  autho- 
 rity of  that  church  which  happens  to  be  protected  by 
 the  state.  To  annex  the  punishment  of  death  to  its 
 profanation,  in  the  latter  case,  would  certainly  be  very 
 strange. 
 
 2.  Add  to  this,  as  already  remarked  more  than  once, 
 that  the  true  God  was,  in  a  civil  sense,  king  of  the 
 Israelites,  and  the  founder  of  their  government ;  so 
 that  to  disown  him  was  at  the  same  time  a  crime 
 against  the  state.  But,  as  we  have  shewn  in  Art. 
 CXCV.,  the  Sabbath  was  sacred  to  him,  the  God  who 
 made  heaven  and  earth,  and  was  to  be  a  sign  of  his 
 being  the  God  of  the  Israelites ;  and  therefore,  by 
 profanation  of  the  Sabbath,  a  man  seemingly  denied 
 the  only  true  God. 
 
 3.  The  resurrection  of  Christ,  that  fact  in  comme- 
 moration of  which  we  solemnize  Sunday,  is  a  part  of 
 revealed  religion  ;  and  yet  it  is  quite  possible  that  a 
 person,  otherwise  rational,  may  doubt  revealed  reli- 
 gion ;  for  even  in  Christian  states,  those  people  are 
 usually  tolerated,  who  are  not  Christians,  but  Jews, 
 for  example,  or  votaries  of  natural  religion.  But  what 
 the  Israelites  acknowledged  by  their  keeping  the  Sab- 
 
46  f  forking  on  Sunday,  §c.         [Art.  249. 
 
 bath,  namely,  the  belief  of  the  God  who  made  heaven 
 and  earth,  is  a  part  of  natural  religion,  and  indeed  a 
 truth  so  evident  and  universal,  that  a  person  will  not 
 be  apt  to  call  it  in  question,  from  a  real  error  of  the 
 understanding. 
 
 4.  Among  us,  many  people  may,  from  intolerable 
 languor,  be  tempted  to  work  on  Sunday,  especially 
 where  refinement  in  doctrine  represents  amusements 
 and  social  meetings,  as  profanations  of  that  day.  But 
 this  could  not  be  the  case  by  the  Mosaic  regulation, 
 according  to  which,  the  Sabbath  was  at  the  same  time 
 a  day  on  which  amusements  and  feasts  were  autho- 
 rized. 
 
 All  this,  however,  would  perhaps  be  still  unsatisfac- 
 tory, had  every  work  on  the  Sabbath,  undertaken 
 from  the  mere  love  of  gain,  been  punishable  with 
 death.  I  do  not  however  believe  that  this  was  really 
 the  case  here,  but  am  of  opinion,  that  the  penal  law 
 relative  to  the  profanation  of  the  Sabbath,  should  be 
 understood  in  no  other  sense  than  the  other  laws  are, 
 to  the  class  whereof  it  belongs ;  that  is,  only  of  its 
 presumptuous  profanation  in  defiance  of  the  law. — ■ 
 Had  any  one,  out  of  avarice,  worked  privately  in  his 
 own  house,  it  could  not  possibly  be  said,  that  he  had 
 transgressed  the  law  of  the  Sabbath  tcith  a  high  hand  ; 
 particularly  when  we  consider  that  this  expression,  in 
 Hebrew,  includes  in  other  places  the  idea  of  what  is 
 'public  and  unconcealed,  Exod.  xiv.  8.  In  fact,  it  were 
 quite  sufficient  to  observe,  that  Moses  makes  this  re- 
 striction, with  respect  to  the  whole  class  of  capital 
 crimes  against  the  ceremonial  law  ;  but  it  is  to  be  re- 
 marked besides,  that  the  principal  passage  in  which, 
 
Art.  249.]     Gathering  Sticks  on  the  Sabbath.  47 
 
 the  punishment  of  the  sabbath-breaker  is  flxt,  (Numb, 
 xv.  32, — 36.)  immediately  follows  these  words  :  Who- 
 ever, whether  native  or  stranger,  presumptuously  trans- 
 gresseth  the  law,  despiseth  Jehovah,  and  shall  be  extir- 
 pated from  among  his  people  ;  for  he  hath  despised  the 
 word  of  Jehovah,  and  broken  his  commandment.  Such 
 a  man  shall  be  extirpated,  and  to  no  one  but  himself  im- 
 pute thou  this,  ver.  30,  31.  And  when  we  are  in- 
 formed immediately  after,  that  the  Israelites  had  dis- 
 covered a  man  collecting  wood  on  the  Sabbath-day, 
 &c.  &c.  we  cannot  but  think  the  story  expressly  in- 
 troduced in  illustration  of  the  preceding  law. 
 
 The  example  just  mentioned,  is  at  the  same  time 
 the  only  instance  in  the  whole  of  the  Old  Testament, 
 of  the  infliction  of  capital  punishment,  on  account  of" 
 a  breach  of  the  Sabbath.  Considering,  then,  that  we 
 find  the  prophets  frequently  preaching  against  this 
 crime,  which  of  course  was  not  a  rare  one,  we  must 
 conclude,  that  the  punishment  of  death  only  attended 
 it,  when  aggravated  by  its  publicity,  or  some  other 
 circumstance,  which  made  it  amount  to  absolute  pre- 
 sumption, and  perhaps  to  wilful  renouncement  of 
 God,  in  honour  of  whom  the  Sabbath  was  solemnized. 
 
 It  is  likewise  on  occasion  of  the  story  of  the  sabbath- 
 breaker,  that  the  particular  species  of  capital  punish- 
 ment annexed  to  the  crime  in  question  is  determined, 
 viz.  stoning,  (Numb.  xv.  32, — 36.)  as  already  re- 
 marked ;  and  as  Moses  tells  us  that  this  offender  was 
 first  put  in  prison,  because  it  was  not  yet  fixt,  or  mani- 
 fest, what  was  to  be  done  to  him,  these  words  have  com- 
 monly been  understood  in  reference  to  the  death  he 
 was  to  die.     This,  perhaps,  may  be  their  meaning ; 
 
4S  Reason  of  consulting  God  on  thai  occasion.  [Art.  24& 
 
 although  the  difficulty  could  only  have  been,  between 
 the  sword  and  stoning,  there  being  no  other  capital 
 punishments  known  in  the  Hebrew  law.  But  when  I 
 read  this  story  in  connection  with  the  statute  that  im- 
 mediately precedes  it,  it  occurs  to  me,  that  it  had  not 
 been  clear  to  them,  whether  the  crime  was  to  be  rank- 
 ed with  transgressions  committed  through  error,  and 
 which  could  be  done  away  by  an  offering  ;  or  whether 
 it  amounted  to  that  audacious  contempt  of  the  law,  to 
 which  alone  the  punishment  of  death  was  annexed ; 
 and  that,  because  they  had  not  been  able  to  arrive  at 
 certainty  respecting  this  point,  as  it  related  to  what 
 the  criminal  alone  could  know,  they  had  consulted 
 God ;  who,  as  the  searcher  of  hearts,  had  given  for 
 answer,  that  it  teas  an  act  of  presumption,  and  that 
 the  sabbath-breaker  deserved  to  die.  If  this  was 
 the  case,  it  adds  confirmation  to  what  has  been  al- 
 ready observed  ;  and  we  shall  now  the  more  fully 
 comprehend,  how  it  happened  that  the  sabbath-break- 
 er was  so  extremely  seldom  punished  with  death, 
 and  that  we  find  no  other  example  than  this  one,  of 
 any  such  punishment.  Excepting  in  the  rare  case  of 
 his  explicitly  declaring,  or  otherwise  \giving  them  to 
 understand,  that  he  worked  expressly  with  a  view  to 
 profane  the  Sabbath,  and  pour  contempt  on  religion 
 and  the  laws,  he  could  not  be  convicted  of  what  made 
 the  offence  capital,  otherwise  than  by  his  own  confes- 
 sion. If  he  denied  having  it  in  view  thus  to  outrage 
 the  law,  his  crime  came  under  the  denomination  of  an 
 error.  Numb.  xv.  27.,  which  might  be  atoned  for 
 by  means  of  an  offering ;  nor  are  we  to  account  this 
 an  unfortunate  defect  in  the  law  ;  for  even  thus  the 
 honour  of  the  Sabbath  was  expressly  upheld. 
 
Art.  250.]  Image-Worship.  49 
 
 I  really  cannot  help  thinking  that  this  was  Moses* 
 meaning  ;  and  thus,  although  in  order  to  preserve  the 
 respect  due  to  the  worship  of  the  only  true  God,  who 
 was,  at  the  same  time,  king  of  the  Israelites,  he  de- 
 nounced the  punishment  of  death  on  the  presumptu- 
 ous breach  of  the  Sabbath,  and  every  other  audacious 
 violation  of  the  ceremonial  law ;  still,  to  every  one 
 ^ho  did  not  just  say,  or  otherwise  shew  too  plainly, 
 that  he  had  it  expressly  in  view  to  manifest  his  con- 
 tempt of  the  Israelitish  religion,  he  very  considerately 
 left  a  salvo,  on  the  ground  of  his  offence  belonging  to 
 that  class,  to  which  the  law  applied  the  denomination 
 of  errors.  A  law  like  this  could  inflict  but  very  few 
 capital  punishments,  but  it  was  not,  therefore,  use- 
 less ;  for  it  prevented  people  from  breaking  the  sab- 
 bath, or  transgresing  the  ceremonial  law,  under  cir- 
 cumstances demonstrative  of  its  being  their  intention 
 to  insult  religion,  and  to  pour  contempt  on  the  laws. 
 
 Every  trespass  of  the  Levitical  law,  that  did  not 
 proceed  from  presumption,  was  termed  an  Error,  and 
 was  atonable  by  an  offering.  See  Numb.  xv.  27,  28., 
 and  Art.  CCXLIV. 
 
 ART.  CCL. 
 
 image-  Worship  a  Crime ;  but  not  so,  Fainting  and  Sculp- 
 ture.— Hieroglyphic  Stones  prohibited. 
 
 J  6.  Thus  much  concerning  idolatry,  and  what  was 
 included  in  it,  and  accounted  a  denial  of  the  true 
 God.  I  now  proceed  to  the  consideration  of  image- 
 worship. 
 
 VOL.  IV.  D 
 
50      Worship  of  the  Golden  Calf  punished.  [Art.  250, 
 
 All  manner  of  image-worship,  not  excepting  that 
 which  was  paid  to  the  true  God,  is  prohibited  in 
 Exod.  xx.  4,  5.  ;  or  if  any  doubt  remain  as  to  the 
 extent  of  the  prohibition  in  that  passage,  it  is  com- 
 pletely removed  by  the  decision  in  chapter  xxxii. ; 
 where  we  find  that  the  worship  of  a  golden  calf,  set 
 up,  certainly  not  as  the  image  of  an  Egyptian  idol, 
 but  of  Jehovah,  the  true  God,  is  imputed  to  the  Is- 
 raelites as  a  great  crime.  In  like  manner,  when 
 Moses,  in  one  of  his  last  exhortatory  addresses,  incul- 
 cates upon  the  Israelites  a  regard  to  the  command- 
 ment of  abstaining  from  image-worship,  he  brings  it 
 to  their  remembrance  that,  when  the  law  was  given  on 
 the  mount,  they  had  seen  no  image,  but  only  heard  a 
 voice ;  and  that,  therefore,  they  ought  not  to  make 
 any  representation  whatsoever  of  God  ;  Deut.  iv. 
 15, — 18.  That  this  was  not  merely  a  moral  precept, 
 but  that  image- worship  was  a  crime,  properly  so  called, 
 is  manifest  from  Exod.  xxxii.  26.  29.  -f  where  we  see, 
 that  on  account  of  their  worshipping  the  calf,  al- 
 though it  was  meant  to  represent  Jehovah,  3000  Is- 
 raelites were,  in  one  day,  put  to  death.  We  find  also, 
 that  on  occasion  of  their  swearing  to  their  laws,  they 
 were  required  to  pronounce  a  solemn  curse  on  every 
 person,  who  should  make  a  molten,  or  a  sculptured, 
 image  of  wood  or  stone,  the  ivork  of  the  hands  of  the 
 artist,  an  abomination  unto  Jehovah,  and  put  it  in  any 
 secret  place,  Deut.  xxvii.  15. 
 
 Although  no  poena  ordinaria  is  appointed  for  image* 
 worship,  yet  it  is  evident,  from  the  story  in  Exod* 
 xxxii.  just  mentioned,  that  it  was  considered  as  a  cri- 
 minal offence,  and  that  the  punishment  of  the  sword 
 
Art.  250.]  Image-  Worship  punished  with  the  Sword.  51 
 
 might  be  inflicted  upon  it.  Nevertheless,  on  that  oc- 
 casion, the  punishment  was  not  an  ordinary  one,  in- 
 flicted in  consequence  of  a  previous  judicial  investiga- 
 tion ;  but  the  Levites,  by  the  orders  of  Moses,  did 
 what  must  be  done,  when  a  tumult,  or  any  such  ex- 
 traordinary crisis  takes  place  ;  they  went  through  the 
 camp  with  arms  in  their  hands,  and  slew  every  person 
 guilty  of  image-worship,  whom  they  found  without  his 
 tent. 
 
 I  know  not  how  it  has  happened,  that  several  wri- 
 ters, and  among  them  some  men  of  real  learning,  have 
 persuaded  themselves,  or  have,  without  inquiry,  as- 
 serted, one  after  another,  that  the  Israelites  were  ab- 
 solutely prohibited  from  making,  or  having  any  image 
 whatever,  even  although  it  had  not  the  most  dis- 
 tant reference  to  the  Deity,  or  to  religion.  But  with 
 a  prohibition  so  absurd,  and  calculated  almost  to  de- 
 stroy a  common  characteristic  of  human  nature, 
 ought  no  legislator,  who  had  not  been  known  to 
 have  made  his  escape  from  Bedlam,  ever  to  be  charg- 
 ed ;  if  he  has  not  given  it  in  terms  the  most  ex- 
 plicit, and  utterly  unsusceptible  of  anv  other  expla- 
 nation. It  is  true,  I  am  far  from  thinking,  that  the 
 loss  of  the  monuments  of  the  art  of  sculpture  in  those 
 days  could  have  been  great ;  although  with  regard  to 
 painting,  I  shall  not  pass  the  same  judgment ;  because 
 there  will  always  be  found  some  geniuses  so  manifestly 
 intended  by  nature  for  painters,  that,  drawing  only 
 with  a  piece  of  coal,  they  shall,  without  any  instruc- 
 tion, and  even  without  knowing  it  themselves,  pro- 
 duce pieces  that  must  excite  our  admiration.     Bnl 
 
 n  g 
 
5L2      Images  for  Worship  alone  prohibited.  [Art.  250. 
 
 what  a  short-sighted  barbarian  would  that  legislator 
 be,  who  should,  as  far  as  in  him  lay,  preclude  his  peo- 
 ple from  ever  cultivating  the  arts  of  painting  and 
 sculpture  ?  Independent,  however,  of  its  barbarism,  any 
 such  law  would  be  altogether  repugnant  to  the  nature 
 of  man,  who,  from  his  infancy,  has  such  a  strong  pro- 
 pensity to  painting  and  sculpture,  that  whoever  thinks 
 fit  to  prohibit  these,  must,  at  the  same  time,  prohibit 
 the  amusement,  the  daily  amusement  of  children, 
 which  after  all  will  never  cease.  But  let  us  consider 
 the  passages  in  which  Moses  prohibits  images,  in  their 
 connection  with  the  context,  and  see  whether  any 
 such  exposition  ought  to  be  given  them :  We  find 
 them  (for  I  think  it  best  to  point  them  all  out  to- 
 gether) in  Exod.  xx.  4,  5.  Deut.  iv.  15, — 18.  xxvii.  15. 
 Now,  from  the  connection,  it  is  evident,  that  images 
 of  the  Deity  are  alone  spoken  of  in  all  these  passages  ; 
 and  the  man,  who,  from  the  detached  clause,  Thou 
 shalt  make  to  thyself  no  image,  concludes,  that  no 
 image  durst  have  been  painted,  or  scrawled  upon  a 
 rock,  or  cut  in  wood  or  stone,  might,  with  equal  rea- 
 son, detach  from  their  connection  the  following  words, 
 which  come  immediately  after  the  prohibition  of 
 images,  Thou  shalt  not  raise  thine  eyes  to  heaven  to  be- 
 hold the  sun,  moon,  and  stars,  and  understand  them  as 
 meant  to  imply,  that  we  were  never  to  raise  our  eyes 
 to  heaven  and  contemplate  the  sun,  moon,  and  stars, 
 but  rather  to  walk  upon  all  fours  for  ever. 
 
 If  any  farther  satisfaction  be  here  desired,  or  if  by 
 our  prejudices  with  regard  to  an  opinion,  that  we  find 
 sometimes  repeated  in  books,  we  are  too  strongly 
 carried  away,  to  be  convinced,  by  what  has  been  al- 
 
Art.  250.]  Certain  Images  made  by  God's  command.  55 
 
 ready  said,  it  may  be  still  remarked,  that  Moses  him- 
 self, by  God's  special  command,  caused  images  to  be 
 made,  and  that  too  for  the  sanctuary.  For  therein  we 
 find, 
 
 1.  Two  Cherubims,  or  Sphinxes,  placed  in  the  holy 
 of  holies,  Exod.  xxv.  18, — 20. 
 
 2.  Ornaments  in  the  shape  of  flowers,  on  the  golden 
 lamp,  Exod.  xxv.  34. 
 
 3.  Figures  of  Cherubims  embroidered  in  the  cur- 
 tain of  the  Sanctum  sanctorum,  Exod.  xxvi.  32. 
 
 4.  The  same,  on  the  hangings  of  the  sanctuary,  and, 
 
 5.  Probably  also  on  the  other  hangings,  which  were 
 ordered  to  be  embroidered  ;  Exod.  xxvi.  36.  xxvii.  16. 
 
 6.  To  this  list  may  be  added,  the  brazen  serpent, 
 Numb.  xxi.  S,  9. 
 
 Now,  can  any  one,  after  this,  allow  himself  to  be- 
 lieve, that  Moses  had  ever  meant  to  prohibit  all  man- 
 ner of  images  ?  The  Jews,  of  whose  stupidity  and  su- 
 perstition so  much  is  said,  never  understood  him  as 
 the  author  of  any  such  prohibition.  Solomon  cer- 
 tainly did  not  so  understand  him  ;  for  in  his  temple, 
 besides  the  Cherubims  in  the  Sanctum  sanctorum,  there 
 were  all  over  the  walls,  figures  of  colocynths,  flowers, 
 palm-trees,  Cherubims,  he.  and  the  Brazen  Seay  as  it 
 was  called,  rested  upon  twelve  brazen  oxen.  Ezekiel's 
 temple  in  like  manner,  had  Cherubims,  with  the  heads 
 of  men  and  lions.  Even  after  the  Babylonish  captivity, 
 no  such  prohibition  was  ever  dreamt  of.  The  golden 
 lamp  of  the  second  temple,  which  graced  the  triumph 
 of  Vespasian,  and  of  which  a  representation  is  still 
 extant  on  his  triumphal  arch  at  Rome,  has  at  its  base 
 
 D  3 
 
5i  Hieroglyphic  Figures  prohibited,     [Art.  250, 
 
 Figures  of  Sphinges*.  In  the  roof  of  the  second  tem- 
 ple there  were  also  golden  vines  with  pendant  clusters 
 of  grapes,  and  over  its  gate  there  was,  in  like  manner, 
 expanded,  a  golden  vine  with  its  grapes t.  Even  the 
 Jewish  manuscripts  of  the  Bible  are  often  ornamented 
 with  figures  of  animals,  plants,  trees,  sphinxes,  &c. ; 
 from  which  none  but  a  Tychsen  will  ever  infer,  that 
 these  manuscripts  were  made  not  by  Jews,  but  by 
 monks?.  He,  however,  is  the  first  man  upon  the 
 face  of  the  earth,  who  has  entertained  such  an  opi- 
 nion ;  for,  before  he  told  them,  mankind  did  not 
 know,  that  the  monks  of  the  middle  ages  were  such 
 eminent  Hebrasans  :  and  the  Jews  recognise  those 
 copies  of  the  Hebrew  scriptures  that  are  thus  be- 
 daubed with  figures,  as  of  Jewish  workmanship. 
 
 I  hope,  therefore,  this  error  will  no  longer  prevail, 
 and  that  no  one,  who  deigns  to  consider  the  observa- 
 tions now  made,  will  ever  impute  to  Moses  a  law  so 
 preposterous,  as  could  never  have  escaped  the  lips  of 
 the  grossest  barbarian.  At  the  same  time,  I  am  ready 
 to  admit,  what  others  have  not  remarked,  that  there  is 
 one  species  of  figures  which  he  prohibits,  namely, 
 stones  with  hieroglyphic  figures  engraven  upon  them, 
 and  which  he  denominates  Eben  Maskit,  (rtt3»©  p«)  §. 
 
 *  See  the  plate  of  it  in  Reland's  Dissertation,  Ik  Spoliis  Tcmpli 
 IlierosolymUani  en  Arcu  Titiano  Remce  conspicuis.  The  remarks  also 
 merit  perusal,  which  Dr.  Schulze  has  given,  at  p.  120,  of  his  new 
 edition  of  this  Dissertation,  (Utrecht,  1773),  in  confutation  of  the 
 common  mistake. 
 
 •f  See  Joseph.  Bell.  Jud.  v.  5.  4. — Antiq.  xv.  11.  3. 
 
 J  See  my  Oriental.  Elblioth.  part  v.  p.  23,  2  k 
 
 v  Literally,  Lapis  figures.     What  this  meant,  has  not  been  com- 
 
Art.  250.]     The  Egyptian  Hieroglyphics. 
 
 rn 
 
 The  origin  of  this  prohibition,  which  we  find  in  Lev. 
 xxvi.  1.,  and  which  was  worthy  of  an  honest  legisla- 
 tor, who  utterly  detested  all  manner  of  priestcraft, 
 and  always  endeavoured  to  keep  it  at  a  distance,  may 
 easily  be  deduced  from  that  maxim  of  the  Mosaic  le- 
 gislation, concerning  the  worship  of  one  God,  which 
 we  have  illustrated  above,  in  Art.  XXX II. 
 
 In  order  to  preserve  their  treasures  of  knowledge, 
 and  their  discoveries  in  natural  science,  the  Egyp- 
 tian priests  made  use  not  of  common  writing,  but  of 
 hieroglyphics.  With  these  they  inscribed  obelisks 
 and  walls,  even  those  of  subterraneous  vaults  and  gal- 
 leries (Syringes*),  of  one  of  which,  that  Paul  Lucas 
 saw,  he  has  given  us  a  description  ;  and  also  square 
 stones  (<rtvihMi%  which  very  much  resemble  our  grave- 
 stones. Those  monuments,  and,  if  I  might  so  call  them, 
 archives  of  their  learning  and  discoveries,  which  were 
 quite  well  understood  by  their  Literati,  and  of  which 
 the  second  class  of  priestst  were  obliged  to  keep  the 
 key,  that  is,  by  devoting  themselves  to  the  study  of 
 hieroglyphics,  were  deified  by  the  ignorant  multitude. 
 
 d  4 
 
 monly  understood,  and,  as  usual,  a  variety  of  arbitrary  conjectures 
 have  been  formed  concerning  it,  without  any  regard  to  the  usage  of 
 the  language.  In  Ezek.  viii.  8, — 11.  a  subterraneous  vault  is  de- 
 scribed, on  the  walls  of  which  were  figures  of  quadrupeds,  and 
 creeping  things,  exactly  like  those  in  Egypt,  which  are  covered 
 with  hieroglyphic  figures ;  and  in  ver.  12  it  is  called  rV!3U>n  ~\Tn, 
 Conclave  Figurarum.  Hence  Eben  Maskit  can  be  nothing  else  than  a 
 stone  with  hieroglyphics  upon  it. 
 
 *  Ammianus  Mandlinus,  xxii.  15. 
 
 f  The  i<£oy£xppxnts,  or  Connoisseurs  in  Sacred  Writing,  that 
 'is,  hieroglyphics. 
 
«5G  The  god  Thoth.  [Art.  250. 
 
 The  Egyptian  god  of  learning,  to  whom  foreign  na- 
 tions gave  the  name  of  Hermes,  or  Mercurius,  is, 
 when  they  speak  of  Egyptian  matters,  denominated 
 by  the  Egyptian  name  Thoth :  and  Jablonski*  has 
 shewn,  that  this  same  god  Thoth,  this  inventor  of  all 
 sciences,  means  nothing  more,  than  the  stones  in- 
 scribed witli  hieroglyphic  figures,  which,  in  the  lan- 
 guage of  Egypt,  are  so  called. 
 
 Now,  these  stones  with  hieroglyphic  inscriptions 
 Moses  prohibited :  and  although  the  prohibition  had 
 not  the  least  connection  with  the  great  and  primary 
 object  of  his  laws,  it  should  still  be  highly  grateful 
 to  every  liberal-minded  friend  of  learning.  For  why 
 should  any  mystery  be  made  of  the  sciences ;  or  why 
 should  astronomy,  experimental  philosophy,  (or  as  the 
 ancients  called  it,  Magic)  history,  &c.  be  veiled  in 
 hieroglyphics  ?  Why  not  rather,  in  order  to  enlighten 
 whole  nations,  write  them  in  letters,  that  every  one 
 may  read,  or,  if  we  have  any  anxiety  for  their  trans- 
 mission to  posterity,  engrave  them  in  letters  on  walls 
 and  stones  ?  Nothing,  one  would  think,  but  the  wick- 
 ed envy  of  the  learned,  could  ever  have  made  them 
 anxious  thus  to  conceal  their  secrets  from  the  people. 
 
 This,  however,  was  not  the  only  reason  for  their 
 having  recourse  to  this  laborious  artifice.  Priestcraft 
 had  also  a  share  in  it.  For,  as  I  have  already  re- 
 marked, none  but  the  priests  understood  hierogly- 
 phics ;  and  they  took  special  care  not  to  instruct  the 
 uninitiated,  or  profane.  And,  considering  that  every 
 priest  knew  so  many  things,  which  other  men  could 
 
 *  Pantheon  Egypti,  v    5. 
 
Art.  250.]  Reasons  for  prohibiting  Hieroglyphics.    57 
 
 not  know,  and  especially  with  regard  to  many  of  the 
 arcana  of  nature,  it  was  an  easy  matter  to  him  to  keep 
 the  people  under  subjection,  by  deceiving  them,  at 
 one  time  by  predictions  concerning  things,  which, 
 though  uncommon,  were  yet  quite  natural ;  and  at 
 another,  by  pretended  miracles,  which  yet  happened 
 entirely  in  conformity  with  the  usual  course  of  na- 
 ture. Let  us  only  think,  were  our  electrical  experi- 
 ments, and  the  connection  of  electricity  with  light- 
 ning, secrets  belonging  only  to  a  learned  priesthood, 
 and  not  to  be  found  in  any  books,  what  they  might 
 be  able  to  effect  by  means  of  them  ?  They  would  work 
 miracles  in  the  eyes  of  the  ignorant,  and.  destroy  in- 
 fidels, and  even  kings,  in  an  instant,  by  the  lightnings 
 of  the  Deity. 
 
 Now,  this  sole  consideration  would  be  sufficient  to 
 render  so  dangerous  an  archive  of  science,  detesta- 
 ble to  every  real  friend  of  mankiud ;  and  as  Moses 
 had  been  educated  in  the  learning  of  the  Egyptians, 
 it  therefore,  redounds  so  much  the  more  to  the  honour 
 of  his  laws,  that  in  this  point  they  exhibit  a  perfect 
 contrast  to  the  policy  of  Egypt,  and  prohibit  all  re- 
 course to  its  chief  artifice.  Had  Moses  been  only  a 
 wise  and  benevolent  impostor  ;  had  he  given  himself 
 out  for  a  divine  messenger,  without  being  so,  and 
 merely  from  love  to  an  oppressed  people  ;  and  had 
 his  miracles  been  nothing  more  than  human  devices, 
 it  is  scarcely  conceivable,  how  he  could  ever  have 
 gone  the  length  of  abolishing  an  expedient  so  art- 
 fully contrived,  and  so  favourable  to  the  views  of 
 priestcraft,  for  the  concealment  of  the  sciences.  The 
 legislator,  therefore,  who  relinquished  such  an  expe- 
 
5S    Prohibition,  a  Proof  of  Moses'  Mission.  [Art.  250. 
 
 dient,  and  at  the  same  time  founded  his  polity  on  the 
 commandments  of  a  Deity,  could  be  no  impostor,  but 
 must  have  been  an  honest  man. 
 
 But,  what  is  more,  we  may  see  from  the  example  of 
 Egypt,  in  this  instance,  how  imperfectly  any  such 
 mysterious  expedient  will  ever  prove,  for  preserving 
 the  treasures  of  science  to  future  ages.  We  have 
 remaining  at  this  day  an  immense  number  of  Egyp- 
 tian hieroglyphics,  partly  on  stones,  walls,  and  obe- 
 lisks, and  partly  too  on  copper-plates,  which  have 
 been  submitted  to  all  the  literary  world  :  but  out  of 
 them  all,  no  mortal  has  hitherto  elicited  one  rational 
 sentence,  of  the  length  of  a  single  line  ;  although, 
 from  the  work  of  Horapollo,  we  know  many  particu- 
 lars, relative  to  the  meaning  of  the  individual  charac- 
 ters. The  key  having  been  once  lost,  it  is  seemingly 
 impossible  ever  to  find  it  again.  The  ancient  learn- 
 ing of  Egypt,  which  might  include  many  things  of 
 supreme  importance  to  mankind,  could  never  have 
 thus  irrecoverablyperished,  had  alphabetical  characters 
 been  inscribed  on  these  monuments.  For  such  cha- 
 racters may  always  be  decyphered ;  and  it  is  a  very 
 singular  phenomenon,  that,  whenever  correct  plates 
 of  tlje  Palmy rene  Inscriptions,  which  several  learned 
 men  had  before  attempted  unsuccessfully  to  decypher, 
 were  published  in  Wood's  Ruins  of  Palmyra,  expla- 
 nations of  them  were  at  once  given  by  two  Literati, 
 unknown  to  each  other,  namely,  by  Mr.  Sxvinton  and 
 the  Abbe  Barthelemy.  But  the  Egyptian  hierogly- 
 phics, of  which  there  are  extant,  not  a  hundred,  but  a 
 thousand,  times  as  many,  as  of  the  Palmyrene  monu- 
 ments, will,  1  fear,  remain  undecyphered  till  the  day 
 
Art.  25 1 .]  Of  Blasphemy.  59 
 
 of  judgment.  Cursed  be  the  priestcraft,  which,  from 
 jealousy  of  its  cotemporaries,  has  deprived  posterity 
 of  so  much  knowledge  ;  and  praise  to  the  honest  man, 
 who,  though  well  acquainted  with  its  artifices,  would 
 not  suffer  them  to  be  introduced  among  the  people 
 whom  he  brought  out  of  Egypt. 
 
 I  must  yet  farther  remark,  that,  with  these  hiero- 
 glyphic stones,  idolatry  was  practised.  In  Egypt 
 they  were  regarded  as  the  god  Thothy  the  god  of 
 sciences,  and,  as  late  as  the  time  of  Ezekiel,  we  find 
 an  imitation  of  this  species  of  idolatry  common  among 
 the  Jews,  and  described  in  chap.  viii.  8, — 11.  of  his 
 prophecy.  According,  therefore,  to  that  fundamen- 
 tal principle  of  the  Mosaic  polity,  which  dictated  the 
 prevention  of  idolatry,  it  became  absolutely  necessary 
 to  prohibit  stones  with  hieroglyphic  inscriptions.  Be- 
 sides, in  an  age,  where  so  great  a  propensity  to  super- 
 stition prevailed,  stones  with  figures  upon  them,  which 
 the  people  could  not  understand,  would  have  been  a 
 temptation  to  idolatry,  even  although  the  Egyptians 
 had  not  deified  them,  as  they  actually  did. 
 
 ART.  CCLI. 
 
 Blasphemy, 
 
 §  7.  Among  most  nations  blasphemy  is  regarded 
 as  one  of  the  greatest  crimes,  and  punished  capitally. 
 Whether  in  this  they  act  rationally,  and  what  force 
 there  is  in  the  objection,  that  blasphemy  does  not 
 hurt  God,  I  shall  not  here  stop  to  inquire  j  as,  per- 
 haps, some  notice  of  these  points  will  be  taken  in  my 
 
60  Blasphemy  punished  with  Death.     [Art.  251 . 
 
 proposed  Essay  on  the  Intention  of  Punishments  ;  and, 
 therefore,  I  proceed  to  observe,  that  in  the  Mosaic 
 polity,  whereby  God  became  both  King  and  Lawgiver 
 of  the  Israelites,  and  where,  of  course,  blasphemy 
 was  a  crime  against  the  state,  we  find  it,  in  like  man- 
 ner, considered  as  a  capital  crime,  and  the  punish- 
 ment of  stoning  annexed  to  it ;  Lev.  xxiv.  10, — 14. 
 
 Nor  was  the  circumstance  of  the  blasphemer  being 
 a  foreigner,  to  make  any  difference  in  the  punishment. 
 Indeed,  this  was  actually  the  case,  on  the  occasion  of 
 the  punishment  of  this  crime  being  first  settled.  A 
 man,  whose  father  was  an  Egyptian,  but  his  mother  a 
 woman  of  Israel,  had,  in  a  quarrel  with  an  Israelite, 
 blasphemed  Jehovah.  He  was,  after  an  inquiry  into 
 the  mind  of  God,  adjudged  to  be  stoned ;  and  the 
 edict  published  on  this  occasion,  concludes  with  these 
 words,  One  uniform  law  shall  you  all  have,  foreigners 
 as  well  as  natives  ;  for  I  am  Jehovah  your  God.  Al- 
 lowing that  a  foreigner  does  not  believe  in  our  God, 
 although,  indeed,  with  regard  to  the  God  of  Israel  this 
 was  not  likely  to  happen,  because  Paganism  was  syn- 
 ergistic, and  did  not  deny  the  divinity  of  other  gods  j 
 and,  besides,  the  Israelites  believed  in  the  God  who 
 created  the  world,  and  whom  we  know,  and  acknow- 
 ledge from  reason,  without  revelation  ;  but  allowing, 
 I  say,  a  foreigner  to  be  an  infidel,  still  he  has  no  right 
 to  insult  the  people,  under  whose  protection  he  lives, 
 by  blaspheming  the  object  of  their  veneration,  and 
 whose  name  they  held  supremely  sacred. 
 
 Some  have  understood  the  passages  in  Exod.  xxii. 
 27.  (Eng.  Bib.  28.)  and  Lev.  xxiv.  15.  which,  lite- 
 rally rendered,  are  to  this  effect,  The  gods  thou  shall 
 
Art.  251.]     Josephus  <§•  Philo  on  Blasphemy.  61 
 
 not  curse,  nor  shall  thou  imprecate  evil  on  the  princes  of 
 thy  people,  and,  Whoever  blasphemeth  his  god,  shall 
 atone  for  his  crime;  as  if  blaspheming  even  the  gods 
 of  the  heathen  had  been  prohibited.  It  would  appear 
 that  both  Philo  and  Josephus  had  been  of  this  opinion. 
 The  former  *  thinks  that  the  Deity  should  be  to  us 
 an  object  of  such  sacred  veneration,  as  that  we  ought 
 not  even  to  blaspheme  what  is  erroneously  accounted 
 divine  j  and  that  the  heathen  would,  out  of  zeal,  and 
 by  way  of  retaliation,  blaspheme  the  true  God,  if  he 
 heard  the  Jew  blaspheming  his  gods.  The  latter,  in 
 detailing,  in  his  Antiquities,  the  laws  of  Moses,  quotes 
 this  as  one  of  them,  "  No  man  shall  blaspheme  those 
 "  that  are  accounted  gods  by  other  cities ;  nor  shall 
 "  any  man  be  guilty  of  sacrilege  in  strange  sanctua- 
 •*  ries,  or  purloin  what  is  consecrated  to  a  god  t ;" 
 and  in  his  treatise  against  Apion,  he  has  these  words : 
 "  The  Jews  adhere  to  the  customs  of  their  fathers, 
 •'  without  concerning  themselves  with  those  of  stran- 
 V  gers,  or  deriding  them.  Their  legislator  expressly 
 "  prohibited  them  from  deriding  or  blaspheming  those 
 "  whom  others  accounted  gods,  and  that,  out  of  re- 
 "  spect  to  the  name  Gods,  which  they  bore  t." — 
 Now,  I  readily  acknowledge  that,  in  many  cases,  such 
 a  law  is  rational  and  equitable.  If  people  of  different 
 religions  are  to  live  together  in  the  same  country,  or 
 if  they  have  therein  civil  rights,  confirmed  by  com- 
 
 *  See  his  Vita  Monis,  lib.  iii.  p.  IQQ.  of  Part  II. ;  and  his  treatise, 
 De.  Monorchia,  lib.  i.  p.  219. 
 
 f  Joseph.  Antiq.  lib  iv.  c.  8.  $  10. 
 
 t  — — —  Contra  Apion,  lib.  ii,  c,  35, 
 
62         German  Law  respecting  Blasphemy.  [Art.  251. 
 
 pact,  as  is  the  case  with  the  three  religions  of  Ger- 
 many, one  man  must  not  blaspheme  the  gods  of  ano- 
 ther, or,  if  he  does,  the  latter  will  not  be  blamed  for 
 avenging  with  his  own  hand  such  a  gross  insult,  for 
 which  the  laws  afford  him  no  satisfaction.  If  he  will 
 not  do  so,  the  laws  will  be  under  the  necessity  of  ap- 
 pointing some  punishment  suited  to  the  greatness  of 
 the  insult,  as  he  conceives  it  to  be.  Thus  here  in 
 Germany,  where  Protestants  and  Catholics  live  toge- 
 ther, and  where  the  peace  of  religion  gives  both  equal 
 security  and  protection  against  insults,  the  former 
 must  never  blaspheme  the  things  which  the  latter 
 count  holy,  although  they  are  quite  at  liberty  to  say 
 that  they  do  not  hold  them  to  be  so  ;  and  even  a  Pro- 
 testant magistrate  would  be  obliged  to  punish,  if  the 
 Catholics  complained  of  it,  any  outrage  offered  them, 
 or  blasphemy  uttered  against  them.  The  matter  be- 
 comes still  more  serious,  where  one  of  the  two  reli- 
 gions is  merely  tolerated,  and  w7here  that  happens  to 
 be  the  prevailing  system,  whose  gods  or  holy  things 
 are  blasphemed.  For,  to  pour  contempt  upon,  or  utter 
 blasphemy  against,  the  gods,  how  false  soever  they 
 may  be,  of  those  under  whose  protection  we  live,  is 
 one  of  the  most  unreasonable  and  rudest  offences,  of 
 which  we  can  be  guilty  against  our  protectors.  In 
 this  very  situation  were  the  Jews  actually  placed,  when 
 Philo  and  Josephus  wrote.  They  were  subjected  to 
 the  Romans,  and  a  great  many  of  them,  besides,  lived 
 without  the  limits  of  Palestine  in  heathen  countries; 
 and  there  certainly  they  had  no  title  to  blaspheme 
 the  heathen  gods. 
 To  a  case,  however,  like  this,  the  laws  of  Moses 
 
Art.  251.]    Mosaic  Laxc  suitable  tc/ien  given.  G3 
 
 have  not  the  most  distant  reference.  lie  gave  them 
 not  to  a  nation  subjected  to  foreign  dominion,  but  to 
 a  free  people  that  were  masters  of  their  own  country ; 
 and  thither  he  had  no  desire  to  invite  or  attract  stran- 
 gers, but  rather  wished  the  people  to  occupy  the  land 
 alone ;  although,  at  the  same  time,  he  wished  stran- 
 gers, who  took  refuge  in  it,  treated  with  justice  and 
 kindness.  But  to  no  foreign  religion  did  he  give  the 
 smallest  privilege,  and  all  manner  of  idolatry  he  pro- 
 hibited. If  the  stranger  was  in  his  heart  a  friend  to 
 Paganism,  Moses  never  inquired  into  his  private  opi- 
 nion. He  was  quite  ignorant  of  any  such  tiling,  and 
 gave  it  no  legal  protection.  In  such  circumstances, 
 his  laws  on  the  point  in  question,  as  they  are  suscep- 
 tible of  another  exposition,  ought  not,  as  it  appears 
 to  me,  to  be  understood  in  the  sense  which  Philo  and 
 Josephus  attached  to  them,  and  which,  no  doubt,  was 
 sufficiently  suitable  to  their  times  ;  but  more  especially 
 considering  that  Moses  himself,  rarely  indeed,  it  is 
 true,  but  still  sometimes,  applies  contemptuous  names, 
 to  the  gods  of  the  heathens ;  as  we  see  in  Deut.  vii. 
 26.  xxvii.  15.  xxix.  16.  xxxii.  16,  17. 
 
 That  the  statutes  in  question,  which  have  thus  been 
 considered  as  prohibitory  of  the  blasphemy  of  strange 
 gods,  do  admit  another  meaning,  is  beyond  a  doubt. 
 The  one  of  them,  in  Exod.  xxii.  27.  Tliou  shalt  not 
 aa^se  the  gods,  explains  itself  by  the  clause  that  fol- 
 lows ;  gods  being  here  nothing  else  than  magistrate*, 
 who,  as  we  have  noticed  under  Art.  XXXV.  No.  2., 
 bore  that  name  in  the  Egyptian  style.  The  other  pas- 
 sage, in  Lev.  xxiv.  15.,  IVhocver  blaspliemetJi  //is  God* 
 cannot  be  at  all  suitably  understood  of  strange  <j;ods  ; 
 
64  Blaspheming  the  Gods — What?     [Art.  251. 
 
 because  in  blaspheming  them,  an  Israelite  certainly 
 did  not  blaspheme  his  own  god.  Nor  had  the  Egyp- 
 tian, whose  story  we  noticed  above,  blasphemed  any 
 Egyptian  god,  but  Jehovah  the  God  of  Israel. — Philo, 
 who  probably  felt  the  force  of  this  objection,  found  it 
 necessary  to  explain  this  passage,  of  proselytes,  who, 
 therefore,  were  not  to  revile  the  gods  whom  they  had 
 formerly  held,  when  heathens.  But  still  these  were 
 not  now  their  gods. — In  short,  the  prudent  Jews,  who 
 no  doubt  perceived  not  only  the  folly,  but  also  the 
 injustice,  of  blaspheming  heathen  gods,  when  they 
 lived  under  a  heathen  government,  and  enjoyed  its 
 protection,  appear  to  have  given  to  the  laws  of  Moses, 
 about  the  time  when  they  came  under  the  Roman 
 sway,  a  sense  which  Moses  himself  could  never  have 
 thought  of. 
 
 It  is  with  more  hesitation,  and  not  without  danger, 
 that  I  venture  to  adopt,  in  regard  to  another  law,  a 
 Jewish  explanation,  which  has  been  commonly  ridi- 
 culed as  a  piece  of  mere  superstition.  The  law  to 
 which  I  allude,  is  that  in  Lev.  xxiv.  16.  which  de- 
 clares that  whoever  shall  utter  the  name  Jehovah  shall 
 die  ;  the  whole  congregation  shall  stone  him  :  foreigner 
 as  "well  as  native  shall  die,  if  he  utter  the  name  Jehovah. 
 Instead  of  utter,  we  may  translate  curse,  for  the  He- 
 brew word  Nakab  (2pJ),  signifies  both,  and  then  we 
 shall  have  the  blasphemer  spoken  of  a  second  time ; 
 but  to  this  translation  there  seems  to  be  this  objection., 
 that  the  16th  verse  would  thus  be  nothing  but  a  need- 
 less repetition  of  the  preceding  one.  Thus  much  is 
 certain,  that  at  a  very  ancient  period,  long  before  the 
 birth  of  Christ,  the  Jews  understood  the  law  before 
 
Art.  251 .]       The  word  Jehovah  prohibited.  65 
 
 us,  as  if  it  prohibited  them  from  uttering  the  name 
 Jehovah,  which  the  true  God  had  given  himself,  as  his 
 vomen  proprium,  on  any  other  than  solemnly-sacred, 
 or,  at  any  rate,  sacred  occasions  ;  and,  of  course,  from 
 ever  naming  him  at  all  in  common  life.  The  Greek 
 version,  ascribed  to  the  persons  called  the  Seventy 
 Interpreters,  and  which  was  made  at  least  250  years 
 before  Christ,  here  renders,  Whoever  nameth  the  name 
 of  the  Lord  shall  die  ;  and  we  see  that,  by  this  time, 
 the  Jews  were  accustomed,  wherever  they  found  the 
 word  Jehovah  in  the  Bible,  to  pronounce,  instead  of  it, 
 the  name  Adonai,  C^"1**)  or  Lord :  for,  in  place  of 
 Jehovah,  (!T.!T)  the  Seventy  always  put,  'o  Kv^og.  Philo, 
 who  lived  in  the  time  of  Christ,  explains  the  passage, 
 connecting  it  with  the  preceding  verse,  in  the  follow- 
 ing terms,  Strange  gods  are  not  to  be  blasphemed,  lest 
 men  should  be  accustomed  to  think  meanly  of  the  Deity. 
 But  if  any  one,  (I  do  not  say  blaspheme,  for  that  is 
 not  here  in  question,  but)  even  so  much  as  utter  unsea- 
 sonably the  name  of  the  Lord  of  men  and  gods,  he  shall 
 die*.  We  may,  therefore,  approve  of  this  explana- 
 tion, or  not  as  we  please  ;  but  we  must  not  look  upon 
 it  as  a  piece  of  superstition  originating  with  the  Jews, 
 who  lived  after  the  destruction  of  Jerusalem,  and 
 whose  opinions,  in  regard  to  the  Mosaic  law,  I  do 
 not,  for  the  most  part,  so  much  as  notice. 
 
 This  prohibition  of  uttering  the  name  of  God,  whe- 
 ther it  please  us  or  not,  does  not,  by  any  means,  ap- 
 pear altogether  improbable  ;   for  it  is  in  conformity 
 
 VOL.  IV.  E 
 
 *  Philonis  Opera  II.  p.  16Q. 
 
66  Reasons  for  the  Prohibition.        [Art.  251. 
 
 with  the  customs  and  legislative  policy  of  the  Egyp- 
 tians, who  had  secret  names  for  their  gods,  which  it 
 was  lawful  for  the  priests  alone  to  pronounce  ;  no  man 
 being  permitted  to  do  so  in  common  life.  And,  in 
 like  manner,  Rhadamanthus,  who  herein  wished  to  imi- 
 tate the  Egyptians,  would  not,  on  occasions  of  taking 
 oaths,  allow  the  names  of  the  gods  to  be  mentioned, 
 but  only  those  of  the  animals  consecrated  to  them, 
 such  as  dogs,  rams,  geese,  &c. 
 
 Nor  would  I  be  disposed  to  maintain,  that  no  ad- 
 vantage could  flow  from  such  a  prohibition.  For,  in 
 the  first  place,  that  name  of  the  Deity,  which  was 
 considered  as  his  proper  name,  would  be,  at  any  rate, 
 thereby  guarded  from  profanations  and  misapplica- 
 tions, which  sometimes  leave  behind  them  ludicrous 
 and  contemptuous  impressions,  that  can  never  be 
 effaced ;  and,  in  an  age  when  Polytheism  was  so  pre- 
 valent, this  was  a  matter  of  much  more  importance 
 than  at  present ;  for  then  GOD  was  not,  as  with  us  in 
 Germany,  equivalent  to  a  nomen  proprktm,  but  every 
 god,  whether  true  or  false,  had  his  own  peculiar  name  ; 
 and  hence  we  rind  Moses  addressing  the  God  who 
 appeared  to  him,  and  who  declared  himself  the  God 
 of  his  fathers,  and,  of  course,  the  creator  of  heaven 
 and  earth,  and  the  only  true  God  j  and  asking  him 
 what  answer  he  should  return  to  the  Israelites,  if 
 they  wished  to  know  what  was  his  name,  Exod. 
 iii.  13. 
 
 In  the  second  place,  a  name  of  i)ie  deity,  which  is 
 never  mentioned  in  common  life,  will  have  something 
 extremely  solemn  in  it,  particularly  where  it  is  so  sig- 
 nificant, as  was  the  word  Jehovah.     It  will,  of  course, 
 
Art.  251.]  Author's  opinion  changed  on  this  point.    67 
 
 in  worship,  in  prayer,  and  in  the  case  of  an  oath, 
 make  so  much  the  deeper  impression  ;  and  that,  with 
 respect  to  the  last  of  these,  may  serve  to  prevent  per- 
 jury, or,  at  least,  to  make  it  but  rare  :  for  whatever  is 
 unknown  and  uncommon,  affects  the  human  heart 
 with  terror  and  with  awe. 
 
 In  fact,  I  myself,  believed  that  this  law  ought  to  be 
 understood  in  this  way,  when  I  was  translating  the 
 book  of  Leviticus,  about  three  years  ago  ;  but  since 
 that  time,  the  consideration  of  the  great  severity  of 
 the  punishment  has  raised  a  doubt  in  my  mind  on  this 
 point.  Moses  prohibits  naming  the  name  Jehovah  ; 
 but  was  that  to  be  a  capital  crime?  If  so,  where  was 
 there  any  gradation  of  punishments  ;  stoning  being 
 thus  the  punishment  of  the  blasphemer  of  God,  and 
 of  the  man  also  who  but  uttered  his  name  ? — But  this 
 doubt  becomes  still  weightier,  when  we  read  both 
 verses,  namely,  verses  15.  and  16.  of  Lev.  xxiv.  to- 
 gether. And  here  I  must  acknowledge  a  mistake  in 
 my  translation  :  for  the  words  in  ver.  1 5.  he  shall  bear 
 his  sin,  I  rendered  periphrastically,  he  shall  atone  for 
 his  crime,  because  I  adhered  to  the  common  opinion, 
 that  they  related  to  the  stoning,  which  was  adjudged 
 as  the  punishment  of  the  blasphemer.  If,  however, 
 I  translate  the  passage  quite  literally  thus,  Whoever 
 blasphemeth  his  God,  shall  bear  his  sin.  Whoever  utters 
 the  name  Jehovah,  shall  die  ;  the  whole  congregation 
 shall  stone  him ;  it  looks  as  if  the  utterer  of  the  name 
 was  to  be  punished  differently  from,  and  more  severely 
 than,  the  blasphemer ;  as,  indeed,  Philo  has  remark- 
 ed, though  with  quite  another  view*.     But  then,  it  is 
 
 e  2 
 *  See  Tom,  i.  p.  166. 
 
68       Doubts  Froposed,  ivith  their  Solution.  [Art.  251* 
 
 to   be  considered,   further,  that  the  crime  is  not  so 
 much  as  distinctly  expressed  unless  we  explain  the  1 6th. 
 verse  by,  and,  in  some  measure,  include  it  in,  the  one 
 before  it.  The  verb  Nahab  may  as  well  mean  to  writers 
 to  utter ;  and,  therefore,  even  writing  the  name  Jeho- 
 vah, might  seem  to  have  been  prohibited ;  and  yet 
 Moses  has  done  that  in  every  page  of  his  writings. 
 Let  it,  however,  be  rendered  utter ;  was  then  all  ut- 
 terance of  the  name  Jehovah  forbidden  ?  How  then 
 was  it  to  be  used,  and  for  what  purpose  did  God  as- 
 sume it?  This  law,  then,  is  surely  to  be  understood 
 with  some  limitation  ?  But  with  what  limitation  ?  Was 
 the  priest  alone  to  utter  the  name,  as  the  Jews  think  ? 
 or  durst  laymen  also  utter  it,  if  they  only  did  so  in  a 
 holy  manner  ?  Durst  it  be  mentioned  in  an  oath,  or  in 
 prayer  ?  Was  it  permitted  in  instructing  children  ?  or 
 was  only  the  inconsiderate  use  of  it  prohibited  ?  With 
 regard  to  all  this,  we  find  nothing  in  this  law,  and  yet 
 it  is  the  only  one  that  treats  on  this  subject ;  nor  is  it 
 like  other  laws,  illustrated  by  usage  ;   for  the  name  Je- 
 hovah was  new,  and  it  was  Moses  who  first  distinguish- 
 ed the  God  who  sent. him,  by  this  philosophically-sub- 
 lime and  expressive  title.     Here,  then,  we  should  have 
 some  crime,  to  which  the  punishment  of  death  was  an- 
 nexed, and  yet  it  was  not  rightly  understood  what  it 
 was,  nor  wherein  it  consisted. 
 
 These  doubts  have  prompted  me  to  connect  the 
 16th  verse  more  closely  with  the  15th  ;  so  that,  to 
 utter  the  name  Jehovah,  becomes  equivalent  to  uttering 
 it  in  blasphemy ;  and  this  explanation  is  the  more  pro- 
 bable, because  in  the  story  which  gave  occasion  to  the 
 law,  we  find,  ver.  11.,  that  the  Egyptian  had  uttered 
 the  ?iame,  and  blasphemed.     The  meaning  then  of  the 
 
Art.  251.]     New  Exposition  of  Lev.  xxiv.  1G.         69 
 
 words,  of  which  I  shall  first  give  a  literal  translation 
 thus, — A  man,  a  man,  (that  is,  any  man  whatever, 
 whether  native  or  stranger)  who  blaspheme th  his  God, 
 shall  bea?*  his  sin,  and  whoever  uttereth  the  name  Jeho- 
 vah shall  die ;  the  whole  congregation  shall  stone  him — 
 will  be  the  following :  "  If  any  man  blaspheme  God, 
 "  the  God  whom  he  deems  his  God,  (the  Israelite,  the 
 '*  true,  and  the  heathen  a  false  God)  it  is  a  heinous 
 "  sin.  It  is  a  sin  even  in  the  heathen,  to  blaspheme 
 "  what,  according  to  his  own  opinion,  is  god.  Such 
 "  a  person  shall  not  escape  his  judge ;  although  the 
 "  magistrate  has  no  right  to  interfere  in  the  matter, 
 M  but  must  leave  it  to  the  true  or  false  God,  that  he 
 "  may  be  his  own  judge.  It  is,  besides,  uncertain, 
 "  whom  the  man  may  have  meant,  when  he  cursed 
 "  God,  and  here  the  law  assumes  the  milder  supposi- 
 *'  tion.  But  if  any  one,  in  blaspheming,  expressly 
 "  mention  the  name  Jehovah,  so  that  no  doubt  can 
 11  remain,  whether  he  meant  to  blaspheme  the  true  or 
 "  a  false  God,  he  shall  be  stoned  to  death." 
 
 In  this  way  the  criminal  law,  with  respect  to  blas- 
 phemers, would  undergo  a  very  material  alteration  ; 
 nor  would  it  be  every  blasphemy,  but  only  that  which 
 was  distinguished  by  a  certain  specific  aggravation, 
 that  incurred  capital  punishment  ;  all  other  cases 
 being  left  to  the  judgment  of  God,  because  the  blas- 
 phemer cannot  be  convicted  of  having  blasphemed  the 
 true  God,  and  because  God  is  certainly  able  to  avenge 
 himself,  if  he  think  fit,  without  having  occasion  for 
 our  aid;  Judg.  vi.  30,  31.  And  this  appears  quite 
 suitable  to  the  spirit  of  those  times,  and  is  a  great 
 mitigation  of  the  rigour  of  the  law.     In  our  times,  a 
 
 E  3 
 
70  False  Prophets  punished  capitally.     [Art.  252. 
 
 legislator  would,  perhaps,  grant  to  the  blasphemer  the 
 salvo  of  not  being  in  his  right  mind. — At  any  rate, 
 blasphemy,  inferred  merely  by  deductions,  or  what  is 
 called  blasphemous  doctrine,  could  not  be  punished 
 by  the  law.  In  later  times,  the  Jews  were  extremely 
 prone  to  construe  every  thing  that  did  not  please 
 them,  at  once  into  blasphemy ;  and  their  Zealots,  as 
 they  were  called,  arrogated  to  themselves  the  right  of 
 punishing  on  the  spot,  and  without  the  smallest  judi* 
 cial  inquiry,  any  supposed  blasphemy ;  although  per- 
 haps they  had  stopt  their  ears  against  it,  and  were, 
 therefore,  but  bad  judges  of  its  real  nature.  Both 
 the  one  and  the  other  of  these  measures  are  repug- 
 nant to  the  Mosaic  statute.  Even  the  utterer  of  ag- 
 gravated blasphemy  was  not  put  to  death  on  the  spot, 
 but  taken  into  custody,  until  God  could  be  consulted 
 as  to  his  fate.  We  must  not,  therefore,  charge  the 
 Mosaic  law  with  those  illegal  outrages,  to  which  the 
 zeal  of  the  later  Jews  prompted  them  to  resort. 
 
 ART.  CCLII. 
 
 Punishment  of  the  False  Prophet,  when  convicted. 
 
 §  8.  It  appears,  from  Deut.  xviii.  20, — 22.  that  a 
 false  prophet  was  punished  capitally,  being  stoned  to 
 death  ;  and  there  were  two  cases  in  which  a  person 
 was  held  as  convicted  of  the  crime,  and,  of  course, 
 liable  to  its  punishment. 
 
 If  he  had  prophesied  any  thing  in  the  name  of  any 
 other  god,  whether  it  took  place  or  not,  he  was,  at  all 
 events,  considered  as  a  false  prophet,  and,  as   such 
 
Art.  252.]  Cases  of  False  Prophets.  7  j 
 
 stoned  to  death  ;  Deut.  xiii.  2, — 6.  The  doctrine  of 
 the  existence  of  one  only  God,  who  made  heaven  and 
 earth,  is  so  evident  from  reason  alone,  that  the  acci- 
 dental fulfilment  of  any  prophecy  cannot  make  it 
 anywise  dubious,  or  convince  us  that  there  is  any 
 other  god,  besides  the  creator  of  the  world.  Prognos- 
 tications may  be  fulfilled,  if  not  by  chance,  (which, 
 indeed,  does  not  so  often  happen)  yet  still  by  means 
 altogether  natural  ;  and  for  this  very  reason,  that  the 
 impostor,  who  utters  them,  takes  care  to  prognosti- 
 cate things  which  are  matters  of  calculation,  and 
 which  he  has  himself  calculated,  although  they  are 
 unknown  to  the  ignorant  multitude  ;  such,  for  exam- 
 ple, as  are  solar  or  lunar  eclipses,  among  a  people 
 quite  unenlightened.  On  this  point  the  reader  will 
 find  some  farther  remarks,  in  my  note  on  the  passage 
 last  referred  to.  Now,  this  very  doctrine,  that  there 
 is  no  God,  besides  the  creator  of  the  world,  was  also  so 
 fundamentally  established  by  the  Mosaic  laws,  that, 
 in  the  case  of  a  man  prophesying  in  the  name  of 
 another  god,  no  farther  inquiry  was  made,  as  to  his 
 being  an  impostor,  or  a  true  prophet,  but  he  was  at 
 once  held  to  be  an  impostor,  and  a  corrupter  of  the 
 people.  And  precisely  in  the  same  way  would  we 
 reason  at  this  day,  and  not  Christians  only,  but  even 
 the  votaries  of  natural  religion,  if  a  prophet  appeared 
 speaking  in  the  name  of  a  heathen  god.  Without 
 deigning  to  investigate  his  pretensions,  we  should  at 
 once  declare  him  an  impostor,  or  else  wrong  in  the 
 head. 
 
 2.  If  a  prophet  spake  in  the  name  of  the  true  God, 
 lie  enjoyed,  so  long  as  he  remained  unconvicted  of 
 
 E  4 
 
72  Mischiefs  occasioned  by  False  Prophets.  [Art.  252. 
 
 any  imposture,  those  rights  which  were  stated  under 
 Art.  XXXVI. ,  and  which  were  founded  in  the  consti- 
 tution of  the  Israelitish  polity ;  and  he  could  not  be 
 punished :  but  when  the  event  which  he  had  predict- 
 ed, did  not  come  to  pass,  he  was  regarded  as  an  auda- 
 cious impostor,  and,  as  such,  stoned  ;  Deut.  xviii. 
 21,  22. 
 
 In  both  cases  there  is  an  obvious  exception  in  fa- 
 vour of  a  person  out  of  his  wits  ;  such  a  person  not 
 being  capable  of,  or  answerable  for,  any  crime.  This 
 exception  Moses  does  not,  indeed,  make  in  express 
 terms,  any  more  than  he  does  in  the  case  of  other 
 crimes  ;  yet,  as  we  cannot  suppose  the  insane  son  who 
 strikes  his  parents,  as  justly  punishable  with  death,  as 
 if  he  were  in  his  senses,  so  neither  can  we  the  insane 
 prophet.  In  fact,  however,  the  exception  is  implied 
 in  the  expression,  the  prophet  is  an  audacious  impostor, 
 or,  more  literally,  the  prophet  hath  spoken  presumptu- 
 ously :  for  these  terms  are  not  applicable  to  a  mad- 
 man ;  and,  besides,  we  see  from  Jerem.  xxix.  26., 
 that  in  the  case  of  prophets  that  were  deemed  insane 
 and  fanatics,  capital  punishments  were  not  resorted 
 to,  but  only  imprisonment,  just  as  among  ourselves.' 
 
 Considering  the  great  mischief,  which  false  pro- 
 phets may  occasion  by  their  predictions,  and  concern- 
 ing which  I  shall  offer  some  observations  in  the  next 
 Article,  capital  punishments  are,  by  no  means,  too 
 severe  for  them  ;  particularly  when  we  take  into  the 
 account,  that  this  is  not  a  crime,  into  which  a  man  is 
 hurried  by  the  violence  of  passion,  but  which  he  goes 
 about  deliberately,  and  with  systematic  artifice.  If, 
 ;n  these  times,  we  do  not  punish  false  prophets  so^e* 
 
Art.  252.]  Mischiefs  occasioned  by  False  Prophets,  73  . 
 
 verely,  or  rather,  do  not  punish  them  at  all,  but  leave 
 them  to  universal  contempt,  the  reason  is,  that  this 
 contempt  is  now  always  so  prepared  to  inflict  the  well 
 merited  punishment  on  would-be  prophets,  that  the 
 full  avengement  of  their  insults  on  common  sense  may 
 be  safely  entrusted  with  it ;  not  to  mention,  that  now- 
 a-days,  seldom  is  so  much  heard  of  a  false  prophet,  as 
 that  he  can  do  any  mischief.     The  world  has  become 
 too  rational   for   such   practices.      For   this   reason, 
 wicked  impostors  are  no  longer  apt  to  deal  in  prophe- 
 cies, because  they  know  that  but  little  is  to  be  gained 
 by  them  ;  and  so  the  business  is  now  commonly  left 
 to  fanatics,  like  Drabitzhts,  who  are  rather  objects  of 
 compassion  than  punishment,  though,  indeed,  his  pre- 
 dictions  a'ctually  cost  him  his   head  ;  or  to  deluded 
 enthusiasts  from  the  mountains  of  Cevennes. — In  an- 
 cient times,  however,  and  among  a  people,  to  whom 
 true  prophets  were  promised,  matters  were  in  all  re- 
 spects on  a  different  footing.     The  discovery  of  fu- 
 ture  events   was  almost  looked   upon   as  a  service, 
 which    religion    had   to   perform    for   them  ;     (Art. 
 XXXVI.)  and  prophets  being  expected,  not  on  ex- 
 traordinary, but  on  ordinary  occasions,  a  false   pro- 
 phet was  always  likely  to  meet  with  encouragement ; 
 and  the  world  was  then  so  credulous,  that  he  had  it 
 in  his  power  to  do  all  manner  of  mischief.     Under 
 such  happy   auspices,  impostors    of  this  description 
 played  their  parts,  and   thus   often   involved  whole 
 countries  in  calamity. 
 
74  iMiscJticfs  of  Divination,  $c.        [Art.  253. 
 
 ART.  CCLIII. 
 
 Remarks  on  the  Mischiefs  which  False  Predictions  and 
 Superstitious  Divination,  may  occasion  among  a  cre- 
 dulous people. 
 
 §  9.  Concerning  those  tremendous  mischiefs,  which 
 may  proceed  either  from  the  public  predictions  of 
 false  prophets,  or  from  the  secret  practice  of  supersti- 
 tious arts,  such  as  fortune-telling,  astrology,  and  divi- 
 nation of  all  sorts,  I  may  here,  perhaps,  be  allowed  to 
 offer  some  remarks,  because  in  our  times  these  things 
 are  no  longer  known  in  their  full  extent  and  magni- 
 tude ',  and  hence  those  ancient  laws,  which  menaced 
 impostors  with  death,  may   appear  too  severe.     On 
 this  occasion,  however,  I  do  not  mean  to  speak  of 
 such  impostures,  as  public  oracles,  divinations  from  sa- 
 crifices, and  inspections  of  Sybilline  books,  &c,  car- 
 ried on  under  the  superintendance  of  the  state ;  and 
 which,  though  they  may  be  used  as  means  for  destroy- 
 ing the  liberties  and  rights  of  a  nation,  do  not,  after 
 all,  occasion  them  the  worst  mischiefs  ;  because  they 
 are  regulated  by  political  prudence. — Concerning  im- 
 postures of  this  nature,  I  have  already  spoken,  at  the 
 conclusion  of  Art.  CCXLVI.     At  present,  my  busi- 
 ness is  with  those  of  the  contrary  description ;  that 
 is,  where  it  is  not  state  policy  that  regulates  the  ora- 
 cle, but  the  oracle  that  regulates  the  state  policy  ; 
 and  where  the  arts  of  divination  are  practised,  not 
 publicly,  and  under  the  inspection.of  a  Roman  senate  ; 
 but  privately,  whether  in  low  life,  or  in  the  cabinet 
 
Art.  253.]  Turkey  nearly  ruined  by  Prophecies.       75 
 
 of  a  weak  credulous  tyrant,  before  whom  a  Roman 
 senate  must  sink  into  the  dust. 
 
 In  the  first  place,  then,  in  the  case  of  whole  na- 
 tions ;  how  great  are  the  calamities  wherewith  such 
 impostures  may  overwhelm  them  ?  Of  this  we  have  a 
 very  strong  proof  in  the  recent  conduct  of  the  Turk- 
 ish empire ;  which,  in  opposition  to  all  the  dictates 
 of  political  prudence,  and  trusting  for  success  merely 
 to  prophecies  and  to  astrological  observations,  to  the 
 study  of  which  the  late  learned  Sultan  was  much  ad- 
 dicted, embarked  in  a  war  with  Russia,  which  was 
 likely  to  have  terminated  even  more  unfortunately  for 
 the  Turks  than  it  has  done  ;  and  yet  the  peace  which 
 they  have  just  concluded,  is  sufficiently  disadvanta- 
 geous. They  may,  however,  be  thankful,  and  think 
 themselves  in  luck  :  for  matters  were  in  so  desperate 
 a  state  with  them,  that  the  fulfilment  of  the  predic- 
 tion of  certain  apocalyptical  counter-prophets,  who 
 announced  the  immediate  destruction  of  the  Turkish 
 empire,  might  actually  have  been  looked  for.  The 
 first  of  these  prophets,  a  preacher  in  Mecklenburg, 
 fixed  the  era  of  that  event  for  the  year  1773  ;  others 
 postponed  it  until  1774;  and  then  appeared  another 
 fool,  who  gave  the  poor  Turks  yet  another  year's 
 respite,  and  prolonged  their  existence  until  1775. — 
 And  here,  I  cannot  but  observe,  what  a  fine  Bedlam- 
 scene  we  have,  in  this  instance,  between  the  Turkish 
 and  Christian  prophets  from  their  respective  cells;  the 
 sole  difference  between  them  being,  that,  among  us, 
 they  can  never  do  any  mischief,  because  they  are  only 
 laughed  at ;  whereas  to  the  Turks,  they  had  well 
 nigh  occasioned  complete  national  ruin. — The  impos- 
 
16  Ariovistus  ruined  by  Female  Astrologers.  [Art.  253. 
 
 tor,  who  thus  overwhelms  a  country  with  misery,  may 
 perhaps  be  withal  himself  a  dupe,  and  believe  in  as- 
 trology ;  but  this  makes  no  difference  at  all  as  to  the 
 mischievous  effects  of  his  predictions. 
 
 Croesus  and  Pyrrhus  had  the  weakness  to  consult 
 foreign  oracles,  who,  not  at  all  concerned  for  the  in- 
 terests of  their  kingdoms,  but  only  for  their  own  pro- 
 fit, and  future  credit,  took  care,  if  their  responses 
 wrere  ambiguous,  that  they  should,  at  any  rate,  be  ap- 
 parently flattering.  The  consequence  was,  that  both 
 these  monarchs  were  involved  in  calamitous  wars. 
 
 How  many  battles  may  not  be  lost  through  the 
 fault  of  diviners,  either  by  their  prompting  to  an  im- 
 prudent attack,  and,  perhaps,  specifying  a  certain  day 
 as  propitious  for  it,  which  makes  it  be  hurried  on,  un- 
 der disadvantageous  circumstances ;  or  by  discourag- 
 ing an  army  on  the  very  day  of  decision,  and  when  an 
 engagement  cannot  be  avoided.  Perhaps  Ariovistus 
 might  not  have  lost  the  battle,  which  he  fought  with 
 Ccesar,  if  the  Germans  of  those  days  had  not  been 
 dupes  to  the  decisions  of  female  astrologers. 
 
 One  of  the  most  striking  examples  of  the  mischief 
 done  by  these,  worse  than  silly,  arts,  occurs  in  the  his- 
 tory of  Rome,  in  the  circumstances  that  attended  Cae- 
 sar's death.  At  this  period  the  people  of  all  ranks,  in 
 Italy,  from  the  hovel  up  to  the  throne,  were  just  as  su- 
 perstitious as  they  were  irreligious  ;  and  put  such  im- 
 plicit faith  in  those  called  Chaldwans  and  Mathemati- 
 cians, that,  in  order  to  bring  about  any  mischief,  these 
 impostors  had  nothing  more  to  do,  than  predict  it.  We 
 '  wonder  that  a  soothsayer  should  have  been  able  to  give 
 Caesar  a  warning  on  the  very  day  of  his  murder,  and  that 
 
Art.  253.]  Ccesar's  death — Germanicus*  bewitchment.  77 
 
 the  event  should  have  corresponded  so  exactly,  with  a 
 premonition  drawn  from  an  art  which  is  merely  delusory. 
 But  might  not  the  warning  have  actually  caused  the 
 catastrophe  ?  Many  were  the  daggers,  which  discon- 
 tented citizens   had  in  readiness  for  Cassar,  besides 
 those  wherewith  he  was  that  day  assaulted.     But  then 
 they  wanted  courage  to  strike  the  blow,  until  it  was 
 now,  in  effect,  given  by  the  man,  who  declared  the 
 day  inauspicious  to  Caesar.     Csesar  himself  ridiculed 
 the  folly  of  divination,  and  went  to  the  senate-house  ; 
 but  the  conspirators  might  have  believed  in  it ;  and 
 those,  to  whom  this  appears  impossible,  have  only  to 
 read  the  story  of  the  bewitchment  of  Germankus,  (not 
 his  being  poisoned,  for  of  poison  we  hear  not  a  word, 
 but  only  of  images  and  billets  on  the  wall,)  as  it  is  re- 
 lated by  Tacitus,  the  most  rational  of  all  the  Roman 
 authors  of  that  period  ;  and  he  will  not,  perhaps,  be 
 any  longer  of  opinion,  that  Brutus,  or  his  accomplices, 
 were  too  sensible  and  judicious,  to  be  carried  away  by 
 any  such   nonsense.     And  if  they  were  not  so,  the 
 soothsayer,  who  warned  Caesar,  certainly  w*as,  I  will 
 not  say  designedly,  but,  at  any  rate,  accidentally,  his 
 murderer.     Let  us  only  put  this  case  ; — were  number- 
 less people  on  the  watch  for  my  life,  and  only  pre- 
 vented by  fear  from  making  the  attempt;  and  were  it 
 but  whispered  abioad,  that  on  such  and  such  day  there 
 could  be  no  danger  in  attacking  me,  and  that  I  should 
 then  assuredly  die ;  would  not  all  the  daggers  of  m\ 
 enemies  be  then  drawn,  and  some  one  or  other  of 
 ihem  dispatch  me  ?  In  such  circumstances,  that  man's 
 life  alone  will  be  secure,  to  whom  it  is  not  a  matter 
 of  much  concern,  that  others  are  watching  for  the 
 
78      Cause  of  Imperial  Tyranny  at  Home.  [Art.  253. 
 
 happy  moment,  when  they  may  have  it  in  their  power 
 to  take  it  away. 
 
 We  are  apt  to  reflect  with  astonishment,  that  for  200 
 years,  we  should,  in  reading  the  history  of  Rome, 
 meet  with  such  a  succession  of  perfect  tyrants,  as  the 
 annals  of  no  other  nation  of  the  world  can  perhaps 
 parallel.  It  is  very  possible  that  the  Roman  histo- 
 rians may  have  written  partially,  and  been  guilty  of 
 exaggeration,  though  this  reproach  cannot  be  cast 
 upon  Tacitus  ;  but  after  due  allowance  for  this,  thus 
 much  will  still  remain  true,  that  the  two  centuries  in 
 question  produced  numerous  emperors,  on  whom  pos- 
 terity has  bestowed  the  appellation  of  Tyrants.  But 
 it  was  not  at  all  wonderful,  that  this  period  should 
 have  given  birth  to  so  many,  or  even  still  more,  ty- 
 rants, and  enemies  not  only  of  Rome,  but  also  of  all 
 the  world  that  was  within  their  reach.  Rome,  desti- 
 tute of  all  religious  principle,  believed  in  the  tales  of 
 Chaldeans  and  Mathematicians,  whose  sole  object  it 
 was  to  make  money,  and  who,  therefore,  made  it  their 
 business  to  cxpiscate  family  secrets,  and  get  thorough- 
 ly acquainted  with  the  circumstances  of  all  ranks. 
 Exactly  in  the  style  of  our  modern  parasites,  who  ex- 
 tol the  understandings  of  their  patrons  as  divine,  and 
 applaud  their  erotic  or  bachanalian  poems  as  more  ex- 
 quisite even  than  their  wines,  those  rascals  wTould,  to 
 touch  his  money,  tell  one  man,  that  he  had  an  impe- 
 rial nativity,  and  so  compel  him  to  aspire  to  the  throne; 
 to  another  they  would  say,  that  a  certain  day  would 
 be  dangerous  for  the  emperor,  or  his  favourite :  and 
 such  intimations  seldom  failed  to  have  their  effects. 
 By  such  prognostications,  whispered,  as  they  were,  in 
 
Ait.  253.]  Cause  of  Imperial  Tyranny  at Rome.      7«j 
 
 the  deepest  secrecy,  numberless  machinations  were 
 set  on  foot  against  the  lives  of  the  emperors,  of  which 
 some  became  known,  and  still  more  were  suspected  ; 
 and  was  it  then  wonderful,  that  they  became  distrust- 
 ful, or,  in  other  words,  enemies  of  all  mankind  ?  But 
 hitherto  we  see  only  one  half  of  this  mournful  scene  ; 
 it  was  never  fully  developed,  while  the  emperors  ridi- 
 culed those  superstitious  practices  :  but  unfortunate- 
 ly, in  consequence  of  the  many  predictions  that  hap- 
 peried  to  be  verified,  they  too,  at  last,  began  to  imi- 
 tate their  subjects,  in  giving  into  what  we  should  call 
 nothing  better  than  old  wives'  weakness,  and  consulted 
 those  impostors,  in  order  to  learn,  from  what  quarter 
 danger  threatened  them.  On  such  occasions  the 
 Chaldeans  were  obliged  to  say  something  or  other, 
 else  could  they  not  expect  to  be  paid ;  and,  there- 
 fore, they  told  them  the  dangers,  and  described  the 
 persons  they  had  to  dread,  taking  care,  however, 
 secundum  artem,  to  shroud  their  answers  in  dark  and 
 ambiguous  language.  Thus  were  they  safe,  and  re- 
 ceived rewards  from  their  trembling  employers,  who 
 applied  their  descriptions  alike  to  those  whom  they 
 had,  and  whom  they  had  not  in  view,  and  as  we  may 
 easily  conceive,  upon  the  great  principle  of  self-pre- 
 servation, rather  wished  to  take  such  people  out  of  the 
 way,  than  fall  themselves  into  their  hands.  Thus  they 
 perpetrated  acts  of  the  grossest  injustice  and  cruelty, 
 thinking  them  necessary  in  self-defence  ;  and,  in  pro- 
 cess of  time,  merely  from  the  gradual  extension  of 
 their  suspicions,  became  enemies  of  mankind,  and 
 tyrants,  such  as  we  can  no  longer  breed. 
 
 Let  us  only  figure  to  ourselves   the  state  of  that 
 
80    Conduct  of  the  Emperors  not  wonderful.  [Art.  c253. 
 
 mans's  mind,  whose  situation  should  oblige  him  to  have 
 daily  intercourse  with  people  of  whom  he  believed, 
 that  many  carried  daggers,  or  pistols,  in  order  to  at- 
 tempt his  life.      Possessed  of  this  gloomy   idea,   he 
 would  unquestionably  regard  all  around  him  with  the 
 eyes  of  suspicion  and  terror  ;  society  he  would  detest, 
 and   hold  mankind  in  abhorrence.     And  how  much 
 more  so,  were  a  pair  of  bullets  to  be  ever  let  fly  at 
 him,  and  not  to  hit  him  ?  That  would  justify  and  aug- 
 ment his  suspicions ;  though,  perhaps,  excepting  the 
 author  of  that  attempt  alone,   not  one  individual  of 
 those,  from  whom  he   apprehended  similar  dangers, 
 and  whose  society  he  could  not  avoid,  ever  meditated 
 any  evil  against  him.     Yet,  putting  ourselves  in  his 
 place,  would  we  not  think  it  prudent  to  have  sword 
 and  pistols  at  hand,  and  always  to  be  in  a  posture  of 
 defence  ?  and  from  the  influence  of  habitual  fear,  and 
 ever  suspecting  the  worst,  would  we  not,  in  the  case 
 of  seeing   any  one  put  his  hand  suspiciously  in  his 
 pocket,  though  perhaps  but  in  search  of  his  handker- 
 chief, rather  anticipate  than  be  anticipated,   and  so 
 shoot  him  dead  ?  In  thus  acting,  we  should,  no  doubt, 
 be  called,  not  tyrants,  but  madmen :  but  such  is  the 
 madness,  that  astrology,   chiromancy,  and   such  like 
 silly  arts,  may  occasion.     In  this  situation  were  many 
 of  the  Roman   emperors,   whom  we  denominate  ty- 
 rants, actually  placed ;  and,  perhaps,  in  spite  of  our 
 good  nature,  we  ourselves,  might,  in  similar  circum- 
 stances, have  been  just  as  bad.     Nothing  but  a  high 
 degree  of  courage,  and  a  contempt  of  dangers,  both 
 real  and  imaginary,  such  as  marked  the  character  of 
 Trajan*  could  have  kept  them  from  becoming  tyrants* 
 
Art.  253.]    Effects  of  Divination  on  common  Life.     31 
 
 If  we  ride  with  loaded  pistols  through  a  wood,  and  a 
 blackguard-looking  fellow  accompanying  us,  make 
 any  suspicious  manoeuvre,  it  really  requires  a  consider- 
 able share  of  courage  and  self-command,  to  abstain 
 from  discharging  them  ;  particularly  if  a  person  of  the 
 same  description  has  been  previously  represented  to 
 us  as  a  highwayman. — Often  were  the  Mathemati- 
 cians banished  from  Italy,  (just  as  we  are  told  that 
 the  present  Turkish  Sultan  has  driven  the  astrologers 
 from  his  court)  ;  but  curiosity,  and  the  desire  of  pry- 
 ing into  future  events,  always  opened  a  back-door  for 
 their  re-admission.  At  the  same  time,  the  instances 
 of  their  expulsion  are  sufficient  to  shew,  how  sensible 
 mankind  were  of  the  mischiefs  they  occasioned. 
 
 The  very  same  mischievous  efFects  of  divinations, 
 naturally  extend  to  families  in  the  inferior  classes  of 
 society ;   and  we  thus  often   find  express  instances, 
 where,  as  Ovid  says,  Filius  ante  diem  in  patrios  inquirit 
 annos.     In   such   cases,    the  prediction  often  brings 
 about  its  own  fulfilment.     Thus,  if  a  man  has  it  pro- 
 phesied to  him,  that  he  will  die  in  such  and  such  a 
 year,  the  very  dread  of  that  event  will  induce  a  dis- 
 ease, and  render  it  mortal.     A  very  singular  example 
 of  this  occured  to  Dr.  Wedeln,  who  cured  a  disease, 
 by  demonstrating  to  his  patient  the  inanity  of  astrolo- 
 gical predictions  of  death. — People,  who  wrish  no  ill  to 
 each  other,  become  enemies,  in  consequence  of  the 
 diviner  telling  each  of  the  other,  that  he  has  reason  to 
 be  afraid  of  him.     For  this  he  is  paid,  and  most  unfor« 
 tunately  the  indications  which  he  specifies,  prove  di- 
 rectly applicable. — Nuptial  fidelity  is  violated,  by  the 
 encouragement  which  he  gives  to  such  unhallowed 
 
 VOL.  IV.  F 
 
82      Superstitions  exploded  by  Christianity.  [Art.  253. 
 
 attempts;  nuptial  happiness  blasted  by  the  unjust  sus- 
 picions he  insinuates ;  and  nuptial  engagements  bro- 
 ken off,  by  his  merely  saying,  while  yet  he  knows 
 nothing  at  all  about  the  matter,  The  object  of  your 
 love  has  no  regard  for  you.  How  great,  in  like  man- 
 ner, is  the  mischief  he  occasions,  when  in  the  case  of 
 any  such  crime  as  theft  being  committed,  his  avarice 
 leads  him,  though  utterly  ignorant  of  the  fact,  to 
 bring  innocent  persons  under  suspicions,  to  which, 
 perhaps,  they  have  it  not  in  their  power  to  reply  ?  In 
 such  a  case,  it  certainly  would  not  be  unjust  that  he 
 should  himself  be  subjected  to  the  punishment  of  the 
 crime,  which,  by  his  means,  has  been  fastened  on  the 
 innocent,  whether  he  has  expressly  named  them,  or 
 only  so  described  them,  as  to  make  them  be  sus- 
 pected. 
 
 The  Christian  religion,  which,  where  it  is  taught  in 
 its  native  purity,  rejects  all  such  fooleries,  has  made 
 our  times  wiser  ;  to  which  also  the  cultivation  of  phi- 
 losophy and  natural  history,  have  contributed  their 
 share  ;  so  that  we  no  longer  find  such  frequent  in- 
 stances of  the  mischiefs  occasioned  by  the  silly  curi- 
 osity of  prying  into  future  events  -,  and  the  Roman 
 history,  during  the  times  of  the  first  Caesars,  still 
 continues  the  chief  scene  of  them. 
 
 In  the  days  of  Moses,  superstition  was,  as  it  were, 
 the  sensus  communis  of  the  human  race ;  and  all  the 
 neighbouring  peoples  believed  in  divinations  :  so  that 
 wTe  cannot  justly  blame  him  for  annexing  to  the  prac- 
 tice of  all  such  arts  of  imposture,  severe  punishments  ;. 
 to  which,  now,  that  instruction,  contempt  of  supersti- 
 tion, and  ridicule,  sufficiently  counteract  their  effects, 
 xce  have  no  longer  any  occasion  to  resort. 
 
Art.  254.]  Different  species  of  Divination  prohibited.  83 
 
 ART.  CCLIV. 
 
 The  Mosaic  Statutes  against  Divinations,  and  the  Pu- 
 ?iishrnent  of  Diviners. 
 
 §  10.  To  ascertain  and  describe  the  different  spe- 
 cies of  divination,  against  which  Moses  has  given  laws, 
 belongs  more  properly  to  antiquities,  than  to  our 
 present  subject,  and  would,  besides,  involve  philolo- 
 gical disquisitions,  with  which  the  majority  of  my 
 readers  will  gladly  dispense.  In  my  opinion,  exclu- 
 sive of  what  he  includes  under  the  general  term  divi- 
 nations, he  names  several  particular  species  ;  such  as, 
 divinations  from  serpents,  from  the  course  of  the 
 clouds,  and,  perhaps,  too,  from  inspection  of  entrails ; 
 not  to  mention  necromancy,  or  the  consultation  of  the 
 dead,  by  summoning  them  to  appear,  as  in  the  in- 
 stance recorded  in  the  xxviii.  chapter  of  1  Samuel*; 
 for  which  purpose,  a  living  person,  duly  pre-instruct- 
 ed,  might  be  stationed  in  some  deep  subterraneous 
 passage,  and  give  his  answers  in  the  tone  and  lan- 
 guage of  the  dead.  Of  astrology  Moses  makes  no 
 express  mention  in  his  laws,  unless  the  word,  which 
 I  understand  of  divination  from  entrails,  were  to  be 
 understood  of  it,  which,  perhaps,  it  might  j  only  that 
 in  the  prophet  Isaiah  it  appears  as  a  Babylonian  folly, 
 Isa.  xlvii.  12,  13. 
 
 f2 
 
 *  See  the  Notes  on  this  chapter  in  my  German  version- 
 
34  Saul's  inconsistency—the  Witch  o/'Endor.  [Art.  254. 
 
 Now,  all  these  vain  arts  in  order  to  pry  into  futuri- 
 ty, and  all  divination  whatever,  unless  where  God  was 
 consulted  by  prophets,  or  by  Urim  and  Thummim,  (the 
 sacred  lot,  kept  by  the  high-priest)  were  expressly 
 prohibited  by  the  statutes  of  Lev.  xix.  26.  31.  xx.  6. 
 23.  27.  and  Deut.  xviii.  9,— -12. 
 
 In  the  case  of  a  person  transgressing  these  laws,  by 
 consulting  a  diviner,  God  reserved  to  himself  the  in- 
 fliction of  his  punishment ;  the  transgressor  not  being 
 amenable  to  the  secular  magistrate  ;  Lev.  xx.  6. — The 
 diviner  himself  was  to  be  stoned  ;  Lev.  xx.  27. 
 
 After  the  law  on  this  point  had  apparently  gone 
 very  much  into  desuetude,  Saul,  the  first  of  the  kings, 
 began  to  enforce  it  again  with  great  rigour.  But  the 
 power  of  prejudice,  when  once  any  superstition  has 
 been  adopted  by  the  generality  of  mankind;  and  the 
 disease,  (we  might,  in  many  cases,  almost  call  it  the 
 phrenzy)  of  prying  into  futurity  ;  are  strikingly  exem- 
 plified in  his  conduct.  He  had  persecuted  the  diviners 
 of  both  sexes,  and  put  the  laws  against  them  in  execu- 
 tion ;  and  yet,  when  he  was  now  on  the  eve  of  an  en- 
 gagement with  the  Philistines,  which,  it  appears,  he 
 could  not  possibly  avoid,  and  which  was  likely  to 
 prove  alike  decisive  and  dangerous,  he  had  the  weak- 
 ness, to  go  himself  to  a  female  necromancer,  and  re- 
 quested her  to  call  up  Samuel  the  prophet.  This 
 she  did ;  and,  although  I  cannot  say  that  Samuel  ap- 
 peared (for  Saul  saw  him  not,  but  only  the  woman 
 herself)  yet  he  spoke  with  the  king.  In  this  process 
 did  Saul,  who  seems,  by  no  means,  to  have  been  de- 
 ficient in  personal  courage,  spend  the  night  before  the 
 battle ;  which  he  would  have  spent  much  better  at  a 
 
Art.  254.3  The  Witch  of  Endor.  85 
 
 council  of  war,  or  in  bed,  like  Alexander,  the  night 
 before  the  battle  of  Arbela.  Samuel,  whom  he  mere- 
 ly heard,  without  seeing  him,  announced  to  him,  that 
 lie  would  sustain  a  great  defeat,  and  be  slain  in 
 the  battle.  It  would,  indeed,  appear,  that  circum- 
 stances were  such,  that  a  defeat  might  naturally  have 
 been  apprehended ;  but,  allowing  that  they  had  been 
 otherwise,  still  the  unfavourable  prediction  of  an  im- 
 postor, who  pretended  to  be  Samuel,  implicitly  be- 
 lieved by  Saul,  must  almost  necessarily  have  produced 
 it.  The  superstitious  monarch,  who,  although  he  had 
 to  fight  a  battle  next  day,  thus  wearied  himself  out 
 the  night  before  in  consulting  the  dead,  in  one  of  these 
 deep  subterraneous  caverns,  wherein  they  usually  re- 
 side, fell  prostrate  on  the  ground  for  fear,  at  all  his 
 length,  when  he  heard  the  voice  of  the  pretended 
 Samuel ;  came  to  the  field  quite  dejected,  and  fright- 
 ened to  death  ;  and  the  utmost  length  to  which  his 
 personal  courage  carried  him,  was  to  impel  him, 
 without  flinching,  into  the  place  of  greatest  dangers ; 
 that  he  might  fall  not  as  a  fugitive,  but  as  a  comba- 
 tant ;  since  it  was  to  be,  as  he  knew,  his  fate  to  fall, 
 and,  along  with  his  sons,  to  eat  his  supper  in  the  sub- 
 terraneous world.  He  accordingly  did  fall,  and 
 thereby  made  the  enemy's  victory,  and  the  helpless- 
 ness of  the  discomfited  Israelites,  so  much  the  great- 
 er.— All  this  was  nothing  more  than  the  natural  effect 
 of  the  imposture,  which  the  female  necromancer,  or, 
 as  she  is  commonly  called,  the  JVitcli  of  Endor,  had 
 practised  upon  him.  She  probably  meant  him  no 
 evil,  but  merely  made  the  invisible  Samuel,  for  the 
 honour  of  her  trade,  say,  in  the  gloom  of  the  cavern, 
 
 f  3 
 
86  Incantations.  [Art.  255. 
 
 what,  in  the  present  posture  of  his  affairs,  she  thought 
 highly  probable  ;  more  especially  after  she  had  heard 
 what  Saul  himself  declared.  For,  with  all  such  impos- 
 tors, down  to  the  quack-doctor,  who  sells  medicines  to 
 the  country  people,  the  primary  point  is  to  elicit  in- 
 formation ;  and  with  that  view  they  generally  have 
 listening  apartments,  where  they  can  over-hear  every 
 thing  said  by  their  unsuspecting  dupes. 
 
 ART.  CCLV. 
 
 Incantations. 
 
 §11.  There  certainly  is  no  such  thing  as  real  in- 
 cantation or  witchcraft ;  nor  could  any  thing  be  more 
 foolish,  or  more  cruel,  than  were  those  trials  for 
 witchcraft,  which,  before  the  time  of  Thomasias,  were 
 in  general  use  almost  every  where,  and  are  sometimes 
 still  carried  on  in  defiance  of  sound  reason  ;  and  by 
 which  any  person  who  fell  under  suspicion,  became 
 subjected  to  an  inquisition,  as  to  his  being  in  compact 
 with  the  devil ;  a  point  which  was,  of  course,  made 
 out,  but  by  very  strange  proofs  indeed. — But  notwith- 
 standing this,  we  cannot  say,  that  there  ought  to  be  no 
 laws  against  incantations;  such,  at  any  rate,  as  may  pro- 
 hibit knaves  from  tampering  with  the  credulity  of  the 
 people,  and  making  them  believe,  that  they  possess 
 the  power  of  enchantment ;  only  they  ought  to  be 
 levelled  at  once  against  those,  who  make  such  pre- 
 tences, to  frighten  others  ;  and  not  at  every  person, 
 whom  his  neighbours,  without  any  fault  of  his,  are 
 pleased  to  consider  as  a  wizzarcl. 
 
Art.  255."]  Such  impositions  ought  io  be  repressed.     8T 
 
 Such  a  pretence,  putting  the  matter  in  a  religious 
 view  out  of  the  question,  is,  to  say  the  least,  a  gross 
 imposition  upon  the  public  ;  nor  are  they  bound,  how 
 great  soever  their  simplicity,  to  tolerate  every   one 
 that  chuses  to  deceive  them ;  but  more  especially  an 
 impostor,  who,  by  assuming  the  character  of  a  con- 
 jurer, may  make  himself  of  great  consequence  among 
 ignorant  people,  and  thus  do  much  mischief,  both  to 
 the  community,  and  to  individuals.     For  how  many 
 will,  through  the  mere  fear  of  becoming  the  objects  of  a 
 neighbour's  incantations,  suffer  the    most  ridiculous 
 tortures,  or,  in  other  words,  be  made  really  miserable? 
 Now,  as  no  man  has  a  right  thus  to  terrify  others,  we 
 must  either  be,  by  the  aid  of  laws,  placed  beyond  the 
 reach  of  such  wanton  cruelty,  or  else  we  shall  return 
 in  so  far  to  the  state  of  nature,  as  not  only  to  resort 
 to  defence,  but  even  to  revenge,  against  those  who 
 thus  practice  upon  our  fears.     The  case  is  much  the 
 same,  as  when  a  person  puts  on  the  dress  of  a  ghost, 
 in  order  to  scare  us.     For  fear  is  both  an  evil  in  itself, 
 and  the  source  of  other  evils  also,  insomuch  as  even 
 to  occasion  death. — Add  to  this,  that  those  who  are 
 called  wizzards,  occasion  mischief,  not  by  the  help  of 
 the  devil,  but  by  various  natural  means,  unknown  to 
 others ;    and  only  make  use  of  the  devil's  name  to 
 conceal  their  artifices.     The  Latin  terms,  maleficium> 
 and  veneficium,  express  this  species  of  witchcraft  very 
 distinctly. 
 
 So  much  then,  for  incantation  in  general,  against 
 which  statutes  are  always  the  more  requisite,  in  pro- 
 portion as  the  ignorance,  credulity,  and  fears  of  the 
 people  are  greater.     I  have  now  to  make  some  re- 
 
 f4 
 
8S  Witchcraft  a  sort  of  Idolatry.      [Art.  255. 
 
 marks  on  its  different  forms,  and  its  relation  to  the 
 laws,  in  our  days  and  those  of  Moses.  At  present  it 
 is  commonly  ascribed  to  the  devil,  and  termed  the 
 Devil's  Art ;  nay,  the  very  word  expressive  of  incan- 
 tation, namely,  Zauberey,  is  said  to  be  derived  from 
 Zabel,  which  is  but  another  pronunciation  of  7*eufel, 
 (devil)  ;  and  hence,  zealous  theologists  formerly 
 maintained  the  reality  of  witchcraft,  almost  as  stre- 
 nuously as  an  article  of  faith  ;  only  that  they  ac- 
 counted that  man  a  monster  of  impiety,  who  could 
 form  any  compact  with  God's  enemy.  We  must, 
 however,  entertain  very  different  sentiments  on  this 
 point,  in  reference  to  the  time  of  Moses.  For,  in  the 
 Biblical  writings  prior  to  the  Babylonish  captivity,  we 
 meet  with  very  little  notice  of  the  devil ;  and  it  would 
 seem,  that  the  effects  which  he  could  produce  on  the 
 material  world,  were  considered  as  but  very  trifling. 
 The  wizzards  of  those  days  rather  ascribed  the  effica- 
 cy of  their  conjurations  to  other  gods;  and,  therefore, 
 in  the  Israelitish  polity,  witchcraft  was  commonly  ac- 
 counted a  species  of  idolatry,  and,  of  course,  most 
 severely  punishable.  Hence,  orthodox  theology,  in 
 the  time  of  Moses,  could  look  upon  it  in  no  other 
 light  than  an  imposture  :  for  no  one  could  maintain, 
 that  it  operated  preternaturally,  without  admitting 
 the  existence  of  other  gods,  and  their  power  over  the 
 material  world. 
 
 In  the  Mosaic  laws,  what  we  denominate  incanta- 
 tion, or  witchcraft,  is  only  twice  mentioned,  and  pro- 
 hibited, namely,  in  Exod.  xxii.  17.  and  Deut.  xviii. 
 10,  1J.  I  must  here  take  some  notice  of  the  two 
 names  which  Moses  gives  to  this  species  of  imposture, 
 
Art.  255.]   Keschef,  a  termfor  certain  incantations.    89 
 
 and  which  may  sometimes  be  used  with  some  dis- 
 tinction, but  are,  in  the  Bible,  usually  put  in  a  more 
 extensive  sense  for  incantation  in  general.  They  serve, 
 however,  in  some  measure  to  shew  us  what  sorts  of 
 incantations  were  then  most  common,  and  so  gave  a 
 name  to  the  others. 
 
 The  frst  of  them  is  Keschef,  (H^-)  incantation,  and 
 hence  Mecasschef,  (pp-ty  an  inchanter,  or,  in  the  fe- 
 minine, Mecasschefa,  (i"W5!D)  a  witch.  The  verb 
 Casschaf,  or,  as  in  Arabic,  it  is  pronounced  Casaf 
 signifies,  in  that  language,  to  cut,  and  hence  they  say, 
 God  cuts  the  sun,  or  the  moon,  that  is,  an  eclipse  takes 
 place,  during  which  but  a  part  of  these  luminaries  is 
 visible,  the  remainder  appearing  as  if  cut  off.  From 
 this  circumstance  eclipses  of  the  sun  or  moon  are 
 themselves  called  Cusuf — I  do  not,  in  general,  appeal 
 to  the  Rabbins ;  either  to  those  who  are  introduced 
 as  speaking  in  the  Talmud,  or  even  to  Maimonides, 
 who  is,  in  many  respects,  justly  held  in  estimation  ; 
 because  they  are  too  modern  to  serve  as  authorities 
 on  the  subject  of  this  work  ;  I  may  here,  however, 
 observe,  that  what  they  say,  on  the  point  now  in  ques- 
 tion, accords  with  the  account  here  given,  making 
 allowance  for  their  usual  mixture  of  nonsense,  which, 
 in  the  present  case,  involves  one  great  absurdity. 
 According  to  them,  then,  Mecassclwfim,  are  those 
 who  malce  nature  lie,  and  do  the  reverse  of  what  is  re- 
 solved in  the  council  of  the  watchers,  who  move  the  ce- 
 lestial spheres,  whereas  man  ought,  in  justice,  to  leave 
 nature  as  she  is.  We  easily  see  here  what  sort  of 
 people  they  are  supposed  to  be,  who  occasion  eclipses 
 of  the  sun  and  moon,  contrary  to  nature.     This  is  a 
 
90    Chober  Chaber,  a  term  for  incantations.  [Art.  Z55, 
 
 job  which  every  mortal  ought  to  let  alone ;  but  the 
 enchanter  pretends  to  effect  it,  and  thereby  gives  oc- 
 casion to  the  concluding  clause  of  the  silly  doctrine 
 of  the  llabbins. — But  this  is  not  the  place  to  intro- 
 duce tiresome  Talmudical  details,  and  I  must  refer  the 
 reader  for  farther  satisfaction  to  BuxtorPs  Lexicon 
 Clialdaico-Rabbimcum,  under  the  word  £}tt?5  ;  content- 
 ing myself  with  this  remark,  as  flowing  from  these 
 philological  particulars  ;  namely,  that  the  word  seems 
 in  the  Bible,  to  mean,  a  person  who  occasions  solar 
 or  lunar  eclipses,  that  is,  from  his  astronomical  pre- 
 science of  their  approach  ;  making  all  manner  of 
 grimaces,  singing  songs,  and  so  affecting  to  enchant 
 the  celestial  bodies.  Now,  among  nations  unac- 
 quainted with  astronomy,  this  is  a  common  species 
 of  knavery,  which  gains  great  respect  to  its  author, 
 and  sometimes  gives  him  a  handle  for  all  variety  of 
 extortions  from  the  people,  that  he  may  be  prevailed 
 upon  to  relieve  the  sun  or  moon  from  that  everlast- 
 ing darkness,  in  which  by  the  mere  power  of  his  art, 
 they  would  otherwise  remain  involved. 
 
 The  second  expression  used  by  Moses  on  this  sub- 
 ject is  Chober  Chaber,  p35  "OS)  the  man  who  ??iakes, 
 or  utters  a  song  of  enchantment.  This  probably  took 
 place  in  most  kinds  of  incantation  ;  but  the  only 
 case  in  which  we  find  songs  of  enchantment  mentioned 
 in  the  later  books  of  the  Bible,  nominatim,  is  where 
 the  conjuration,  or  charming,  of  serpents  is  spoken  of 
 in  Psal.  lviii.  5,  6.  Eccles.  x.  11. ;  perhaps,  because 
 this  species  of  conjuration  alone,  being  quite  harm- 
 less, and  mere  juggling,  might  be  tolerated,  if  there 
 appeared  nothing  idolatrous  in  the  songs.    It  is  com- 
 
Art.  255.]  Charming  of  Serpents.  91 
 
 mon  all  over  the  East,  where  there  are  snakes,  and 
 principally  where  they  are  most  poisonous.  The  jug- 
 gler, who  means  to  pass  for  a  master  of  the  art  of  in- 
 cantation, learns  to  handle  the  most  dangerous  snakes 
 in  all  variety  of  ways,  and  to  make  them  dance,  as 
 it  is  called  ;  and  is  well  paid  for  such  exhibitions. 
 If  the  reader  wishes  to  see  a  representation  of  this 
 dancing,  as  it  is  practised  in  India,  and,  at  the  same 
 time,  to  know  the  way  in  which  serpents  are  habi- 
 tuated to  it,  and  deprived  of  their  poison  for  a  certain 
 number  of  hours,  (the  latter  a  matter  so  very  easy, 
 that  nothing  can  be  more  so,  and  Dr.  Mead,  with- 
 out thinking  of  this  account,  has,  in  his  Treatise  on 
 Poisons,  fully  detailed  it,)  he  has  only  to  turn  to 
 Kamijrfer's  Amcenitates  exotica*,  fascic.  iii.  observ.  9. 
 Mr.  Niebuhr,  in  p.  189.  of  vol.  i.  of  his  Travels,  as- 
 serts besides,  that  some  serpents  are  musical,  and 
 raise  their  heads,  and  the  upper  parts  of  their  bodies, 
 the  instant  they  hear  the  sound  of  music.  If  this  be 
 the  case,  the  artifice  of  the  charmer  becomes  the 
 simpler.  It  would  seem,  that  the  charming  of  ser- 
 pents continued  as  a  species  of  juggling ;  it  has  an 
 appropriate  name,  Lechesch,  (VTV?) ;  and  the  person 
 who  practised  it,  was  called  Melachesch,  (fcflr?»). — 
 Other  sorts  of  charms  and  incantations  were  not  so 
 innocent. 
 
 We  now  proceed  to  specify  the  laws  themselves. 
 By  that  one,  then,  which  occurs  in  Deut.  xviii, 
 10, — 14.  there  was  to  be  no  enchanter  or  charmer  in 
 Israel,  that  is,  such  persons  were  not  to  be  tolerated. — 
 Farther,  by  the  penal  statute,  in  Exod.  xxii.  17.,  the 
 witch  (and,  therefore,  probably  the  enchanter  like- 
 
92  Witch  o/Endor  like  the  Sybil  in  the  Mneid.  [Art.  255. 
 
 wise)  is  threatened  with  death.  In  regard  to  this 
 passage,  however,  I  have  still  a  difficulty  ;  not  on 
 account  of  the  severity  of  the  punishment,  which 
 is  quite  suitable  to  the  analogy  of  the  Mosaic  juris- 
 prudence, because  incantation  was  a  sort  of  idolatry, 
 and  in  Deut.  xviii.  is  considered  as  such  ;  but  from 
 the  mode  of  expression,  (which,  in  a  penal  statute,  is 
 quite  unusual),  A  witch  thou  shalt  not  let  live  ;  where- 
 as the  usual  phrase  would  be,  she  shall  diey  or  as 
 Dr.  Luther  commonly  renders  it,  she  shall  die  the 
 death.  It  has  hence  often  occurred  to  me,  as  a  ques- 
 tion, whether  in  place  of  <T>nn  vb3  thou  shalt  not  let  lire, 
 we  ought  not,  perhaps,  to  read,  iW  i^t  there  shall 
 not  he.  Were  this  the  case,  the  two  statutes  would 
 say  the  very  same  thing. 
 
 In  order  to  prevent  a  very  common  mistake,  I 
 must  yet  observe,  that  the  celebrated  xritch  of  Endor, 
 as  she  is  called,  who  has  given  rise  to  so  many  con- 
 troversies, was  not  properly  a  witch,  but  a  diviner ; 
 namely,  one  of  that  sort  which  used  to  call  up  the 
 dead  to  be  interrogated  concerning  the  living ;  and 
 much  of  the  same  description  with  the  Sybil  in  the 
 sixth  book  of  the  JEneidy  who  conducted  ^Eneas  to 
 bis  departed  sire  in  the  realm  of  shades ;  only  with 
 this  difference,  that  she  had  the  civility  to  carry  this 
 hero  across  the  flood  of  hell,  even  to  the  Elysian 
 fields,  after  he  had  plucked  the  golden  leaf  in  the 
 wood  of  Avernus  ;  whereas  the  former,  in  the  vulgar 
 style  of  necromancy,  gave  the  dead  the  trouble  of 
 revisiting  the  wrorld.  This  said  witch  of  Endor, 
 therefore,  has  no  business  among  those  personages 
 who  have  been  the  subject  of  this  article,  but  only 
 
Art.  256.^    An  Oath,  a  Solemn  Appeal  to  God.        93 
 
 among  those  described  in    the  preceding  one  j   and 
 there  due  attention  has  already  been  paid  her. 
 
 ART.  CCLVI. 
 
 Of  Perjury. 
 
 §  12.  The  Mosaic  law  with  respect  to  perjury  is 
 extremely  different  from  our  German  law,  and  still 
 more  so  from  that  of  England  ;  approaching  nearer 
 to  the  ancient  Roman  law  on  the  subject. 
 
 It  prohibits  perjury  most  peremptorily,  as  a  hei- 
 nous sin  against  God  ;  but  still  it  leaves  to  God  him- 
 self, who,  in  Exod.  xx.  7.  expressly  promises  to  inflict 
 it,  the  punishment  of  the  offence,  without  ordaining 
 any  punishment  to  be  inflicted  by  the  temporal  ma- 
 gistrate ;  excepting  only  in  the  case  of  a  man  falsely 
 charging  another  with  a  crime,  in  which  case  the 
 Pama  Talionis  took  place  in  terms  of  the  statute  in 
 Deut.  xix.  19.  not,  indeed,  as  the  punishment  of  per- 
 jury, but  of  false  witness;  and  that  with  such  rigour, 
 as  to  hold,  even  where  no  oath  was  sworn,  but  mere- 
 ly a  false  testimony  exhibited.  So  far,  indeed,  is 
 this  principle  carried,  that  even  the  voluntary  confes- 
 sion of  perjury  occasioned  no  civil  infamy,  but  might 
 be  expiated  by  an  offering  j  and,  likewise,  where  a 
 wife  was  required  to  swear,  and  did  swear,  to  her 
 nuptial  fidelity,  God  having  declared  that  he  would, 
 himself,  even  in  this  life,  avenge  her  perjury  in  a 
 determinate  and  visible  manner,  the  magistrate  had 
 no  right  whatever  to  drag  her  again,  when  thus 
 marked  as   a  perjured  person,    before   a  court,  and 
 
94  Oaths,  a  Solemn  Appeal  to  God,    [Art.  25& 
 
 punish  her  anew  ;  but  was  bound  to  leave  her  entirely 
 in  the  hand  of  God. — Concerning  both  these  cases 
 we  shall  speak  more  fully  hereafter. 
 
 Here,  therefore,    oaths  enjoyed  no  civil,  but  only 
 religions  respect ;  which,   however,    must  have  con- 
 tributed, in  a  very  high  degree,  to  prevent  those  un- 
 justifiably  mild   constructions,   which   a  person  who 
 has  been  fain  to  forswear  himself,  and  even  the  ad- 
 vocate, who  would  gladly  help  him,   are  apt  to  put 
 upon  them,  in  order  to  satisfy  their  consciences ;  as 
 if  an  oath  were  quite  a  civil  matter,  a  mere  formal 
 assurance  given  before  a  worldly  tribunal,   under  a 
 conventional  penalty,  and   nothing  farther  j    instead 
 of  being,  as  it  is,   a  solemn  call  to  God  to  punish 
 us  both  here  and  hereafter,  through  all  eternity,  if 
 we  tell  a  falsehood,  or  do  not  keep  our  promise.     As 
 the  magistrate  had  no  concern  with  the  oath,  beyond 
 the  mere  formality'  of  its  administration,  it  thus  re- 
 mained in  its  natural  state  of  perfection  ;  an  appeal 
 to  God,   as  a  surety,  and  the  punisher   of  perjury; 
 which  appeal,  as  he  accepted,  he,  of  course,  became 
 bound    to    punish    a    perjured    person    irremissibly, 
 without   even  remitting  the  punishment   on  his   re- 
 morse and   penitence,  unless  in   the   case  of  his  ac- 
 knowledging  his   perjury   in  regard   to   any   matter 
 of  fact,  or  publicly  retracting,  if  it  was  of  a  nature 
 to  admit  retractation,  his   sworn   promise,   when  he 
 no  longer  meant  to  fulfil  it.     This  was  an  awful  view 
 of  perjury,  but,  in  reality,  a  philosophically  just  one  ; 
 and  in  this  very  view  did  the  Israelites  actually  re- 
 gard it,  not  merely  as  a  sin,  but  as  very  different  from 
 other  sins,   and  much  more   dangerous.      Solomon5 
 
Art.  256.]  Sacredness  of  Oaths  among  the  Romans.  95 
 
 in  the  xxixth  chapter  of  Proverbs,  verse  24<.  says,  that 
 the  man  who  is  partner  with  a  thief,  or,  as  we  would 
 term  him,  the  concealer^  of  his  crime,  is  the  enemy  of 
 his  own  life  ;  because  he  hears  the  oath  administered 
 in  court,  and  does  not  give  information  of  the  fact. 
 Here,  the  withholding  information,  when  an  oath  is 
 tendered,  is,  in  his  estimation,  a  much  more  terrible 
 sin,  than  the  theft  itself,  just  because  it  directly  de- 
 mands our  life  at  the  hand  of  God.  On  this  point, 
 the  reader  may  also  consult  my  remarks  on  Psalm 
 cxxxix.  19, — 22. 
 
 In  fact,  this  is  precisely  the  light  in  which  the 
 matter  is  always  viewed  by  nations,  while  in  their  best 
 estate,  and  as  long  as  the  people  are  honest  and  reli- 
 gious. Among  the  ancient  Romans,  oaths  were  held 
 so  sacred,  that  we  find  even  the  Greeks  themselves 
 noticing  it,  as  a  very  strange  point  of  contrast  to 
 their  own  national  character,  that  a  Roman  might 
 safely  be  entrusted  with  the  greatest  riches,  without 
 any  witnesses,  from  its  being  well  known,  that  his 
 dread  of  an  oath  was  too  great,  to  allow  him  to  ven- 
 ture on  a  perjury  ;  whereas  the  same  experiment 
 could  hardly  be  made  on  a  Greek,  even  with  the 
 merest  trifle,  because  he  would  be  in  danger  of 
 forswearing  himself  without  any  hesitation.  In  those 
 honourable  times,  the  Romans  had  no  punishment 
 for  perjury,  except  that  of  the  Censor  marking  the 
 perjured  person  as  a  bad  man*.  They  left  it  to 
 the  gods  to   avenge  his  wickednesst;  and  however 
 
 *  See  A.  Gellii  Noctes  Atticte,  lib.  vii.  c.  1 8. 
 
 f  On  this   principle,   Cicero,   in  his   Second   Book   7>  Legibus, 
 
96        Mosaic  Policy  xvith  respect  to  Oaths.  [Art.  256. 
 
 much  in  after  times  the  fear  of  the  gods,  and  the 
 principles  of  honesty  disappeared  at  Rome,  still  we 
 find  this  rational  maxim  of  their  ancestors  subsisting 
 in  the  reign  of  Alexander  Severns  ;  Jurisjurandi  con- 
 temti  religio  satis  Deum  Ultorem  habet.  (L.  2.  C.  de 
 rebus  cred.  et  jurejur.) — Our  civil  punishments  cer- 
 tainly do  not  stand  on  a  better  footing  than  this ; 
 only  they  are  now  necessary,  considering  that  hones- 
 ty and  the  influence  of  religion  are  no  longer  so  uni- 
 versal among  mankind,  and  that  oaths  have,  in  a 
 great  measure,  lost  their  respect,  in  consequence  of 
 their  pernicious  multiplication,  and  their  including 
 such  a  variety  of  particulars  relative  to  things,  that 
 are,  properly  speaking,  merely  duties,  and  so  liable  to 
 numberless  violations. 
 
 And  here  I  must  take  notice  of  another  pre-emi- 
 nence in  regard  to  oaths,  which  the  Mosaic  law  enjoy- 
 ed beyond  that  of  any  other  state,  in  the  circumstance 
 of  the  Israelitish  government  being  founded  by  God 
 himself,  and  thus  being  a  Theocracy.  This  pre-emi- 
 nence will  be  the  more  striking,  if  we  compare  the 
 Israelitish  state,  first,  with  one  having  only  natural 
 religion  ;  and,  secondly,  with  one  enjoying  the  light 
 of  the  gospel,  but  neither  of  them  established  by  the 
 Deity  himself. 
 
 In  the  Jirst  place,  then,  let  us  represent  the  cir- 
 cumstances of  a  people  acquainted  only  with  natural 
 
 sketches  the  law  of  oaths,  in  these  terms,  Perjurii pcena  divina,  Exi~ 
 tium  ;  humana,  Dedecus ; —  a  point  which  affords  so  little  scope  for 
 dispute,  that,  in  a  subsequent  chapter  (c.  15)  it  is  very  briefly- 
 passed  over,  with  this  one  remark  ;  Jam  de  perjunis,  de  wcettrss 
 vihil  mne  hoc  mi  idem  loco  disputandum  est. 
 
Art.  256.]  Oaths  in  a  State  of  Natural  Religion.       97 
 
 religion,  but  still  enjoying  it  in  all  its  purity  and  ex- 
 tent ;  that  is,  believing  in  a  Providence,  in  the  atten- 
 tion of  the  Deity  to  their  prayers,  and  in  a  future  life. 
 To  such  a  people,   it  may  no  doubt  appear  probable, 
 but  still  it  will  not  be  matter  of  absolute  certainty, 
 that  God  should  undertake  the  guaranty  of  the  oath 
 made  in  his  name,  and  really  engage  to  become  the 
 never-failing  avenger  of  perjury.     For,  from  the  mere 
 doctrine  of  a  Providence,  which  suffers  so  much  evil 
 in  the  world  to  pass  unnoticed,  this  does  not  follow  ; 
 nor  yet  from  the  doctrine  of  a  future  life,  of  reward 
 or  punishment ;  for  God,  on   men's  repentance  and 
 entreaty,  pardons  sin,  and  leaves  it  unpunished  be- 
 yond the  grave  ;    and  for  the  same  reason,    which 
 prompts  him  on  these  conditions  to  overlook  any  other 
 lie,  or  breach  of  promise,  without  a  public  retracta- 
 tion, he  may  certainly  do  the  like  in  the  case  of  a  per- 
 jury.    Nor,  again,  does  it  follow  from  the  nature  of 
 an  oath.     It  indeed  is  an  appeal  to  God,  and  an  im- 
 precation of  a  punishment  to  be  inflicted  by  him  ;  but 
 then,  it  is  not  every  prayer  that  God  listens  to,  else 
 would  he  have  many  strange  and  mischievous  petitions 
 to  answer ;  nor  is  he  under  any  more  obligation  to 
 undertake  a  guaranty,  if  he  has  not  promised  it,  than 
 earthly  sovereigns  are,  to  guarantee  all  the  compacts 
 of  their  subjects,  instead  of  having  the  cases  in  which 
 they  are  or  are  not  to  do  so,   quite  optional.     Here, 
 therefore,  it  is  at  any  rate  a  dubious  point,  whether  God 
 will  be  the  avenger  of  perjury  ;  and  just  because  it  is 
 dubious,   one  man  will  think  one  thing,  and  another, 
 another ;  and  the  consciences  of  swearers,  particularly 
 where  self-interest  or  terrors  interfere,  will  give  difc 
 vol,  rv,  cr 
 
98  Oaths  under  the  Christian  Religion,  [Art.  256. 
 
 ferent  verdicts  concerning  it.  Many  perjured  persons 
 will  even  entertain  a  theoretical  hope  of  remaining 
 unpunished,  and  at  last  regard  an  oath  merely  as  a 
 civil  matter.  I,  for  my  own  part,  were  I  but  a  disci- 
 ple of  natural  religion,  would  still  believe  that  God 
 took  upon  him  the  guaranty  of  oaths,  because  unless 
 they  be  held  sacred,  human  society  cannot  be  happy. 
 But  all  would  not  be  of  this  opinion. 
 
 On  the  other  hand,  that  God  will  be  the  avenger 
 of  perjnry,  is  a  doctrine  of  the  Christian  religion,  not 
 merely  as  it  is  taught  by  divines,  but  as  it  is  contained 
 in  the  Bible  itself.  Were  not  God  to  take  upon  him 
 to  guarantee  oaths,  an  appeal  to  him  in  swearing, 
 would  be  one  of  those  foolish  and  sinful  prayers,  which 
 he  could  not  hear,  and  which  men  ought  not  to  make  ; 
 in  other  words,  oaths  would  of  course  be  forbidden. 
 Yet  so  far  is  the  Christian  religion  from  forbidding 
 them,  or  even  leaving  their  moral  nature  undecided, 
 that  we  find  the  apostles  themselves  swearing  more 
 than  once,  and  that  not  where  they  are  speaking  mere- 
 ly like  frail  mortals,  but  even  in  their  epistles,  which 
 were  inspired  by  the  Spirit  of  God.  Nay,  we  see 
 Christ  himself  taking  an  oath,  which,  properly  speak- 
 ing, was  a  judicial  one,  exactly  in  the  manner  prac- 
 tised among  the  Jews  ;  and  the  Scriptures  of  the  Old 
 Testament,  which  Christ  and  his  apostles  have  de- 
 clared to  be  divine,  and  which  consequently  form  a 
 <principium  cognoscenti  in  regard  to  Christianity,  and 
 .  abound,  moreover,  in  moral  doctrine,  speak  of  an  oath, 
 not  merely  as  of  a  thing  barely  allowed,  and  of  which 
 it  might  be  said,  that  it  was  one  of  those  errors  and 
 infirmities  of  pious  people,  under  the  Old  Testament, 
 
Art.  256.]  Laws  of  the  Decalogue  partly  civfi.  99 
 
 which  were  overlooked  in  the  times  of  ignorance ;  but 
 they  expressly  and  repeatedly  reckon  it  among  acts 
 of  religion.  Hence,  therefore,  under  the  gospel,  an 
 oath  is  an  appeal  to  God,  of  which  lie  approves,  and 
 to  which  he  will  listen.  He  undertakes  to  guarantee 
 it,  and  is  the  avenger  of  perjury,  if  not  in  this  World, 
 at  any  rate  in  the  world  to  come  \  to  which,  indeed, 
 our  forms  of  oaths  generally  refer. 
 
 Here,  however,  two  circumstances  come  to  be  con- 
 sidered, which  may  occasion  a  Christian,  even  one 
 who  honestly  believes  his  religion,  to  hesitate  with  re- 
 gard to  oaths,  and  even  to  entertain  the  very  contrary 
 opinion  of  the  one  just  delivered. — In  the  fast  place, 
 no  where  does  the  gospel  contain  an  assurance  of 
 God's  taking  upon  him  the  avengement  of  perjury,  so 
 express  as  that  contained  in  the  third  commandment, 
 Exod.  xx.  7.  But  this  commandment  cannot  with 
 any  certainty  be  directly  tranferred  to  the  New  Tes- 
 tament and  the  Christian  religion,  because  it  still  re- 
 mains doubtful,  whether  it  may  not  merely  belong  to 
 the  state  of  the  theocracy,  and  to  the  civil  laws  of 
 Moses,  which  do  not  concern  Christians  ;  for  that  the 
 decalogue  is  not  a  digest  of  the  eternal  law  of  moral- 
 ity, but  contains  many  things  merely  of  a  civil  nature, 
 and  relating  to  the  Israelites  alone,  is  manifest  from 
 its  contents ;  and  such  is  the  doctrine  of  our  most 
 rational  divines  ;  for  example,  as  far  at  least  as  I  know, 
 of  the  theological  faculty  of  our  university  ;  of  which, 
 indeed,  the  reader  may  satisfy  himself,  by  perusing  a 
 Program,  entitled,  Nonnidla  cle  Decalogo  Mosis,  writ- 
 fen  in  their  name  by  Mr.  Consistorial-Counsellor  liu 
 Bov,  and  published  in  1755,  on  occasion  of  the  late 
 
 r,  2 
 
100    Some  Sects  deem  Oaths  now  forbidden.  [Art.  256. 
 
 Mr.  Witt  taking  his  doctor's  degree. — What  the  Chris- 
 tian religion  teaches,  therefore,   with  regard  to  God 
 as  the  avenger  of  perjury,  is  not  founded  on  an  express 
 assurance  of  the  Bible,  but  is  merely  a  consequential 
 doctrine  from  the  Bible ;  and  it  may  happen,  that  a 
 man  does  not  perceive  the  consequence,  nor  perhaps 
 ever  thought  of  it ;  and  on  that  account,  considers  an 
 oath  as  a  matter  altogether  of  a  civil  nature.     In  fact, 
 this  is  the  light  in  which  it  is  regarded  by  many  law- 
 yers, who  are  nevertheless  good  Christians  ;  only  they 
 cannot  believe,  that  in  swearing,  we  appeal  to  God, 
 properly  speaking,  as  the  avenger  of  perjury,  or  that 
 we  can  expect  guaranty  and  avengement  from  him. — 
 In  the  second  place,  there  is  this  farther  circumstance 
 to  be  taken  into  consideration,  and  it  is  rather  an  awk- 
 ward one,  that  not  only  individuals  among  all  denomi- 
 nations of  Christians,  but  also  whole  sects  of  them,  are 
 of  opinion,   that  oaths  in  general  are  prohibited  in 
 Matth.  v.  34.     Here,  unquestionably,  they  are  wrong ; 
 for  in  this  passage,  certain  oaths,  such  as  that  by  hea- 
 ren,  or  earth,  or  the  temple,  or  Jerusalem,  or  the  head, 
 &c.  not  administered  in  courts,  but  in  common  use 
 extrajudicially,  and  liable  to  this  dreadful  abuse,  that 
 the  Jews,  in  taking  them,  generally  had  mental  reser* 
 rations,  or  had  it  in  view  to  deceive,  not  considering 
 them  as  real  oaths, — are  either  described  as  real  oaths 
 in  the  sight  of  God,  or  else  prohibited  on  account  of 
 the  usual  reservations  by  which  they  were  rendered 
 nugatory.     At  the  first  sight,  however,  and  to  a  per- 
 son  unacquainted  with  these   Jewish  doctrines  and 
 abuses  which  Christ  combats  in  his  sermon  on  the 
 mount*  tliis  mistake  is  so  far  from  unnatural,  that  it 
 
Aft.  856.]     Punishment  of  a  Wife's  Perjury.  101 
 
 carries  a  considerable  degree  of  probability  along  with 
 it ;  and  thus,  if  oaths  were  universally  forbidden,  it 
 would  follow,  that  God  does  not  accept  the  appeal 
 made  to  him  in  swearing,  and  will  not  guarantee  our 
 oaths.  So  that  it  remains  at  least  possible,  that  a  man 
 who  entertains  no  doubts  with  regard  to  Christianity 
 in  general,  may  be  guilty  of  perjury,  and  account  it  a 
 sin,  but  still  hope,  that  on  contrition  and  repentance, 
 God  will  forgive  him,  even  although  he  do  not  re- 
 tract it. 
 
 Here,  then,  the  theocracy  of  the  Israelitish  govern- 
 ment, where  God  himself  was  regarded  as  king,  and 
 undertook  to  inflict,  by  his  providence,  punishment 
 on  perjury,  even  in  this  world,  gave  it  a  considerable 
 advantage  in  respect  to  the  sacredness  of  oaths.  God 
 himself  had  commanded  judicial  oaths,  and  therefore 
 was  naturally  bound  to  accept  the  guaranty  and 
 avengement  committed  to  him  ;  more  especially  as 
 he  had,  in  Exod.  xx.  7.,  in  one  of  the  ten  fundamen- 
 tal principles  of  the  theocratic  government  which  he 
 established,  given  this  express  assurance,  Jehovah  will 
 not  leave  the  man  unpunished,  who  utters  his  name  with 
 a  falsehood.  No  Israelite  who  believed  his  religion, 
 or,  in  other  words,  that  God  had  sent  Moses,  and 
 spoken  these  words  from  Mount  Sinai,  could  doubt  of 
 God  being  the  avenger  of  perjury,  and  having  taken 
 upon  him  the  guaranty  of  oaths.  In  the  case  too,  of 
 a  certain  species  of  oath,  namely,  that  which  a  hus- 
 band had  it  in  his  power  to  exact  from  a  wife,  with 
 regard  to  her  nuptial  fidelity,  the  corporal  punish- 
 ment which,  if  perjured,  she  might  assuredly  expect, 
 was  specified,  viz.  that  her  belly  should  sxvclf,  and  hrr 
 
 g  3 
 
102  Oaths  by  the  King's  Life,  &c»      [Art.  256. 
 
 hips  vanish,  so  as  to  render  her  incapable  of  conception^ 
 Nirmb.  v.  21,  22,  27,  28.  These  are  the  symptoms 
 which  usually  attend  the  hydrops  ovarii,  a  disease  of 
 the  female  sex,  which  is  very  rare  ;  at  least  I  am  un- 
 acquainted with  any  other  case,  to  which  a  physician 
 could  find  them  applicable.  Thus  much  is  undeniable, 
 that  a  people  to  whom  God  himself  condescended  to 
 become  a  civil  legislator,  and  had  declared  himself,  so 
 expressly,  the  Guarantee  of  oaths,  must  have  regarded 
 oaths  as  extremely  sacred  and  awful ;  and  as  long  as 
 they  believed  their  religion,  perjury  could  occur  but 
 very  rarely  among  them. 
 
 It  is  probable  that  the  custom  in  many  nations,  of 
 swearing  by  the  life  of  the  king,  may  have  furnished 
 one  of  the  first  reasons  for  the  punishment  of  perjury 
 by  human  authority,  and  the  hand  of  the  secular  ma- 
 gistrate. The  violation  of  this  oath  w7as  perhaps  con- 
 sidered as  amounting  to  a  sort  of  treason,  because  it 
 had  the  appearance  of  wishing  evil  to  the  king,  or  at 
 least  of  not  taking  that  hearty  interest  in  his  welfare 
 and  safety,  which  a  dutiful  subject  ought  to  feel ;  thus 
 forming  what  the  law  of  England  would  term  disajfec- 
 tion.  Nay,  there  may  have  been  princes  so  timid  and 
 superstitious  as  to  imagine,  that  any  such  strange  per- 
 jury might  render  them  unfortunate,  and  to  entertain 
 this  strange  idea  of  the  divine  justice,  that  it  might 
 let  fall  on  them  the  curse  by  which  the  oath  was  sanc- 
 tioned. Thus  among  the  Romans,  swearing  falsely, 
 jper  genium  principis,  or  per  salutem  Ca'saris,  was  ac- 
 counted criminal,  and  punished  as  a  contempt  of  the 
 emperor;  and  among  the  Persians,    Thevcnot*   tells 
 
 *'•  ggc  bis  Su .•"/(*  du  Voyage  de  Levant,  I.  2.  c.  11.  p.  $32. 
 
Art.  256.]      Oaths  by  the  Holy  Cities,  $c.  103 
 
 us,  that  no  oath  is  more  sacred  than  that  which  is 
 sworn  by  the  king's  head.  In  fact,  we  see,  from  Gen. 
 xlii.  15.  that  oaths  of  this  description  were  not  altoge- 
 ther unknown  in  the  time  of  Moses,  but  in  common 
 use  in  Egypt  long  before  ;  only  among  the  Israelites, 
 as  long  as  the  plan  of  their  polity  settled  by  Moses 
 subsisted,  they  could  have  no  place,  nor  form  an  ex- 
 ception to  the  rule  of  perjury  not  being  punishable  by 
 the  magistrate,  as  the  Israelites  had  no  king  but  God. 
 No  doubt  when  they  came  to  have  kings,  swearing  by 
 the  life  of  the  king  became  common*  ;  but  whether 
 perjury  by  such  an  oath  was  considered  as  treason,  I 
 cannot,  for  want  of  historical  documents,  ascertain. 
 It  is,  however,  here  a  matter  of  indifference,  as  the 
 question  does  not  properly  belong  to  the  Mosaic  law. 
 They  swore  also  by  the  holy  cities,  that  is,  those  cities 
 wherein  God  had  had  his  habitation,  such  as  Sichem, 
 Hebron,  Bethel,  Shiloh,  Jerusalem.  The  literal  mean- 
 ing of  the  much  misunderstood  clause  in  Psal.  exxxix. 
 20.  THy  W®h  Wl,  is,  They  utter  thy  cities  (that  is, 
 their  names)  with  an  untruth ;  in  other  words,  they 
 swear  falsely  by  thy  cities.  It  is  the  very  same  expres- 
 sion which  we  find  in  Exod.  xx.  7.  to  utter  the  name  of 
 Jehovah  with  untruths.  They  swore  likewise  by  the 
 temple,  the  altar  t,  &c.  &c.  These  oaths,  however, 
 by  no  means  implied  maledictions  of  these  sacred 
 places.  They  were  rather  figurative  modes  of  expres- 
 sion, and,  by  the  Metonymia  contincnlis  pro  contento^ 
 
 o  4 
 
 *  Psal.  lxiii.  12.    1  Sam.  xxv.  2u.  2  S<m.  xiv.  19. 
 
 :   Mattli.  v.  34-,  33.  xxiii.  If), — 22.  coipp,  with  v.er  29, 
 
104  Expiation  of  Perjury.  [Art.  256. 
 
 understood  as  referring  to  the  God  who  dwelt  in 
 them,  just  as  we  say  heaven,  instead  of  GocL  They 
 could  not,  therefore,  involve  any  criminality,  or  be 
 considered  as  injurious  to  the  places  in  question. 
 
 It  was  God,  then,  and  not  the  magistrate,  who  was 
 the  avenger  of  perjury.  There  was,  however,  a  me- 
 thod prescribed,  whereby  the  man,  whose  perjury 
 wounded  his  conscience,  might  expiate  his  guilt. — 
 This  was  by  first  making  an  acknowledgment  of  it, 
 and  then  presenting  a  trespass-offering,  by  way  of  an 
 abolitio  criminis  *.  This  acknowledgment  was  attend- 
 ed with  no  civil  infamy,  and  the  crime  was  done  away 
 by  the  offering. 
 
 It  may  be  hoped  that  no  philosopher,  even  although 
 he  does  not  believe  in  the  divine  establishment  of  the 
 Israelitish  polity,  will  term  this,  superstition  and  priest- 
 craft. For  hitherto  every  philosopher  has  held  it  to 
 be  either  certain,  or  highly  probable,  that  the  Deity  is 
 disposed,  on  the  conditions  of  repentance  and  amend- 
 ment, to  remit  the  punishment  of  sins  ;  and  that,  al- 
 though in  the  case  of  perjury,  he  may,  in  consequence 
 of  his  undertaking  to  guarantee  oaths,  be  limited  in  this 
 respect,  he  will  nevertheless  be  inclined  to  remit  the 
 guilt  of  that  crime  also,  if  it  can  be  done  without  pre- 
 judice to  the  rights  of  the  man  to  whom  the  oath  was 
 given  ;  that  is,  if  the  perjury  shall  be  publicly  acknow- 
 ledged and  retracted,  and  the  real  truth  made  known. 
 By  this  very  acknowledgment,  the  object  of  the  gua- 
 ranty is  attained  ;  and  therefore  the  Deity  thus  just 
 
 *  Jac.  Gutherius  dt  vetere  jure  pontificio  urbis  Ronitx,  lib.  ii.  c  3. 
 fakes  notice  of  something  of  a  similar  nature  among  the  Romans. 
 
Art.  256.]  Effects  of  Perjury  on  Conscience,  <$c     -105 
 
 as  much  exonerated  as  a  human  surety  would  be.     If, 
 indeed,   it   was  an   oath   of  promise   that   had   been 
 broken,  then,  no  doubt,  in  order  to  release  the  Deity 
 from  his  obligation,  it   would,   in  statu   naturali,  be 
 farther  requisite,  that  the  violator  of  the  oath  should 
 be  delivered  into  the  hands  of  the  person,  to  whom 
 he  made  it,  and  await  his  punishment :  but  in  a  state 
 of  civil  society,  this  requisition  becomes  superfluous, 
 because  he  is  already  in  his  power ;  and  the  injured 
 party,  who,  the  instant  he  became  a  member  of  that 
 society,    renounced    all    right    to    avenge    his    own 
 wrongs,  may,  on  his  confession,  commence  an  action 
 of  damages  before  the  magistrate,  provided  the  vio- 
 lation of  the  engagement  sworn  to,   has  occasioned 
 him  any  loss. 
 
 The  appointment  of  a  method  of  retracting  a 
 perjury,  thus  unattended  with  any  degree  of  infamy, 
 was  highly  important,  towards  the  maintenance  of 
 the  sanctity  of  oaths.  From  the  impulse  of  passion, 
 perhaps,  or  self-interest,  or  the  fear  of  punishment, 
 or  the  power  of  persuasion,  or  from  mere  levity  or 
 infatuation,  a  man  is  led  to  swear  falsely  ;  and  he 
 contrives,  for  a  while,  to  confound  or  delude  his 
 conscience.  But  a  time  comes,  when  passion  and 
 delusion  vanish,  and  rational  reflection  takes  their 
 place.  Then  awakens  conscience,  who  is  a  very 
 arbitrary  personage,  and  so  far  from  being,  on  such 
 occasions,  obsequious  to  our  wishes  and  inclinations, 
 that  the  more  we  strive  to  silence  her,  the  more 
 violent  becomes  her  opposition,  until  it  terminates 
 either  in  melancholy  or  madness.  The  unhappy  man 
 has  now  no  rest  either  day  or  night.     The  reproaches 
 
i©6        Happily  obviated  by  Moses*  Plan.    [Art.  2J8. 
 
 of  conscience  break  even  his  sleep ;  for  it  is  in  the 
 silence  and  solitude  of  the  night,  that  she  raises 
 her  awful  voice  to  its  loudest  pitch ;  and  thus  he 
 is  at  last  led  to  wish,  that  he  had  it  in  his  power  to 
 retract  his  perjury.  But  if  he  cannot  effect  this,?with- 
 out  subjecting  himself,  (I  will  not  say  to  a  judicial 
 punishment,  such  as  the  loss  of  his  two  fore-fingers  ;  in 
 which  case  his  guilt  might  be  remitted,  but)  we  shall 
 suppose,  to  the  mere  loss  of  reputation  only ;  this 
 is  a  victory  which  conscience  will  but  rarely  be  able 
 to  atchieve,  where  a  man  is  actuated  by  the  principle 
 of  honour.  He  will  rather  wait  the  tardy  vengeance 
 of  God,  and  either  wish  for  it  at  all  hazards  in  this 
 world,  or  lay  his  account  with  it  hereafter  in  hell, 
 than  submit  to  the  total  loss  of  present  reputation, 
 and  more  especially,  by  thus  robbing  himself,  of  it, 
 as  it  were,  and  surrendering  what  is  entirely  in  his 
 own  power.  Present  good  and  evil  weigh  more  with 
 us,  than  what  is  future  and  distant.  That,  indeed, 
 ought  not  to  be  the  case,  but  so  it  is ;  and  in  this 
 very  thing  consists  that  corruption  of  ours,  of  which 
 not  only  theologians,  but  also  the  philosopher  must 
 be  sensible ;  I  mean,  that  to  men,  whose  nature  is 
 thus  constituted,  civil  laws  are  given,  and  oaths 
 required  of  them  !  Yv'e  ought,  therefore,  to  have  an 
 outlet,  through  which  the  perjured  may,  by  the  mere 
 retractation  of  their  oaths,  escape  without  either  civil 
 punishment  or  infamy :  and  this  is  what  Moses  has 
 done,  and  what  we  also  find  the  case  in  the  Roman 
 laws.  If  there  «  such  an  outlet,  the  unceasing  dis- 
 quietude of  conscience  will  very  often  bring  the 
 truth  to  light ;  if  there  is  not,  perjury  will  seldom  he 
 
Art.  256.]  A  Preventive  of  Conspiracies  in  Perjury.  107 
 
 retracted ;  the  majority  will  become  unconscionable, 
 and  learn  to  despise  an  oath,  so  that,  at  length, 
 perjury  will  cease  to  be  disgraceful  ;  others  again  will 
 grow  melancholy  and  hectical,  in  consequence  of 
 their  conscientious  scruples,  which  are  any  thing  but 
 irrational  ;  and  some  few  (of  which  I  know  one 
 instance,  though  I  am  not  at  liberty  to  mention  it,) 
 will  shoot  themselves,  or  put  an  end  to  their  miserable, 
 lives  in  some  other  way.  The  first  of  these  conse- 
 quences is  the  most  formidable,  as  it  comes  in  the 
 end  to  infect  whole  nations  ;  and  it  is  a  disease  under 
 which  they  must  ultimately  sink.  As  our  present 
 political  system  is  constituted,  the  revenues  of  the 
 st^te  are  the  first  sufferers,  and  that  to  a  fearful 
 extent ;  and  their  deficiencies,  thus  arising  from  the 
 contempt  of  oaths,  can  only  be  prevented  or  compen- 
 sated by  rigours,  which  introduce  slavery,  and  become 
 intolerable.  But  if  the  disease  happen  first  to  prevail 
 among  those  whose  province  it  is  to  inculcate  the 
 duties  of  religion,  and  from  their  example,  extend  to 
 the  army,  the  misfortune  is  unspeakable.  Of  this 
 last  effect  of  it  we  as  yet  know  nothing  in  Germany; 
 but  Rome,  under  the  emperors,  that  striking  contrast 
 to  ancient  oath-revering  Rome,  presents  us  with  an 
 awful  example. 
 
 There  is  this  farther  advantage  resulting  from  a 
 law  so  constituted  as  was  the  Mosaic,  and  the  ancient 
 Roman,  that  perjury  is  rendered  very  dangerous,  and 
 thereby  prevented  ;  because  every  one  must  be  led  to 
 suppose,  that  his  conscience  may  one  day  compel  him 
 to  do  what  he  sees  done  by  others,  that  is,  to  retract 
 his  perjury,  which  is  not  a  very  pleasant  business  j 
 
108  APreventive  of  Conspiracies  in  Pet  jury,  [Art.  256. 
 
 or,  what  is  worse,  that  his  accomplices  may,  from  the 
 agonizing  stings  of  conscience,  hasten  to  acknowledge 
 their  guilt,  and  present  the  accustomed  offering. 
 There  are  many  perjuries  that  require  more  than  one 
 man's  oath,  and  those  concerned  must  understand 
 one  another ;  but  if  a  road  to  repentance  and  con- 
 fession  is  open  to  them  all,  the  seeds  of  mutual 
 suspicion,  being  thus  happily  sown  in  limine,  between 
 accomplices,  serve  directly  to  hinder  them  from  be- 
 coming so  ;  and,  supposing  that  they  do  conspire  toge- 
 ther, and  swear  falsely,  still  each  must  be  afraid  of  the 
 others  conscience  misgiving  him.  If  but  one  own  his 
 perjury,  and  expiate  it  by  an  offering,  the  rest  become 
 known  as  perjured  also,  and  it  is  now  too  late  for 
 them  to  save  their  honour,  by  a  confession  and  expia- 
 tion of  their  crime.  To  be  sure,  by  the  Mosaic  law 
 they  were  not  punishable,  and,  perhaps,  their  offering, 
 late  as  it  was,  might  be  accepted ;  for  I  find  no  law 
 to  the  contrary:  but  then  the  universal  opinion  of 
 the  public  would,  without  any  reference  to  the  lawr, 
 at  once  make  the  proper  distinction,  between  the 
 man  whom  conscience  prompted  to  a  disclosure  of 
 ins  guilt,  and  those  who,  as  it  were,  only  came  hob- 
 bling awkw?ardly  after  him,  and,  in  presenting  their 
 offerings,  made  but  a  virtue  of  necessity.  Their 
 crimes,  no  doubt,  are  alike  abolished ;  and,  in  a  civil 
 view,  they  are  on  a  footing  in  point  of  honour,  with 
 their  fellow  citizens  ;  but  all  his  countrymen  will 
 agree  in  thinking,  that  the  first  alone  has  not  forfeited 
 his  character  and  their  confidence. — I  should  really 
 wish  that  some  imitation  of  the  Mosaic  or  Roman 
 law  o.M  this  point  could  be  adopted  at  present  j  not, 
 
Art.256.]Owr  mutation  of  the  Mosaic  plan  desirable.  109 
 
 indeed,  that  no  civil  punishment  should  be  annexed 
 to  perjury,  for  in  our  unconscientious  times  such 
 punishments  are  but  too  necessary,  and  they  should, 
 if  we  wish  to  prosper,  be  in  every  case  most  rigour- 
 ously  inflicted,  without  respect  of  persons ;  but  that 
 every  one  might,  without  becoming  infamous,  or  hav- 
 ing any  reason  to  dread  the  smallest  reflection  upon 
 his  honour,  have  some  means  put  in  his  power,  to 
 exonerate  himself  spontaneously  from  the  burden  of 
 a  perjury.  To  restore  oaths  to  a  greater  degree  of 
 that  reverence  in  which  they  were  held  by  ancient 
 nations,  is  a  grand  desideratum  in  legislative  policy. 
 
 The  expiation,  or  confession-offering  was  appointed, 
 not  only  in  the  case  of  perjuries,  properly  so  called, 
 but  also  in  that  of  rash  and  inconsiderate  oaths,  that 
 remained  unfulfilled. 
 
 I.  Under  the  former  were  included, 
 
 1.  The  oath  of  false  witness,  not  that  by  which  an 
 innocent  person  was  criminated,  but  where  the  swearer 
 did  not  declare  against  the  guilty  all  that  he  knew  ; 
 or,  as  Moses  expresses  it,  (Lev.  v.  1.)  'when  he  heard 
 the  voice  of  the  adjuration  (for  we  must  remember,  that 
 he  did  not  speak  himself,  but  the  oath  was  pronounced 
 to  him,  and  then  he  was  adjured  by  it)  and  was  a 
 witness,  and  with  regard  to  what  rvas  to  be  testified,  had 
 himself  seen,  or  otherwise  knew  it ;  and  yet  did  not 
 declare  the  truth.  The  passage  lately  quoted  from 
 Prov.  xxix.  24.  illustrates  this  point  by  an  example. 
 The  thiefscreener,  when  he  swears,  is  an  enemy  to  his 
 own  life ;  inasmuch  as  he  hears  the  adjuration  pro- 
 nounced in  court,  and  yet  does  not  declare  what  he 
 knows  of  the  theft. 
 
1 10  What  Offering  to  be  made  for  Perjury  ?  [Art.  256. 
 
 In  my  Annotations  on  Lev.  v.  1.  I  have  already 
 remarked,  that  this  sort  of  perjury  is  represented  as  a 
 sin  of  omission,  and  on  that  account  it  was  not  a  sin- 
 offering,  but  a  trespass-offering,  that  was  made  for  it ; 
 for  it  consisted  merely  in  the  non-declaration  of  a 
 known  fact.  Hence  it  follows,  that  an  offering  could 
 not  be  made  in  the  case  of  asserting  against  an  inno- 
 cent person,  a  crime  which  he  had  not  perpetrated : 
 for  such  an  assertion  was  manifestly  a  sin  of  commis- 
 sion, for  which  a  sin-offering  was  required.  In  such 
 a  case  the  law  of  retaliation  operated  (Deut.  xix.  19.)  ; 
 and  the  false  witness  was  punished,  not  as  a  perjured 
 person,  but  as  one  who,  by  the  falsehood  of  his  testi- 
 mony, had  wished  to  subject  another  to  punishment. 
 
 2.  Swearing  falsely  with  regard  to  the  charge  of 
 theft,  or  denying  upon  oath,  any  thing  found,  or 
 promised,  or  entrusted  to  one's  care,  &c. ;  Lev.  vi. 
 1, — 5. ;  or,  according  to  another  division  of  chapters, 
 v.  20.  24.  In  these  cases  likewise,  the  person  sworn 
 heard  the  form  of  the  oath  pronounced  as  before, 
 without  speaking,  and  was  guilty  of  a  sin  of  omission, 
 in  acknowledging  nothing. 
 
 II.  But  for  rash  and  inconsiderate  oaths,  which  a 
 person  had  forgotten,  or  which  it  was  impossible  or 
 unlawful  to  fulfil,  it  was  also  necessary  to  make  an 
 offering,  whenever  their  non-fulfilment  became  a 
 matter  of  consciousness,  Lev.  v.  4.  But  in  this  case 
 likewise,  the  offering,  properly  speaking,  was  not 
 made  for  the  rash  oath  ;  (for  then  it  would  have  been 
 a  sin  of  commission,  and  a  man  might  not  have  so 
 many  lambs  in  his  flock,  as  that  he  could  offer  one 
 everv  time  that  he  inconsideratelv,  or  unnecessarily, 
 
Aft. 257.]  Swearing  and  Cursing.  Ill 
 
 exclaimed,  As  sure  as  God  is  in  heaven,  or,  May  God 
 damn  me; J  but  for  its  non-fulfilment.  This  served 
 very  effectually  to  maintain  the  honour  of  oaths,  inas- 
 much as  every  oath,  however  inconsiderate,  or  unlaw- 
 ful, or  impossible,  was  considered  as  in  so  far  obliga- 
 tory, that  it  was  necessary  to  expiate  its  non-fulfilment 
 by  an  offering  ;  and  it  was,  at  the  same  time,  the  best 
 possible  means  of  weaning  the  people  from  rash  oaths; 
 because  the  man  who  had  become  addicted  to  that 
 unbecoming  practice,  would  find  himself  too  fre- 
 quently obliged,  either  to  keep  his  oaths,  how  great 
 soever  the  inconvenience,  or  else  to  make  offerings 
 for  their  atonement. 
 
 ART.  CCLVII. 
 
 No   Law  given  against   Unnecessary  Swearing   and 
 
 Closing. 
 
 §13.  On  the  other  hand,  there  was  no  civil  law 
 prohibitory  of  useless  and  thoughtless  oaths  ;  nor  was 
 any  punishment  appointed  for  them.  Moses  made 
 no  such  enactments,  as  they  have  in  England,  against 
 cursing  and  swearing,  by  which,  for  every  idle  damn, 
 the  penalty,  I  think,  of  a  shilling  (eight  good  groschen) 
 is  incurred;  nor,  in  fact,  do  they  serve  any  good 
 purpose,  but  to  betray  holy  zeal,  without  any  know- 
 ledge of  the  world ;  for  they  can  never  be  enforced. 
 These  English  laws,  which  were  made  in  times  of 
 great  zeal  are  still  unrepealed  j  and  some  years  ago 
 we  had  an  instance  mentioned  in  the  papers,  of  a 
 fellow  who  was  prosecuted,  and  actually  obliged  to 
 
112  Swearing  and  Cursing.  [Art.  257. 
 
 pay,  for  a  pretty  large  number  of  curses  ;  yet  there 
 is,  perhaps,  no  country  in  the  world,  in  which  one 
 hears  so  much  cursing  as  in  England  ; — a  clear  proof, 
 that  those  who  enacted  the  law  in  question,  which, 
 methinks,  is  coeval  with  their  Sabbatical  laws,  though, 
 no  doubt,  very  pious  men,  were  yet  quite  miserable 
 legislators. 
 
 Some,  from  misunderstanding  the  two  passages, 
 Lev.  v.  1.  and  Prov.  xxix.  24.,  have  been  led  to 
 imagine,  that  idle  oaths  and  curses  had  been  punished 
 by  the  magistrate  ;  and  this  mistake  may,  in  some 
 instances,  have  influenced  the  tenor  of  our  laws  in 
 Christian  countries.  In  the  preceding  Article  I  have 
 explained  both  passages  ;  and  here  I  shall  only  ask, 
 whether  we  can  possibly  suppose  Moses  or  Solomon 
 so  irrational,  as  not  merely  to  regard  idle  swearing  as 
 punishable  by  a  human  tribunal,  but  also  to  require 
 every  man  to  give  information  to  the  magistrate  of 
 every  curse  he  hears  ?  This  would  be  to  convert  the 
 whole  people  into  downright  informers  ;  and  yet  we 
 shall  soon  see  that  Moses,  by  no  means,  patronized 
 persons  of  that  character.  If  the  meaning  of  Lev.  v.  1 . 
 were,  that  the  moment  we  heard  an  idle  oath  uttered, 
 we  were  bound  to  give  information  of  it,  or  if  we  did 
 not,  to  make  a  trespass-offering,  we  should  have 
 nothing  else  to  do  all  our  lives,  than  run  to  the  court 
 with  our  informations  ;  and  the  richest  man  in  the 
 kingdom  would  scarcely  have  lambs  enough  to  ex- 
 piate his  curses.  Were  I  in  London,  under  such  a 
 law,  I  should  never  leave  home,  because  I  would  be 
 sure  to  hear  more  curses,  than  I  could  possibly  de- 
 
Art.  257.]  Common  Swearing  hardly  cognizable,      lis 
 
 denounce,  and   might   expect   my  reward   from  the 
 people,  as  well  as  from  the  law. 
 
 Upon  the  whole,  we  are  under  no  general  obliga- 
 tion to  notify  every  bad  thing  that  comes  under  our 
 observation  ;  and  such  unmeaning  curses  as,  the  God 
 damn,  of  an  Englishman,  or  der  Teafel  hole,  (the  devil 
 take)  of  a  German,  do  so  little  harm,  that  we  can 
 conceive  no  reason,  why  they  should  be  noticed  for 
 any  such  purpose.  Could  Solomon,  in  the  descrip- 
 tion which  he  gives  of  the  thief-screener,  with  the 
 express  view  of  representing  his  baseness,  mean 
 nothing  more,  by  saying,  he  hears  the  thief  adjured, 
 without  declaring  the  fact,  than,  merely  to  compare 
 him  to  the  man,  who  hears  his  neighbour  curse,  with- 
 out informing  upon  him  ? — I  imagine,  that  none  of  my 
 readers  can  exonerate  himself  from  the  sin  of  omis- 
 sion in  this  point ;  for  the  man  who  should  attempt 
 to  denounce  every  curse  he  heard,  to  the  magistrate, 
 would  merit  a  place  in  one  of  those  small  apartments, 
 in  which  my  work  has  not  the  good  fortune  to  be  read. 
 
 vol.  iv.  H 
 
CHAPTER  III. 
 
 RIMES      OF      LUST. 
 
 ART.  CCLVIII. 
 
 Unnatural  Sins. 
 
 §  1.  The  unnatural  crimes  of  lust  mentioned  in  the 
 laws  of  Moses,  and  subjected  to  punishment,  are  so- 
 domy and  bestiality.  The  statutes  respecting  them, 
 are  found  in  Lev.  xviii.  22,  23.  xx.  13,  15,  16. ;  as 
 also,  to  a  certain  extent,  in  Deut.  xxiii.  18,  19. 
 xxvii.  21. 
 
 Moses,  in  his  history  of  the  earlier  times,  describes 
 the  former  of  these,  as  that  abominable  vice,  which  was 
 so  prevalent  in  Sodom  and  Gomorrah,  that  God  de- 
 stroyed these  cities  on  account  of  it,  Gen.  xviii.  xix. ; 
 and  hence  it  is,  that  theologians  have  given  it  its  pre- 
 sent name,  which,  however,  is  used  by  lawyers  in  a 
 different  sense.  In  the  Mosaic  law,  the  person  who 
 submits  to  sodomy,  is  called  Keleb  (^75)  a  dog  ;  or, 
 if  he  hires  himself  for  that  purpose,  Kadesch  (^p), 
 that  is,  consecrated ;  or,  as  a  Roman  would  have  ex- 
 pressed it,  puer  sacerrimus  ;  because  sometimes  in  the 
 consecrated  groves  of  the  heathen  deities,  there  were 
 brothels  of  this  description  established,  for  the  benefit 
 of  the  priests.     For  the  person  who  committed  the 
 
Art.  258.]  Unnatural  Sins.  11 J 
 
 crime   in    question,    we  do   not  find  any  particular 
 name. 
 
 Bestiality  is  termed  Thebel  (^n)  that  is,  disease,  or 
 insanity  *.  Both  sorts  of  it  are  expressly  noticed  and 
 described  ;  Crimen  et  maris  ageniis,  etfoemina?  patientis. 
 
 It  would  seem  that  both  these  crimes  had  not  been 
 then  uncommon  among  the  Egyptians  and  Canaan- 
 ites  ;  and  hence  Moses  specifies  them  among  those 
 practices  of  these  nations,  which  the  Israelites  were 
 not  to  imitate,  Lev.  xviii.  3,  4,  22, — 28.  Concerning 
 the  Egyptians,  we  know,  for  certain,  that  in  some  of 
 their  religious  services,  bestiality  was  publicly  prac- 
 tised. 
 
 In  Lev.  xx.  13,  i5,  16.  the  punishment  of  death  is 
 appointed  for  both  these  crimes  ;  and  it  was  probably 
 inflicted  by  stoning,  although  that  is  not  expressly 
 specified  in  the  law.  If  we  reflect  on  the  dreadful 
 consequences  of  sodomy  to  a  state,  and  on  the  extent 
 to  which  this  abominable  vice  may  be  secretly  carried 
 on  and  spread,  we  cannot,  on  the  principles  of  sound 
 policy,  consider  the  punishment  as  too  severe.  For  if 
 it  once  begins  to  prevail,  not  only  will  boys  be  easily 
 corrupted  by  adults,  but  also  by  other  boys  ;  nor  will 
 it  ever  cease ;  more  especially  as  it  must  thus  soon 
 lose  all  its  shamefulness  and  infamy,  and  become  fa- 
 shionable, and  the  national  taste ;  and  then  depopula 
 tion  and  national  weakness,  for  which  all  remedies  are 
 ineffectual,  must  inevitably  follow;  not  perhaps  in 
 the  very  first  generation,  but  certainly  in  the  course 
 
 H  2 
 
 *  See  my  Dissertation  on  the  Mosaic  Marriage  Laws,  p.  65.  or 
 Art.  CII.  of  this  work, 
 
216  Consequences  of  Unnatural  Lusts.   [Art.  258. 
 
 of  the  third  or  fourth.  It  is,  moreover,  a  substitute 
 for  marriage  (and  indeed  for  whoredom  too,  of  which, 
 however,  children  may  sometimes  be  the  consequence) 
 and,  as  such,  it  will  be  resorted  to  by  the  man,  who 
 does  not  chuse  to  maintain  a  wife  and  a  family,  and 
 would  be  forced  to  live  more  sparingly,  if  he  had  not 
 this  resource.  In  this  way,  it  diminishes  the  number 
 of  marriages  ;  and  when  that  takes  place  from  such  a 
 cause,  (we  need  only  call  to  mind  the  state  of  Rome, 
 in  this  point,  under  the  emperors,)  it  becomes  impos- 
 sible to  reintroduce  them  into  fashion,  until  the  coun- 
 try shall  be  at  last  subjected  to  a  people  untainted 
 with  this  vice ;  of  which  it  is  farther  to  be  observed, 
 that  it  is  always  accompanied  with  an  increasing  aver- 
 sion to  the  female  sex,  which  generally  ends  in  abso- 
 lute impotence.  But  its  direful  consequences  are  not 
 confined  to  one  sex :  for  the  other  sex,  as  they  must, 
 for  the  most  part,  either  remain  unmarried,  or  be  be- 
 trayed into  marriages  where  their  natural  desires  are 
 not  duly  gratified,  soon  learn  to  avenge  themselves 
 by  the  practice  of  unnatural  lusts,  Lesbiam  scilicet  vene- 
 rem  inter  sese  exercentes,  velcastratos  amplectejites  ;  and 
 thus  they,  in  their  turn,  conceive  an  abhorrence  of 
 their  husbands,  and  become  perfectly  profligate  ;  and 
 the  consequence  is,  what  we  also  see  in  the  case  of 
 Rome  under  the  emperors,  a  still  greater  paucity  of 
 marriages,  and,  of  course,  a  still  greater  depopulation 
 of  the  country.  To  these  evils  may  be  added  yet 
 another,  viz.  that  the  constitutions  of  those  men,  who 
 submit  to  this  degradation,  are,  if  not  always,  yet  very 
 often,  totally  destroyed,  though  in  a  different  way 
 from  what  is  the  result  of  whoredom. 
 
A  rt.  258.]    Punishment  of  Unnatural  Lusts.  11 7 
 
 Whoever,  therefore,  wishes  to  ruin  a  nation,  has 
 only  to  get  this  vice  introduced ;  for  it  is  extremely 
 difficult  to  extirpate  it,  where  it  has  once  taken  root, 
 because  it  can  be  propagated  with  much  more  secrecy 
 than  whoredom,  which  generally  betrays  itself  by  chil- 
 dren ;  and  when  we  perceive  that  it  has  once  got  a 
 footing  in  any  country,  however  powerful  and  flourish- 
 ing, we  may  venture,  as  politicians,  to  predict,  that 
 the  foundation  of  its  future  decline  is  laid,  and  that, 
 after  some  hundred  years,  it  will  no  longer  be  the 
 same  populous  and  powerful  country  it  is  at  present. 
 
 In  regard  to  this  crime,  Moses  acted  as  several 
 other  legislators  have  since  done.  He  punished  it 
 capitally.  No  doubt,  in  many  countries  both  of  Eu- 
 rope and  Asia,  the  laws  against  it  are  more  mild  ;  and 
 this  diversity  of  punishment  may,  perhaps,  be  sug- 
 gested by  considerations  respecting  climate ;  or  pro- 
 ceed from  other  causes,  such  as  the  prevalence  or 
 rarity  of  the  crime,  or  its  extent  in  neighbouring 
 nations ;  or  even  be  regulated  by  the  physical  and 
 constitutional  strength  of  the  people.  One  thing  is 
 very  certain,  that  it  is  a  more  common  vice  in  south- 
 ern countries,  and  thence  usually  imported  into  north- 
 ern ;  and  it  has  besides  been  remarked  by  physicians, 
 that  those  people  whom  nature  has  gifted  with  greater 
 powers  of  virility,  have  more  violent  desires  for  natu- 
 ral gratifications,  and  are  not  so  apt  to  fall  into  it; 
 whereas,  on  the  other  hand,  where  nature  has  been 
 less  liberal  in  this  respect,  a  greater  propensity  to  this 
 unnatural  lust,  and  indeed  from  causes  altogether  phy- 
 sical, has  been  observed  to  prevail.  Hence,  in  south- 
 ern countries,  its  punishments  should  be  more  severe, 
 
 h  3 
 
118  Concerning  Adultery,  [Art.  259. 
 
 if  it  is  intended  that  they  should  have  any  effect,  or  that 
 the  laws  should  not  prove  too  weak  to  counteract  its 
 progress.  In  no  country,  perhaps,  was  it  ever  punish- 
 ed capitally  with  such  rigour  as  in  Holland,  about  40 
 years  ago.  There  was,  however,  a  special  reason  for 
 this.  It  had  been  introduced  from  other  countries, 
 and  had  become  very  prevalent.  In  England,  where 
 it  is  notoriously  execrated,  and  the  people,  from  the 
 nature  of  their  food  and  mode  of  life,  are  more  robust 
 than  those  of  most  other  nations,  perhaps  a  punish- 
 ment less  severe  than  the  usual  one,  of  hanging,  might 
 suffice. 
 
 In  order  to  excite  the  greater  abhorrence  of  bestial- 
 ity, Moses  ordered  the  beast  with  which  that  crime 
 had  been  committed,  to  be  put  to  death.  As  we  have 
 the  same  practice  in  our  laws,  it  is  unnecessary  here 
 to  say  any  more  concerning  it,  than  that  the  dispatch- 
 ing any  such  beast,  is  a  manifest  suggestion  of  pru- 
 dence, to  prevent  the  effects  of  temptation  in  other 
 cases. 
 
 ART.  CCLIX. 
 
 Concerning  Adultery — What  zee  are  to  understand  by 
 that  Word. 
 
 §  2.  Adultery,  according  to  the  common  usage 
 of  the  Hebrew  language,  but  especially  in  the  Mosaic 
 law,  does  not  mean  every  violation  of  chastity  of  which 
 a  married  person,  whether  husband  or  wife,  is  guilty  j 
 but  only  the  carnal  connection  of  a  wife  with  any 
 other  man  than  her  husband ;  and  the  terms  equiva- 
 
Art.  259.]     Sense  of  the  Word,  in  Hebrew,  119 
 
 lent  to  adulterer  and  adulteress,  are  Noef  (H***)*  and 
 Noefet  (HSKJ).  The  connection  of  a  married  man 
 with  a  single  woman,  was  termed  only  whoredom,  and 
 is  not  included  in  the  crime  of  which  I  here  speak, 
 and  which  Moses  punished  with  death.  In  fact,  this 
 distinction  was  suitable  to  the  whole  analogy  of  the 
 Mosaic  marriage-law ;  according  to  which,  the  hus- 
 band and  the  wife  had  not,  as  among  us,  an  equal 
 right  to  prevent  each  other  from  having  impure  inter- 
 course with  strangers  ;  for  the  former  might  marry 
 other  wives,  and  take  concubines  and  slaves  to  his 
 bed,  nor  had  the  latter  any  legal  title  to  insist  that  he 
 should  belong  to  her  alone.  If,  therefore,  a  married 
 man  had  to  do  with  a  woman  who  was  neither  his  wife 
 nor  his  concubine,  nor  his  slave,  in  other  words,  with 
 a  common  strumpet,  this  was  no  doubt  a  breach  of 
 chastity,  but  not  such  a  one  as  gave  his  wife  any  legal 
 reason  to  complain  of  the  infringement  of  her  rights  ; 
 and  consequently  there  was  here  no  violation  of  his  ma- 
 trimonial engagements ;  nothing,  in  short,  that  could 
 be  called  adultery,  in  the  more  comprehensive  sense  in 
 which  some  use  the  German  word,  Ehebruch,  (marri- 
 age-breach.) He  had  indeed  acted  contrary  to  the 
 dictates  of  both  philosophical  and  theological  ethics  ; 
 but  to  his  wife,  by  the  acknowledged  principles  of  the 
 Hebrew  civil  law,  he  had  done  no  wrong  that  she 
 could  resent  or  complain  of.  At  the  same  time,  in 
 their  use  of  the  term  equivalent  to  adultery,  the  He- 
 brews are  so  accurate,  that  even  crimes  which,  in  re- 
 spect to  their  punishment,  are  put  on  a  footing  with 
 adultery,  (such,  for  instance,  as  that  of  a  widow,  de- 
 stined for  her  husband's  brother,  in  being  connected 
 
 h  4 
 
120  A  Crime  only  on  the  Wife* s  pari.   [Art.  259. 
 
 with  any  other  man,  which  was  a  capital  offence),  are 
 termed  only  whoredom ;  and  that  not  merely  in  the 
 laws,  in  which  words  are  always  used  very  definitely, 
 but  also  in  the  historical  style,  as  we  see  from  Gen, 
 xxxviii.  24. 
 
 But  though  any  doubt  should  remain  with  regard 
 to  the  meaning  of  adultery  in  common  life,  it  is  at 
 any  rate  certain,  that  in  criminal  jurisprudence,  it  is 
 understood  in  no  other  sense  than  according  to  the 
 definition  which  I  have  given  above ;  for  in  the  only 
 statute  in  which  its  punishment  is  fixed,  (Lev.  xx.  10.) 
 it  is  expressly  said,  Whoever  committelh  adultery  with 
 a  married  woman,  who  is  the  wife  of  another  man,  shall 
 die  therefor  ;  and  not  only  he,  but  the  adulteress  ;  or,  if 
 we  wish  to  have  a  more  literal  version,  The  man  who 
 committeth  adultery  with  a  man's  wife,  who  committelh 
 adultery  with  the  wife  of  his  neighbour,  shall  die,  both 
 he  and  the  adulteress.  Here,  in  the  only  penal  statute 
 on  the  subject,  it  is  twice  stated  that  only  that  species 
 of  adultery  is  meant,  which  is  committed  with  a  wife. 
 If  any  reader  be  curious  to  know  what  the  word  which  I 
 render  Ehebruch  (marriage-breach,  or  adultery)  means 
 ctymologically,  (a  question,  on  which  one  naturally 
 enough  lights  in  the  case  of  a  legal  term,  but  which,  as 
 I  have  already  remarked,  is  in  Hebrew  more  difficult  to 
 answer  in  that  case,  than  in  any  other,)  I  may  add, 
 that,  in  my  opinion,  the  radical  Arabic  word  properly 
 means,  to  quench  one's  thirst  with  the  wife  of  another, 
 (Prov.  v.  15.) 
 
 These  observations  may,  perhaps,  in  the  opinion  of 
 some,  appear  repugnant  to  what  Christ  says  in  Matth. 
 xix.  9.  that  whoever  dismisses  his  wife  without  sufficient 
 
Art.  259.]  Ckrisfs  Doctrine  respecting  Adultery.     121 
 
 cause,  and  marries  another,  is  guilty  of  adultery.  But 
 we  must  distinguish  between  the  sense  which  a  word 
 has  in  laxv,  and  that  which  may  be  given  to  it  in  ethics. 
 Thus  the  moralist  may  call  many  things  murder,  which 
 are  not  so  in  law,  as,  for  instance,  when  a  man  inten- 
 tionally vexes  another  to  death.  It  is  clear  that  Christ 
 uses  the  word  adultery  not  in  its  forensic  sense,  and 
 according  to  the  Mosaic  law,  but  as  a  moralist,  when 
 he  says  *, 
 
 1.  That  the  man  who  puts  away  his  wife,  causes 
 her  to  commit  adultery  ;  yea, 
 
 2.  That  he  himself  does  so  when  he  marries  another 
 woman,  Matth.  xix.  9. 
 
 These  were  absolutely  things  for  which  the  Mosaic 
 law  not  only  did  not  appoint  any  capital  punishment, 
 but  which  it  even  authorised  on  civil  grounds ;  and 
 the  latter,  with  which  we  are  here  more  peculiarly 
 concerned,  presupposes  polygamy  to  be  morally  wrong, 
 though  it  was  not  prohibited  by  any  civil  statute.  At 
 present,  I  speak  of  adultery  merely  in  the  sense  in 
 which  the  word  is  used  in  criminal  law. 
 
 In  order  to  constitute  adultery,  it  was  necessary,  by 
 the  Mosaic  law,  that  there  should  be,  not  merely  de- 
 nudation, or  any  other  such  obscene  procedure,  but 
 real  carnal  intercourse,  properly  so  called,  cum  emis- 
 
 *  In  the  first  edition,  here  stood  also  these  words,  Wlioever  marries 
 a  woman  separated  ivithout  sufficient  reason  froyn  her  husband,  commits 
 adultery,  Matth.  v.  32.  ;  which  I  now  purposely  omit,  because  my 
 present  opinion  is,  that  they  refer  to  the  case  of  a  man  marrying  a 
 woman  who  had  separated  herself  from  her  husband,  and  run  away 
 from  him,  as  Herodias,  for  instance,  did.  Now,  to  marry  such  a 
 woman  was  adultery,  even  in  the  Mosaic  sense  of  the  word. 
 
122  Critical  Explanation  o/*Numb.  v.  12,  IS.  [Art.  260. 
 
 sione,  scil.  et  immissione  seminis  ;  this  is  clear  from 
 Numb.  v.  12,  13.  19.  20.;  particularly  when  we 
 inspect  the  original  text ;  where  in  ver.  12.  the  words 
 IT*  t&3&  mt  W*  V3W,  literally  rendered,  are  to  this 
 purpose,  Effudcritque  vir  in  earn  ejfusionem  seminis  ; 
 and  in  ver.  20.  VTOp  n»  "p  WX  jnvi,  Dederitque  vir  effu- 
 sionem  snam  in  te,  that  is,  semen  suum  in  te  effuderit.  For 
 the  sake  of  those  who  understand  a  little  Hebrew,  but 
 not  enough  to  perceive  how  I  come  to  translate  in  these 
 terms,  I  must  remark,  that  the  verb  35C7,  properly  sig- 
 nifies effundere,  or  effimdi.  This  is  manifest  from  the 
 Arabic,  in  which  (only  changed  in  pronunciation  into 
 sacaba)  it  signifies  to  ponr  oat,  or  shed,  as  in  Sura 
 lvi.  30.  of  the  Koran.  In  like  manner,  in  Lev.  xv. 
 16,  17.  Schichbat  Sera,  (JH»  nW)  can  mean  nothing 
 else  than  Effusio  Seminis. 
 
 In  the  case  of  a  wife  being  guilty  of  any  other 
 obscene  practices,  we  do  not  find  it  ascertained  in  the 
 Mosaic  law,  to  what  punishment  she  subjected  herself: 
 but  it  does  not  thence  follow,  that  she  was  not 
 punished  at  all ;  because  her  punishment  may  have 
 been  determined  by  usage,  or  left  to  the  pleasure  of 
 the  judge,  or  even  of  the  husband,  who  enjoyed  much 
 greater  rights  over  his  wife  than  with  us,  and  had  it, 
 besides,  entirely  in  his  own  power  to  give  her  a  bill 
 of  divorce,  whenever  he  chose. 
 
 ART.  CCLX. 
 Of  the  Punishment  of  Adultery. 
 
 %  3.  The  punishment  of  adultery  was  death,  and 
 that,  as  I  shall  by  and  by  shew,  by  stoning ;  Lev. 
 
Art  260.]  If  Theft  justly  capital,  so  also  Adultery.   1 2S 
 
 xx.  10.  I  must,  however,  previously  inquire  into  the 
 justice  of  those  peopled  arguments,  who  complain  of 
 that  punishment  as  too  severe  and  barbarous. 
 
 Now,  no  one  can  justly  object  to  it,  who  does  not 
 equally  disapprove  of  theft  being  capitally  punished  ; 
 for  the  crime  of  adultery,  as  soon  as  it  gives  birth  to 
 a  child,  becomes  a  theft  so  great,  that  one  more 
 heinous  can  scarcely  be  committed.  All  the  expence 
 of  maintenance  and  education,  which  the  deluded 
 husband  bestows  on  such  a  supposititious  child,  and 
 all  the  share  of  inheritance  which  it  receives,  and 
 which  may  amount  to  thousands,  or  to  tons  of  gold, 
 are  stolen  from  the  rightful  heirs  ;  and  even  when 
 adultery  is  not  followed  by  any  child,  it  is  still  a 
 wicked  attempt  to  commit  this  monstrous  theft. 
 Now,  if  a  thief  meets  with  no  injustice  in  being 
 hanged,  the  adulterer  and  adulteress  are  still  more 
 deserving  of  death,  when  we  consider  the  great  and 
 manifold  injury  which  the  husband  receives  in  addi- 
 tion to  his  loss  ;  an  injury,  indeed,  of  such  a  nature, 
 that  by  the  laws  of  most  countries,  he  is  held  justified, 
 or,  at  any  rate,  excused,  if,  injasto  dolor  e,  as  the 
 phrase  is,  he  avenge  it  on  the  spot,  by  stabbing  the 
 man  dead,  whom  he  happens  to  catch  in  the  act  of 
 inflicting  it.  This  presupposes,  that  avengement,  to 
 that  extent,  is  not  considered  as  disproportioned  to 
 the  crime. 
 
 If  it  be  objected,  that  the  violent  impulse  of  passion 
 is  so  strong  a  temptation  to  adultery,  that  we  cannot 
 but  pity  the  man  whom  it  enslaves,  I  must  observe  in 
 answer,  that  if  we  do,  we  totally  mistake  the  design 
 of  punishments.     For  if  they  are  meant  to  deter  from 
 
124    Adultery  capital  in  a  State  of  Nature.  [Art.  260. 
 
 crimes,  it  is  evident,  that  the  stronger  the  inclination 
 to  any  crime  is,  the  more  severe  must  be  its  punish- 
 ment. If  again,  they  ought  to  serve  as  a  counter- 
 poise to  our  wicked  propensities,  where  these  are  but 
 weak,  mild  punishments  may  suffice ;  but  where  they 
 are  more  violent,  we  must  put  the  greater  weight  of 
 punishment  into  the  opposite  scale  of  the  balance,  in 
 order  to  preserve  the  equilibrium. — As  to  the  objec- 
 tion drawn  from  beauty,  and  the  gallantry  of  the 
 crime,  I  think  it  scarcely  entitled  to  the  least  notice. 
 It  is  to  secure  us  against  such  gallantries,  that  we 
 unite  in  civil  society,  and  that,  instead  of  living  in 
 promiscuous  concubinage,  we  enter  into  matrimonial 
 engagements,  guaranteed  by  the  laws  of  that  society. 
 In  a  state  of  nature,  a  man  has  undoubtedly  a  right 
 to  defend  his  property,  and,  of  course,  his  wife,  who 
 became  his  by  her  own  consent,  and  to  avenge  himself 
 to  the  utmost  on  the  person  who  has  injured  him  in 
 this,  the  nicest  of  all  points  ;  in  order  to  deter  others 
 from  similar  attempts.  This  right  will  be  the  less 
 disputed,  that  we  see  even  some  of  the  brute  creation 
 exercising  it.  Now,  in  that  ill-regulated  state  of  civil 
 society,  in  which,  after,  having  surrendered  our  right 
 of  self-avengement,  we  could  not  obtain  adequate 
 protection  against  such  injuries,  in  consequence  of 
 their  being  considered  as  gallantries,  it  certainly 
 would  not  be  very  desirable  to  live  ;  more  especially 
 if  it,  besides,  constrained  us  to  leave  at  our  death,  unto 
 our  wife's  children,  so  long  as  it  remained  unproved, 
 that  they  did  not  belong  to  us,  our  property  in  whole 
 or  in  part,  after  having,  while  we  lived,  maintained 
 aad  educated  them  as  our  own. 
 
Art.  260.]     The  Violence  of  Oriental  Jealousy.       \  23 
 
 In  addition  to  these  general  considerations,  from 
 which,  however,  I  by  no  means  wish  to  infer,  that 
 adultery  ought  to  be  universally  punished  with  death, 
 (for  that  would,  in  many  countries,  as  we  shall  see  in 
 the  sequel,  be  far  from  expedient)  but  only  that  the 
 adulterer  cannot  justly  complain  of  the  severity  of 
 such  punishment ;  we  have  now  to  take  into  the 
 account,  those  particular  circumstances,  which  would 
 naturally  influence  a  legislator  of  the  Israelitish  na- 
 tion, in  adopting  and  sanctioning  it.  In  southern 
 countries,  jealousy  is  commonly  more  violent  than  in 
 northern  ;  and,  therefore,  adultery  a  grosser  injury 
 to  a  husband,  and  one  for  which  he  will  naturally 
 desire  and  inflict  sevrerer  revenge.  A  wise  legislator 
 must  always  contemplate  injuries  in  the  light  in  which 
 they  appear  to  his  people,  if  he  wishes  to  restrain 
 them  from  avenging  their  own  quarrels.  In  a  country, 
 for  instance,  where  a  man  thinks  that  he  ought  to 
 revenge  a  slap  in  the  face,  with  his  sword  ;  or  a  flog- 
 ging, with  his  pistol,  the  legislator  must  not  think 
 of  punishing  these  outrages  in  the  same  style,  in  which 
 he  would  proceed  among  a  people,  who  accounted  a 
 slap,  or  a  lash,  as  nothing  more  than  what  they  phy- 
 sically are.  If  he  does  not  attend  to  this,  nor  punish 
 offences  according  to  the  notions  which  the  people 
 entertain  of  them,  the  injured  will  never  apply  to 
 justice  for  redress,  but  take  revenge  at  their  own 
 hands. — On  this  point,  however,  I  shall  not  here 
 enlarge ;  as  I  may  probably  take  notice  of  it,  in  the 
 concluding  Essay  on  Punishments. 
 
 Of  the  nature  of  jealousy  among  the  Israelites,  we 
 may  form  some  idea,  from  what  Solomon  says  in  the 
 
226  Violence  of  Oriental  Jealousy.      [Art.  260. 
 
 vi.  chapter  of  Proverbs,  ver.  28, — 35. ;  and,  no  doubt, 
 it  was  of  a  very  different  description  from  what  we 
 find  it,  among  the  more  accommodating  husbands  of 
 our  climate  and  day,  who  very  readily  accept  a  gift 
 to  appease  their  vengeance.  But  still  it  was  moderate 
 indeed,  compared  to  what  we  read  in  Chardin*y  of 
 Persian  jealousy,  as  inflamed  by  a  single  distant  glance, 
 and  countenanced  by  a  set  of  the  most  tyrannical  and 
 murderous  laws.  Whoever,  in  Persia,  has  the  misfor- 
 tune to  see,  or  the  imprudence  to  look  at,  the  wife  of 
 a  man  of  rank,  were  it  but  as  she  travels  on  the  road, 
 and  at  ever  so  great  a  distance,  is  sure  to  be  severely 
 beaten  by  her  eunuchs,  and  perhaps  put  to  death  ;  and 
 to  meet  any  of  the  king's  concubines,  is  such  a  capital 
 crime,  that,  on  a  certain  occasion,  when  the  favourite 
 queen  happened  during  the  chace  to  be  overtaken  by 
 a  storm,  and  under  the  necessity  of  taking  refuge  in  a 
 hamlet,  not  one  of  the  people  would  let  her  majesty 
 in,  that  they  might  not  have  the  misfortune  of  seeing 
 her.  This,  however,  is  certainly  not  natural  jealousy, 
 but  the  artificial  jealousy  of  southern  countries,  car- 
 ried, by  the  influence  of  luxury  and  pride,  to  absolute 
 insanity ;  yet  it  is  in  perfect  unison  with  other  fea- 
 tures in  the  portrait  of  an  opulent  Asiatic  nation,  in 
 which  polygamy  prevails  j  and  we  must  moreover  re- 
 member, that  in  Persia,  the  Mahometan  religion,  which 
 deals  so  very  gently  with  adultery,  as  to  inflict  upon  it 
 only  the  punishment  of  blows,  has  long  been  the  esta- 
 blished faith.  If,  then,  this  Persian  usage,  so  repug- 
 nant to  the  tenets  of  Islamism,  be  taken  into  the  ac- 
 
 *  See  hi*  Voyage;  en  Perse,  torn.  ^i.  chap,  xiii,  p.  231. 
 
Art.  260.]   Mosaic  Punishment  just  §  politic.  127 
 
 count,  we  shall  easily  be  convinced,  that  Moses  would 
 not  only,  in  the  Jirst  place,  have  acted  very  unjustly 
 towards  his  fellow  citizens,  who  did  not  look  upon 
 adultery  as  only  a  venial  sort  of  gallantry,  which  any 
 husband  might  overlook :  but  likewise,  in  the  second 
 place,  very  impolitically  ;  and  only  have  opened  a  door 
 to  self-avengement,  and  that  too  by  assassination,  if  he 
 had  appointed  any  lesser  punishment  for  adultery  than 
 death.  Add  to  this,  that  where  jealousy  is  so  keen, 
 and  revenge  goes  such  lengths  as  Solomon  describes  ; 
 and  where  it  is  in  vain  to  hope  that  any  husbands  will 
 be  found,  like  the  one  mentioned  in  a  late  French 
 story  *,  who,  catching  a  stranger  in  bed  with  his  wife, 
 in  order  to  prevent  reproaches  to  his  family,  had  the 
 prudence  to  let  him  jump  quietly  out  of  the  window, 
 that  he  might  be  able  to  tell  the  servants  waiting  at 
 the  door,  that  he  had  found  nobody ;  we  may  almost 
 as  naturally  conjecture  of  an  adulterer,  as  of  a  thief 
 coming  in  the  night,  that  he  will  take  care  to  be  well 
 armed  for  his  own  defence,  and,  as  the  saying  is,  go 
 out  prepared  to  murder,  as  well  as  to  rob. 
 
 *  I  am  informed  that  Luther,  in  bis  Tabic  Talk,  Part  XXIII. 
 p.  1790.  of  Walch's  edition,  tells  a  similar  story,  and  concludes  it  in 
 these  words,  He  would  not  have  found  so  much  foresight  and  ivisdom  in 
 me.  Some  people  may,  therefore,  be  almost  tempted  to  think,  that 
 this  French  story  is  only  an  old  one  warmed  up.  With  that  point  I 
 have  nothing  to  do ;  but  I  had  the  story  from  some  French  officers 
 of  distinction,  who  mentioned  the  name  of  the  injured  and  prudent 
 husband,  and  that  he  was  a  person  of  very  high  rank  That  name, 
 however,  even  if  >  had  not  forgotten  it,  I  should  not  think  it  fair  to 
 repeat,  because  it  would  seem  to  be  a  matter  of  some  moment  to  the 
 gentleman  though  he  was  an  Acieon,  not  to  be  thought  so. 
 
128    Notions  respecting  an  Immortal  Name.  [Art.  260. 
 
 This,  then,  is  the  most  important  consideration  ; 
 but  still  those  which  follow,  are  not  entirely  to  be 
 overlooked. — The  Mosaic  laws  were  intended  to  pro- 
 mote marriage,  and  thus  to  augment  the  population 
 of  the  country ;  but  in  order  to  the  attainment  of 
 these  objects,  it  is  requisite,  above  all  things,  that 
 marriages  be  held  sacred. — Among  the  Israelites  too, 
 succession  to  landed  property  went  entirely  by  birth. 
 A  father  could,  in  his  testament,  make  no  settlement 
 respecting  it,  because  it  fell  invariably  to  those  who 
 were  regarded  as  his  sons ;  and  as  the  people,  from 
 an  idea  which  it  was  advantageous  to  the  state  to  en- 
 courage, were  led  to  seek  for  immortality  of  name, 
 in  the  genuineness  of  their  descendants ;  the  injury 
 inflicted  on  a  deluded  husband,  both  by  the  adulterer 
 and  the  adulteress  was,  on  both  these  accounts,  still 
 greater  than  among  us,  and  merited,  of  course,  a 
 severer  punishment. 
 
 The  argument  now  stated,  has  so  much  influence  in 
 determining  the  punishment  of  adultery,  that  to  punish 
 it  with  death  among  a  people  in  different  circumstances, 
 might  be  attended  with  very  bad  effects,  and  would 
 only  serve  to  give  the  crime  a  sort  of  impunity.  This 
 certainly  would  be  the  case  in  Germany,  and  still 
 more  so,  in  France. — Let  the  reader  only  attend  to 
 the  two  following  distinctions  : 
 
 1.  The  people  of  northern  nations  seldom  carry  re- 
 venge, out  of  mere  jealousy,  so  far  as  those  of  south., 
 ern.  They  do  not  usually  demand  that  blood  shall 
 be  shed  ;  or,  at  any  rate,  the  blood  of  the  adulteress, 
 (for,  according  to  our  manners,  the  husband  himself 
 would  be  disgraced  by  her  execution)  j  but  are  satis- 
 
Art.  260.]  Adultery  Utile  regarded  in  France.         129 
 
 fied  with  obtaining  satisfaction,  and  punishing  the  of- 
 fender, with  less  severity*  No  trait  in  our  manners 
 can  be  more  striking  than  this.  Numberless  duels 
 arise  from  the  most  trifling  injuries  ;  and  adultery  is 
 not  unfrequent  among  those,  who  enforce  the  point  of 
 honour  in  duelling  with  the  utmost  rigour ;  yet  so  far 
 are  they  from  being  over  rigid  here,  that  we  very  sel- 
 dom hear  of  an  injured  husband  wishing  to  preserve 
 his  honour,  by  a  duel  with  his  wife's  paramour,  parti- 
 cularly in  France.  Where  nothing  more  than  a  wife 
 is  in  question,  the  most  feeling  duellist  would  seem  to 
 be  a  man,  exactly  according  to  the  words  of  the  sermon 
 on  the  mount,  taking  them  in  their  strictest  sense,  and 
 without  any  explanation, — a  man  who  never  retaliated 
 evil.  The  French  anecdote  above  mentioned,  I  have 
 heard  related,  even  by  Frenchmen,  as  an  instance  of 
 very  exemplary  presence  of  mind  ;  and  with  such  ap- 
 probation, that  I  was  sometimes  almost  tempted  to 
 think,  the  relater  had  wished  to  have  had  the  honour 
 of  setting  such  an  example.  In  Paris,  a  capital  pro- 
 secution, in  a  case  of  adultery,  wTould  scarcely  be  at- 
 tempted, for  fear  of  Moliere  ;  and  the  man  who  should 
 commence  it,  would  require  a  good  deal  of  courage 
 to  withstand  the  universal  ridicule  to  which  he  would 
 be  subjected.  Now,  where  such  is  the  natural  way 
 of  thinking,  the  legislator  may  regulate  his  procedure 
 by  it,  with  the  very  same  propriety  as  did  Moses  his, 
 by  the  temper  of  the  Israelites  ;  nor  ought  he  to  ap- 
 point punishments  twice  or  ten  times  as  severe,  as  the 
 injured  party  requires.  If  he  does,  he  only  excites 
 pity  ;  complaints  cease  to  be  made,  and  the  crime  is 
 committed  with  impunity. 
 VOL.  iv.  i 
 
13d       Mosaic  Plan  for  detecting  Adultery,  [Art.  260. 
 
 2.  A  crime  punishable  with  death,  justly  requires  very 
 strong  proof,  and  such  almost  as  leaves  not  the  shadow 
 of  a  doubt  behind  it.  Now  such  a  proof  can  rarely 
 be  brought  in  the  case  of  adultery,  particularly  where 
 a  distinction,  stated  above,  is  made  between  the  crime 
 itself  as  actually  committed,  and  those  indecencies 
 which  but  lead  to  it.  The  consequence  of  this  may 
 be,  (and  sometimes  has  actually  been,)  that  adultery 
 remains  altogether  unpunished,  because  it  cannot  be 
 proved  with  that  strict  accuracy,  which,  where  life  is 
 at  stake,  it  ought  in  justice  to  be.  Now  to  obviate 
 this  difficulty,  Moses  enjoined  the  exaction  of  an  oath 
 from  the  wife,  and  contrived  that  oath  in  such  a  man- 
 ner, that  hardly  more  than  one  adulteress  of  a  hun- 
 dred, would  have  ventured  to  take  it,  and  perhaps 
 not  even  she.  Concerning  this  point,  more  will  be 
 said  by  and  bye.  In  the  meantime,  I  shall  only  ob- 
 serve, that  his  procedure  here,  would  not  suit  that 
 equality  of  rights,  which  married  persons  have  among 
 us,  unless  where  the  proof  were  so  strong,  that  a  court 
 might  adjudge  the  party  accused,  to  undergo  the  pur- 
 gation which  he  enjoined  ;  and  besides,  as  our  govern- 
 ments are  not  Theocracies,  and  we  have  not  such  ex- 
 press and  definite  promises  and  threatenings  of  the 
 divine  vengeance  on  perjury,  the  oath  in  question 
 would  not  be  so  effectual  for  the  discovery  of  deep- 
 hidden  truth,  as  it  was  among  the  Israelites. 
 
Art.  261.]  Mahometan  Law  respecting  Adultery.     131 
 
 ART.  CCLXI. 
 
 A  Digression  illustrative  of  the  Mahometan  Lent),  re* 
 specting  the  Punisliment  of  Adultery y  which  the  Read- 
 er, who  has  no  curiosity  on  the  subject,  may  pass  by, 
 
 §  4.  I  have  already  had  frequent  occasion  incident- 
 ally to  mention  the  Mahometan  laws.  To  treat  of 
 them  expressly  I  never  proposed,  nor  are  they  men- 
 tioned in  the  title  of  my  work  ;  but  with  regard  to 
 the  subject  now  under  consideration,  the  contrast  be- 
 tween the  Mosaic  and  Mahometan  law  is  too  striking, 
 and  the  question  of  too  much  importance  to  the  phi- 
 losophy of  jurisprudence,  to  allow  me  to  leave  it  un- 
 noticed. Here  we  see  a  people  living  under  the  same 
 climate  with  the  Israelites,  (indeed  rather  a  more 
 southern  one  ;)  having  the  very  same  origin  with 
 them,  (for  the  Ishmaelitish  Arabs,  of  whom  Mahomet 
 was  one,  and  the  Israelites,  had  one  common  ancestor, 
 Abraham ;)  and  at  the  same  time  extremely  jealous 
 and  vindictive  ;  and  yet  punishing  adultery  only  with 
 blows,  and  these  too  accompanied  with  no  loss  of 
 honour ;  in  other  words,  punishing  it  much  more 
 mildly  than  we  do  ourselves.  This  is  a  case  which 
 seems  not  merely  to  authorise,  but  even  to  demand,  a 
 digression,  in  order  that  some  light  may  be  thrown 
 upon  the  origin  and  reasons  of  the  Arabian  law. 
 
 A  suspicion  will  naturally  occur  at  the  very  outset, 
 that  Mahomet,  from  a  sense  of  his  own  weakness,  may 
 have  been  inclined  to  have  some  sympathy  with  hir 
 fellow-adulterers,  and  not  to  punish  with  too  m\v. 
 -  i  2 
 
j  32    First  Law  in  the  Koran  upon  Adultery.  [  Art.  26 1 . 
 
 severity  in  others,  a  crime,  in  regard  to  which,  he  was 
 conscious  of  his  own  guilt.  He  was  indeed  subject  to 
 epilepsy,  and  such  people  usually  have  not  the  gift 
 of  continence.  But  this  suspicion  entirely  vanishes, 
 when  we  inspect  the  passages  of  the  Koran  relative  to 
 adultery  ;  and  it  is  always  the  more  completely  dissi- 
 pated, the  more  impartially  we  go  to  work  ;  by  read- 
 ing them  in  the  original  itself,  and  accounting  the 
 explanations  of  the  Mahometan  theologians,  of  just  as 
 little  authority,  as  we  hold  those  of  our  own  theologians 
 to  be,  in  respect  to  the  Bible.  For  the  fact  is,  that 
 Mahomet  no  where  fixes  a  punishment  for  adultery, 
 but  abides  by  that  previously  in  use,  without  so  much 
 as  once  naming  it. — The  case  stands  thus  : 
 
 In  Sura  iv.  19.  Mahomet  gives  a  law,  which  is  com- 
 monly understood,  according  to  Boy  sen9  s  translation, 
 p.  74.  thus  :  If  women  shall  be  guilty  of  adultery,  ye 
 must  prove  this  crime  against  them  by  four  witnesses  ; 
 and  then  you  may  imprison  them  in  separate  apartments 
 of  the  house ,  until  either  death  deliver  them,  or  God  put 
 into  their  power  a  means  of  escaping  from  confinement: 
 but  concerning  this  law,  the  Mahometans  believe,  that 
 it  is  repealed  by  a  subsequent  law  in  this  very  same 
 chapter,  which  we  shall  hereafter  state,  and  which 
 appoints  blows  as  the  punishment  of  adultery.  It 
 would,  however,  have  been  very  strange  to  give  a  law 
 in  the  19th  verse  of  a  chapter,  and  to  repeal  it  again 
 at  the  30th.  No  doubt  Mahomet  did  contradict  him- 
 self very  often  ;  and,  in  order  to  excuse  his  inconsist- 
 encies, maintained  this  doctrine,  that  "  he  is  no  pro- 
 "  phet  who  does  not  contradict  himself;  and  that  this 
 "  happens  from  the  devil  occasionally  whispering  some- 
 
Art.  261.]  Gross  Inconsistency  of the  Koran.  1SS 
 
 "  thing  in  his  ear,  as  he  writes  or  speaks  ;  although 
 "  God  is  always  so  true,  as  to  say  the  contrary  in 
 "  some  other  place/*     But  here,  should  both  verses, 
 according  to  the  opinion  of  the  Mahometans,  be  from 
 God,  and  had  he  altered  a  punishment  of  his  own  ap- 
 pointment, within  the  short  space  of  dictating  eleven 
 verses,  it  would  have  been  a  very  sudden  alteration 
 indeed ;  and  as  in  vei\  30.   we  find  not  a  word  of 
 blows,  we  may  add,  a  very  obscure  one  also.     Putting, 
 however,  all  this  out  of  the  question,  we  need  only  re- 
 peruse  the  law,  to  be  convinced,  that  if  it  referred  at 
 all  to  adultery,  it  was  a  very  imprudent  law,  or  rather, 
 a  complete  dispensation  for  adultery.     Could  it  pos- 
 sibly be  supposed,  that  women,  when  they  meant  to 
 commit  adultery,  would  call  four  persons  to  witness 
 the  crime  ?     Two  or  three  were  sufficient  in  the  case 
 of  other  capital  offences  ;  and  as  it  is  but  very  seldom 
 indeed  that  adultery  can,  in  every  requisite  circum- 
 stance, be  proved  by  the  concurring  testimony  of  even 
 two  witnesses,  where  no  less  than  Jour  were  necessarv, 
 it  must  have  been  impossible  ever  to  prove,  or  to 
 punish  it  at  all.     It  really  would  seem  as  if  the  devil 
 (whom,  however,  I,  for  my  part,  look  upon  as  entirely 
 innocent,)  had  whispered  this  law  to  the  prophet ;  if 
 its  true  meaning  be  what  we  thus  make  it.     But  be- 
 sides ;  with  respect  to  the  punishment,  as  it  is  stated 
 in  Boy  sen's  translation,  who  here  follows  Sale,  we  must 
 observe,  that,  according  to  the  Arabic  original,  there 
 is  no  mention  at  all  of  separate  places  of  confinement, 
 nor  indeed  could  there  be  such  places  in  the  houses  or 
 tents  of  the  poor  Arabs  ;  it  is  merely  said,  Keep  them 
 in  //our  houses  until  they  either  die,  or  (iod  sliew  them 
 
 J  3 
 
134  The  Law  refers  not  to  Adultery.  [Art.  c26l. 
 
 how  to  escape.  But  would  it  not  have  been  a  very 
 strange  punishment  for  a  wife's  adultery,  to  give  her 
 husband  the  trouble  of  maintaining  her  in  his  house 
 as  long  as  she  lived  ?  He  would  certainty  always  have 
 preferred  turning  her  about  her  business  ;  and  he 
 might  have  done  so  safely,  as  the  Koran  itself  gave 
 him  the  right  of  divorce. 
 
 In  fact,  however,  neither  wives  nor  adultery  are 
 mentioned  in  this  law,  which,  if  accurately  translated, 
 is  to  this  effect :   When  any  of  your  females  are  guilty 
 ofunchastity,  take  four  among  you  as  witnesses  against 
 them,  and  xvhen  these  have  testified,  confine  the  culprits 
 to  your  houses,  until  death  take  them  hence,  and  (or) 
 God  make  a  way  for  them.     In  my  opinion,  this  law 
 does  not  at  all  refer  to  the  punishment  which  hus- 
 bands might  inflict  on  their  wives  for  the  crime  of 
 adultery,  but  to  that  which  parents  or  brothers  might 
 inflict  on  their  daughters  or  sisters,  forunchastity,  and 
 which  was  formerly  a  very  cruel  one.     Arvieux  *  has 
 remarked  that,  in  Arabia,  parents  and  brothers  do,  at 
 this  day,  look  upon  themselves  as  far  more  dishonour- 
 ed by  the  unchastity  of  their  daughters  and  sisters, 
 than  husbands  by  the  infidelity  of  their  wives  j  be- 
 cause, as  they  say,  a  husband  may  put  away  his  wife, 
 but  daughters  and  sisters  never  cease  to  be  such  ;  and 
 he  adds,  that  in  spite  of  the  Mahometan  law,  the  re- 
 venge of  an  Arab  against  a  daughter  who  thus  dis- 
 
 *  See  chap.  xix.  of  that  part  of  his  Travels,  in  which  he  describes 
 the  Arabs  of  Palestine.  The  whole  passage  will  be  found  in  ray 
 Syntagma  Commentationum,  part  i.  p.  5S.  where  a  comparison  is  insti- 
 tuted between  the  Arabian  notions  on  this  subject,  and  those  which 
 are  suggested  in  Gen.  xxxiv.  and  '2  Sam.  xtii.  xiv. 
 
Art.  261.]  Adulteresses  punished  in  Arabia,  §c.       J  3£ 
 
 graces  him,  sometimes  carries  him  the  length  of  kil- 
 ling her  with  his  own  hand;  relating  the  story  of  a 
 Bedouin,  who,  concealing  his  design,  carried  his 
 daughter,  whom  he  found  pregnant,  out  of  the  city, 
 and  when  they  came  into  the  desert,  put  her  cruelly 
 to  death.  Those  who  are  not  inclined  to  credit  Ar- 
 vieiLv,  upon  whose  fidelity  some  persons  unacquainted 
 with  Oriental  manners  have  cast  unjust  aspersions, 
 will  probably  pay  a  little  respect  to  the  following  pas- 
 sages from  Niebuhr's  Description  of  Arabia.  "  A  re- 
 "  spectable  man  of  the  tribe  of  Montcfidsi,  had  married 
 "  his  daughter  to  an  Arab,  at  Korne.  Not  long  after 
 "  the  marriage,  an  Arab  of  another  tribe  asked  him  in 
 "  a  coffee-house,  with  a  sort  of  sneer,  whether  he  was 
 "  the  father  of  the  young  and  beautiful  wife  of  N.  N. 
 "  This  made  him  conjecture  that  his  daughter's  honour 
 "  had  been  suspected,  and  he  instantly  left  the  com- 
 "  pany,  to  take  off  her  head  ;"  p.  31. — "  I  under- 
 "  stood  that  a  husband  durst  not  himself  put  his  wife 
 "  to  death  for  adultery,  but  that  her  father,  brother, 
 "  or  any  other  kinsman,  might  do  so  with  impunity, 
 "  or  at  least  for  a  trifling  fine  :  because  it  was  consi- 
 "  dered,  that  by  her  improper  conduct  she  brought 
 "  the  greatest  disgrace  upon  her  friends.  Instances 
 "  of  this  at  Bassora  and  Bagdad  were  recollected  by 
 *;  my  informants.  In  the  latter  of  these  cities,  a  rich 
 "  merchant  had  caught  a  young  man  with  one  of  his 
 "  female  relations ;  and  not  only  did  he  cut  her  in 
 "  pieces  on  the  spot,  but  by  means  of  witnesses  and 
 V  money,  he  contrived  to  get  the  young  man,  who 
 "  was  the  son  of  a  respectable  citizen,  hanged,  by  the 
 "  sentence  of  the  magistrate,  the  very  same  night. 
 
 i  4 
 
136  Mahomet's  Plan  of  Procedure.     [Art.  261. 
 
 "  As  a  proof  that  a  Mahometan  could  not  himself  put 
 *'  his  wife  to  death,  I  was  informed  at  Cairo,  that  a 
 *' man  of  fortune,  who  had  dispatched  his  wife,  was 
 "  persecuted  on  account  of  it  by  her  relations  and 
 "  the  magistrates,  as  long  as  he  had  any  property  re- 
 "  maining;"  p.  39. 
 
 These  ideas  of  disgrace,  Mahomet  found  already 
 prevalent  among  his  Arabs.  They  grew  pale,  as  he 
 says,  and  changed  colour,  when  they  got  accounts  of  the 
 birth  of  a  daughter  *,  and  hesitated  whether  they  should 
 bring  her  up,  or  bury  her  ;  viz.  from  the  father's  dread 
 of  her  one  day  bringing  him  to  shame.  From  the 
 same  cause,  parents  and  brothers  before,  and  in  the 
 time  of,  Mahomet,  carried  the  spirit  of  resentment  so 
 far,  as  actually  to  bury  daughters  alive,  who  had  thus 
 degraded  them.  To  this  inhuman  severity,  Mahomet 
 seemed  desirous  to  set  some  bounds,  and,  with  that 
 view,  ordained  the  following  procedure.  In  the  first 
 place,  parents  and  brothers  were  not  to  persecute 
 daughters  with  suspicions  ;  but  their  guilt  required  a 
 proof  by  four  witnesses.  This  applied  also  to  the  case, 
 of  whoredom,  the  act  of  which  it  was  not  necessary 
 for  the  witnesses  to  have  seen,  but  only  to  testify  that 
 
 *  See  Koran,  Sura  xvi.  59,  60,  61.  In  this  passage,  Mahomet 
 means  to  combat  the  opinions  of  the  heathen  Arabs,  who  worshipped 
 the  three  daughters,  as  they  were  called,  of  God  ;  and  says,  "  To  God 
 "  they  give  daughters; — and  when  any  of  them  is  informed  of  the 
 "  birth  of  a  girl,  his  face  becomes  black,  and  he  mourns  :  On  account 
 "  of  the  evil  tidings,  he  will  see  nobody,  and  hesitates  whether  he 
 "  will  keep  the  infant,  or  bury  it  in  the  earth." — Some  farther  re- 
 marks on  this  subject  will  be  found  in  my  father's  Dissertation;  en- 
 'itled,  Ritualia  Codicis  Sacri,cx  Corano  illusirata,  $  8, 
 
Art.  261. 3     In  what  Conjinement  consisted.  137 
 
 the  woman  was  pregnant,  or  brought  to  bed ;  and  in 
 Sura  xxiv.  4.  Mahomet  actually  requires  the  same 
 number  of  witnesses,  when  any  person  has  accused  an 
 unmarried  woman  of  whoredom,  and  does  not  chuse 
 to  bear  eighty  blows  for  the  injury  thus  done  her. — In 
 the  second  place,  the  punishment  appropriated  for 
 whoredom,  was  not  fixed  by  the  passage  now  under 
 consideration,  but  by  the  2d  and  3d  verses  of  the  Sura 
 just  quoted,  where  it  is  decreed  that  it  shall  consist  of 
 a  hundred  blows,  and  that  no  man  who  has  not  been 
 guilty  of  the  same  crime,  or  who  is  not  an  unbeliever, 
 shall  be  allowed  to  marry  the  woman  who  has  thus 
 been  debauched.  In  confinement  to  a  particular  a- 
 partment  of  the  house,  or  what  might  be  properly 
 called  a  career  domesticus,  we  never  can  imagine  that 
 it  could  consist;  for  the  greater  number  of  those 
 Arabs  to  whom  Mahomet  gave  his  laws,  were  Be- 
 douins, who  lived  in  tents,  and  could  have  no  such 
 domestic  prisons  ;  nor  has  the  house  of  a  poor  man 
 so  many  apartments,  that  he  can  always  spare  one  for 
 such  a  purpose.  Add  to  this,  that  the  word  keep, 
 (  Amsicuhonna)  is,  in  other  passages  of  the  Koran, 
 used  in  a  good  sense,  and  put  in  opposition  to  the 
 casting  away  of  children,  and  here,  therefore,  to  turn- 
 ing a  daughter  adrift  upon  the  world.  Thus  far,  how- 
 ever, it  does  imply  punishment,  that  the  unfortunate 
 woman  must  keep  within  doors,  and  might  be  com- 
 pelled to  do  so ;  and  farther,  that  she  must  remain  in 
 the  house  of  her  parents,  because  no  honourable  Arab 
 would  marry  her.  And  in  this  situation  she  conti- 
 nued, either  till  death  removed  her,  or  till  God  shewed 
 her  some  other  means  of  deliverance  ;  that  is,  till  some 
 
138  The  Mahometan  Punishment.'    £  Art.  261. 
 
 Arab,  who,  because  he  had  himself  been  guilty  of  the 
 crime  of  whoredom,  durst  not  marry  a  woman  of 
 honour,  and  was,  therefore,  obliged  to  be  satisfied 
 with  a  whore,  had  occasion  for  a  wife,  and  delivered 
 her  from  the  thraldom  of  her  situation. 
 
 This  explanation,  which  is  entirely  new,  I  do  not 
 give  as  absolutely  certain,  nor  do  I  blame  those  who 
 have  expounded  the  passage  otherwise.  It  appears, 
 however,  to  me,  the  most  probable ;  for  I  find  very 
 great  difficulty  in  believing,  that  the  punishment  of 
 adultery  is  here  spoken  of. 
 
 The  other  law,  in  verse  30th  of  the  same  Sura,  and 
 which  is  to  this  day  explained  by  the  Mahometans 
 according  to  their  tradition,  does  not  properly  fix  any 
 punishment  of  adultery,  but  presupposes  it  as  well 
 known  by  national  usage  :  for  it  merely  inflicts  on  the 
 unchastity  of  a  married  slave,  one  half  the,  punishment 
 of  a  free-born  wife ;  and  how  Boy  sen  has  been  led  to 
 render  the  passage  thus,  If,  however,  after  marriage, 
 they  be  guilty  of  adultery,  ihey  shall  suffer  the  same 
 punishment  which  is  denounced  against  free  wome?i, 
 I  am  at  a  loss  to  conceive.  Perhaps  he  did  not  find 
 the  word  half  in  that  MS.  of  the  Koran,  to  which  he 
 refers  in  his  preface,  and  has,  therefore,  left  it  out. 
 But  even  had  this  been  the  case,  I,  for  my  part,  should 
 not,  in  the  case  of  a  passage,  which  has  been  explained 
 by  so  many  ancient  commentators  on  the  Koran, 
 have  followed  a  single  MS.,  which  may,  after  all,  be 
 quite  modern,  and  in  which  a  single  word  may  have 
 easily  been  omitted  by  mistake  of  the  transcribers. 
 At  any  rate,  I  should  be  glad  to  know,  for  what  reason 
 Boysen  has  so  translated,  and  in  what  MS.  he  found 
 
Art.  261.]    Answer  to  the  Main  Question.  139 
 
 the  word  half  wanting. — Thus  much,  however,  is 
 evident,  that  the  appointed  punishment  can  neither 
 be  death,  nor  yet  perpetual  imprisonment ;  (for  how 
 is  the  half  of  either  to  be  determined  r)  but  that  it 
 must  have  been  blows.  As  to  their  number,  I  can- 
 not, as  a  reader  of  the  Koran,  specify  it ;  but  the 
 Mahometans  traditionally  explain  the  law,  as  if  for 
 adultery  in  a  free  woman,  100  blows  were  to  be  in- 
 flicted, and  in  an  unfree,  50.  In  this  way,  the 
 punishment  of  adultery  would  not  be  more  severe 
 than  that  of  whoredom,  by  Snra  xxiv.  1 , — 4. 
 
 We  ought  not,  therefore,  to  put  this  gentle  punish- 
 ment of  adultery  to  Mahomet's  account,  nor  ascribe 
 it  to  his  sympathy  with  adulterers  ;  for  he  does  not  so 
 much  as  mention  it,  but  only  presupposes  it  as  well 
 known,  from  the  more  ancient  usage  of  the  Arabs*. 
 And,  therefore,  so  much  the  more  strange  is  the 
 question,  in  reference  to  the  philosophy  of  legislative 
 policy ;  How  came  two  peoples,  related  to  each  other, 
 and  living  quite  contiguous,  under  the  same  climate,  to 
 light  upon  punishments,  in  the  case  of  adultery,  so 
 directly  opposite  in  point  of  severity  f  And  to  this  ques- 
 tion, the  answer  that  occurs  to  me,  is  the  following : 
 
 It  is  not  climate  that  effects  every  thing  respecting 
 laws,  nor  should  we,  because  in  many  instances  its 
 influence  is  great,  make  it,  as  it  were,  omnipotent : 
 for  national  ideas,  which  may  be  accidentally  started 
 
 *  According  to  a  saying  among  the  Mahometans,  their  Pro- 
 phet is  said  to  have  required,  in  the  case  of  Jews,  that  they 
 should  punish  adultery  with  stoning,  according  to  their  own  laws. 
 >pe  Sale's  Koran,  p.  37.  Eng.  edit,  j  for  the  German  translation  «'' 
 it  ifi  not  worth  buying. 
 
140  Answer  to  the  Main  Question.      [Art.  261. 
 
 and  strengthened,  are  also  to  be  taken  into  account. 
 Among   the  Arabs,   the  parents   and  relations  of  a 
 woman,    who  has  been   unchaste,    deem    themselves 
 thereby  more   dishonoured,   than  even  her  husband, 
 who  can  turn  her  out.     The  latter  will,  of  course, 
 require  less  satisfaction ;  and  consequently,  the  pun- 
 ishment  of  adultery   need   not  be   so  severe ;  more 
 especially,  as  he  has,  at  any  rate,  the  right  of  divorce, 
 which  is  just  the  very  same  punishment,  which  our 
 courts  usually  inflict.     And  it  is  quite  sufficient  to 
 render  the  woman  perfectly  miserable.     For  whither 
 can  she  now  turn  ?  Not  certainly  to  her  vindictive 
 relations,  who,  according  to  the  Arabian  spirit,  would 
 rather  take  pleasure  in   depriving  her  of  life  ?  For, 
 least  of  all  things,  has  she  any  reason  to  look  for  that 
 sympathy,  which  a  divorced  wife  among  us  sometimes 
 meets  with  from  her  friends.     And  if  we  take  also 
 into  consideration,  the  poverty  of  this  desert  country, 
 where  she  cannot  hope  to  rind  any  other  protector,  we 
 must  perceive  that  her  misfortune  is,  in  this  respect,  a 
 degree  worse  than  among  us,  where  a  person  in  such 
 circumstances  may  turn  her  crime  into  a  means  of 
 livelihood. 
 
 The  result  of  the  whole  inquiry  turns  out  sufficient- 
 ly strange  ;  namely,  that  by  the  Mahometan  law,  adul- 
 tery and  whoredom  are  both  punished  in  the  same 
 manner;  with  100  blows,  where  the  woman  is  free, 
 and  half  that  number,  where  she  is  a  slave. — Mahomet 
 certainly  was  not  happy,  nor  did  he  shew  much  pene- 
 tration, in  many  of  his  laws. — I  have  only  to  add,  that 
 I  hope  this  digression  into  the  Arabian  law,  which  has 
 proved    rather  extensive,    may   nevertheless   be   for- 
 
Art.  262.]    Story  of  the  Adulteress  in  John  viii.      141 
 
 given,  as  I  mean  in  the  sequel  to  apply  it,  in  illus- 
 trating the  Mosaic  jurisprudence,  to  which  I  now 
 return. 
 
 ART.  CCLXII. 
 
 The  Species  of  Capital  Punishment  inflicted  on  Adultery 
 
 was  Stoning. 
 
 §  5.  In  answer  to  the  question  which  has  arisen, 
 with  regard  to  the  particular  species  of  capital  punish- 
 ment appointed  by  Moses  for  adultery,  I  should 
 satisfy  myself  with  saying,  in  one  word,  stoning ;  were 
 it  not,  that  from  the  dispute  relative  to  the  story  of 
 the  adulteress,  in  the  viiith  chapter  of  John,  it  has 
 acquired  so  much  importance,  that  I  imagine  the 
 greater  number  of  my  readers  would  rather  wish  to 
 have  a  circumstantial  inquiry,  than  such  a  summary 
 decision  concerning  it.  For,  as  in  the  5th  verse  oi 
 that  chapter,  the  assertion  of  the  Jews,  that  Moses 
 commanded  such  persons  to  be  stoned,  does  not  coincide 
 with  the  doctrine  of  Maimonides  and  the  modern  Rab- 
 bins, who  follow  him  ;  some  have  hence  been  dis- 
 posed to  conclude,  that  the  whole  story,  in  which 
 many  people  imagine  that  they  find  something  objec- 
 tionable, and  have,  therefore,  omitted  it  in  transcrip- 
 tion, is  not  real,  and  did  not  come  from  the  hand  of 
 the  evangelist. 
 
 Moses  does  not  specify  their  particular  punishment, 
 but  only  says,  that  both  the  adulterer  and  adulteress 
 shall  die,  (HEY*  hid)  ;  or  as  Luther  generally  renders 
 it,  because  the  word  is  twice  repeated,  shall  die.  the 
 
142     Punishment  of  Adultery,  Stoning,  §c.  [Art.  262, 
 
 death*.  As,  however,  the  Israelites  had  only  two 
 sorts  of  capital  punishments,  namely,  stoning  and  the 
 sword,  we  are  under  the  necessity  of  fixing  upon  one 
 of  them  ;  and  it  were  most  probable,  that  it  was  ston- 
 ing. (See  Art.  CCXXXIII.)  But  the  Talmud, 
 which  is  here  followed  by  Maimonides,  and  most  of 
 the  latter  Rabbins,  establishes  this  rule ;  that  when 
 the  capital  punishment  is  not  specified,  but  it  is 
 merely  said,  he  shall  die  the  death,  we  are  to  under- 
 stand it  of  strangling,  as  the  mildest  sort  of  death ; 
 and  which  consisted  in  putting  the  criminal  up  to  the 
 knees  in  dung,  and  then  taking  two  linen  handker- 
 chiefs, a  coarser  and  a  finer,*  whicli  were  thrown  over 
 his  head,  fastened  about  his  neck,  and  drawn  from 
 one  side  to  the  other,  until  he  was  dead.  In  refer- 
 ence  to  this  rule,  the  Talmud,  and,  indeed,  the 
 Mischna  t,  insists  that  adulterers  and  adulteresses 
 were  to  be  strangled  ;  and  the  Pseudo- Jonathan,  as 
 he  is  called,  a  Chaldee  translator  of  the  Pentateuch, 
 considerably  more  modern,  has  inserted  the  very  same 
 doctrine  in  his  version.  Most  of  the  Rabbins,  as  I 
 have  said,  here  follow  the  Talmud  ;  although,  indeed, 
 as  Cocceius  has  already  remarked,  David  Kemchi,  in 
 commenting  on  Ezek.  xvi.  40.  departs  from  it,  and 
 holds  stoning  to  be  the  punishment  of  adultery.  Ac- 
 cording to  a  Mahometan  story,  there  must  also  have 
 been  a  dispute  on  this  point  among  the  Jews  in  Ara- 
 bia I,  which   Mahomet,  who  understood  nothing  of 
 
 *  Lev.  xx.  10.  Deut.  xxii.  22. 
 
 f  See  Massechat  Saiihedrirn,  cap.  10.  J  1.  in  Sursnhisuis*  edition  of 
 the  Mischna,  part  iv.  p.  25* 
 
 %  See  Gelaleddin  on  Sura  iii.  22. ;  or,  according  to  others,  23.' 
 The  passage  occurs  at  p.  107.  of  Marraccis'  Koran,  or  p,  37.  of  Sale?. 
 
Art.  262.]  John  more  credible  than  the  Misclma.     143 
 
 Hebrew,  had,  from  Moses,  decided  in  favour  of  ston- 
 ing. For  my  own  part,  I  do  not  think  that  the  pas- 
 sage of  the  Koran  thus  explained,  has  any  thing  to  do 
 with  that  point ;  but  as  a  great  many  Jews  lived  in 
 Arabia,  there  may  be  thus  much  truth  in  the  story, 
 that  they  were  not  unanimous  in  their  exposition  of 
 the  law  respecting  the  punishment  of  adultery. 
 
 Which  then  of  the  two  are  in  the  right,  the  Jews, 
 as  they  speak  in  John  viii.  5.  or  the  Talmud  ? — If  the 
 passage  really  be,  as  I  think  it  is,  of  John's  writing, 
 we  cannot  take  his  divine  inspiration  into  the  account, 
 but  only  judge  according  to  the  common  rules  of  his- 
 torical probability  ;  yet,  even  then,  when  both  opi- 
 nions are  thus  put  on  the  same  footing,  no  doubt  car. 
 remain.  John  lived  while  Jerusalem  yet  stood,  and 
 the  Jews  had  a  government  and  laws  of  their  own  ; 
 and  he  was  at  Jerusalem  when  the  circumstance  took 
 place,  which  he  relates  in  his  viith  and  viiith  chapters. 
 The  Misckna,  on  the  other  hand,  was  collected  after 
 Jerusalem  was  destroyed,  and  there  was  no  longer 
 any  Jewish  polity.  Now,  the  contemporary  writer, 
 especially  if  an  eye-witness,  is,  in  a  point  of  history, 
 to  be  preferred  to  the  author  of  a  later  period,  who 
 takes  his  account,  not  from  original  documents,  or 
 even  books,  but  merely  from  the  oral  traditions  of 
 masters  to  scholars,  as  delivered  in  their  lectures ; 
 and  still  more,  when  the  question  relates  to  a  punish- 
 ment common  at  the  time,  is  the  information  furnished 
 by  the  former,  preferable  to  the  decision  of  a  lawyer 
 of  a  much  later  age,  who  does  not  so  much  declare, 
 what  had  then  been  the  practice,  as  what  he  takes  to 
 be  right.     This,  however,  cannot  be  said  with  respect 
 
144     Strangling  not  a  Mosaic  Punishment.  [Art.  262. 
 
 to  the  man  who  declares  the  story  of  the  adulteress 
 supposititious  ;  although  thus  much  still  remains  clear, 
 that  it  had  been  very  early  read  in  John's  gospel,  and 
 that  it  was  more  ancient  than  the  Misckna ;  and,  con- 
 sequently, if  it  was  not  of  John's  writing,  still  in  any 
 matter  regarding  the  customs  of  the  Jews  before  the 
 destruction  of  Jerusalem,  it  was  entitled  to  equal 
 credit  with  the  Mischna,  if  not  to  more.  I  will  not, 
 however,  enter  into  this  dubious  controversy,  but 
 only  offer  the  following  observations,  which  lead  more 
 immediately  to  a  decision. 
 
 1.  The  rule  on  which  the  Talmud  founds,  namely, 
 that  where  riDY»  TO,  he  shall  die  the  death,  stands  with- 
 out any  addition,  we  are  to  understand  not  stoning, 
 but  strangling,  is  incorrect  ;  for  in  Exodus,  xxi. 
 14.  and  xxxv.  2.  it  is  said  of  the  profaner  of  the  sab- 
 bath, he  shall  die  the  death  ;  and  yet  we  find,  from 
 Numb.  xv.  32.,  that  a  man  who  was  caught  violating  that 
 sacred  day,  was,  by  the  express  command  of  God,  and 
 according  to  God's  authentic  exposition  of  the  law, 
 put  to  death  by  stoning.  This  remark,  with  some  oi 
 those  that  follow,  I  take  from  mv  father's  Disserta- 
 tion  De  pa^nis  capi tali bus  in  sacra  scriptura  commemo- 
 ratis,  §  12.  where  the  reader  will  find  more  concerning 
 the  incorrectness  of  the  said  Talmudical  rule. 
 
 2.  Strangling  is  not  a  punishment  of  the  Mosaic 
 law,  but  merely  a  Rabbinical  fiction  fastened  upon  it, 
 concerning  which  not  a  single  word  is  to  be  found 
 in  the  Bible. — On  this  point  also,  the  Dissertation  just 
 quoted,  should  be  consulted.  I  have  only  to  add,  thai 
 I  can  gather  from  Josephus  nothing  concerning  this 
 
Art.  262.]  Strangling  ?iot  a  Mosaic  Punishment.     14.5 
 
 punishment,  which,  according  to  the  description  given 
 by  the  Rabbins,  was  a  very  strange  one. 
 
 These  remarks  were  perhaps  sufficient,  and  the 
 reader  would  dispense  with  any  farther  detail  j  for  if 
 strangulation  is  no  Mosaic  punishment,  then  Moses 
 never  appointed  it  in  the  case  of  adultery.  But  I  will 
 yet  add,  ex  super  abundante,  the  following  observations* 
 because  authors,  one  after  another,  are  continually 
 insinuating  very  whimsical  objections  against  the  story 
 in  John  viii.,  and  very  illogically  putting  the  opinions 
 of  the  Talmudists  on  a  footing,  in  point  of  authority, 
 with  historical  evidence. 
 
 3.  Crimes  of  unchastity,  not  amounting  to  adultery, 
 but  only  approaching  to  it,  were  punished  with  ston- 
 ing ;  as,  for  instance,  when  a  young  woman  falsely 
 gave  herself  out  for  a  virgin,  and  deceived  her  hus- 
 band, or  when  a  bride  suffered  herself  to  be  debauch- 
 ed, Deut.  xxii.  20, — 24.  And  can  we  then  believe 
 that  the  punishment  of  absolute  adultery  was  less  se- 
 vere ?  It  no  doubt  appeared  strange  to  the  reader  of 
 the  preceding  Article,  that  the  Arabs  should  have 
 made  so  little  distinction  between  adultery  and  whore- 
 dom ;  but  still  they  did  not  punish  the  latter  more 
 severely  than  the  former.  But  that  Moses  estimated 
 the  difference  as  very  great,  we  shall  soon  see.  On 
 whoredom,  he  in  general  imposed  no  punishment  at 
 all  ;  but  in  the  two  cases,  related  in  Deut.  xxii.,  as 
 just  quoted,  in  which  he  punishes  it  capitally,  it  is 
 clear  that  he  regards  it  as  an  injury  to  the  husband, 
 and  as  partaking  strongly  of  the  nature  of  adultery. — 
 What  Grotius  says  of  adultery  being  more  mildly 
 punished,  than  whoredom  in  a  bride,  because  the 
 husband  himself  has  his  wife  under  his  own  care  and 
 
 vol.  iv.  K 
 
146    Stoning  probably  in  use  before  Moses.  [Art.  262. 
 
 inspection,  whereas  the  bride  is  still  under  that  of  her 
 parents,  is  altogether  singular,  and  repugnant  to  the 
 common  ideas  of  mankind. 
 
 3.  If  what  I  have  advanced  in  No.  1.  of  Art. 
 CCXXXV.  be  correct,  stoning  had  been  the  usual 
 punishment  of  adultery,  even  before  the  time  of  Moses. 
 
 4.  In  Ezek.  xvi.  38,  40.  stoning  seems  to  be  consi- 
 dered as  the  established  punishment  of  adultery.  To 
 Judah,  who  is  represented  in  a  fable  as  an  adulteress, 
 and  murderer  of  her  children,  God  says,  (ver.  38.)  / 
 m 11  punish  thee,  as  adulteresses  and  those  who  shed  blood 
 are  punished  ;  and  how  that  was,  we  see  from  ver.  40. 
 They  mil  stone  thee  with  stones,  and  cut  thee  in  pieces 
 zrilh  knives.  But  to  this  passage  alone,  which  to  others 
 lias  appeared  so  illustrative,  I  would  not  here  appeal ; 
 because  it  is  a  complication  of  the  crimes  of  adultery 
 and  infanticide,  which  is  spoken  of;  and  with  the 
 punishment  of  stoning,  is  united  another  punishment, 
 probably  the  Dichotomia  *  of  the  Chaldeans,  which  is 
 not  known  in  the  Mosaic  law.  (But  we  must  remem- 
 ber that  Ezekiel  lived  among  the  Chaldaeans,  on  the 
 banks  of  the  river  Chaboras.)  Taken,  however,  in 
 conjunction  with  other  proofs,  it  has  its  weight. 
 
 As  a  collateral  remark,  I  annex  what  follows.  In 
 the  story  of  Susanna  and  Daniel,  Jei~om  found  some- 
 thing relative  to  the  stoning  of  false  witnesses ;  on 
 whom,  however,  the  very  same  punishment  was  or- 
 dered to  be  inflicted,  which  they  had  meant  for  the 
 person  whom  they  falsely  accused.     In  commenting 
 
 *  See  my  father's  Dissertation,  already  so  often  quoted,  De pccnis 
 capitalibus,  &c.  v  23.;  and  compare  with  p.  29.  of  part  iv.  of  my 
 Oriental.  Bibliothek.  If  I  could  command  time  to  republish  the  said 
 Dissertation,  I  should  take  the  opportunity  of  enlarging  on  this  point, 
 
Art.  262.]  Illustration  of  the  Story  of 'the  Adulteress.  147 
 
 on  Jer.  xxix.  23.  he  says,  Sed  id  quod  did  fur,  fruit  cos 
 Ilea:  Babylonius  in  igne,  videtur  Danielis  Historic  con* 
 traire ;  illc  cairn  asscrit,  eos  ad  scntentiam  Danidis 
 a  popido  fuisse  lapidatos.  I  do  not  chuse  to  number 
 this  as  a  sixth  argument,  because  the  two  Greek  ver- 
 sions of  this  story  mention  a  different  punishment  ; 
 and  we  know  not  how  far  Jerom  may  be  right  in  say- 
 ing, that  the  two  false  witnesses  against  Susanna  were 
 stoned.  The  story  is  at  any  rate  not  only  iictitious, 
 but  also  most  clumsily  forged. 
 
 For  these  reasons  now  given,  I  have  nothing  to  ob- 
 ject against  the  story  of  the  adulteress ;  which  to  me, 
 indeed,  is  as  satisfactory,  as  to  others  it  has  been  ob- 
 jectionable. Some  of  the  Scribes  and  Pharisees,  who 
 had  begun  to  suspect,  that  Jesus  was  declaring  many 
 of  the  Mosaic  laws  abrogated,  and  who  on  that  ground 
 wanted  to  ensnare  him,  brought  unto  him  a  woman 
 caught  in  adultery,  and  told  him  that  the  fact  did  not 
 admit  the  shadow  of  a  doubt ;  observing  also,  that 
 Moses  had  commanded  such  persons  to  be  stoned,  and 
 requesting  to  know  what  they  should  do  in  the  present 
 case.  This  question  was  impertinent,  and  merited  no 
 answer,  as  there  was  nothing  dubious  in  this  case  ; — 
 nor  did  Jesus  deign  to  make  any  reply,  but  bowed 
 down,  and  wrote  with  his  finger  on  the  sand ;  which 
 might  perhaps  be  meant  to  insinuate,  Do  wfiat  Moses 
 has  enjoined;  ye  know  what  is  written  in  your  law. — 
 As,  however,  they  still  continued  to  teaze  him,  think- 
 ing, perhaps,  that  he  was  at  a  loss  for  an  answer,  he 
 at  last  turned  to  them,  and  said,  Let  that  man  amonu; 
 you,  who  is  himself  innocent,  throw  the  first  stone  at  her  ; 
 and   then  bowed  himself  as  before,   and  continued 
 
 K  2 
 
14*  Its  unlooked-for  Issue.  [Art.  262* 
 
 writing ,  by  which  means  he  gave  them  an  opportu* 
 nity  of  doing,  unobserved  by  him,  what  they  soon  did. 
 His  answer  might  be  much  to  the  following  import : 
 •'  Your  question   concerning  a  matter  so  clearly  de- 
 "  fined,  is  indeed  very  strange  ;  and  it  almost  looks 
 n  as  if  you  had  very  peculiar  motives  for  sympathising 
 "  with  this  woman.     If  there  be  any  among  you  who 
 "  has  not,  and  who  is  not  himself  conscious  of  adul- 
 "  tery,  let  him  take  the  lead  in  the  fulfilment  of  the 
 *'  law  of  Moses,  and  cast  the  first  stone  at  her."—- 
 Their  consciences  thus-  brought  many  things  to  their 
 remembrance  5  and  as- Jesus  continued  writing,   they 
 were  no  doubt  apprehensive,  lest  he  might  know  more 
 than  was  convenient  for  them,  and  might   perhaps 
 write  down  suspicious  words*  or  even  stories,  concern- 
 ing them  j  and  therefore,  when  his  eye  was  no  longer 
 directed  towards  them,    they   disappeared  one  after 
 another.     When  Jesus  again  raised  himself,  he  asked 
 the  woman-,  where  her  accusers  were?  and,  whether 
 any  one  had  pronounced  judgment  upon  her  *  To  which, 
 when  she  replied  in  the  negative,  Neither  do  I,  said 
 he,  condemn  thee ;  but  commit  not  this  sin  again. — 
 What  is  there,  I  would  ask,  wanting  here  ?   Jesus  was 
 neither  public  prosecutor  nor  judge,  and  had  as  little 
 to  do  with  the  woman's  guilt,  as  any  other  person. 
 He  was  merely  asked  for  his  opinion,  much  in   the 
 same  way  as  a  lawyer  is  with  us  j  but  the  enquirers 
 had  dispersed,  and  did  not  wait  for  any  answer.     It 
 did  not  then  certainly  become  his  duty  to  be  the  wo- 
 man's accuser  ,  and  he  was  not  a  judge.     But  the  best 
 part  of  the  whole  story  is  its  issue,  where  we  see  that 
 those  very  person?,  who  wished  to  accuse  him  of  de- 
 preciating the  Mosaic  law,  were  themselves  brought 
 
Art.  263.]  Oath  of  Purgation.  149 
 
 mto  such  a  predicament,  that  they  could  not  put  it  in 
 execution  ;  while  he,  without  expecting  any  reproach, 
 evinced  by  what  he  did,  that  lie  had  no  wish  to  shew 
 himself  a  zealot  for  the  enforcement  of  laws,  that  were 
 drawing  to  their  end.  The  whole  story  is  so  excel- 
 lent, that  we  must  be  inclined  to  wish  that  it  were 
 true,  even  though,  as  critics,  we  might  doubt  its 
 authenticity  ;  which,  however,  I,  for  my  part,  cannot 
 bring  myself  to  do  :  but  if  it  be  fictitious,  the  person, 
 whoever  he  was,  that  forged  it,  and  fathered  it  upon 
 the  evangelist  John,  must  really  have  been  a  man  of 
 abilities, 
 
 ART.  CCLXIII. 
 
 Of  the  Oath  of  Purgation. 
 
 §  6.  That  the  proof  of  adultery  will  always  be  dif- 
 ficult, it  is  natural  to  suppose.  But  here  the  Mosaic 
 law  furnished  an  important  help  to  husbands,  in  autho- 
 rising them,  when  they  had  any  suspicion  of  the  fide- 
 lity of  their  wives,  to  exact  from  them  an  oath  of  pur- 
 gation, which  they  were  obliged  to  take  in  a  very 
 solemn  and  awful  manner.  The  statute  respecting 
 this  oath,  is  recorded  in  Numb.  v.  11, — 31. ;  and  con- 
 cludes with  declaring,  that  the  husband,  in  such  a  case, 
 has  no  reproach  or  blame ;  that  is,  the  wife,  if  she  has 
 taken  the  oath  of  purgation,  can  raise  no  action  against 
 him  for  calumniating  her  character. 
 
 We  here  perceive,  at  the  very  first  glance,  a  striking 
 difference  between  the  Mosaic  law  and  ours  ;  accord- 
 ing to  which,  an  oath  of  purgation  can  be  exacted  of 
 
 K  3 
 
150  Oath  of Purgation.  [Art.  263. 
 
 no  one,  who  is  not  already  pretty  strongly  convicted 
 of  this  crime.     The  foundation  of  the  distinction  lies 
 in  this  ;  that,  among  the  Hebrews,  the  husband  and 
 wife  were  not,  as  among  us,  on  a  footing  of  equality; 
 but  the  wife  was  considered  as  the  property  of  her 
 husband,  on  whom  lay  no  obligation  of  nuptial  fide- 
 lity, or  of  any  ether  kind,  excepting  only  that  of  main- 
 tenance and  cohabitation  ;  for  he  might,  if  he  chose, 
 take  more  wives;  and,  in  most  cases  wives  were  ac- 
 tually bought.     Among  us,   a  wife,   whose  husband 
 wanted  to  exact  the  oath  of  purgation,  might,  if  she 
 had  the  weakness  to  be  jealous  too,  insist,  in  her  turn, 
 that  he  should  also  be  sworn.     But  for  such  a  demand, 
 there  could  never  among  the  Hebrews  be  any  ground, 
 because  a  husband  never  promised  to  confine  himself 
 to  any  one  wife ;  so  that  she  could,  in  a  civil  sense, 
 have  no  right  to  be  jealous,  how  strongly  soever  nature 
 might  stir  up  that  passion  in  her  breast.     In  this  way, 
 husbands  certainly  had  matters  made  very  easy  to 
 them  ;  while,  at  the  same  time,  the  dread  of  the  oath 
 of  purgation,  served  very  strongly  to  promote  nuptial 
 fidelity  on  the  part  of  wives. 
 
 Besides,  this  oath  was  perhaps  a  relic  of  some  more 
 severe  and  barbarous  consuetudinary  law,  whose  ri- 
 gours Moses  mitigated  ;  as  he  did  in  many  other  cases, 
 where  an  established  usage  could  not  be  conveniently 
 abolished  altogether.  Among  ourselves,  in  barbarous 
 times,  the  ordeal,  or  trial  by  fire,  wras,  notwithstanding 
 the  parity  of  our  married  people,  in  common  use  ;  and 
 this,  in  point  of  equity,  was  much  the  same  in  effect, 
 as  if  the  husband  had  had  the  right  to  insist  on  his 
 wife  submitting  to  the  hazardous  trial  of  her  purity, 
 
Art.  263.']     A  Relic  of  more  Ancient  Laxv.  151 
 
 by  drinking  a  poisoned  potion  ;  which,  according  to 
 an  ancient  superstition,  could  never  hurt  her  if  she 
 was  innocent.  And,  in  fact,  such  a  right  is  not  alto- 
 gether unexampled ;  for,  according  to  Oldendorp's 
 History  of  the  Mission  of  the  Evangelical  Brethren, 
 in  the  Caribhee  islands,  part  i.  p.  296.  it  is  actually  in 
 use  among  some  of  the  savage  nations  in  the  interior 
 parts  of  Western  Africa.  His  words  are,  "  Ifahus- 
 "  band  has  any  suspicion  that  his  wife  has  been  \m- 
 "  faithful,  he  endeavours  to  ascertain  the  point,  by 
 "  means  of  a  purgation-drink,  which  she  must  receive 
 "  from  the  hand  of  a  priest,  and  drink  off.  This  drink 
 "  is  naturally  fatal.  In  Congo,  it  is  prepared  from  the 
 "  bark  of  the  Buhuda  tree,  of  which  the  seeds  are  so 
 "  poisonous  as  to  kill  fishes  that  swallow  them.  An 
 "  innocent  person"  (that  is,  one  perhaps  previously 
 prepared  by  the  priest,  by  means  of  an  antidote,  or 
 some  emetic  of  instantaneous  operation,)  "  will  vomit 
 "  it  up,  without  suffering  any  inconvenience,  but  the 
 "  guilty  immediately  swell  on  drinking  it."  Olden- 
 dorp  relates  this  from  the  information  of  slaves  pur- 
 chased in  those  countries. 
 
 Now  when,  in  place  of  a  poisoned  potion  like  this, 
 which  few  husbands  can  be  very  willing  to  have  admi- 
 nistered to  their  wives,  we  see,  as  among  the  Hebrews, 
 an  imprecation-drink,  whose  avenger  God  himself  pro- 
 mises to  become,  we  cannot  but  be  struck  with  the 
 contrast  of  wisdom  and  clemency  which  such  a  con- 
 trivance manifests.  In  the  one  case  (and  herein  con- 
 sists their  great  distinction),  innocence  can  only  be 
 preserved  by  a  miracle  ;  while,  on  the  other,  guilt  is, 
 
 K  4 
 
152     Pei jury  here  punished  by  God  himself.  [Art.  263, 
 
 not  by  any  miracle,  but  by  a  particular  providence, 
 revealed  and  punished  by  the  hand  of  God  himself. 
 
 By  one  of  the  clauses  of  the  oath  of  purgation,  (and 
 had  not  the  legislator  been  perfectly  assured  of  his 
 divine  mission,  the  insertion  of  any  such  clause  would 
 have  been  a  very  bold  step  indeed  ;)  a  visible  and 
 corporeal  punishment  was  specified,  which  the  person 
 swearing,  imprecated  upon  herself,    and  which  God 
 himself  was  understood  as  engaging  to  execute.     It 
 was,  that  her  thighs  might  waste,   and  her  belly  swell, 
 ver.  21,  27. ;  and,  as  we  gather  from  the  converse  of 
 the  case,  in  ver.  28.  that  she  might  become  incapable  of 
 conception.     What  particular  disease  was  here  meant, 
 expositors  have  seldom  troubled  themselves  with  en- 
 quiring :  but,  as  far  as  I  can  judge,  we  have  in  these 
 words  the  most  striking  symptoms  of  what  is  no  doubt 
 a  very  rare  disease,  the  hydrops  ovarii.     That  in  this 
 disease  the  belly  swells,  will  naturally  be  concluded ; 
 but  it  is  observed,  at  the  same  time,  that  the  thighs 
 become  quite  wasted,  and  the  patient,  by  reason  of 
 the  intolerable  pain  it  occasions  her,  is  at  last  utterly 
 incapable  of  coition      I  find  that  Josephus  had  also 
 actually  considered  it  as  a  peculiar  sort  of  dropsy ; 
 only  that  he  does  not  specify  its  medical  name  so  ac- 
 curately ;  and  he  moreover  mentions  some  circum- 
 stances,  concerning  which  Moses  says  not  a  word ; 
 such,  for  instance,  as  that  of  the  woman,  if  innocent, 
 having  a  child  in  ten  months,  which  is  really  a  very 
 impertinent  observation.     For,  supposing  her  husband 
 to  have  taken  it  into  his  head  not  to  sleep  with  her, 
 or  that  he  were,   by  age  or  otherwise,  incapable  of 
 procreation,  was  she,  in  such  a  case,  to  have  a  childs 
 
Art.  263.]|   A  proof  of  Moses*  Divine  Mission,       153 
 
 in  testimony  from  heaven  of  her  innocence  and  nup- 
 tial fidelity  ?  Moses  says  no  such  thing ;  but  only  that 
 she  would  not  be  incapable  of  conception. 
 
 I  have   already  observed,  that  to   have  given  so 
 accurate  a  definition  o.   !;he   punishment   that   God 
 meant  to  inflict,  and  still  more  one,  that  consisted  of 
 such  a  rare  disease,  would  have  been  a  step  of  incom- 
 prehensible boldness  in  a  legislator,  who  pretended 
 to  have  a  divine  mission,  if  he  was  not,  with  the  most 
 assured  conviction,   conscious  of   its  reality.      How 
 often  is  it  possible  to  prove  adultery,  I  do  not  say, 
 legally,  but  yet  to  the  public  in  general,  in  a  manner 
 so  logically  probable,  and  approaching  so  nearly  to 
 certainty,  that  if,  in  any  such  case,  the  oath  of  purga- 
 tion had  been  taken,  and  yet  the  accused  remained 
 unaffected   with    dropsy,    all   the    world    would   not 
 notice  the  fraud  of  the  pretended  prophet,  and  look 
 upon  his  religion  and  laws  as  mere  falsehood  ?  Even 
 the  adulteress  herself,  who  at  first  trembled  on  taking 
 such  an  oath,  would,  in  the  event  of  not  experiencing 
 the  threatened  punishment,  soon  look  upon  religion 
 as  an  arrant  imposture,  and,  in  process  of  time,  be- 
 come impudent  enough  to  avow  her  crimes  publicly, 
 and  to  state  particulars,  merely  with  a  view  to  prosti- 
 tute religion,  and  bring  it  into  disgrace.     At  any  rate, 
 she  would  be  very  apt,  in  private  with  her  paramours, 
 to  make  merry  at  the  expence  of  Moses  and  his  divine 
 laws,  and  thus  a  contempt  of  religion  spread  more  and 
 more  widely  every  day. — For  these  reasons,  perhaps, 
 some  of  my  readers  may  already  be  trembling  for  his 
 credit:  and,  in  face,  we  find  the  Rabbins  (of  course, 
 since  the  destruction  of  Jerusalem)  very  much  con- 
 
154f      Rabbinical  Qualification  groundless.     [Art.  263. 
 
 cerned  for  him  indeed,  and  so  extremely  kind,  as,  out 
 of  complaisance  to  him  and  God,  to  have  devised  a 
 piece  of  law-chicanery,  in  order  to  save  their  reputa- 
 tion ;  affirming,  that  the  imprecation-water,  or,  as  it 
 is  commonly  called,  the  bitter  water,  which  the  wife 
 was  obliged  to  drink  on  taking  the  oath  of  purgation, 
 would  have  its  effect  only  in  the  case  of  the  husband 
 having  never,  on  his  part,  violated  nuptial  fidelity; 
 for  that,  had  he  himself  been  guilty  of  the  same 
 crime,  it  would  do  his  wife  no  manner  of  harm  ;  and 
 that  hence,  under  the  second  temple,  this  trial  became 
 quite  nugatory,  and  went  into  desuetude,  because  all 
 husbands  were  adulterers. — Now,  of  any  such  condi- 
 tional efficacy,  Moses  says  not  a  word ;  but  promises 
 absolutely  and  explicitly,  that  God  would  guarantee 
 the  oath  ;  and  the  story  told  by  these  Rabbins,  who 
 lived  after  the  destruction  of  Jerusalem,  merits  not 
 the  least  attention,  both  as  it  is  a  circumstance  in  itself 
 quite  incredible,  that  all  husbands  should,  without 
 exception,  have  been  adulterers ;  and  as  Josephus, 
 who  lived  in  the  times  of  the  second  temple,  and 
 mentions  the  oath  of  purgation,  takes  no  notice 
 whatever  of  any  such  circumstance,  although,  on 
 other  occasions,  he  is  not  sparing,  in  his  details  of  the 
 extreme  corruption  of  morals  that  prevailed  among 
 the  Jews  of  his  own  day. 
 
 Seldom,  however,  very  seldom,  was  it  likely  that 
 Providence  would  have  an  opportunity  of  inflicting 
 the  punishment  in  question.  For  the  oath  was  so 
 regulaied,  that  a  woman  of  the  utmost  effrontery 
 could  scarcely  have  taken  it  without  changing  colour 
 to  such  a  decree,  as  to  betray  herself,  and  give  die 
 
Art.  263.]     Ceremonies  of  the  Oath  illustrated,        155 
 
 priest  who  administered  it  reason  to  say,  For  God's 
 sake,  Madam,  stop;  you  are  swearing  falsely.  Nor 
 could  she,  methinks,  if  conscious  of  guilt,  fail,  in  the 
 same  instant,  to  imagine  at  least,  that  she  already 
 felt  some  strange  sensations  in  her  belly,  and,  of 
 course,  to  exclaim,  /  cannot  proceed. — To  be  sensible 
 of  the  likelihood  of  this,  the  reader  has  only  to  go 
 over  the  ceremonial  of  the  oath,  which  was  very  judi- 
 ciously so  protracted,  as  to  occupy  a  considerable 
 time. 
 
 In  the  first  place,  it  was  not  administered  to  the 
 woman  in  her  own  house,  but  she  was  under  the 
 necessity  of  going  to  that  place  of  the  land,  where 
 God  in  a  special  manner  had  his  abode,  and  took  it 
 there.  Now,  the  solemnity  of  the  place,  unfami- 
 liarized  to  her  by  daily  business  or  resort,  would  have 
 a  great  effect  upon  her  mind.  In  the  next  place, 
 there  was  offered  unto  God,  what  Was  termed  an 
 execration-offering,  not  in  order  to  propitiate  his  mer- 
 cy, but  to  invoke  his  vengeance  on  the  guilty.  Here 
 the  process  was  extremely  slow,  which  gave  her  more 
 time  for  reflection  than  to  a  guilty  person  could  be 
 acceptable,  and  that  too,  amidst  a  multitude  of  un- 
 usual ceremonies.  For  the  priest  conducted  her  to 
 the  front  of  the  sanctuary,  and  took  holy  water,  that 
 is,  water  out  of  the  priests'  laver,  which  stood  before 
 it,  together  with  some  earth  off  its  floor,  which  was 
 likewise  deemed  holy ;  and  having  put  the  earth  in 
 the  water,  he  then  proceeded  to  uncover  the  woman's 
 head,  that  her  face  might  be  seen,  and  every  change 
 on  her  countenance  during  the  administration  of  the 
 oath  accurately   observed :    and   tin's  was  a  circum- 
 
156        Ceremonies  of  the  Oath  illustrated,    [Art.  263. 
 
 stance,  which  in  the  East,  where  women  are  always, 
 veiled,  must  have  had  a  great  effect ;  because  a  wo- 
 man, accustomed  to  wear  a  veil,  could,  on  so  extraor- 
 dinary an  occasion,  have  had  far  less  command  of  her 
 eyes  and  her  countenance,  than  an  European  adul- 
 teress, who  is  generally  a  perfect  mistress  in  all  the 
 arts  of  dissimulation,  would  display.  To  render  the 
 scene  still  more  awful,  the  tresses  of  her  hair  were 
 loosened,  and  then  the  execration-offering  was  put  into 
 her  hand,  while  the  priest  held  in  his  the  imprecation- 
 water.  This  is  commonly  termed  the  bitter  water  ; 
 but  we  must  not  understand  this,  as  if  the  water  had 
 really  been  bitter;  for  how  could  it  have  been  so? 
 The  earth  of  the  floor  of  the  tabernacle  could  not 
 make  it  bitter.  Among  the  Hebrews  and  other  Ori- 
 ental nations,  the  word  bitter  was  rather  used  for 
 curse :  and,  strictly  speaking,  the  phrase  does  not 
 mean  bitter  water,  but  the  water  of  bitternesses,  that  is, 
 of  curses.  The  priest  now  pronounced  the  oath, 
 which  was  in  all  points  so  framed,  that  it  could  excite 
 no  terrors  in  the  breast  of  an  innocent  woman ;  for 
 it  expressly  consisted  in  this,  that  the  imprecation- 
 water  should  not  harm  her,  if  she  was  innocent ;  and 
 the  crime  was  so  distinctly  specified  and  described, 
 that  no  woman  could  have  any  reason  to  be  startled 
 at  the  oath,  from  excessive  scrupulosity  of  conscience 
 an  regard  to  what  a  moralist,  perhaps,  would  call 
 adultery ;  I  mean,  the  secret  indulgence  of  evil  de- 
 sires and  imaginations,  or  the  recollection  of  suspi- 
 cious intercourse,  and  even  of  indecent  liberties : 
 •or,  in  a  word,  from  any  thing  short  of  actual  adultery; 
 and  in  that  case,  it  would  thus  be  onlv  so  much  the 
 
Art.  263.]   Ceremonies  of  the  Oath  illustrated.         357 
 
 more  terrific. — It  would  seem,  as  if  the  priest  here 
 made  a  stop,  and  again  left  the  woman  some  time  to 
 consider,  whether  she  would  proceed  with  the  oath. 
 This  I  infer  from  the  circumstance  of  his  speech  not 
 being  directly  continued  in  verse  21st,  which  is  rather 
 the  apodosis  of  what  goes  before  ;  and  from  the  detail 
 proceeding  anew  in  the  words  of  the  historian,  Then 
 shall  the  priest  pronounce  the  rest  of  the  oath  and  the 
 curses  to  the  woman  ;  and  proceed  thus. — After  this 
 stop,  he  pronounced  the  curses,  and  the  woman  was 
 obliged  to  declare  her  acquiescence  in  them  by  a  re- 
 peated Amen.  Nor  was  the  solemn  scene  yet  alto- 
 gether at  an  end  ;  but  rather,  as  it  were,  commenced 
 anew.  For  the  priest  had  yet  to  write  the  curses  in 
 a  book,  which  I  suppose  he  did  at  great  deliberation  ; 
 having  done  so,  he  washed  them  out  again*  in  the 
 very  imprecation-water,  which  the  woman  had  now  to 
 drink  ;  and  this  water  being  now  presented  to  her, 
 she  was  obliged  to  drink  it,  with  this  warning  and 
 assurance,  in  the  name  of  God,  that  if  she  was  guilty, 
 it  would  prove  within  her  an  absolute  curse.  Now, 
 what  must  have  been  her  feelings,  while  drinking,  if 
 not  conscious  of  purity  ?  In  my  opinion,  she  must 
 have  conceived,  that  she  already  felt  an  alteration  in 
 the  state  of  her  body,  and  the  germ,  as  it  were,  of  the 
 disease  springing  within  her.  Conscience  and  imagina- 
 tion would  conspire  together,  and  render  it  almost  im- 
 possible for  her  to  drink  it  out.    Finally,  the  execration- 
 
 *  The  Hebrews  wrote  with  a  fluid  substance,  which  misht. 
 more  properly  be  called  black  than  ink.  it  was  the  liquor  of 
 the  cuttle  fish,  which  is  of  a  yery  deep  black,  arid  which  they 
 also  used  fer  colouring. 
 
155     Their  Probable  Effects  on  the  Guilty.  [Art.  264. 
 
 offering  was  taken  out  of  her  hand,  (methinks  she 
 must,  if  guilty,  have  let  it  fall  long  before,)  and  burnt 
 upon  the  altar. 
 
 Now,  how  few  women  would  have  the  assurance  to 
 swear  out  a  false  oath,  under  all  these  awful  formali- 
 ties-? Blushing,  trembling,  involuntary  agitation,  and, 
 perhaps,  fainting,  would,  in  most  cases,  betray  their 
 guilt  ;  and  although  they  might  not  instantly  ac- 
 knowledge it  from  agony  of  conscience,  still  it  would 
 be  an  easy  matter  to  bring  them,  by  persuasion,  to  an 
 oral  confession  of  what  their  behaviour  demonstrated, 
 by  such  a  variety  of  unequivocal  indications.  Certain- 
 ly, therefore,  we  have  here  a  master-piece  of  legislative 
 wisdom,  in  the  prescription  of  an  oath  so  terrific  to  the 
 guilty,  and  yet  from  which  the  innocent  could  fear  no 
 harm. 
 
 I  cannot  but  think,  that  under  the  sanction  of  such 
 a  pur  gator  ium,  perjury  must  have  been  a  very  rare 
 occurrence  indeed.  If  it  happened  but  once  in  an 
 age,  God  had  bound  himself  to  punish  it ;  and  if 
 this  took  place  but  once,  (if  but  one  woman,  who  had 
 taken  the  oath,  was  attacked  with  that  rare  disease 
 which  it  threatened,)  it  was  quite  enough  to  serve  as 
 a  determent  to  all  others  for  at  least  one  generation. 
 
 ART.  CCLXIV. 
 
 Of  the  Punishment  of  Adultery  in  Bond-women. 
 
 §  7.  We  have  hitherto  spoken  of  the  punishment  of 
 adultery,  when  committed  by  a  free-woman,  who  was 
 a  wife,  in  the  proper  sense  of  the  word.    Where, 
 
Art.  264.]       Adultery  in  a  Bond-woman,  159 
 
 however,  the  guilty  person  was  a  slave,  the  punish- 
 ment was  very  materially  mitigated,  both  to  herself 
 and  her  paramour.  The  statute  on  this  point,  which 
 wre  rind  in  Lev.  xix.  20, — 22.,  and  in  the  words  of 
 which  there  is  some  ambiguity,  I  shall  here  give  in 
 the  words  of  my  own  version.  If  any  man  mingle  car- 
 nally with  a  slavef  who  has  a  husband,  and  is  not  re- 
 deemed^  nor  has  her  freedom  given  her,  death  shall  not 
 be  injlicted  on  the  crime,  because  she  is  not  free,  but 
 only  blows  ;  and  the  man  (Mannsperson)  shall,  as  a 
 trespass-offering,  present  a  ram  unto  Jehovah,  before 
 the  convention  tent.  With  this  offering  the  priest  shall 
 ■expiate  the  sin  of  which  he  (Sie)  has  been  guilty,  and  it 
 shall  be  remitted  unto  him  (ihr).  I  must  begin  by 
 noticing  an  ambiguity  in  the  last  clause  in  my  own 
 version,  occasioned  by  my  previously  employing  the 
 word  Mannsperson,  which  is  of  the  feminine  gender. 
 A  reader  of  German  would  naturally  refer  the  pro- 
 nouns sie  and  ihr,  to  the  slave,  to  whom,  however, 
 they  cannot  be  referred,  because  in  the  original  the 
 pronouns  are  masculine.  I  did  not  chuse  in  verse  21. 
 to  say  the  Mann  (that  is,  either  husband  or  man) 
 shall  present,  §c.  because  this  also  made  an  ambiguity, 
 and  is  not,  besides,  in  the  usual  style  of  our  laws  ;  and 
 as  in  place  of  Mann,  I  used  Mannsperson,  I  thus  fell 
 into  another  ambiguity,  without  at  first  observing  it. 
 
 In  this  law  we  clearly  see,  that  the  woman  spoken 
 of  is  a  slave ;  and  farther,  that  she  is  not  a  single 
 woman :  and  consequently,  her  breach  of  chastity  is 
 not  barely  whoredom,  but  a  sort  of  adultery,  which, 
 judged  by  the  rigour  of  the  law,  wcild  have  deserved 
 death.    The  whole  difficulty  lies  in  the  Hebrew  words 
 
160      Its  Punishment  mitigated,  and  ivhy  '?  [Art.  264, 
 
 Necherefeth  leisch,  (&**?  nsTtf)  which,  not  being  per- 
 fectly certain  of  their  meaning,  I  have  periphrastically 
 translated,  who  has  a  husband.  Some  render  it,  whom 
 the  man  desjnseth,  that  is,  whom  her  master  regards 
 with  such  contempt,  as  not  to  take  her  to  his  bed ; 
 just  as  if  it  had  been  incumbent  upon  him  to  embrace 
 all  the  slaves  in  his  house.  In  this  case,  however,  the 
 connection  of  the  slave  with  any  other  man  would 
 not  even  have  had  a  semblance  of  adultery  ;  but  have 
 been  only  whoredom.  Most  of  the  ancient  transla- 
 tors render  it  betrothed,  or  'promised  to  a  husband  ;  but 
 how  the  Hebrew  word  should  have  this  meaning,  it  is 
 not  easy  to  discover.  The  verb,  *pn  (Charaj)  how- 
 ever, besides  the  various  significations  thus  unhappily 
 applied  to  it  in  this  passage,  means  likewise  to  pluck 
 fruit  from  a  tree  (carpere,  decerpere)  ;  and  there- 
 fore, I  would  here  render,  decerpta  Viro  ;  borrowing 
 an  expression  from  the  Latin,  as  the  German  language 
 affords  none  exactly  suitable. — The  slave,  then,  me- 
 thinks,  was  one,  whom  her  master  either  used  himself 
 as  a  concubine,  or  (according  to  Art.  LXXXVII.) 
 had  given  as  such  to  his  son  ;  and  thus  she  was  not, 
 properly  speaking,  a  wife.  At  the  same  time,  the 
 word  may,  perhaps,  include  the  case  of  a  bond-woman 
 living  in  contubernio*  with  a  bond-man  j  which,  how- 
 ever, still  left  her  without  the  rights  of  a  wife.  But 
 of  this  I  am  any  thing  but  certain  j  and,  indeed,  can 
 scarcely  imagine  any  such  case  in  view ;  and,  there- 
 fore, I  abide  by  my  first  explanation  ;  although  I  have 
 translated  the  phrase  in  such  general  terms,  that  it 
 may  comprehend  several  cases. 
 
 *  See  Art.  CXXIH.  No.  S. 
 
Art.  264. j     Its  Punishment  mitigated — Why  ?         161 
 
 Wherefore  the  punishment  is  here  mitigated,  and 
 does  not  extend  to  death,  it  is  easy  to  perceive.     The 
 concubine  is  not  truly  a  wife,  but  only  a  slave  taken 
 to  her  master's  bed  ;  perhaps  without  her  own  volun- 
 tary consent,  and  merely  because  she  must  do  what 
 he  commands.     The  breach  of  fidelity  to  him,  there- 
 fore, forms  a  sort  of  intermediate  crime  between  adul- 
 tery and  whoredom  ;  and  although,  in  so  far  as  it 
 compels  him  to  rear  up  and  provide  for  another  man's 
 children  as  his  own,  it  does  him  in  fact  the  very  same 
 injury  as  adultery,  still  there  is  for  her  this  excuse  to 
 be  made,  that  no  pactum  Uberimi  had  been,  or  could 
 be,  entered  into  between  them,  in  regard  to  cohabita- 
 tion and  nuptial  fidelity,  inasmuch  as  she  had  no  will 
 of  her  own,  being  only  his  slave.     This,  in  my  opi- 
 nion, is  a  better  reason  than  that  of  the  slave  not 
 having  had  so  good  an  education  as  the  free  woman, 
 which  is  sometimes  assigned,  to  account  for  her  guilt 
 and  punishment  being  less.     For,  not  to  mention,  that 
 many  slaves,  especially  in  great  families,  are  better 
 educated  than  free  persons  among  the  poor,  the  sta- 
 tute has  no  reference  whatever  to  the  birth,  but  mere- 
 ly to  the  present  condition,  of  the  woman.     If  she 
 had  obtained  her  liberty,  she  did  not  enjoy  the  benefit 
 of  the  law ;  and  yet  her  manumission,  granted  her 
 perhaps  after  cohabitation  with  her  master,  could  not 
 in  the  smallest  degree  alter  her  previous  education  ; 
 and  the  man  who  had  had  to  do  with  a  married  slave, 
 enjoyed  the  benefit  of  the  law,  although  the  circum- 
 stance of  inferior  education  could  not  be  urged  in  //?'«? 
 vindication. 
 
 VOL.  IV.  L 
 
162       Punishment  here  consisted  of  Blows.  [Art.  264. 
 
 The  reader  will  recollect,  from  Art.  CCLXI,,  that 
 the  punishment  of  adultery  in  a  slave,  was,  among  the 
 Arabs  likewise,  only  one-half  of  that  inflicted  on  a 
 wife,  properly  so  called.  Now,  in  both  nations,  that 
 punishment  consisted  in  blows  ;  with  this  difference, 
 however,  that  among  the  Hebrews,  these  blows  seem 
 to  have  been  given  with  a  whip  or  scourge,  as  has 
 been  already  remarked  in  Art.  CCXXXIX. ;  and  that 
 their  number,  by  the  statute  of  Deut.  xxv.  2,  3.  could 
 not  exceed  forty.  The  man,  likewise,  as  an  abolilio 
 criminiSy  (Art.  CCXLIV.)  made  an  offering  to  God, 
 and  thereby  obtained  a  remission  of  his  punishment ; 
 but  whether  this  consisted  in  his  being  only  exempted 
 from  the  poena  ordinaria  of  death,  or  from  all  manner 
 of  punishment  whatever,  and  of  course  receiving  not 
 even  stripes,  I  cannot  with  certainty  say ;  but,  from 
 the  analogy  of  the  Arabian  law,  as  well  as  from  the 
 dictates  of  natural  justice,  the  former  appears  to  me 
 the  more  probable  opinion.  Where  slavery  is  legal 
 among  a  people,  and  where  a  husband  has  at  the  same 
 time  a  right  to  take  slaves  for  concubines,  concubinage 
 thus  civilly  authorised,  must  also  be  adequately  pro- 
 tected by  the  laws  ;  and,  of  course,  the  man  who  vio- 
 lates the  rights  of  (I  shall  not  call  it  marriage,  but 
 only)  concubinage,  ought  not  to  escape,  without  any 
 punishment  whatever.  If  we  adopt  the  latter  opinion, 
 the  intention  of  the  law  might  be  to  make  concubinage 
 with  slaves  less  frequent,  and  indirectly  to  compel  the 
 master,  when  he  gave  a  slave  to  his  son  as  a  concu- 
 bine, to  grant  her  at  the  same  time  her  freedom  ;  and 
 in  fact  we  find  Moses,  on  other  occasions,  interested 
 
Art  265. ]  Of  Incest  1 63 
 
 for  the  welfare  of  slaves  in  that  situation  *.  In  this 
 view,  the  law  is  to  be  numbered  among  those  expedi- 
 ents of  legislators,  to  which  some  have  applied  the 
 term  stratagemata, 
 
 ART.  CCLXV. 
 
 Of  Incest — its  forensic  Na?nes—a?id  its  Punishment, 
 
 §  8.  Concerning  marriages  prohibited  on  account 
 of  too  close  relationship,  I  have  already  treated,  both 
 in  this  work,  and  in  a  particular  Dissertation  on  the 
 Mosaic  Marriage  Laws ;  and  I  now  come  to  the  con- 
 sideration of  the  crime  and  punishment  of  those  who 
 either  married,  or  extra-nuptially  cohabited,  with  per- 
 sons too  nearly  connected  with  them.  In  Germany, 
 we  term  this  crime  Blutschande  (blood-shame — incest.) 
 In  the  writings  of  Moses,  it  is  defined  to  be,  the  un- 
 covering, or  beholding  the  nakedness  of  a  near  kinswo- 
 man. The  Hebrew  term  for  such  a  person,  is  Schee'r 
 Basar  ;  and  concerning  its  real  import,  there  has 
 been  a  great  deal  of  controversy :  but  seldom,  indeed, 
 among  those  even  moderately  conversant  with  Oriental 
 languages.  The  question,  however,  thus  only  be- 
 comes the  more  extensive  and  uninteresting ;  and  as 
 my  readers  in  general  will  have  no  taste  for  philologi- 
 cal enquiries,  (and  the  investigation  of  the  meaning  of 
 Scheer  Basar  must  be  philological,  and  neither  theolo- 
 
 l  2 
 
 *  See  Exod.  xxi.  9,  10,  11,  DeuU  xx.    10,-14.— See  also  Art 
 LXXXVII.  LXXXVHL 
 
164-  Different  Meanings  of Minima.     [Art.  265. 
 
 gical  nor  philosophical,  if  we  wish  to  examine  it  to  the 
 bottom,  and  do  not  chuse  to  be  satisfied  with  mere  guess 
 work,)  I  therefore  here  refer  to  the  second  chapter  of 
 the  Dissertation  just  mentioned,  §  11, — 18.  It  is  from 
 this  same  chapter  that  I  now  select  the  following  brief 
 remarks  upon  incest,  omitting  the  details  and  the  proofs, 
 more  especially  as,  in  Art.  CIL,  I  have  already  had 
 occasion  to  take  some  notice  of  the  meaning  of  the 
 different  terms,  by  which  the  different  species  of  this 
 crime  are  discriminated  in  Hebrew  law. 
 
 I.  Incest  with  a  wife's  mother  is  called  Zimma,  that 
 is,  criminal  intercourse  with  a  person  under  our  pro- 
 tection, and  whom,  from  a  regard  to  our  own  honour, 
 we  are  bound  to  defend  against  violence  or  seduc- 
 tion, and  take  charge  of,  with  that  view  *.  This  term, 
 however,  is  sometimes  also  applied  to  other  crimes ; 
 as,  for  instance,  (I.)  in  the  books  of  the  law,  to  that 
 of  Lenocinium  in  a  father,  who,  instead  of  being  the 
 guardian  of  his  daughter's  chastity,  himself  keeps  her 
 engaged  in  prostitution,  Lev.  xix.  29. ;  and,  (II.)  in 
 the  other  sacred  books, 
 
 1.  To  criminal  intercourse  with  a  daughter-in-law, 
 (Ezek.  xxii.  II.;)  which  is  a  crime  very  like  the  pre- 
 ceding, but  which  has  a  particular  forensic  name  of 
 its  own. 
 
 2.  To  the  crime  of  rape  on  a  stranger  travelling 
 along,  who,  by  the  laws  of  hospitality,  which  among 
 the  Orientals  are  very  comprehensive,  is  under  the 
 protection  of  the  city  where  she  lodges,  Judg.  xx.  6. 
 
 3.  To  the  crime  of  Lenocinium  in  a  husband,  who 
 
 *  See  L«y.  xx.  14.  and  Dissert.  §  1«. 
 
Art.  265.]      Thebd—Chesed—KIiddat  <$•<?.  16S 
 
 permits  his  wife  to  play  the  adulteress,  or  at  least 
 looks  through  his  fingers,  and  connives  at  her  guilt; 
 Ezek.  xvi.  43. 
 
 4.  In  a  moral  and  political  sense  ;  in  order  to  repre- 
 sent, in  the  blackest  possible  colours,  the  crime  of  se- 
 ducing the  wife  of  a  friend ;  who,  in  her  husband's 
 friend,  ought  undoubtedly  ever  to  find  the  most  vigi- 
 lant guardian  and  protector  of  her  honour. 
 
 II.  Incest  with  a  daughter-in-law  is  very  properly 
 called  Thebel,  that  is,  madness,  Lev.  xx.  12.  The 
 same  term  is  elsewhere,  in  the  law,  applied  to  bestial- 
 ity ;  but  out  of  it,  it  may  perhaps  be  used,  in  a  more 
 extensive  sense,  to  denote  close  incest  in  general ;  par- 
 ticularly in  poetry* 
 
 III.  Incest  between  brothers  and  sisters  is  called  Che- 
 sed,  that  is,  love  ;  the  word  being  taken  in  a  bad  sense, 
 Lev.  xx.  17. 
 
 IV.  Marriage  with  a  brother's  widow  is,  in  Lev. 
 xx.  21.  termed  Nidda,  which  means  (but  I  speak 
 doubtfully,)  either  marriage  with  two  persons  alike 
 near ;  or  perhaps,  rival-marriage  ;  because,  if  such  an 
 union  be  possible,  the  one  brother  will  be  a  rival  to 
 the  other,  whose  wife  happens  to  please  him ;  and 
 even  during  his  brother's  life-time,  he  may  endeavour 
 to  seduce  her. 
 
 V.  Besides  these  species  of  incest,  the  Arabians 
 distinguish  marriage  with  a  stepmother  ;  by  the  term 
 Nicahh-Elmahty  or,  the  marriage  of  hatred.  We  do 
 not  find  this  term  in  the  writings  of  Moses  ;  but  it  is 
 probable  that  this,  and  several  other  species  of  incest, 
 had  had  their  particular  names  in  Hebrew,  although 
 we  are  unacquainted  with  them. 
 
 L  3 
 
166  Punishments  of  Incest.  [Art.  265, 
 
 I  now  come  to  speak  of  the  punishments  of  incest ; 
 and  here  I  must  divide  incestuous  connections  into 
 four  classes  ; 
 
 I.  Those  which  were  punished  capitally.  These  are, 
 1,  Incest  with  a  father's  wife.  2.  Incest  with  a 
 daughter-in-law.  3.  Marriage  (whether  simultaneous 
 or  successive)  with  a  mother  and  her  daughter  ; — all 
 three  prohibited  in  Lev.  xx.  11,  12,  14. — In  the  two 
 former  cases,  the  particular  punishment  is  not  speci- 
 fied :  it  is  merely  said,  in  general  terms,  they  shall  die. 
 In  such  a  case,  the  Rabbins,  according  to  their  rule 
 lately  mentioned,  understand  strangling  to  be  meant, 
 which,  in  their  opinion,  was  the  easiest  sort  of  death ; 
 but  as  the  Mosaic  law  knows  nothing  of  any  such 
 punishment,  it  is  probable  that  incestuous  persons  of 
 these  descriptions  were  stoned. — -Concerning  marriage 
 with  a  mother  and  daughter,  it  is  said,  They  shall 
 burn  them  with  fire,  both  him  and  them.  This,  however, 
 was  not  done,  while  the  criminals  were  yet  alive  ;  but 
 only  (as  we  have  already  remarked  in  Art.  CCXXXV.) 
 after  they  had  been  previously  stoned  to  death.  With 
 regard  to  the  last  word,  them,  (Germ,  sie)  which  I  can- 
 not here  express  clearly  in  our  language,  because  sie 
 means  either  her  or  them  ;  but  in  Latin,  the  clause 
 would  be,  ilium  et  illas  combureni  igne ;  its  meaning 
 cannot  possibly  be,  that  they  were  to  burn  both  wives  ; 
 for  the  first  was  in  all  probability  innocent,  and  highly 
 indignant  at  the  other  becoming  her  rival  >  but  only 
 that  either  of  them,  if  guilty  of  entering  into  a  union 
 so  unnatural ;  the  mother  by  marrying  the  husband  or 
 widower  of  her  daughter,  or  the  daughter  by  marrying 
 the  husband  or  widower  of  her  mother  j  was  to  be  first 
 
Art.  265.]  Extirpation — Whether  Death  or  Exile.  167 
 
 stoned  to  death,  and  then  burnt,  the  more  to  testify 
 the  abominableness  of  the  crime. 
 
 II.  Those  which  were  punished  with  extirpation.—* 
 These  are,  incest  or  marriage  between  full  brothers 
 and  sisters,  or  between  half-brothers  and  sisters,  Lev. 
 xx.  17.  But  what  is  meant  by  extirpation  as  th« 
 punishment  of  incest,  whether  death  or  exile,  or  for- 
 feiture of  civil  rights,  I  cannot  determine.  It  is  one 
 of  those  very  dubious  points,  on  which  I  have  already 
 expatiated  in  Art.  CCXXXVII.  The  phrase  here 
 employed,  they  shall  be  extirpated  before  the  ej/es  of 
 their  people,  by  no  means  decides  the  question  ;  for 
 it  may,  instead  of  implying  death,  only  mean,  they 
 shall  no  more  be  seen  before  the  eyes  of  their  people^ 
 but  shall  go  into  exile.  But  what  it  actually  im- 
 ports, and  what  the  term  extirpation  signified  in  the 
 days  of  Moses,  is  a  point  altogether  obscure,  and 
 hid  in  the  depths  of  the  most  remote  antiquity. — 
 According,  however,  to  the  analogy  of  the  Mosaic 
 law  on  other  points,  I  cannot  but  think  capital  punish- 
 ment, in  the  present  case,  rather  too  severe  to  be  sup- 
 posed ;  because  not  only  brothers  and  sisters,  full  blood, 
 are  in  question,  but  half  blood  also.  Now,  as  Abra- 
 ham himself  had  married  his  half  sister,  although  Mo- 
 ses prohibited  such  a  connection  among  the  Israelites, 
 yet,  as  it  was  not  properly  one  of  those,  which  he  term- 
 ed the  abominations  of  the  Canaanites,  that  is,  one  of 
 those  abominable  practices  which  were  peculiar  to  those 
 nations,  we  can  hardly  suppose  that  he  would  annex 
 to  it  the  same  severe  punishment  as  he  did  to  incest 
 of  the  first  kind,  or  (to  repeat  his  own  words,)  to  the 
 abomination  of  the  Canaanites,  on  account  of  which  the 
 
 L    -I 
 
1 6S     Punishment  of  Unfi  uitjulness —  What  ?  [  Art.  265. 
 
 land  was  spewing  them  out.  If,  however,  it  be  main- 
 tained, that  extirpation  here  meant  death ;  then,  as 
 there  were  but  two  kinds  of  capital  punishment,  the 
 sword  and  stoning,  I  could  understand  it  of  nothing 
 but  the  latter  of  these  :  in  which  case,  Abraham  had 
 lived  in  a  matrimonial  connection,  which  might  have 
 been  just  as  well  prohibited  under  the  penalty  of  ston- 
 ing, as  any  one  of  those  which  Moses  reckons  among 
 the  distinguishing  abominations  of  the  Canaanites. — 
 Now  is  this  credible  ? 
 
 III.  Those  which  were  punished  with  unfruitfulness. 
 These  were,  1.  marriage  with  a  paternal  uncle's  wi- 
 dow ;  and,  2.  with  a  brother's  widow  ;  excepting  only 
 the  case  of  Levirate-marriage,  which  was  commanded, 
 in  order  that  seed  might  be  raised  up  to  the  brother, 
 or  paternal  uncle,  who  had  died  childless.  But  here, 
 unfruit fulness  does  not  imply,  that  from  such  connec- 
 tions, whether  nuptial  or  extra-nuptial,  no  issue  should 
 never  proceed,  which  it  would  indeed  have  required 
 a  perpetual  miracle  to  effect ;  and  still  less  does  it  im- 
 ply, according  to  the  barbarous  idea  of  some,  that  the 
 pregnant  mothers  should  always  perish,  together  wTith 
 the  fruit  of  their  wombs  ;  but  only,  that  the  children 
 of  si"11:  marriages  should  not  be  ascribed  to  the  natu- 
 ral father,  but  to  his  deceased  brother,  or  paternal 
 uncle  ;  by  which  means  the  second  husband,  unless 
 he  took  other  wives,  (which  every  one's  circumstances 
 do  not  permit,)  lost  his  inheritance,  (Art.  XCVIII.) 
 and  his  presumed  immortality  in  the  genealogical  ta- 
 bles. If  the  reader  wishes  to  know  the  grounds  on 
 which  this  explanation  is  given,  he  will  find  them  in 
 §  76.  of  my  Dissertation  on  the  Mosaic  Marriage-Laws. 
 
Art.  266.]  Raps  not  Punished.  169 
 
 IV.  Those  thereof  the  punishments  arc  nowhere  spc~ 
 cified.  Of  this  description,  there  were  some  belonging 
 to  class  L,  for  which,  according  to  the  analogy  of  the 
 law  in  other  cases,  nothing  less  than  stoning  could 
 have  been  appointed;  such  as  that  between  a  father 
 and  a  daughter,  or  a  son  and  his  uterine  mother ;  and 
 others  belonging  to  class  III.  to  which  the  punish- 
 ment of  unfruitfulness  could  not  be  annexed,  because 
 it  was  impossible  to  ascertain,  to  whom  the  children 
 should  be  ascribed ;  marriage,  for  instance,  with  a 
 father's  or  a  mother's  sister.  It  would  appear  that 
 these  marriages  were  indeed  prohibited ;  but  had  no 
 special  punishment  yet  affixed  to  them,  because,  in 
 the  time  of  Moses,  no  example  of  any  such  transgres- 
 sion of  the  law  had  occurred  :  and,  therefore,  the  fu- 
 ture magistrate,  if  he  found  that  the  bare  prohibition 
 *©f  such  marriages  was  not  sufficient,  and  that  the 
 laws  began  to  be  contravened,  was  left  at  liberty  to 
 ordain  such  punishments,  as  existing  circumstances 
 might  render  expedient. 
 
 ART.  CCLXVI. 
 
 Of  Rape. — No   Special  Punishment  annexed  to   this 
 
 Crime. 
 
 §  9.  It  appears  very  singular,  that  for  rape,  as  rape, 
 we  find  no  punishment  appointed  by  the  Mosaic  law, 
 while  yet  scarcely  any  other  crime  seems  so  deserving 
 of  the  severest  possible  punishment ;  because,  in  the 
 first  place,  it  is  one  of  the  grossest  conceivable  viola- 
 tions of  natural  liberty,  accompanied  with  a  misfor- 
 tune destructive  of  all  the    happiness  of  life,    and, 
 
1T0  The  Heinous  Nature  of  Rape.      [Art.26G. 
 
 indeed,  to  be  estimated  as  equal  to  death  itself;  and, 
 secondly,  because  where  it  is  not  sufficiently  avenged 
 by  the  law,  recourse  must  naturally  be  had  to  private 
 revenge,  which  is  always  attended  with  very  danger- 
 ous consequences,  from  its  being  exercised  not  only 
 by  the  suffering  individual,  but  by  her  connections 
 likewise.  In  a  word,  when  we  reason  upon  it  theoreti- 
 cally and  a  priore  only,  without  taking  the  world  as 
 it  goes,  but,  in  honest  zeal  for  the  rights  of  the  female 
 sex,  it  cannot  but  appear  to  us,  as  it  did  to  the  ancient 
 German  law,  by  which  the  king  or  emperor  reserved 
 its  punishment  to  himself,  as  that  crime,  of  all  others, 
 which  requires  to  be  punished  in  the  most  severe  and 
 exemplary  manner.  The  practice  of  nations,  however, 
 though  for  what  reason  1  know  not,  is,  in  general, 
 quite  the  reverse  ;  even  of  England  itself,  where  the 
 law  of  rape  lias  naturally  a  most  formidable  aspect ; 
 inasmuch  as  the  oath  of  the  woman,  even  though  a 
 prostitute,  if  she  be  not  convicted  of  any  inaccuracy 
 in  her  evidence,  or  if  the  man  whom  she  accuses,  can- 
 not prove  an  alibi,  or  her  own  consent,  is  quite  a  suf- 
 ficient proof  of  the  crime ;  and  its  punishment  is 
 capital.  And  yet  in  that  country  we  seldom  see  any 
 man  hanged  for  a  rape.  Even  Lord  Baltimore  him- 
 self, whose  trial  is  now  before  me,  and  whom  the 
 public  voice  so  universally  condemned,  that  he  found 
 it  expedient  to  leave  his  native  country,  was  acquitted, 
 because  in  the  fair  Quaker's  evidence  against  him, 
 something  came  out,  that  seemed  to  mitigate  his 
 offence. — But  it  is  a  still  more  remarkable  phenome- 
 non to  find  a  law,  in  which,  for  the  crime  in  question.* 
 there  is  no  punishment  at  all. 
 
Art.  266.]     No  Punishment  annexed  to  Rape.         1 7 1 
 
 It  will,  indeed,  be  said,  that  in  Deut.  xxii.  25.  there 
 is  a  statute  respecting  rape,  which  denounces  the 
 punishment  of  death  against  it.  And,  no  doubt,  it 
 does  so  ;  but  then  it  is  not  against  rape,  as  rape,  but. 
 only  against  that  crime  as  committed  on  a  bride.  If 
 a  woman  in  that  situation  allowed  herself  to  be  se- 
 duced, both  she  and  her  seducer  were  ordered  to  be 
 stoned ;  but  if  she  could  construe  the  matter  into  a 
 rape,  from  its  happening  in  the  fields,  where  she  was 
 not  heard,  when  she  called  out  for  help  ;  and  declared 
 that  it  was  a  rape,  the  perpetrator  only  suffered  death, 
 she  herself  remaining  unpunished.  Here,  therefore, 
 death  was  not  the  punishment  of  rape,  (for  the  law 
 would  have  equally  punished  the  offence,  even  if  the 
 bride  had  fully  consented  to  it,)  but  only  of  dis- 
 honouring a  bride,  that  is,  of  giiasi-adultery. 
 
 Indeed,  the  ascertainment  of  the  punishment  due  to 
 the  crime  of  rape,  appears  to  me  one  of  the  hardest 
 problems  of  legislative  policy.  What  were  the  best 
 law  respecting  it,  I  do  not  pretend  to  decide  :  nor  am 
 I  at  present  concerned  with  the  subject  any  farther, 
 than  to  attempt  accounting  for  the  silence  of  Moses, 
 and  for  his  omitting  to  denounce  any  punishment  at 
 all  against  this  gross  and  barbarous  outrage. 
 
 And  here  three  circumstances  appear  necessary  to 
 be  taken  into  consideration.  In  the  first  place,  That 
 of  the  deep  debasement  of  the  female  sex  where  poly- 
 gamy prevails,  and  wives  are  bought.  Under  such 
 circumstances  of  humiliation,  the  forcible  violation  of 
 a  woman's  chastity  can  never  be  regarded  as  an  injury 
 of  that  magnitude,  which  tee  justly  account  it  to  be. — 
 In  the  second  place,  That  of  the  man  being  (as  we 
 
172  Three  Reasons  for  tliis.  [Art  266. 
 
 shall  find  in  the  sequel)  obliged  not  only  to  pay  a 
 sum  of  money  to  the  father  of  the  damsel  whom  he 
 had  debauched,  but  also  to  marry  her,  and,  if  he  had 
 used  any  violence,  not  properly  amounting  to  rape,  to 
 keep  her  as  his  wife  all  his  days,  without  enjoying  the 
 usual  right  of  divorce.  This  was  a  sufficient  preven- 
 tive of  rape  ;  more  effectual,  perhaps,  than  any  capital 
 punishment.  For  where  such  a  punishment  impends 
 over  the  crime,  a  proof  must  be  led,  which  is  very 
 rarely  possible,  under  circumstances  known,  perhaps, 
 only  to  heaven  ;  not  to  mention,  that  the  very  least 
 failure  of  determined  resistance  on  the  part  of  the 
 woman,  and  her  yielding  at  last,  even  though  to  inevi- 
 table necessity,  will  be  taken  into  consideration  : 
 whereas  by  the  Mosaic  statute  nothing  more  was  re- 
 quisite to  be  proved,  than  the  mere  fact  of  coitus,  and, 
 perhaps,  of  some  degree  of  violence,  or,  indeed,  of 
 seduction  only,  having  been  used.  Among  us,  how- 
 ever, the  law  which  thus  proved  so  effectual  a  preven- 
 tive of  rape,  would  not  answer ;  because  our  manners 
 require  equality  of  rank  in  marriage,  and  to  a  young 
 woman  of  distinction,  it  would  be  but  poor  satisfac- 
 tion for  such  an  injury,  to  be  married,  perhaps,  to 
 some  fellow  as  mean  as  he  is  worthless.  But  in  Israel- 
 itish  marriages  this  equality  of  rank  was  never  an  ob- 
 ject of  the  least  consideration.  Add  to  this,  in  the 
 third  place,  That,  as  among  us  wives  are  not  bought, 
 neither  would  that  part  of  the  law  answer,  which  or- 
 dained the  father  to  be  paid  for  his  daughter,  and,  if 
 ?)e  did  not  approve  the  marriage,  to  receive  from  her 
 seducer,  the  purchase-money  of  a  wife,  by  way  of 
 penalty  for  his  fault.     And  it  is  farther  to  be  remera- 
 
Art.  266.]  Moses  perhaps  adopted  the  laxo  of  usage.  1 73 
 
 bered,  that  as  among  us  the  husband  hah  not  the 
 power  of  divorce,  he  cannot  lose  it;  so  that,  upon  the 
 whole,  any  such  law  would  not  prove  so  effectual  in 
 deterring  from  divorce,  as  it  did  among  the  Israelites  ; 
 and  yet  I  believe  that  Lord  Baltimore  would  rather 
 have  hesitated  about  doing  what,  even  after  he  was 
 acquitted,  obliged  him  to  leave  England,  if  he  had 
 known  before-hand,  that  although  rape  was  not  a 
 capital  crime,  still,  on  proof  of  the  least  violence  to- 
 wards the  fair  Quaker,  he  must  absolutely  have  mar- 
 ried  her. 
 
 I  do  not,  however,  think  myself  authorised  to  de- 
 cide on  any  point  of  this  matter  with  perfect  certainty, 
 because,  we  must  remember,  that  Moses  did  not  com- 
 pose a  system  of  jurisprudence,  but  only  gave  occa- 
 sional laws.  It  might,  therefore,  be  very  possible, 
 that  by  the  more  ancient  law  of  usage,  which  remained 
 in  force,  where  he  did  not  alter  it,  some  punishment, 
 even  that  of  death,  might  have  been  annexed  to  the 
 crime  of  rape.  In  fact,  I  do  not  see,  how  the  private 
 revenge  of  injured  mothers  and  brethren  could  have 
 been  repressed,  or  such  scenes  as  we  read  of  in  Gen. 
 xxxiv.  and  2  Sam.  xiii.,  prevented,  unless  some  satis- 
 faction had  been  judicially  attainable :  for  a  father 
 was  not  likely  to  think  it  his  interest,  in  every  case, 
 to  give  his  daughter  to  the  man  who  had  ravished 
 her,  and  she  herself  might  be  averse  from  seeking 
 satisfaction  for  the  injury  done  her,  by  a  marriage 
 with  such  a  man. — But  here  I  readily  own,  that  1 
 speak  with  uncertainty. — Only,  upon  the  opinion  here- 
 adopted,  will  depend,  in  part,  the  judgment  which  we 
 form  of  the  story  in  the  passage  of  2  Samuel  just  al- 
 
1 74  The  case  of  Amnon.  [  Art.  266. 
 
 iuded  to.  Here  we  find  that  David  did  not  punish 
 Amnon  for  the  rape  he  had  committed,  and  which,  as 
 it  was  committed  on  his  half-sister,  Tamar,  of  course, 
 involved  also  the  crime  of  incest  ;  and  the  conse- 
 quence was,  as  might,  indeed,  naturally  be  expected, 
 that  Absalom,  her  uterine  brother,  put  him  to  death. 
 This,  however,  David  regarded  as  absolute  murder, 
 and  Absalom  was  obliged  to  leave  the  country.  It 
 was  not,  therefore,  thought  that  the  point  of  honour 
 justified  him  in  avenging  the  disgrace  of  his  sister, 
 when  the  king,  who,  in  other  cases,  exercised  the 
 right  of  Goely  did  it  not. — David,  unquestionably,  had 
 a  very  good  pretext  for  leaving  Amnon  unpunished, 
 because  the  law  of  Moses  had  not,  in  such  cases, 
 expressly  prescribed  any  punishment  ;  and  as,  be- 
 sides, usage  fixed  nothing  of  the  kind,  the  pretext  was 
 so  much  the  more  plausible.  Still,  however,  I  only 
 term  it  a  pretext,  because  he  might  legally  have 
 punished  him  for  incest,  ifhe  had  had  a  mind.  There 
 is  also  this  singular  circumstance  to  be  noticed,  that 
 in  the  very  artfully-managed  intercession,  made  for 
 Absalom  in  the  subsequent  chapter,  we  do  not  find  a 
 single  word  of  his  having  obtained  no  satisfaction  for 
 the  grievous  injury  and  disgrace  he  had  sustained, 
 and  his  having,  therefore,  taken  it  at  his  own  hand,  as 
 a  man  of  honour  ought  to  do. — In  fact,  this  again, 
 looks,  as  if  no  punishment  whatever  had  been  annex- 
 ed to  rape,  not  even  by  the  law  of  usage  ;  and  if  this 
 was  the  case,  it  ought  always  to  be  taken  into  consi- 
 deration, in  judging  of  David's  conduct  in  this  in- 
 stance ;  nor  ought  he  here  to  be  tried  by  our  laws. 
 
Art.  267.]  Of  Whoredom,  J  73 
 
 ART.  CCLXVIL 
 
 Of  Whoredom,    unaccompanied   by    circumstances  of 
 aggravation. 
 
 §  10.  For  mere  whoredom,  unaggravated  by  any 
 circumstances  of  additional  guilt,  no  punishment  at 
 all  was  inflicted  on  the  woman,  but  only  on  her  se- 
 ducer, who  was  compelled  to  marry  her,  and  was, 
 therefore,  in  certain  cases,  punished  with  sufficient 
 severity.  The  statutes  to  this  effect  occur  in  Exod. 
 xxii.  15,  16.  and  Deut.  xxii.  29. 
 
 The  cases,  therefore,  wherein  the  man  was  obliged 
 to  marry  the  woman,  were, 
 
 1.  Where  he  had  enticed  a  virgin,  and  seduced  her, 
 Exod.  xxii.  15. — Here  it  would  seem,  that  no  excep- 
 tion was  made,  although  the  woman  had  been  enticed 
 by,  and  had  received  presents,  or  money.  The  man 
 ought  not  to  have  enticed  her  at  all. 
 
 2.  When  he  had  laid  hold  on  a  virgin,  and  de- 
 bauched her,  Deut.  xxii.  29. — This  appears  to  imply 
 the  use  of  some  degree  of  violence,  though  not  such 
 as  amounted  strictly  to  rape.  If  the  woman  made 
 some  resistance,  and  in  so  far  defended  herself,  as  not 
 to  give  her  willing  consent  to  the  crime,  the  case 
 came  under  the  terms  of  this  law. 
 
 To  the  case,  therefore,  of  the  woman  running  after 
 the  man,  and  enticing  him,  or  where  the  guilt  wa9 
 equal  on  both  sides,  the  law  does  not  seem  to  extend. 
 And  where  the  woman  had  not  been  a  virgin,  (which 
 however,  she  was  always  presumed   to  be,  if  there 
 
176  Punishment  of  Seduction.         [Art.  267. 
 
 was  no  proof  of  the  contrary)  the  following  remarks 
 are  not  applicable. 
 
 In  the  Jirst  case,  then,  that  of  mere  enticement  and 
 seduction,  Moses  ordained,  that  the  seducer  should 
 marry  the  woman,  and  pay  for  her  to  her  father.  If, 
 however,  the  father  did  not  chuse  to  let  him  have  her, 
 still  the  seducer  was  obliged  to  pay  him  the  sum 
 usually  paid  as  the  price  of  a  virgin  purchased  for 
 marriage. 
 
 In  the  second  case,  where  some  degree  of  force  was 
 used,  the  very  same  obligation  lay  on  the  seducer, 
 but  with  this  addition,  that  he  had  to  pay  the  father 
 of  the  woman  the  sum  of  fifty  shekels,  that  is,  the 
 highest  price  that  was  usually  paid  for  a  virgin  (Art. 
 LXXXV.),  and  that  he  forfeited,  at  the  same  time, 
 the  right  of  ever  dissolving  the  marriage,  or  giving  a 
 bill  of  divorce  ;  and,  of  course,  was  obliged  to  keep 
 her  as  long  as  he  lived.  This,  as  I  have  remarked  in 
 the  preceding  Article,  wras  a  pretty  effectual  means 
 of  preventing  a  man  from  resorting  to  any  thing  that 
 could  be  construed  into  force ;  or,  if  he  did,  the  wo- 
 man, by  way  of  reparation,  obtained  a  marriage  with 
 him,  on  a  very  different  footing  from  what  she  could 
 otherwise  have  expected ;  for  it  was,  like  what  ours 
 are,  indissoluble  by  arbitrary  divorce. 
 
 The  opinions  formed  respecting  these  Mosaic  sta- 
 tutes will  be  very  different. — That  the  woman  should 
 have  remained  altogether  unpunished,  wrill  appear 
 nothing  less  than  impious,  to  those  zealots,  who  insist 
 upon  ecclesiastical  penances,  and  public  disgraces,  or 
 if  she  be  rich,  on  a  high  fine,  to  buy  off  the  shame, 
 and  (what  is  still  better,  to)  fill  their  own   coffers, 
 
Art.  267.]  Public  Eccles.  Penances  disapproved.     177 
 
 Here,  however,  sound  reason  must  really  approve  the 
 procedure  of  Moses.  For  the  woman,  who,  in  such  a 
 case,  alone  suffers  the  corporeal  and  visible  conse- 
 quences, and  the  disgrace  of  illicit  intercourse ;  who 
 is  ruined  for  life,  and  cut  off  from  all  hopes  of  a  suit- 
 able match  ;  and  who  must  either  remain  an  old  peni- 
 tent, in  celibacy,  or  put  up  with  any  man  who  will 
 take  her  as  she  is,  cannot  but  be  deemed  sufficiently 
 unfortunate,  and  is  rather  to  be  pitied  than  punished. 
 And,  if  all  the  miseries  thus  altendant  upon  inconti- 
 nence, with  loss  of  honour,  and  of  all  hope  of  a  desir- 
 able settlement,  are  insufficient  to  deter  a  woman  from 
 yielding  to  temptation,  no  punishment,  of  the  nature 
 of  those  penances  above  mentioned,  will  ever  have 
 that  effect.  Punishment,  therefore,  is  here  of  no  avail, 
 and  only  superfluous  and  misapplied  suffering,  which 
 no  punishment  should  ever  be.  But  besides  this,  such 
 punishments  do  mischief  instead  of  good,  by  making 
 the  infamy  of  the  unfortunate  woman  quite  public  j 
 and  thus,  where  shame,  as  in  many  instances,  gets  the 
 better  of  every  other  consideration,  hurrying  her  to 
 crimes  still  more  heinous,  such  as  child-murder,  or 
 the  procurement  of  abortion.  And  hence,  in  those 
 countries  where  legislative  policy  is  more  perfect,  the 
 infliction  of  public  ecclesiastical  punishments  on  wo- 
 men who  have  gone  astray,  and  likewise  the  exaction 
 of  those  penalties  in  lieu  of  them,  which  went  into  the 
 coffers  of  the  liege-lord,  have  of  late  been  altogether 
 abolished,  and  orders  given  to  the  clergy  to  admonish 
 such  persons  privately,  and  with  the  secrecy  of  con- 
 fessors, but  to  let  nothing  whatever  be  brought  into 
 public  view.     It  is  not  from  Moses  that  this  plan  has 
 
 VOL,  IV.  M 
 
178      Reasons  for  Moses*  Procedure  here.  [Art.  267. 
 
 been  taken  by  legislators ;  and  now,  perhaps  for  the 
 first  time,  they  hear,  quite  unexpectedly,  that  there 
 was  any  thing  like  it  in  his  laws ;  yet  such  is  really 
 the  fact. 
 
 Indeed,  in  his  time  and  circumstances,  there  were 
 still  more  reasons  that  suggested  the  expediency  of 
 resorting  to  lenient  measures  with  the  victims  of  se- 
 duction. Parents  and  brothers  considered  themselves 
 as  so  much  disgraced  by  the  dishonour  of  a  daughter 
 or  a  sister,  that  the  legislator  really  found  it  necessary 
 to  manifest  a  peculiar  degree  of  compassion  towards 
 unfortunate  females,  who  were  thereby  rendered  mi- 
 serable in  a  degree  far  exceeding  the  enormity  of  their 
 crime.  For  they  were  already  more  severely  punished 
 by  the  hatred  and  contempt  of  their  relations,  than  it 
 was  in  his  power  to  punish  them  j  and  therefore  ra- 
 ther merited  from  him  lenity  and  relief;  which  indeed 
 he  afforded  them,  not  only  by  subjecting  them  to  no 
 punishment,  but  also,  in  the  case  of  their  having  been 
 either  seduced,  or  in  the  smallest  degree  forced,  help- 
 ing them  to  husbands.  Nor  could  the  lenity  and  non- 
 infliction  of  punishment  have  any  tendency  to  corrupt 
 the  morals  of  young  women ;  all  danger  of  that  effect 
 being  counteracted  by  another  law,  concerning  which 
 parents  would  naturally  take  care,  in  due  time,  to 
 apprize  their  daughters,  and  which  subjected  the  bride 
 who  imposed  on  her  husband,  by  falsely  pretending 
 that  she  was  a  virgin,  to  the  punishment  of  being 
 stoned  to  death.  Every  woman,  therefore,  knew,  that 
 if  she  had  allowed  herself  to  be  debauched,  she  had 
 no  alternative  left  her,  but  to  inform  her  parents,  that 
 they  might  insist  on  her  seducer  marrying  her. 
 
Art.  2673    Alternatives  left  to  the  Unchaste.  179 
 
 If,  however,  she  had  neither  been  seduced  nor  for- 
 ced, or  if  there  was  no  child  in  the  case,  and  the  mat- 
 ter remained  a  secret  with  herself,  it  was  in  her  owrn 
 choice,  whether  she  would  either, 
 
 1.  In  the  Jirst  place,  confess  her  guilt,  and  take  any 
 husband  who  chose  to  take  her,  that  is,  a  very  bad  one, 
 and  such  as  she  certainly  would  not  otherwise  have 
 accepted ;  and  at  the  same  time,  by  such  confession, 
 to  bring  upon  herself  the  hatred  and  contempt  of  her 
 relations,  to  a  degree  of  which  we  can  have  no  idea  j 
 or  again, 
 
 2.  In  the  second  place,  never  marry  at  all,  for  fear 
 of  a  discovery,  and.  thus,  for  one  forbidden  gratifica- 
 tion, remain  all  her  life  in  the  situation  in  which 
 nuns  are  with  us ;  or  again, 
 
 3.  In  the  third  place,  run  the  risk  of  being  immedi- 
 ately after  marriage  sent  back  to  her  parents,  subject- 
 ed to  an  inquisition,  and,  when  the  truth  was  discover- 
 ed, stoned  to  death. 
 
 Among  a  people  who  attend  to  the  signa  virginitatis, 
 and  make  them  the  subject  of  judicial  investigation, 
 the  chastity  of  females,  while  in  the  houses  of  their 
 parents,  will  be  much  more  effectually  preserved,  with- 
 out any  civil  penalties,  than  it  can  possibly  be,  even 
 by  the  severest  punishments,  in  a  nation  where  the 
 law  on  this  point  is  not  regulated  by  the  principles  of 
 nature  and  physiology,  or  where  it  is  admitted  as  a 
 maxim,  that  the  signa  virginitatis  are  merely  acciden- 
 tal, and  ought  not  to  be  insisted  on. 
 
 It  may  here  be  still  objected,  that  the  un chastity  of 
 daughters  ought,  after  all,  to  have  been  punished 
 more  severely  among  the  Hebrews,  than  among  us, 
 
 51   2 
 
180  Public  Prostitution,  <Jr.  [Art.  268 
 
 because  parents  and  brothers  were  more  disgraced  by 
 it,  and  might  be  inclined  to  take  revenge  at  their 
 own  hands,  as  from  Art.  CCLXI.  we  have  seen  was 
 the  case  among  the  Arabs.  But,  in  answer  to  this, 
 we  may  remark,  that,  on  the  one  hand,  the  revenge  of 
 kindred  in  such  cases  did  not  perhaps  carry  them  to 
 such  lengths  as  among  the  Arabs ;  and  on  the  other, 
 that  as  a  legislator  ought  not  to  yield  to  principles  or 
 practices  of  unnatural  revenge  in  his  people,  but  to 
 oppose  them  as  far  as  it  is  practicable,  so  we  here  ac- 
 tually find,  that  the  Mosaic  law  made,  in  the  present 
 case,  a  provision  directly  to  counteract  its  effects,  by 
 immediately  obliging  the  seducer  to  marry  the  victim, 
 of  his  lust,  and  thus  taking  her  at  once  out  of  the 
 •louse  and  the  power  of  her  parents. 
 
 ART.  CCLXVIII. 
 
 Concerning  (I.)  Public  Prostitution  ;  (2.)  Lenocinium 
 Patris  ;  (3.)  Whoredom  in  honour  of  an  Idol ;  and% 
 (4.)  Whoredom  in  the  Daughter  of  a  Priest, 
 
 §11.  There  were  several  circumstances  that  con- 
 stituted what  I  have  called  aggravated  whoredom,  and 
 might  make  it  cognizable  even  by  criminal  law.  Of 
 these, 
 
 1 .  2.  One  was,  where  a  woman  was  not  merely  se- 
 duced, but  became  a  common  prostitute  for  hire ;  and 
 another,  where  she  was  obliged  by  her  parents  to  pro- 
 stitute herself  for  their  benefit.  This  last  is  what 
 Moses,  in  Lev.  xix.  19.  denominates  Chattel  Bitho, 
 
 uu 
 
 firo    .  n^  which  properly  signifies,  solutamf  id  est, 
 
Art.  268.]  Lcnocinhim  Patris.  181 
 
 communis  juris  et  public  am  facere  filiam  snam ;  and  lie 
 at  the  same  time  applies  to  the  father's  crime  the  term 
 Zimma  ("IB'),  that  is,  the  dishonouring  or  corrupting  the 
 woman  whose  chastity  we  ought  to  protect ;  of  which  term 
 we  have  already  treated  in  Arts.  CII.  and  CCLXV. ; 
 •but  more  fully,  in  §  19.  of  the  Dissertation  on  the 
 Mosaic  Marriage  Laws. — Tn  the  passage  just  quoted, 
 we  find,  indeed,  only  a  prohibition,  without  any  pu- 
 nishment annexed ;  and  in  Deut.  xxxiii.  18.  in  like 
 manner,  this  farther  prohibition,  that  there  should  be 
 no  public  prostitute  among  the  daughters  of  Israel  ; 
 which,  however,  must  at  all  events  have  given  the 
 magistrate  a  right  to  banish  any  such  person  of  Israel- 
 itish  descent.     At  the  same  time  it  is  probable,  that 
 the  Lenocinium  patris,  by  which  a  daughter  was  oblig- 
 ed to  prostitute  herself,  was  not  permitted  to  pass  with 
 impunity;  although  Moses,  who  did  properly  compose 
 a  system  of  laws,   nowhere  specifies  his  punishment. 
 Here,  therefore,  we  must  acknowledge  another  chasm 
 in  our  knowledge  of  the  Mosaic  law ;  which,  however, 
 if  we  might  venture  to  fill  up  from  analogy,  we  should, 
 from  the  forensic  term  Zimma,  applied  to  this  crime, 
 conclude  that  it  had  been  punished  in  the  same  man- 
 ner as  other  species  of  Zimma,  that  is,  by  stoning  to 
 death,  and  afterwards  burning,  Lev.  xx.  4.     The  con- 
 clusion, however,  would  be  uncertain,  because  it  is 
 possible  that  two  crimes  might  bear  the  same  forensic 
 epithet,  and  yet  be  differently  punished.     Here,  there- 
 fore, I  rather  chuse  to  acknowledge  my  ignorance. 
 
 With  respect  to  those  common  prostitutes  who  were 
 not  of  Israelitish  descent,  but  foreigners,  I  do  not  find 
 :u?y  express  law  j  for  both  of  those  statutes  already 
 
 m  3 
 
182  Foreign  Prostitutes.  [Art.  268. 
 
 quoted,  manifestly  speak  only  of  the  daughters  of  Is- 
 raelites ;  and  it  is  possible,  that  a  legislator  might  be 
 very  solicitous  about  preserving  the  honour  and  chas- 
 tity of  the  daughters  of  his  own  people,  without  inter- 
 dicting foreigners,  for  whose  characters  he  was  not 
 interested,  from  carrying  on  such  a  disgraceful  trade. 
 Nevertheless,  from  the  silence  of  a  legislator  on  a  point 
 like  this,  in  what  we  may  call  a  collection  of  several  oc- 
 casional edicts,  I  would  not  just  hastily  conclude,  that 
 common  prostitutes,  of  foreign  extraction,  had  been 
 tolerated  for  the  prevention  of  greater  evils.     It  is  no 
 doubt  true,  that  in  a  state  where  polygamy  is  permit- 
 ted, more  may  be  said  for  the  toleration  of  such  per- 
 sons, than  in  monogamous  countries  like  ours  ;  and 
 the  philosophical  opponents  of  polygamy  have  very 
 justly  remarked,  that  it  renders  the  toleration  of  bro- 
 thels almost  necessary,  in  order  to  prevent  worse  con- 
 sequences.    Besides,  considering  this  matter,  not  in 
 a  moral,  but  merely  in  a  political  view,  and  as  a  Board 
 of  health  would  consider  it,  it  was  not,  in  the  times 
 that  preceded  the  discovery  of  America,  an  object  of 
 such  serious  danger  as  it  has  become,  since  the  Old 
 World  has  received  the  Lues  venerea  from  the  New, 
 and  now  that  common  prostitutes  propagate  one  of 
 the  most  inveterate  of  all  infections.      But  though 
 Moses  permitted  polygamy  on  civil  grounds,  on  ac- 
 count of  the  hardness  of  his  people's  hearts,  he  was 
 any  thing  but  a  favourer  of  it ;  nor  would  he,  there- 
 fore, in  the  present  instance,  have  accommodated  his 
 enactments  to  it ;  and  besides,  from  Lev.  xv.  3.,  it  is 
 highly  probable  that  there  had  then  actually  existed  a 
 Gonorrluva  virulenta,  which  mayafterwards  have  disap- 
 
Art.  268.]     Probably  not  tolerated — Why  ?  183 
 
 peared,  and  which  did  not  make  its  appearance  again 
 till  about  the  latter  half  of  the  16th  century ;  when 
 tlie  violence  of  the  Lues  venerea,  which  had  been 
 brought  from  America  at  the  end  of  the  15th,  began 
 to  mitigate,  and,  from  a  much  more  formidable  dis- 
 ease, became  Gonorrhoea  virulenta.  In  the  time  of 
 Moses,  therefore,  there  might 'have  been  the  very 
 same  political  dangers  attending  the  toleration  of  com- 
 mon prostitutes,  which  there  are  at  present ;  although 
 during  the  whole  period  in  which  we  have  Greek  and 
 Roman  writers  and  laws,  and  during  the  first  fourteen 
 centuries  and  a  half  of  the  Christian  aira,  they  had 
 vanished.  It  is  likewise  improbable  that  foreign  pro- 
 stitutes should  have  been  tolerated,  for  this  reason, 
 that  Moses  was  so  apprehensive  of  Canaanitish  women 
 seducing  the  Israelites  into  idolatry.  But  whatever 
 may  have  been  the  Mosaic  statute  on  this  point,  we 
 see  very  clearly  from  other  parts  of  the  Bible,  that,  in 
 later  times,  perhaps  through  the  fault  of  the  police, 
 and  perhaps  too  from  the  impossibility  of  guarding 
 against  every  species  of  evil,  common  prostitutes  had 
 been  to  be  found  in  the  land  of  Israel,  just  as  well  as 
 among  the  Canaanites  and  Philistines.  Between  the 
 existence  of  any  evil,  however,  and  its  non-removal, 
 and  its  complete  toleration,  there  is  always  a  great 
 distinction  to  be  made. 
 
 3.  Among  many  heathen  nations,  whoredom  be- 
 came a  sort  of  religion,  and  was  practised  in  honour 
 of  some  deity,  to  whom,  or  rather  to  whose  priests,  its 
 profits  accrued.  To  crush  this  practice,  we  find  the 
 prophets  labouring  with  great  zeal  on  many  occasions, 
 as  in  Hos.  iv.  14,     It  is  not  here  my  design,  becau.sr 
 
 M   4 
 
184         Prostitution  in  honour  of  Mylitta.    [Art.  268. 
 
 it  were  rather  more  suitable  to  the  subject  of  antiqui- 
 ties, to  give  a  collection  of  quotations  relative  to  this 
 abominable  practice,  which  was  not  unknown  among 
 the  Greeks,  though  principally  in  fashion  among  the 
 Phoenicians ;  but  there  is  one  passage  in  illustration 
 of  it,  which  we  rind  in  Herodotus,  book  i.  ch.  187.  (or 
 Wesseling's  edition,  ch.  199.)  and  of  which  I  shall 
 here  give  Goldhctgen's  version.  It  relates  to  the  Ba- 
 bylonians, and  is  as  follows  :  "  The  most  shameful 
 "  custom  among  the  Babylonians  is  this,  that  every 
 '*  native  woman  must  once  in  her  life  prostitute  her- 
 "  self  to  a  stranger  in  the  temple  of  Venus.  Many, 
 "  however,  who  in  the  pride  of  wealth  think  it  unbe- 
 "  coming  to  mingle  with  others,  come  to  the  temple 
 *'  in  close  carriages,  attended  by  a  number  of  servants, 
 "  and  stop  hard  by  it ;  but  the  generality  proceed 
 "  thus :  They  sit  within  the  temple,  wearing  on  their 
 "  heads  garlands  of  flowers,  intertwined  with  a  thread. 
 **  Some  are  ever  coming,  and  others  are  going  away. 
 *'  Between  the  places  where  they  sit,  there  are  long 
 "  passages,  through  which  the  strangers  walk  up  and 
 u  down,  to  pick  out  whomsoever  they  fancy.  Having 
 "  once  taken  her  seat,  a  woman  is  never  allowed  to 
 *'  return  home,  until  a  stranger  has  thrown  some  mo- 
 "  ney  into  her  lap,  and  led  her  to  a  place  of  retire- 
 "  ment  without  the  temple.  On  throwing  her  the 
 *'  money  he  must  say,  I  invoke  the  goddess  Mylitta, 
 "  (Xmbiujj  which  is  the  Assyrian  name  of  Venus. 
 *'  Whether  the  sum  be  great  or  small,  she  must  not 
 *'  refuse  it :  for  it  is  brought  to  the  sacred  treasury. 
 **  She  must  follow  the  first  man  who  offers  her  money, 
 t?  and  not  reject  any  one  as  unworthy  of  her.  After  she 
 
Art.  268.]  A  similar  custom  among  the  Midianites.   185 
 
 "  has  paid  the  tax  of  love,  and  so  done  honour  to  the 
 "  goddess,  she  returns  home. — Those  who  are  beauti- 
 "  ful  soon  return  ;  while  the  ugly  have  to  wait  a  long 
 M  time,  some  of  them  perhaps  three  or  four  years  ; 
 "  because  they  have  it  not  sooner  in  their  power  to 
 "  fulfil  the  law. — There  is  a  similar  custom  at  a  cer- 
 *•  tain  place  in  Cyprus*."  From  this  species  of  sacred 
 prostitution,  a  common  prostitute  was  among  the 
 Hebrews,  or  rather,  previously  among  the  Canaanitest 
 termed  Kedeschat  (HgHp)  that  is,  consea-ated.  Moses 
 does  not  fix  a  punishment  for  it  by  particular  statute, 
 but  as  it  was  a  species  of  the  worship  of  strange  gods, 
 it  is  obvious  from  the  analogy  of  his  law,  that  it  was 
 punished  capitally.  In  fact,  we  find  in  Numb.  xxv. 
 one  instance,  though,  no  doubt,  an  extraordinary  one, 
 where  this  was  the  case.  The  Midianites,  it  would 
 seem,  had  a  shameful  custom  of  obliging  their  mar- 
 riageable daughters  to  surrender  their  virginity  in 
 honour  of  Baal-peort,  at  a  particular  festival ;  to  which 
 they  invited  the  Israelites,  of  whom  some  accepted  the 
 invitation,  in  open  contempt  of  their  own  laws.     One 
 
 *  That  this  Babylonish  custom  is  mentioned  even  in  Jewish 
 writings,  namely,  in  the  Apocryphal  Epistle  of  Jeremiah,  verse 
 +2,  43.,  has  been  remarked  by  IVesseling  in  his  Notes ;  in  which  also 
 there  are  two  quotations  given  relative  to  Cyprus.  Indeed,  the  pol- 
 lutions of  the  Cyprian  temple  have  a  still  closer  reference  to  the 
 Mosaic  law,  because  they  were  probably  of  Canaanitish  origin  :  for 
 Cyprus,  long  before  the  time  of  Herodotus,  had  received  colonies 
 from  Phoenicia,  that  is,  from  Canaan.  See  my  Spicil.  Geogr.  Hcbrao- 
 rum  ext.  p.  106, — 109. 
 
 f  See  Gen.  xxxviii.  21,  22.  Deut.  xxiii.  18. 
 
 \  The  probable  reason  of  this  is  stated  ia  Art.  XCIL 
 
186       Ihichastity  in  a  Priest's  Daughter,    [Art.  268. 
 
 of  the  most  audacious  of  the  transgressors  was,  when 
 in  bed  with  a  Midianitish  woman,  stabbed  along  with 
 her,  by  Phinehas,  who,  by  his  conduct  on  this  occa- 
 sion, gained  himself  great  honour. 
 
 In  order  to  prevent  the  worship  of  the  true  God 
 from  being  ever  profaned  by  such  deeds  of  shame,  or 
 any  thing  of  the  like  nature  from  being  on  any  pre- 
 tence introduced  by  avaricious  priests,  it  was  enjoined 
 by  the  statute  of  Deut.  xxiii.  19.  that  the  hire  of  a 
 harlot  should  never  enter  the  house  of  God ;  not  that 
 only  of  one  considered  as  consecrated ;  but  of  any 
 one  whatever  j  so  that,  although  a  penitent,  to  ease 
 her  conscience,  had  ever  wished  to  dedicate,  by  a 
 vow,  the  wages  of  her  past  iniquity  to  the  sanctuary, 
 it  could  not  be  accepted.  All  these  precautions  of 
 the  legislator,  however,  were  not  sufficient  to  prevent 
 consecrated  harlots  in  honour  of  strange  gods,  but 
 even  consecrated  boys  for  Sodomitical  purposes,  from 
 being  at  last  kept  even  in  the  temple  itself.  Of  this 
 we  have  an  account  in  the  second  book  of  Kings, 
 chap,  xxiii.  7. 
 
 4.  When  the  daughter  of  a  priest  profaned  herself, 
 as  Moses  expresses  it,  (or  became  common)  by  com- 
 mitting whoredom,  her  disregard  to  the  sacred  cha- 
 racter of  her  father,  whose  office  she  thus  disgraced, 
 "was  considered  as  such  an  aggravation  of  her  crime, 
 that  she  was  ordered  to  be  burnt ;  Lev.  xxi.  0.  But 
 this  burning,  I  must  again  observe,  I  do  not  conceive 
 to  refer  to  the  living  body,  but  to  the  dead  body, 
 after  having  been  stoned  to  death.  (Art.  CCXXXV. 
 No.  1.)  The  practice,  therefore,  which  prevailed 
 among  many  Arabian  tribes,  of  punishing  capitally, 
 
Art.  268.]      Punished  with  death,  and  why  ?  187 
 
 and  even  burying  alive*,  daughters,  who,  by  their 
 incontinence,  brought  disgrace  upon  their  parents, 
 held  good  in  the  Hebrew  law,  in  so  far  as  regarded 
 the  capital  punishment  of  a  priests's  daughter  ;  only 
 that  the  manner  of  it  was  different,  burying  alive 
 being  no  punishment  of  the  Mosaic  law.  Perhaps 
 too,  this  circumstance  came  into  consideration,  that 
 the  shame  of  that  crime  did  not  merely  affect  the 
 profession  of  the  father,  and,  in  some  degree,  religion 
 itself;  but  also  that,  in  the  case  of  a  priest's  daughter 
 becoming  a  common  prostitute,  a  way  might  be  open- 
 ed for  transferring  the  abominable  rites  of  the  heathen, 
 (who  worshipped  their  gods  by  debaucheries,  and  made 
 their  temples  and  sacred  groves,  brothels)  into  the  ser- 
 vice of  the  true  God. 
 
 With  respect  to  the  crime  itself,  which  incurred 
 this  severe  punishment,  a  doubt  may  be  started.  Did 
 it  mean  a  single  act  of  incontinence  on  the  part  of  the 
 unfortunate  woman,  or  did  it  apply  only  to  her  be- 
 
 *  See  my  father's  Dissertation  entitled  Ritualia  quccdam  Cod.  Sacr. 
 ex  Corano  illustrata,  §  13.  As  this  dissertation  is  no  longer  to  be 
 had,  and  many  readers  may  be  desirous  to  have  a  more  particular 
 account  of  so  strange  a  law,  I  here  transcribe  the  whole  passage,  in 
 as  far  as  it  can  be  done,  with  the  omission  of  the  Arabic.  In  Corani 
 capite  LXXXI.  8,  9.,  Dies  ex  trend  judicii  inter  alia  his  verbis  descri- 
 bitur.  Et  cum  puella,  quae  viva  sepulta  est,  interrogabitur,  ob  quod- 
 nam  delictum  interfecta  fuerit?  Ad  quem  locum  Abu  Mahammed 
 Elhosain,  cognomine  Elkara,  in  commentario  MS.  Arabico,  qui  olim 
 Collegii  Orientalis  Tfieologici  in  hue  academia  fuerat,  nunc  zero  Biblio- 
 theccc  Orphanotrophd  llalensis  insertus  est,  trad  it,  solitos  fuis^'e  Amies, 
 filias  suas  si  stupram  admississent,  vivas  in  terra  defodcre.  Idcmque 
 Jac.  Golius,  (Lew  Arab  p  2605.  scq.)  de  paganis  quondam  Arubum 
 quibusdam,  e.  g.  Kinditis,  reftrt. 
 
183  Punished  with  death,  and  why  ?     [Art.  26$. 
 
 coming  a  common  prostitute  ?  The  expression,  to  be 
 profaned*,  or  to  become  public,  may  admit  a  milder 
 and  a  harsher  meaning.  In  the  statute  explained 
 under  No.  1.  of  the  present  Article,  it  is  used  to  de- 
 note a  woman  of  the  latter  description.  The  later 
 Jews  t  endeavoured  to  mitigate,  in  some  degree, 
 the  unaccountable  severity  of  the  punishment,  (for  in 
 that  light  they  considered  it,)  by  adopting  the  notion 
 of  the  law  having  only  a  reference  to  women  that 
 were  betrothed  ;  but  in  that  case  it  were  quite  a  su- 
 perfluous law,  besides  being  introduced  into  a  wrong 
 place,  amidst  the  detail  of  the  duties  and  sanctities  of 
 priests ;  for  every  betrothed  woman,  who  committed 
 a  breach  of  chastity,  was  stoned,  as  we  shall  see  im- 
 mediately ;  so  that  it  was  nothing  that  required  to 
 be  particularly  noticed,  in  the  case  of  a  priest's 
 daughter  being  guilty  of  the  crime. 
 
 *  brrn.  The  ancient  versions  here  differ  very  much ;  the  word 
 being  susceptible  of  more  than  one  exposition.  1.  Some  render, 
 when  she  begins  to  commit  whoredom  ;  thus  the  Syriac,  Erpenian 
 Arabic,  and  Samaritan.  2.  Others,  When  she  becomes 'profaned  ;  thus 
 the  Seventy,  Onkelos,  and  the  Polyglot  Arabic  ;  but  the  word  in 
 this  last  is  scarcely  applicable  to  any  but  a  strumpet.  3.  The 
 Vulgate  has,  si  deprehensafuerit  in  stupro ;  which  is  either  an  indefi- 
 nite paraphrase,  or  from  another  Lection. 
 
 f  See  the  later  Chalilee  version  of  Pseudo-Jonathan. 
 
Art.  269.2     Unchastity  in  a  Levirate-widow.  1 89 
 
 ART.  CCLXIX. 
 
 Concerning  Whoredom  (5.)  in  a  Levirate-widow  ;  (6.) 
 in  a  Woman  betrothed ;  and  (7.)  in  a  woman  who 
 ajterwards,  on  her  marriage,  gives  herself  out  for  a 
 Virgin,  and  thus  deceives  her  Bridegroom. 
 
 §  12.  The  three  following  aggravations  of  whore- 
 dom are  of  a  different  description  from  the  preceding. 
 
 5.  The  widow  of  a  man  who  died  childless,  was, 
 by  the  Levirate  law,  obliged  to  wait  for  his  brother, 
 or  nearest  relation  (Art.  XCVIII.)  ;  and  if,  in  that 
 situation,  she  committed  whoredom  with  a  stranger, 
 she  was,  by  an  ancient  consuetudinary  law  of  the 
 Hebrews,  of  greater  antiquity  even  than  the  time  of 
 Jacob's  residence  in  Palestine,  considered  as  an  adul- 
 teress, and  consequently  punished  with  death.  The 
 reader  will  immediately  recollect  the  story  of  Thamar ; 
 and  how  he  ought  to  understand  the  punishment  of 
 burning,  which  Judah  denounced  against  her,  we 
 have  of  late  had  repeated  opportunities  of  observing. 
 This  law  Moses  neither  confirmed  nor  repealed  ;  and, 
 therefore,  it  remained  the  law  j  although  I  am  rather 
 inclined  to  think,  that  it  was  not  very  rigidly  en- 
 forced, or  rather,  indeed,  that  it  may  have  gone  into 
 desuetude  ;  as  the  Israelites  seem  to  have  sometimes 
 considered  the  Levirate-law  as  burdensome,  and  were 
 not  very  zealous  about  its  observance.  Whoever 
 reads  the  third  chapter  of  Ruth  will  scarcely  believe, 
 that  it  would  at  that  period  have  been  a  capital  crime 
 
190        Unchastity  of  a  Woman  betrothed.     [Art.  269. 
 
 in  Ruth  to  have  been  connected  with  any  other  man ; 
 at  least  we  do  not  usually  praise  a  woman  for  not  com- 
 mitting adultery,  in  the  style  in  which  she  is  praised. 
 
 6.  A  woman  betrothed,  who  had  yielded  to  seduc- 
 tion, without  being  able  to  plead  a  rape,  was,  in  like 
 manner,  considered  as  an  adulteress,  and  stoned  :  but 
 if  she  could  construe  her  misfortune  into  that  crime, 
 the  excuse  was  sustained,  and  she  escaped  death  ;  but 
 the  seducer  was  subjected  to  the  punishment  of  ston- 
 ing, whether  he  had  used  violence  or  not.  The  sta- 
 tute on  this  point  occurs  in  Deut.  xxii.  23, — 27.,  and 
 as  it  is  extremely  precise,  I  shall  satisfy  myself  with 
 quoting  it.  If  a  damsel  be  betrothed,  and  a  man  meet 
 her  in  the  city  and  debauch  her,  ye  shall  stone  them  both 
 before  the  gate  of  the  city ;  the  woman,  because,  al- 
 though she  was  in  the  city,  she  did  not  call  out  for  help  ; 
 and  the  man,  because  he  hath  dishonoured  the  bride 
 (properly,  the  wife)  of  another  man.  Such  deeds  of 
 shame  shall  not  be  suffered  among  you.  If,  on  the  other 
 hand,  a  man  meet  a  betrothed  damsel  in  the  f  elds,  and 
 force  her  ;  he  alone  shall  die.  The  damsel  shall  suffer 
 nothing  ;  for  she  deserves  not  death  ;  in  as  much  as 
 this  matter  is  the  same,  as  if  a  man  shoidd  attack  another 
 and  slay  him  :  he  met  her  in  the  fields  :  she  called  out 
 for  help ;  but  there  was  no  man  there  to  come  to  her 
 aid. — I  certainly  think,  that  a  rape,  in  the  strictest 
 sense  of  the  term,  is  but  very  seldom  possible  :  but 
 where  a  woman  was  attacked  in  the  fields,  and  com- 
 pelled by  threats  or  blows,  to  submit  to  disgrace,  the 
 case  was  really  similar  to  that  of  murder  or  robbery ; 
 nor  could  she,  in  such  circumstances*  be  supposed 
 
Art.  269.]      Concealment  of  Incontinence,  191 
 
 capable  of  defending  herself,  like  a  female  dragoon, 
 with  all  her  strength  and  advantages,  and  at  the 
 risk  of  her  life,  or  even  of  personal  injury. 
 
 7.  When  a  bride  pretended  to  be  a  virgin,  though 
 previously  guilty  of  whoredom,  and  thus  deceived  her 
 bridegroom,  her  crime  was  regarded  as  equivalent  to 
 adultery,  and  she  was  stoned  to  death  before  her  fa- 
 ther's  door  ;  Deut.  xxii.  20,  21.  It  was  not  properly 
 her  whoredom  that  was  here  punished ;  but  her  de- 
 ceit ;  which  is,  no  doubt,  to  a  husband  an  injury 
 equally  dangerous  with  actual  adultery ;  because  he 
 can  never  be  secure  of  the  fidelity  of  his  wife,  and 
 runs  so  much  the  greater  risk  in  future,  that  he  knows 
 not  his  precursor  in  her  affections,  and,  of  course,  h 
 not  in  a  situation  to  be  upon  his  guard  against  him, 
 If,  therefore,  a  young  woman,  who  was  conscious  to 
 herself  of  previous  incontinence,  though  unattended 
 with  its  usual  consequences,  wished  to  be  secure  from 
 the  risk  of  stoning,  she  had  nothing  more  to  do,  than 
 avoid  deceiving  any  man.  However  humiliating  it 
 might  be,  it  was  her  duty  and  her  wisdom,  to  own  her 
 previous  fault,  and  then  leave  it  to  her  suitor  to  take 
 her  on  these  terms  or  not,  as  he  might  think  fit ;  in 
 which  case  she  might,  no  doubt,  get  a  husband,  though 
 not  one  of  the  best  perhaps,  and  to  such,  indeed,  she 
 could  have  no  title  ;  or  else,  if  she  did  not  chuse  to  be 
 so  honest,  she  might,  perhaps,  by  the  mediation  of  her 
 parents,  patch  up  with  her  bridegroom  a  compromise 
 relative  to  the  signa  virginitatis,  amounting  almost  to 
 a  confession  of  her  previous  unchastity,  but  by  which 
 he  dispensed  with  all  right  of  inquiry,  on  the  footing 
 of  either  their  accidental  loss,  or  their  non-appearance 
 
192  The  law  of  Deut.  xxii.  21,  22.      [Art.  270. 
 
 in  consequence  of  a  family  peculiarity.  If  she  chose 
 to  do  neither  of  these,  she  might  live  and  die  if  she 
 pleased,  with  the  character  of  a  virgin,  which  was  not 
 much  in  the  Hebrew  style  ;  but  she  must  not  attempt 
 to  impose  upon  a  husband.  Thus  far  all  seems  to  be 
 quite  proper,  nor  can  much  objection  be  made  to  the 
 punishment  of  the  actual  impostor,  as  an  adulteress  : 
 but  then  might  not  the  punishment  of  the  Mosaic  law 
 light  upon  a  person  really  innocent  ?  Before  the  reader 
 peruse  what  I  have  now  to  offer  in  answer  to  this  ques- 
 tion, I  must  beg  him  to  read  over  the  whole  of  Art. 
 XCII.  a  second  time. 
 
 ART.  CCLXX. 
 
 Concerning  the  laxv  of  Deut.  xxii.  21,  22.  which  de- 
 nounced the  punishment  of  Stoning  on  the  Bride,  who 
 falsely  pretended  to  be  a  Virgin. 
 
 §  13.  I  begin  by  quoting  the  words  of  the  law, 
 which  are  these  ;  If  however,  it  be  true  ;  and  lie  hath 
 not  found  her  a  virgin ;  then  they  shall  bring  the  dam- 
 sel to  the  door  of  her  father's  house,  and  the  people  of 
 the  city  shall  stone  her  to  death,  because  she  hath  done 
 a  deed  of  shame  in  Israel,  and  committed  uncleanness 
 in  her  father's  house  ;  nor  shall  ye  suffer  such  deeds  of 
 shame  among  you;  and  it  may  be  remarked  by  the 
 way,  that  this  law  is  framed  upon  the  principle  of  her 
 being  considered  as  grossly  disgracing  her  father,  just 
 as,  according  to  the  Hebrew  and  Arabian  notions, 
 happens  when  a  daughter  violates  her  chastity ;  but 
 the  father,  by  her  punishment  being  inflicted  before 
 
Art. 270.]       First  Limitation  of  the  La~d\  193 
 
 his  door,  was  not  to  deem  himself  insulted,  but  rather 
 avenged. 
 
 But  now  for  the  objections  against  the  law,  which 
 will  naturally  occur  to  ever)  one,  and  the  considera- 
 tion of  which  I  reserved,  in  Art.  XCII.,  till  we  should 
 come  to  treat  of  criminal  law.  The  man  who  is  not 
 sufficient! v  jrood  natured  to  take  a  bride  without  the 
 signa  virgin!  tatis,  for  good  and  all,  will,  no  doubt, 
 readily  admit  the  propriety  of  her  being  returned  to 
 her  parents.  But  the  great  question  is,  Ought  she 
 for  that  defect  alone  to  be  stoned  ?  May  there  not  be 
 three  cases,  in  which  she  would  be  altogether  blame- 
 less, or  any  rate,  too  hardly  dealt  with,  by  such  a 
 punishment  ? 
 
 1.  If  she  really  wTere*  what  I  have  in  Art.  XCIL 
 called  a  monster,  and  had  naturally  had  no  hymen  ;  of 
 which  monsters,  though  perhaps  there  is  not  one  to 
 be  found  among  a  million  of  women,  still  that  one 
 ought  not   to   suffer  innocently.     Or,   again,   if  she 
 were,  what,  however,  only  alters  the  case  a  very  little, 
 and  would  still  bring  her  under  the  above  denomina- 
 tion ;  were  she  circumstanced  like  the  girl  mentioned 
 by  Haller,  in  the  Article  just  quoted.     In  fact,  this 
 first  case  would  be  of  so  rare  occurrence,  that  a  legis- 
 lator might  dispense  with  paying  any  attention  to  it. 
 The  whole  Mosaic  ceconomy  might  have  come  to  an 
 end  without  its  once  occurring.     No  doubt  it  were  to 
 be  lamented,  that  one  innocent  person  should  suffer 
 death  by  the  rules  of  law  :  but  while  we  have  judge? 
 that  are  not  omniscient,  but  must  judge  according  to 
 the  laws,  it  is  what  cannot   absolutely  be  avoided, 
 unless  we  are  to  let  all  crimes  pass  with  impunity* 
 
 VOL.  IV,  n 
 
!§4  Second  Limitation  of  the  Law.      [Art.  270. 
 
 What  if  witnesses  conspire  to  swear  falsely  ?  Or  what 
 if  there  unfortunately  happen  to  be  such  strong  in- 
 dications of  the  crime,  although,  in  fact,  not  com- 
 mitted, that  no  judge,  who  is  not  omniscient,  can 
 avoid  pronouncing  the  sentence  of  death  on  the  ac- 
 cused ?  It  is  certainly  to  be  regretted  that  thus  it 
 should  ever  be  ;  but  still  we  are  safe  to  say,  that  from 
 this  cause,  and  from  the  imperfection  of  all  laws,  not 
 administered  by  an  infallible  judge,  and  which  God 
 himself,  unless  he  were  to  impart  his  omniscience  to 
 human  judges,  cannot  remedy,  there  are  certainly  in 
 every  country,  not  excepting  Germany  itself,  where 
 the  criminal  jurisprudence  is  the  best  in  the  world, 
 more  people  innocently  sentenced  to  punishment, 
 f  ban  there  could  possibly  be  young  women  innocently 
 stoned  to  death,  on  account  of  the  natural  defect?  of 
 a  hymen.  The  first  objection,  therefore,  is  perhaps 
 thus  done  away,  through  the  unavoidable  imperfec- 
 tion of  human  justice  j  and  yet  I  cannot  help  feeling, 
 that  it  would  be  a  much  more  tolerable  evil,  that  ten 
 thousand  deceivers  of  their  husbands  should  remain 
 unpunished  (I  do  not  mean  undisturbed  in  the  prose- 
 cution of  their  imposture,  but  only,  as  I  have  said, 
 unpunished)  than  that  one  unfortunate  damsel,  natu- 
 rally destitute  of  a  hymen,  and  in  that  respect  a  mon- 
 ster, however  beautiful  otherwise,  should  be  inno- 
 cently stoned.  This  first  objection,  therefore,  retains 
 somewhat  of  its  force. 
 
 2.  But  that  which  is  next  to  be  noticed  is  rather 
 more  serious.  It  lias  been  already  observed  in  Art. 
 XCII.,  that  a  young  woman  may,  without  actual 
 afexual  intercourse,   obliterate  the  signa  virginitatis, 
 
Art.  270.]  Third  Limitation  of  it*  195 
 
 in  which  case,  if  a  husband  sends  her  back,  she  has 
 only  her  own  misconduct  to  blame.  And  yet,  if, 
 which  is-  quite  possible,  she  was  not  conscious  of  the 
 laceration  of  the  hymen,  and  really  deemed  herself  a 
 virgin  in  the  physical  sense  of  the  word,  nor  had  any 
 intention  of  imposing  upon  her  husband,  it  would  seem 
 to  be  rather  hard  both  on  herself  and  her  parents,  that 
 she  should  be  put  to  death  for  a  sin  of  ignorance, 
 thoughtlessly  committed  in  the  days  of  uninstructed 
 infancy. 
 
 3.  If  by  a  fall,  or  any  other  personal  injury,  a 
 young  woman  had  really  ruptured  the  hymen,  and  no 
 one  had  had  the  prudence  to  remark,  that  such  an  ac- 
 cident might  happen ;  ought  she,  in  this  case,  to  be 
 subjected  to  stoning?  Here  again,  we  have  a  case  of 
 very  rare  occurrence,  but  yet  not  absolutely  impos- 
 sible. 
 
 In  fact,  I  dTo  not  think,  that  the  mere  defect  of  the 
 signa  virginitatis  should  have  subjected  a  woman  to 
 death,  unless  there  had  been  farther  evidence  of  her 
 guilt,  or  she  had  herself  confessed  it.  It  might,  no 
 doubt,  have  afforded  sufficient  ground  for  sending  her 
 back  to  her  parents,  and  for  farther  investigation  of 
 the  fact,  but  not  for  a  sentence  of  immediate  condem- 
 nation. The  statute,  indeed,  is  so  framed,  that  a 
 person  unskilled  in  law  would,  at  first  hearing  it,  ima- 
 gine, that  she  would  be  instantly  stoned  j  and  this 
 might  have  its  use,  as  a  warning  to  young  women,  who 
 heard  the  law  publicly  read  over  every  seven  years, 
 and  who  would  naturally  be  instructed  by  their  mo- 
 thers, and  even  by  their  companions,  as  to  the  danger 
 m  question,  without  having  access  to  hear  at  the  same 
 
 K  2 
 
1  Do  Aloses'  real  Object  in  this  Law.       [Art.  27(7. 
 
 time,  the  chicanery  and  evasions,  that  might  be  had 
 recourse  to  respecting  it.  But  we  must  suppose,  in 
 the  Jirst  place,  that  here  Moses  only  speaks  incidentally 
 of  the  punishment  of  young  women  not  found  virgins, 
 and  that  he  is  really  and  properly  giving  a  law  to 
 counteract  the  attempts  of  husbands  to  criminate 
 their  wives  unjustly,  on  the  footing  of  not  having 
 found  them  virgins ;  and,  therefore,  could  not  be  ex- 
 pected to  give  a  particular  detail  of  the  modus  proce- 
 dendi  against  the  woman  in  the  case  of  her  guilt ;  and 
 we  must,  in  the  second  place,  take  the  following  cir- 
 cumstances into  consideration  ; 
 
 !.  That  among  a  people  who  attended  to  the  signa 
 virgbutatisy  stricter  attention  would  unquestionably  be 
 likewise  paid  than  among  us,  to  prevent  them  from 
 being  lost  without  actual  whoredom  ;  and  the  Israel- 
 ites must  have  known  more  of  this  point,  than  I  have 
 been  able  to  state  under  Art.  XCII.  They  would, 
 of  course,  although  they  could  not  insist  on  the  hus- 
 band keeping  his  bride,  examine  more  fully  into  the 
 circumstances  of  the  ease  ;  and  her  parents,  particu- 
 larly her  mother,  both  from  natural  affection,  and 
 from  a  regard  to  their  honour,  would  naturally  think 
 ,of  every  possible  reason  that  could  be  urged  in  her 
 vindication.  The  circumstance  of  the  husband  re- 
 turning her,  if  he  did  so  publicly,  and  not  in  a  private 
 manner,  would,  no  doubt,  give  ground  for  an  inquisi- 
 tion ;  but  if  it  was  conducted  on  principles  of  equity, 
 and  due  regard  always  paid  to  the  protection  of  inno- 
 cence, there  was  much  more  likelihood  of  ten  guilty 
 persons  escaping,  by  pleading  a  different  excuse,  than 
 of  one  innocent  person  being  condemned, 
 
Art.  270.]  Probably  seldom  enforced  capitally.         197 
 
 2.  Moses  seems  by  no  means  to  presuppose,  that  a 
 woman  could,  or  would  be  stoned  merely  for  wanting 
 the  signa  virginitatis,  without  the  farther  evidence  of 
 a  subsequent  inquisition ;  else  must  he,  in  terms  of 
 the  law  of  retaliation  in  Deut.  xix.,  have  decreed  the 
 punishment  against  the  man,  who  falsely  accused  his 
 bride  on  that  account.  Yet  this  was  not  the  case  ;  for 
 such  a  man  was  only  subjected  to  stripes  and  a  fine. 
 
 3.  By  the  Mosaic  law,  no  one  could  be.  put  to 
 death,  but  upon  the  evidence  of  two  or  three  wit- 
 nesses. In  the  present  case,  this  could  never  have 
 been  procured,  unless,  indeed,  where  the  woman  con- 
 fessed guilt  herself.  To  the  proof  of  the  fact  of  her 
 non-virginity,  it  was  also  requisite,  that  the  marriage 
 had  been  fully  consummated  ;  and  of  this,  in  like  man- 
 ner, unless  where  she  herself  might  admit  it,  there 
 could  be  no  evidence,  but  that  of  her  accuser.  To 
 him,  credit  was  in  so  far  given  as  her  return  to  her 
 parents  was  concerned,  but  not  in  the  matter  of  her 
 being  adjudged  to  die.  But  allowing  that  she  did  ac- 
 knowledge the  consummation  of  the  marriage,  still 
 there  was  here  no  evidence  to  testify  the  manner 
 wherein  she  had  lost  the  physical  signa  virginitatis  ; ' 
 and  thus  she  had  still  sufficient  room  left  for  either 
 legitimate,  or  artful  evasions. 
 
 Upon  the  whole,  therefore,  the  matter  appears  to 
 me  to  stand  upon  this  foot.  No  woman  was  punish- 
 ed for  the  mere  want  of  the  signa,  but  only  sent  back 
 to  her  father's  house  ;  but  then  she  was  liable  to  an 
 inquest,  and  from  the  circumstance  of  her  parents 
 bein<x  so  much  dissfiaced  by  her  dismission,  she  had 
 to  undergo  a  very  strict  examination  from  them,  and 
 
198  Sitll  a  powerful  preservative  of  Chastity.  [Art.  270. 
 
 in  the  event  of  her  proving  guilty,  could  have  little 
 hope  of  escaping  punishment.  Nevertheless,  Moses 
 does  not  enjoin  any  ex  officio  inquest  to  be  made, 
 when  at  any  time  it  happened  to  be  hinted,  that  a 
 wife  had  happened  to  be  dismissed  for  the  cause  now, 
 under  consideration  ;  for,  according  to  the  connec- 
 tion of  the  statute,  it  would  seem,  that  this  only  took 
 place,  when  she  herself  had  had  the  effrontery,  or  her 
 parents  the  imprudence,  to  commence  an  action 
 against  the  husband  for  calumny,  in  consequence  of 
 which  the  truth  came  out.  To  the  person,  therefore, 
 who  was  not  perfectly  conscious  of  her  innocence  in 
 every  respect,  a  more  rational  advice  could  not  be 
 given,  than  to  be  quiet  when  her  husband  dismissed 
 her,  and  make  no  complaint  against  him.  And  this 
 advice  she  would  herself  be  most  likely  to  take,  and 
 to  suggest  to  her  parents  ;  and  then,  I  do  not  see  from 
 the  tenor  of  the  law,  that  the  magistrate  could  have 
 had  the  least  ground  for  inquiring  into  the  matter ; 
 unless  where  the  parents,  deeming  her  guilty,  insisted 
 upon  an  inquisition,  from  the  unnatural  wish  of  re- 
 venging, upon  their  own  child,  the  reproach  she  had 
 brought  upon  them. 
 
 This  criminal  statute,  therefore,  will  not  now  ap- 
 pear quite  so  formidable,  as  it  did  at  first.  It  was, 
 however,  a  powerful  means  of  deterring  daughters 
 not  only  from  whoredom,  but  also,  if  their  mothers 
 only  explained  to  them  their  danger,  from  all  manner 
 of.  obscene  practices ;  and  in  the  worst  supposeable 
 case,  it  served  to  prevent  parents,  when  smarting 
 under  the  idea  of  family  disgrace,  from  being  them- 
 selves, in  the  spirit  of  revenge,  the  murderers  of  their 
 
Art.  271.3      Concubitus  cum  Menstruate.  199 
 
 daughters,  as  in  the  instances  mentioned  by  Arxieux 
 and  Niebuhr  (Art.  CCLXI.)  among  the  Arabs,  in- 
 stead of  leaving  it  to  the  magistrate  to  be  their 
 avengers. 
 
 ART.  CCLXXI. 
 
 Dc  Concubitu  cum  menstruate. 
 
 §14.  Concubitus  cum  menstruate  is  prohibited  in 
 Lev.  xx.  IS.;  and,  as  is  commonly  supposed,  under 
 the  penalty  of  death  to  both  parties ;  but  this  admits 
 of  a  doubt.  It  is  probable  that  this  prohibition, 
 which  we  find  also  among  the  Arabs*,  is  more  ancient 
 than  the  time  of  Moses,  because  in  such  a  warm  cli- 
 mate there  exists  a  peculiar  necessity  for  it,  from  its 
 effects  upon  health ;  and  it  is,  besides,  closely  con- 
 nected with  another  prohibition,  in  like  manner,  more 
 ancient,  namely,  that  mentioned  in  Art.  CCXIV., 
 respecting  the  Levitical  defilement,  proceeding  from 
 the  same  cause. 
 
 The  two  reasons  usually  assigned  for  the  supposed 
 sinfulness  of  Concubitus  cum  menstruate,  namely,  (1.) 
 that  the  issue  of  such  intercourse  will  be  epileptic, 
 and,  (2.)  that  no  issue  ever  follows  it,  are  at  variance 
 with  one  another.  If  the  latter  be  only  in  so  far  cor- 
 rect,  that  it  is  very  seldom  fruitful,  then  the  former 
 
 N   4 
 
 *  Koran,  Sura  ii  223-  or  in  Hinckelmann1s  edition.  221.  Mahomet, 
 however,  is  here  properly  treating  of  a  case  of  conscience,  proposed 
 to  him  by  the  Arabs,  and  to  which  the.  angel  Gabriel  furnishes  birr? 
 with  an  answer;  but  no  penal  statute  is  given  by  the  propher. 
 
200  Fads  illustrative  of  its  Ejects.      [  A  rt.  27 1 . 
 
 can  only  be  a  piece  of  theory  unfounded  in  expe- 
 rience. No  doubt,  in  Medicina  forensi,  the  truth  of 
 the  latter  reason  is  by  many  admitted  as  so  certain, 
 that  they  maintain,  that  the  declaration  of  a  woman, 
 charging  a  man  as  a  father,  and  yet  not  denying  her 
 connection  with  him  to  have  taken  place  under  the 
 circumstances  in  question,  ought  absolutely  to  be  re- 
 jected. But  not  to  mention,  that  such  people  build 
 this  hypothesis  chiefly  on  arguments  a  priore,  which, 
 in  real  physics,  are  not  of  much  account,  it  would 
 appear,  that  they  do,  not  make  that  sufficient  distinc- 
 tion between  different  periods  of  the  catamenia,  which 
 others  do,  who  allow  the  probability  of  conception, 
 towards  their  commencement  and  conclusion,  and 
 thus  steer,  as  it  were,  a  middle  course  between  the 
 doctrine  just  mentioned,  and  that  of  Pliny  ;  in  whose 
 Natural  History  we  find  it  asserted,  with  perhaps  equal 
 extravagance,  that,  incipicnte  hoc  static  aid  desinente 
 conceptus  facillimi  traduntur.  Mr.  Vice-president  Von 
 Tuffendorf 'wrote  me  (Oct.  14,  1763)  on  occasion  of 
 my  10th  question  to  the  Arabian  travellers,  that  a  wo- 
 man who  had  nursed  some  of  his  children,  assured 
 him,  sese  ex  uno  tantum  inter  menses  concubitu  concepts- 
 se,  partumque  sanum  edidisse.  In  such  a  case  it  is  not 
 easy  to  see,  what  could  have  tempted  her  to  lie ;  and 
 in  a  point  of  medical  jurisprudence,  at  any  rate,  the 
 testimony  of  this  great  civilian  is  of  some  weight. 
 We  have  also  in  the  History  of  France  a  royal  proof 
 of  the  point  in  question,  but  connected  with  the  pe- 
 culiar circumstance  of  previous  sterility  ;  namely,  in 
 the  case  of  Catharine  of  M edicts  ;  who,  in  consequence 
 pfa  suggestion  of  Fernel  the  physician,  to  Henry  II.,  de 
 
Art.  271.]    Probable  Cause  of  its  Prohibition.  201 
 
 concubitu,  scilicet,  inter  menses  per  agendo,  had  that  mis- 
 fortune removed.  For  the  knowledge  of  this  fact,  which 
 we  find  in  Bayle's  Dictionary,  under  the  article  Fcrnel, 
 Note  K.,  I  am  indebted  to  the  elder  Professor  Mur- 
 ray, who  likewise  informed  me  of  it,  on  occasion  of 
 the  question  before  alluded  to.  The  periods,  at  least, 
 of  the  Catamenia,  seem  therefore  to  require  to  be  dis- 
 tinguished in  reference  to  this  point ;  and  it  is,  upon 
 the  whole,  without  Biblical  authority,  and  contrary 
 to  the  dictates  of  sound  philosophy,  that  the  doctrine 
 of  the  sinfulness  of  concubitus  cum  mcnstruatah&s  been 
 adopted,  and  merely  in  consequence  of  the  assertion 
 of  some  fathers  of  the  church,  who  founded  it  only 
 upon  this  simile,  that  men  do  not  sow  their  fields,  but 
 in  the  hope  of  reaping  a  crop. 
 
 For  the  reason,  however,  of  the  Mosaic  prohibition, 
 sanctioned,  as  it  moreover  is,  with  so  severe  a  punish- 
 ment, we  are  not  to  seek,  in  any  universal  moral  im- 
 propriety in  the  thing  itself,  so  much  as  in  the  nature 
 of  southern  climates  ;  in  which  physicians  know  (and 
 to  them  I  must  refer  my  readers  for  more  circumstan- 
 tial information),  that  concnbitus  cum  menstruatis, 
 proves,  in  many  cases,  highly  prejudicial  to  health, 
 sometimes  to  that  of  both  parties,  and  is  followed  by 
 very  bad  consequences.  In  Italy,  these  are  so  noto- 
 rious, as  to  be  thus  far  attended  to  by  the  police,  that 
 in  great  cities,  where  the  stews  are  under  its  superin- 
 tendence, the  strictest  precautions  are  taken  to  pre- 
 vent them ;  cubiculis  menstruantium  vel  signo  notatis, 
 vel  occlusis,  nequis  fortasse  ingrcdiatur.  Nor  is  this 
 done  from  moral  considerations,  because  these  would 
 prevent  all  resort  thither,  but  merely  to  prevent  the 
 
202  Ij 'ever productive  oj 'Lues,  <Jr.     [Art.  271. 
 
 dangerous  effects  of  the  practice  in  question,  which, 
 the  farther  we  go  south,  are  always  the  more  formid- 
 able. It  is  at  the  same  time  strange,  that,  disgusting 
 as  it  is  generally  considered  among  us,  it  would,  in 
 southern  countries,  appear  to  be  pursued  with  peculiar 
 ardour.  Mahomet,  that  very  Mahomet  who  prohibits 
 it  in  his  Alcoran,  is  said,  nevertheless,  in  those  con- 
 versations of  his,  which  his  disciples  hold  sacred,  to 
 have  prescribed  to  those  who  practise  it,  an  antidote 
 against  its  effects,  which,  however,  I  cannot  here  spe- 
 cify. But  one  thing  is  evident,  that  the  more  invete- 
 rate the  appetite  was  for  such  perverse  gratifications 
 among  the  people  of  those  countries,  so  much  the 
 more  necessary  was  the  prohibition,  if  the  consequent 
 evil  was  of  a  medical  nature. 
 
 If,  besides  this,  there  be  any  ground .  for  what 
 Astruc  says,  in  his  book,  Be  Morbis  Venereis,  (lib.  i. 
 c.  9.  §  3.)  that  the  Lues,  which,  among  us,  is  com- 
 municated only  by  infection,  but  which,  nevertheless, 
 must,  unless  we  chuse  to  make  an  infinite  series  of  the 
 infected,  have  somewhere  or  other  had  its  first  origin 
 without  infection,  might  have  arisen  under  the  torrid 
 zone,  ex  concubitu  cum  menstruata,  accompanied  with 
 some  peculiar  circumstances  in  the  constitutions  of 
 the  parties,  the  Mosaic  prohibition  became,  on  this 
 ground  also,  the  more  necessary,  although  Palestine 
 be  not  properly  under  the  torrid  zone,  but  only  con- 
 siderably to  the  south.  I  have  already  observed,  in 
 Art.  CCXII.,  that  the  Gonorrhoea  virulenta  seems  to 
 have  existed  at  the  time  when  Moses  gave  his  laws, 
 but  to  have  been  in  its  decline,  and  at  a  pretty  low 
 stage  ;  such,  perhaps,  if  Astruc  has  prophesied  truly, 
 
Art.  271 .]     Doubtful  if  punished  capitally.  203 
 
 as  that  at  which  it  would  be  found  in  Europe  in  the 
 19th  century,  were  no  fresh  infection  to  be  received 
 from  America,  its  original  seat.  Now,  if  such  was 
 the  case  in  the  time  of  Moses,  legislative  policy  would 
 have  required  the  prohibition  of  a  practice,  which  ex- 
 perience had  shewn  to  be  instrumental  in  originating 
 and  in  preserving  that  disease.  But  this  is  an  enquiry 
 which  I  should  have  left  to  Astruc  himself,  if  he  were 
 not  already  dead,  after  as  long  a  life  as  any  mortal 
 can  reasonably  desire.  I  shall  only  here  repeat  what 
 I  have  already  remarked  in  my  10th  Question,  that 
 Hundertmark,  in  his  Dissertation,  De  Ozcena  Venerea* 
 asserts,  that  even  in  Europe,  there  sometimes  arises 
 ex  concubitu  scot'buto  laborantis  cum  menstruate^  a  dis- 
 ease of  the  Verenda  resembling  the  Lues ;  sl  circum- 
 stance which  serves  to  confirm  Astruc' 's  conjecture. 
 
 If,  in  the  time  of  Moses,  circumstances  had  been 
 entirely  as  they  appear  to  me,  with  respect  to  the  ex- 
 istence of  the  Gonorrhoea  virulenta,  but  in  that  state  of 
 decline,  of  which  Astruc  has  predicted  the  medical 
 probability  in  our  own  times  ;  and  if  the  effects  of  the 
 prohibited  intercourse  had  been  remarked  among  per- 
 sons of  certain  complexions,  such  as  those  affected 
 with  leprosy,  scurvy,  fuor  albus,  &c.  and  found  to  be 
 instrumental  in  keeping  up  the  infection ;  it  would 
 be  very  easy  to  account  even  for  the  punishment  of 
 death  having  been  denounced  against  it,  however  dif- 
 ficult it  might  be  to  put  it  in  execution,  from  the  pro- 
 bable defect  of  information  or  evidence  on  most  occa- 
 sions. But  I  am  uncertain  whether  the  extirpation 
 annexed  to  it  by  Moses,  implies  a  capital  punishment, 
 or  only  that  of  exile.— See  Art.  CCXXXVII. 
 
CHAPTER  IV. 
 
 CRIMES      OF      B    L    O    O    D. 
 
 ART.  CCLXXII. 
 
 Suicide  not  so  much  as  mentioned  in  ilic  Mosaic  Law. 
 
 §  1.  Among  what  are  called  crimes  of  blood,  suicide 
 generally  occupies  the  first  place  ;  and  therefore  the 
 reader  will  immediately  expect  to  hear  what  punish- 
 ment Moses  annexed  to  it,  together  with  his  other 
 commandments  respecting  it.  But  here  I  can  give 
 him  no  other  satisfaction  than  just  to  observe,  that 
 Moses  does  not  so  much  as  mention  it  at  all.  We  have, 
 indeed,  in  Josephus  a  very  beautiful  and  rational  ha- 
 rangue, which  he  himself  delivered,  to  dissuade  certain 
 of  his  countrymen  from  suicide,  and  in  which,  among 
 other  things,  he  says,  "  Know  ye  not,  that  the  fame 
 "  and  the  posterity  of  those  endure,  who  leave  this 
 "  life  in  conformity  to  the  laws  of  nature,  and  restore 
 "  to  God  what  he  has  only  lent  them,  whenever  he, 
 •'the  Giver,  requires  them;  that  their  dutiful  souls 
 "  remain  pure,  and  go  to  dwell  in  the  most  holy  ro 
 *;  gions  of  heaven,  from  whence,  after  the  lapse  of 
 «'  endless  ages,  they  will  again  be  transplanted  into 
 
Art.  2?2.]  Josephus'  Harangue  on  Suicide.  205 
 
 »  pure  bodies  *  ?     Know  ye  not,  on  the  other  hand, 
 «  that  the  souls  of  those  who  have  laid  violent  hands 
 «  on  themselves,  go  into  the  darkest  places  of  hell, 
 «  and  that  God,  who  is  their  father,  punishes  such 
 «  despisers  of  their  father  t  over  again  in  their  chii- 
 «  dren.     This  crime,  therefore,  is  odious  in  the  sight 
 «  of  God,  and  punishable  according  to  the  decision  of 
 «  the  wisest  of  all  legislators.     Hence  among  us,  it 
 «  has  been  judged  right,  that  self-murderers  should  be 
 
 *  This  is  a  description  of  the  resurrection  of  the  dead  dressed  up 
 b  the  heathen  style,  and  such  as  would  naturally  lead  a  Greek  reader 
 ♦  o  think  on  the  transmigration  of  souls.     Josephus  pretty  frequently 
 has  recourse  to  similar  expedients,  either  from  a  desire  to  gain  the 
 •approbation  of  his  foreign  readers,  or  to  prevent  himself  and  his  na- 
 tion from  becoming  objects  of  ridicule.     The  Greeks,  though  on  all 
 other  subjects,  full  of  penetration,  and  the  illuminators  of  other  natmns, 
 yet  in  philosophising  on  religion,  more  irrational,  perhaps,  than  sava- 
 ges, laughed  when  they  heard  of  the  resurrection  of  the  dead,  because 
 That  doctrine  was  not  fashionable  among  them  ;  Acts  xiii.  32.     But 
 when  they  were  told,  that  human  souls  might  one  day  animate  cows, 
 oxen    asses,   &c.  they  were  less  disposed  to  impugn  such  a  notion, 
 because  it  w*s  not  so  strange  to  them,  being  taught  by  the  Pythago- 
 reans.    In  this  way,  then,  Josephus  gained  some  advantage,  by  re- 
 presenting the  doctrine  of  the  resurrection  in  such  a  manner,  as  to 
 lead  his  Greek  readers  to  think  of  the  Metempsychosis. 
 
 f  In  the  Greek  we  have  the  words,  t*5  S««g«  Wt«r&s,  which 
 convey  no  meaning  suitable  to  the  subject  and  connexion.  Havercamp, 
 itstead  of  »*nc«»,  ventured  to  read  *r««c«»  ;  and  him  I  have  followed 
 half-way,  in  adopting  «tC.«.  which  is  quite  consonant  to  the  scope 
 of  the  passage.  Josephus  had  said,  God  is  their  father ;  the  man, 
 then,  who  kills  himself,  and  goes  out  of  the  world  without  God's  leave, 
 is  a  aespiser  of  his  father.  I  must,  however,  add,  that  it  has  also 
 occurred  to  me,  whether  we  might  not  read  3«tt«,  sooner,  thus :  qui 
 citius,  that  is,  ante  diem.,  sibi  manus  infenmt ;  only  there  would  still  be 
 something  to  cleat  up  with  regard  to  S^ritf* 
 
206  On  what  Occasion  delivered.       [Art.  272. 
 
 "  cast  out  of  their  houses,  and  allowed  to  remain  un- 
 "  buried  until  sun-set ;  while  yet  we  do  not  withhold 
 "  the  rites  of  sepulture  even  from  our  enemies." — ■ 
 This  speech,  of  which  we  have  here  the  original  mate- 
 rials perhaps,  but  certainly  not  the  very  terms  in  which 
 it  was  delivered,  but  only  as  they  were  afterwards 
 clothed  in  the  more  artificial  language  of  Greece,  Jo- 
 sephus  addressed  to  forty  Jews,  who  were  shut  up 
 along  with  him  in  a  castle,  when  they  begged  him  not 
 to  surrender  to  the  Romans,  and  expressed  their  de- 
 sire rather  to  put  one  another  to  death  ;  offering  him, 
 for  that  purpose,  not  only  their  swords,  but  if  he 
 would  employ  them,  their  hands,  also. 
 
 It  is,  however,  observable,  that  not  a  word  of  all 
 that  he  here  says,  is  to  be  found  in  Moses  ;  nor  does 
 he  himself,  indeed,  insinuate  that  such  are  the  doc- 
 trines of  the  Mosaic  law ;  but  only  that  the  Jews  of 
 his  own  time  (&*£  r^iv  eupvocv)  thought  such  and  such 
 procedure  proper  ;  that  is,  that  the  punishment  which 
 he  mentions,  took  place  in  conformity  to  the  judgment 
 of  the  Rabbins,  or  the  command  of  the  magistrate. 
 What  he  previously  says  of  the  wisdom  of  the  legisla- 
 tor, refers  not  to  any  punishments  appointed  by  Mo- 
 ses, but  only  to  those,  which  God  himself  (whom  he 
 means  by  the  wisest  of  all  legislators,)  has  reserved  in  his 
 own  hand  the  power  of  inflicting  on  self-murderers  in 
 the  other  world,  and  on  their  children  in  this.  With 
 respect  to  what  he  says  of  the  divine  punishment  of 
 their  children,  he  perhaps  had  in  his  view  that  passage 
 of  the  decalogue,  which  occurs  in  Exod.  xx.  5.,  al- 
 though it  does  not  properly  treat  of  suicide  ;  conceiv- 
 ing, that  if  God,  in  generaj,  threatened  to  punish  tlte 
 
Art.  272.]     Ahitophel's  Case — Inferences.  207 
 
 sins  of  the  fathers  on  the  children  of  his  enemies,  unto 
 the  third  and  fourth  generation  ;  it  would,  in  a  more 
 especial  manner,  take  place  in  the  case  of  that  sin, 
 wherein  the  vengeance  of  heaven  becomes  the  more 
 necessary,  in  consequence  of  the  sinner  escaping,  by 
 his  self-destruction,  every  punishment  which  an  earth- 
 ly judge  could  make  him  feel. 
 
 Moses,  then,  annexes  no  punishment  to  suicide ; 
 and  from  the  example  of  Ahitophel,  who,  when  he 
 saw  that  Absalom's  rebellion,  of  which  he  was  the  in- 
 stigator, was  likely  to  terminate  unfortunately,  dis- 
 patched himself,  to  escape  the  punishment  he  deserv- 
 ed, but  not  until  he  had  previously  made  his  will, 
 (2  Sam.  xvii.  23.)  ;  we  see,  that  the  Suicide  did  not 
 forfeit  the  right  of  bequeathing  his  property,  and  that 
 his  latter  will  was  as  valid,  as,  according  to  Lautcr- 
 bach*,  it  is  among  us.  Of  this  same  Achitophel,  we 
 are  also  told,  that  he  was  biased  in  the  sepulchre  of  his 
 father ;  so  that  even  the  punishment  of  exclusion  from 
 a  hereditary  burying-place,  was  not  inflicted  on  sui- 
 cide. But  what  is  still  more,  Moses  has  nowhere 
 prohibited  suicide  ;  for  to  drag  the  sixth  command- 
 ment, Thou  shalt  not  murder  t,  into  a  prohibition  of 
 this  crime,  of  which  there  is  not  a  word  in  it,  is  a  very 
 arbitrary  mode  of  explanation,  and  much  of  a  piece 
 with  our  Spiritual  Expositions,  (as  they  are  called)  of 
 the  ten  commandments  t.     The  defender  of  suicide 
 
 *  Collegium  Theoretico-pratticum,  lib.  48.  tit.  21.  §4. 
 
 f  Not,  Thou  shalt  not  kill.— See  Art.  CCLXXIII. 
 
 %  My  reasons  for  not  adopting  these  spiritual  explanations,  will  be 
 found  in  $  104, — 107.  of  my  Dissertation  on  the  Mosaic  Marriage- 
 Luks.    The  rejection  of  the  spiritual  sense  was,  at  t/uit  time,  by  many 
 
90S  Suicides  Insane,  <$c.  [Art.  272. 
 
 would  always  say,  "  It  is  no  murder,  although  the 
 "  Germans  call  it  so,  because  I  have  a  right  to  dispose 
 <c  of  my  own  life  as  I  chuse  j  and  it  is  not  all  killing, 
 "  as,  for  instance,  that  of  criminals,  or  enemies  in  war, 
 "  but  only  murder,  that  is,  illegal  killing,  which  is  pro- 
 "  hibited  in  the  sixth  commandment  " 
 
 It  will  here  occur  to  every  one  to  remark,  that  the 
 punishments  of  self-murder  are  generally  of  little  more 
 avail  than  to  vex  those  connexions,  or  children,  whom 
 the  Suicide  has  disgraced ;  the  very  persons  who  are 
 at  any  rate  most  injured  and  afflicted  ;  while  he  him- 
 self neither  feels  nor  knows  aught  about  the  matter  j 
 and  farther,  that  there  is  strong  reason  to  suspect, 
 that  the  greater  number  of  Suicides  are  deranged  in 
 their  minds,  and,  of  course,  not  properly  objects  of 
 punishment ;  and  that  it  is  very  rarely  to  be  ascer- 
 tained, with  perfect  certainty,  whether  the  person  who 
 destroys  himself  is,  at  the  time  of  his  attempting  that 
 rash  act,  in  the  full  possession  of  his  understanding, 
 and  not  under  an  aberration  of  insanity.  But  it  is 
 better  that  ten  guilty  persons  should  escape  with  im- 
 punity, than  that  one  innocent  should  surfer. 
 
 But  why,  it  will  be  asked,  does  not  Moses  forbid 
 suicide  ?  And,  as  a  prohibition,  without  a  penal  sanc- 
 tion, signifies  little  in  civil  laws,  why  does  he  not,  as 
 a  lawgiver  sent  from  God,  threaten  that  God  will 
 punish  the  Suicide,  not  indeed  in  his  children,  for  that 
 were  hard,  considering  that  they  are  the  greatest  suf- 
 
 theught  very  strange  ;  but  it  is  hoped,  that  no  one  will,  in  the  present 
 day,  deem  it  heretical,  after  so  many  members  of  the  Theological 
 Faculty  of  this  place,  have  asserted,  even  in  their  writings,  that  they 
 disapprove  of  these  spiritual  expositions, 
 
Art.  272.]     Moses  speaks  of  a  Future  State.  209 
 
 ferers  at  any  rate,  but  upon  himself  in  another  world  ? 
 In  answer  to  this  question,  there  are  two  observations 
 which  it  occurs  to  me  to  offer. 
 
 I.  In  the  first  place,  Moses  does  not  usually  threaten 
 punishments  in  another  world,  nor  could  he  indeed, 
 as  a  civil  legislator,  with  any 'propriety  do  so*;  al- 
 though he  shews  himself  perfectly  acquainted  with  a 
 future  state  of  rewards  and  punishments,  and,  in  his 
 writings,  presupposes  it  as  well  known  t ;  and,  indeed, 
 inculcates  it  more  fully  in  a  book,  of  which,  although 
 it  bears  not  his  name,  he  was  in  all  probability  the 
 author,  I  mean,  the  book  of  Jobt.  If,  then,  he  had 
 made  an  exception  in  this  instance,  and,  in  the  name 
 of  God,  threatened  the  Suicide,  who  cannot  in  this 
 world  be  punished  so  as  to  feel,  with  a  punishment  in 
 the  world  to  come,  it  would  have  been  an  exception 
 of  a  very  singular  kind  ;  and,  however  much  might 
 be  said  for  it,  in  the  case  of  laws  given  by  God  him- 
 self, by  an  inspired  messenger,  still  it  would  to  me 
 appear  severe,  for  this  very  reason,  that  I  look  upon  it 
 
 vol.  iv.  o 
 
 *  See  Art.  XIV. 
 
 f  This  is  undeniable  from  the  passage  in  Gen.  v.  22, — 24.  alone, 
 in  whate'  er  light  we  regard  it ;  whether  as  relating  to  Enoch's  death, 
 or  his  ascension  into  heaven.  1,  for  my  part,  refer  it  to  his  death. — 
 The  reader  may  consult  my  German  translation,  or,  if  he  wishes  to 
 see  more  passages  on  the  subject,  my  Argwnaita  bnmorlalitaiis  Ani- 
 marum  ex  Mose  collecta 
 
 X  The  reasons  which  almost  compel  me  to  believe  that  Moses  was 
 the  author  of  the  book  of  Job,  I  shall  hereafter  detail  more  fully  in 
 my  German  Prolegomena  In  the  meantime,  my  readers  must  be 
 satisfied  with  what  I  have  staled  in  my  Latin  Prolegomena  in  Jobum  in 
 TJmm  Audi  tor  ion. 
 
210  Melancholy,  a  Cause  of  Suicide.     [Art.  272, 
 
 as  a  real  act  of  goodness  on  the  part  of  God,  that  we 
 nowhere  in  the  Uible  find  an  explicit  decision  of  the' 
 question,  whether  suicide  be  a  sin  ;  this  very  interest- 
 ing question  being  left  entirely  to  the  decision  of  phi- 
 losophical ethics,  and  to  the  common  sense  (shall  I 
 say  ?)  or  the  conscience  of  every  individual.  Many 
 persons  ot'  a  melancholy  temperament  are  so  irresist- 
 ibly and  incessantly  tempted  to  suicide,  that  they  are 
 at  last  overpowered.  Had  then  the  Bible  any  where 
 distinctly  explained  its  mind  on  the  subject,  such  per- 
 sons would  then  be  guilty  of  a  deliberate  sin,  and  die 
 miserably  ;  but  its  wise  and  gracious  silence  makes  it 
 possible,  that  this  act,  to  the  perpetration  of  which 
 they  are  not  indeed  mechanically  and  involuntarily 
 constrained,  but  still  hurried  and  overpowered  by 
 strong  passions,  anxiety,  dread  of  impending  evils,  or 
 deep  despondency,  may,  in  such  cases,  be  only  a  sin  of 
 ignorance  ;  for  they  persuade  themselves,  that  we  are 
 masters  of  our  own  lives,  and  may  take  them  away 
 when  we  find  it  necessary. 
 
 Whether  the  man,  who  is  determined  to  destroy 
 himself,  be,  in  the  decisive  moment  of  death,  guilty  of 
 a  deliberate  sin,  or  only  a  sin  of  ignorance,  no  theolo- 
 gian, nor  indeed  any  philosopher,  will  regard  as  one 
 and  the  same  thing;  and,  considering  the  silence  of  the 
 Bible,  which  here  leaves  us  in  uncertainty  or  ignorance, 
 for  the  same  reason  as  God,  under  the  Old  Testament, 
 suffered  many  sins  of  ignorance,  polygamy,  for  instance, 
 in  the  patriarchs,  without  revealing  them  to  them  ; — 
 and  as  he  certainly  must  still  to  every  one  of  us,  over- 
 look sins  of  the  same  description,  which,  if  we  knew 
 them,  they  would  not  be  ; — it  is  possible,  that  some 
 
Art.  272.]     If  Suicide  a  Sin  of  Ignorance  ?  112 
 
 Suicides,  who  even  prepared  themselves  conscientious- 
 ly for  the  great  step  they  meditated,  are  now  in  hea- 
 ven, (God  not  imputing  to  them  their  sins  of  ignor- 
 ance,) who  must  have  been  damned,  if  the  Bible  had 
 been  written  in  the  style,  which  many  zealous  and 
 well-meaning  moralists  would  wish.  If  the  reader  is 
 a  little  conversant  in  the  ecclesiastical  or  literary  his- 
 tory of  a  period  not  very  ancient,  he  must  recollect 
 the  instance  of  a  clergyman  well  known  for  his  exem- 
 plary  piety,  who  committed  suicide,  and  whom  he 
 would  scarcely  think  of  looking  for  again  but  in  hea- 
 ven  ;  whose  whole  countenance,  overcast  with  melan- 
 choly, and,  upon  dissection,  the  state  of  his  whole 
 frame,  form  powerful  apologies  for  his  conduct. — ■ 
 Every  one  acquainted  with  family-history  will  recol- 
 lect many  more  such  examples  of  religious  Suicides. 
 Let  the  reader  consider  this,  and  then  ask  himself 
 this  question,  whether  it  was  likely  that  Moses,  or  God 
 who  sent  him,  should  make  a  law  of  such  import  as 
 this,  Thou  shalt  not  take  away  thy  own  life  ;  for  Jeho- 
 vali  thy  God  will  not  leave  him  unpunished  who  destroys 
 himself 
 
 Add  to  this,  that  such  a  prohibition  would  have  no 
 effect  at  all  upon  those,  who  do  not  believe  in  religion  ; 
 while,  in  the  case  of  a  conscientious  person,  who  firmly 
 believes  that  a  man  dying  by  suicide  must  be  damned 
 to  all  eternity,  the  state  would  have  reason  to  appre- 
 hend the  still  more  horrid  consequence,  of  his  first 
 murdering  another,  that  he  might  thus  be  put  to  death 
 himself;  after,  however,  having  time  allowed  him  for 
 what  is  called  repentance  and  conversion.     This  is  a 
 
 o  2 
 
'212  Danish  Punishment  of  Suicide.     [Art.  272. 
 
 case  which  actually  occurred  in  Denmark  so  frequent- 
 ly, that  it  obliged  the  legislature  to  have  recourse  to 
 the  enactment  of  a  peculiar  law  upon  the  subject,  af- 
 ter two  previous  blunders  attended  with  bad  conse- 
 quences. They  were  extremely  desirous  to  make  wil- 
 ful murderers  of  this  description  suffer  death,  as  they 
 perhaps  deserved,  with  much  more  severity  than  that 
 of  the  usual  capital  punishment ;  and  for  this  purpose, 
 condemned  them  to  be  broke  alive  upon  the  wheel. 
 Now,  no  injustice  was  here  done  them  ;  for  they  had 
 believed  that  they  deserved  hell,  and  had,  in  order  to 
 escape  it,  murdered  not  themselves  but  others  -7  and 
 what  are  the  tortures  of  the  wheel,  compared  to  eter- 
 nal damnation  ?  Too  violent  punishments,  however, 
 are  of  no  avail,  and  only  serve  to  harden  ;  at  the  same 
 time,  the  sight  and  cries  of  the  unhappy  wretches  be- 
 came insufferable  to  others,  and  the  universal  voice  of 
 compassion  besought  the  king  to  order  the  coup  de 
 grace  to  be  given  them  at  once.  Well,  the  punish- 
 ment of  murder  was  thus  mitigated  ;  but  still  it  proved 
 no  counterpoise  to  that  horrible  crime,  in  those  who 
 were  disgusted  with  life,  and  to  whom  death  was  the 
 very  thing  they  wished.  At  last,  the  idea  happily 
 occurred  to  the  legislature,  of  refusing  the  punish- 
 ment of  death  to  such  murderers,  and  forcing,  as  it 
 were,  upon  them  that  existence  which  they  so  much 
 detested ;  making  them,  however,  suffer  severe  cor- 
 poral punishments,  amongst  which,  one  was  an  annual 
 whipping. — This  is  the  only  means  by  which  the  safe- 
 ty of  their  neighbours  can  be  secured  against  the  at- 
 tempts of  those  who  are  weary  of  life,  and  yet  are 
 afraid  of  hell,  if  thev  kill  themselves. 
 
Art.  272.]     Causes  of  Suicide — Error,  djc  213 
 
 II.  In  the  second  place,  it  would  appear  that  Moses 
 had  omitted  the  prohibition  of  suicide,  for  the  very 
 same  reason  which  induced  Solon  not  to  punish,  not. 
 to  prohibit,  not  even  to  mention,  parricide  in  his  laws  ; 
 namely,  because  he  did  not  anticipate  the  perpetration 
 of  any  such  unnatural  crime  *.  In  his  time,  suicide 
 must  either  have  been  unexampled,  or,  at  any  rate, 
 extremely  rare  ;  in  which  case,  it  is  better  to  regard 
 it  merely  as  the  consequence  of  insanity,  than  to  make 
 it  be  thought  a  crime,  in  order  that  people  may  not 
 think  of  committing  it ;  for  it  is  sometimes  the  prohi- 
 bition that  makes  the  transgressor  f.  In  some  nations, 
 suicide  is  endemic ;  in  others,  unknown  ;  nay,  even 
 among  the  same  people,  it  has,  if  I  may  so  speak,  its 
 periods-     The  usual  causes  of  its  prevalence  are, 
 
 1.  Certain  superstitious  errors ;  such,  for  instance,  as 
 the  idea  of  its  doing  God  good  service,  or  the  hope,  which 
 the  African  slaves  that  are  sold  in  America,  entertain, 
 of  its  restoring  them  again  to  their  native  country ; 
 in  reference  to  which,  Labat  gives  an  account  of  a 
 very  happy  expedient  hit  upon  by  a  French  planter, 
 who  had  a  great  many  slaves,  and  who,  to  counteract 
 the  effects  of  that  notion,  when  he  found  them  going 
 into  the  woods  to  hang  themselves,  followed,  instead 
 of  stopping  them,  and  only  told  them  to  proceed  ;  nay, 
 that  he  had  brought  a  rope  with  him,  and  meant  to 
 hang  them  himself  j  because  he  had  a  sugar  plantation 
 
 o  3 
 
 *  Cicero,  pro  Roscio  A  merino,  c.  25. 
 
 f  In  j  96    of  my  Dissertation  on  the  Mosaic  Marriage- Lavs,  the 
 reader  will  End  other  examples  of  crimes,  which  it  might  be  esn- 
 /lient  to  leave  altogether  unnoticed  in  the  laws. 
 
214         Irreligion — False  Philosophy,  fyc.    [Art.  272. 
 
 in  Africa,  on  'which  lie  wished  to  employ  them.  This 
 made  them  instantly  lose  all  desire  to  hang  them- 
 selves ;  and  from  that  time  he  lost  none  of  his  negroes 
 from  that  cause. 
 
 2.  Absolute  "want  of  religion  ;  such  as  at  present 
 prevails  among  the  Suicides  of  France.  The  man 
 who  believes  in  nothing  beyond  the  grave,  will  natu- 
 rally rid  himself  of  life,  whenever  he  feels  it  a  burden, 
 or  when  he  dreads  poverty  and  misery ;  particularly 
 if  he  can  procure  death  without  pain  ;  for  which  pur- 
 pose the  people  in  southern  climates  have  still  easier 
 expedients  than  with  us. 
 
 3.  Strange  philosophical  notions  ;  such  as  were  com- 
 mon among  the  Greeks  and  Romans. 
 
 4.  False  ideas  of  honour ;  as  when  suicide  is  ac- 
 counted fortitude,  whereas  it  is  in  reality  cowardice. 
 Among  the  Romans  and  the  English,  we  find  this 
 mistaken  notion  of  honour,  epidemic  at  some  periods 
 of  their  history. 
 
 5.  Maladie  du  pays,  or  that  longing  after  home, 
 which  is  manifested  by  those  who  are  obliged  to  spend 
 their  lives  in  a  state  of  inactivity,  at  a  distance  from 
 their  native  country,  and  particularly  in  a  damp  cli- 
 mate. This  is  observed  to  be  particularly  the  case 
 among  soldiers. 
 
 6.  The  natural  propensity  to  a  melancholy  tempera- 
 ment, observable  in  certain  nations.  Some  will  have 
 it,  that  such  is  the  case  of  the  African  negroes,  among 
 whom  suicide  is  so  common.  But  in  their  case,  there 
 are  many  other  causes,  which  concur  to  produce  that 
 effect. 
 
 7.  The  alteration  occasioned  in  the  natural  tempera- 
 
Art.  272.]   Diet — Disappointment — Misfortune.      215 
 
 went,  by  too  much  indulgence  in  a  Jlesh  diet,  and  in 
 drinking  heavy  nutritious  ale.  This  is  probably  the 
 case  in  England,  where  the  defenders  of  the  poor,  as 
 they  arc  called,  consider  very  strong,  fattening  ale,  as 
 what  every  man  ought  in  justice  to  have ;  not  consi- 
 dering that  it  is  quite  an  artificial  drink  ;  that  man  is 
 naturally  a  water  drinker,  and  when  he  is  so,  seldom 
 fails  to  be  chcarful  and  healthy ;  and  that  his  first 
 stage  in  the  descending  scale,  is  to  become  a  drinker 
 of  wine. 
 
 S.  That  style  of  education,  in  which  children  have 
 not  their  inclinations  at  all  thwarted,  and  are  not  ac- 
 customed to  experience  the  disappointment  of  their 
 wishes  ;  and  hence, 
 
 9.  Great  and  sudden  revolutions  offortunet  in  con- 
 sequence of  bankruptcies  and  gaming. 
 
 On  the  other  hand,  the  belief  of  a  good  and  rational 
 religion,  which  inspires  the  hope  of  a  future  state  of 
 retribution,  and  must  make  the  Suicide  at  any  rate 
 dread,  that  God  may  punish  him  ;  together  with  tem- 
 perance, and  that  good  education  which  accustoms  us 
 early  to  understand,  what  we  must  certainly  experi- 
 ence in  life,  that  we  cannot  always  expect  to  be  grati- 
 fied in  every  wish  ;  generally  makes  suicide  rare. 
 
 Now,  to  apply  these  remarks  to  the  Israelites  in  the 
 days  of  Moses.  They  believed  in  their  religion,  and 
 I  might  indeed  say,  it  was  not  merely  faith  with  them, 
 but  vision.  Their  self-will  had,  in  their  youth,  been 
 pretty  well  subdued  in  Egypt  ;  they  were  travelling 
 through  a  drier  country  than  they  had  previously 
 been  accustomed  to ;  drinking  water  only,  and  eating 
 but  little  flesh,  and  a  great  deal  of  manna  ;  and  it 
 
 o  4 
 
•216  Suicide  latterly  common  in  Judea.  [Art.  272. 
 
 would  seem,  at  the  same  time,  as  if  they  had  been 
 very  much  afraid  of  death  ;  and  that,  in  these  circum- 
 stances, no  individual  had,  during  perhaps  the  whole 
 forty  years  in   which  they  traversed  the  wilderness, 
 committed  suicide,  is  not  very  much  to  be  wondered 
 at.     In  fact,  for  a  long  period  subsequent  to  this,  it 
 continued  very  uncommon  ;  for  in  the  Old  Testament 
 we  find  only  two  examples  of  it,  those  of  Saul  and 
 Achitophel.     Afterwards,  indeed,  it  became  more  fre- 
 quent ;  and  in  the  war  that  made  an  end  of  the  Jew- 
 ish polity,  in  the  reign  of  Titus  Vespasian,  the  Jews 
 manifested  a  rage  for  suicide,  altogether  in  the  Sagun- 
 tine  style,  and  far  surpassing  any  thing  that  we  find  in 
 the  Roman  history.     They  destroyed  themselves  by 
 hundreds  j  and  the  conclusion  of  the  war  was  only  a 
 scene  of  downright  suicide ;  as,  for  instance,  at  the 
 siege  of  the  supposed  impregnable  fortress  of  Masada, 
 where  they  dispatched  themselves  one  after  another, 
 that  they  might  not  fall  into  the  hands  of  the  Ro- 
 mans.    At  that  time,  suicide  wras  the  fashion  among 
 them  ;  at  present,  on  the  other  hand,  they  are  quite 
 guiltless  of  this  crime. 
 
 By  the  way,  if  the  reader  wishes  to  know  what  ideas 
 Moses,  who,  as  a  civil  lawgiver,  is  thus  silent  on  the 
 subject  of  suicide,  had  entertained  respecting  it,  he 
 will  perhaps  find  some  satisfaction  from  perusing  the 
 15th  and  16th  verses  of  the  viith.  chapter  of  Job,  in 
 my  translation,  and  weighing  my  remarks  on  that  pas- 
 sage ;  for  in  all  probability  the  book  of  Job  was  of 
 Moses*  writing. 
 
Art.  273.]  Murder  and  Homicide.  217 
 
 ART.  CCLXXIII. 
 
 Concerning  Murder  ;  of  which  the  Punishment  was 
 Death ;  and  Homicide,  which,  according  to  circum- 
 stances, was  punished  either  by  Exile,  or  not  at  all. 
 
 §  2.  Deprivation  of  life,  or  Homicide,  in  the  gene- 
 ral sense  of  the  word,  is  naturally  divided  into  two 
 genera,  which  are  very  different. 
 
 I.  Homicidium  dolosum,  qualificatum,  or  murder ; 
 
 II.  Homicidium  Simplex,  or  man -slaughter,  pro- 
 perly so  called;  which  last  is,  in  like  manner,  of  two 
 species  ; 
 
 1.  Homicidium  culposum,  where  it  happens  through 
 the  fault  of  the  man-slayer  ;  as,  for  instance,  among 
 the  ancients,  where  a  person  killed  another  by  an  im- 
 prudent bow-shot  ;  or,  among  us,  where  the  same 
 effect  takes  place  by  the  rash  discharge  of  any  kind  of 
 fire  arms. 
 
 2.  Homicidium  casuale  Tel  fortidtum,  (chance-med- 
 ley) ;  where  it  is  merely  an  unfortunate  accident,  as 
 in  the  case  of  the  axe  of  a  person  while  cutting  wood, 
 flying  off  from  the  helve,  and  killing  another. 
 
 Both  these  genera  are  likewise  distinguished  by 
 Moses,  who,  to  the  first,  annexes  the  punishment  of 
 death  ;  and  to  the  seco?id,  that  of  exile,  or  confinement 
 to  a  city  of  refuge,  until  the  death  of  the  high-priest; 
 only  that  the  line  of  distinction  between  them  does 
 not  seem,  in  all  points,  drawn  with  sufficient  accuracy 
 to  us,  who  live  at  the  distance  of  some  thousand  years 
 from  his  day ;   and  that  there  remains  a  pretty  con- 
 
218        Meaning  of  the  word  Ratzach,  &c.  [Art.  2*73. 
 
 siderable  intervening  space  undefined,  comprising  all 
 that  our  lawyers  denominate  Homicidium  simplex,  do- 
 losum.  In  order  to  express  myself  with  more  brevity, 
 and  to  avoid  long  Latin  circumlocutions,  I  shall  call 
 that  crime  which  Moses  punishes  capitally,  Murder, 
 and  that  which  he  does  not  punish  capitally,  Horn'- 
 tide ;  thus  taking  this  latter  term  in  such  a  sense,  as  to 
 make  it,  not  one  of  the  two  genera  above  specified, 
 but  a  species  contradistinguished  from  murder. 
 
 We  find  several  general  expressions,  that  seem  to 
 comprehend  both  species,  such  as,  to  smite  a  man,  that 
 he  die — to  smite  a  man's  lije — or  merely,  to  smite  a 
 ■man,  See.  Even  the  word  nah,  (Ratzach)  which 
 originally  has  a  more  limited  signification,  is  some- 
 times used  in  so  extensive  a  sense,  as  to  include  not 
 onlv  inconsiderate  and  fortuitous  homicide*,  but  even 
 the  killing  of  a  malefactor,  such,  for  instance,  as  a 
 murderer ;  which  was  permitted,  and  even  command- 
 ed t.  At  the  same  time,  however,  it  is  also  used,  in 
 its  more  limited  sense,  and  applied  to  murder  alone  t ; 
 as  where,  in  contradistinction  to  unpremeditated  ho- 
 micide, it  is  said  of  a  person,  who  has  deserved  death, 
 The  man  who  killeth  any  person,  in  such  and  such  a 
 way,  is  a  Rotzech  (ni>"n)  ;  he  shall  die.  If  the  reader 
 should,  as  is  often  the  case,  where  legal  terms  are  in 
 question,  happen  to  be  desirous  of  information  with 
 regard  to  the  etymological  meaning  of  the  word  ran, 
 I  might,  perhaps,  half-satisfy  him  by  saying,  that  in 
 Arabic  it  signifies,  to  overwhelm  with  stones,  to  stone  to 
 
 *  Numb.  xxxv.  1  I.  25, — 28.  f  Numb.  xxxv.  27.  '>0. 
 
 Peut.  xis.  3,  l.  t  Numb.  xxvv.  16,— 19, 
 
Art  273.]  Proper  Version  of  Ike  Sixtli  Commandment.  219 
 
 death,  to  smash  a  serpent's  head  with  a  stone.  Now,  in 
 the  state  of  nature,  and  before  men  have  any  artificial 
 weapons,  most  murders  are  perpetrated  by  throwing 
 of  stones  ;  those,  at  any  rate,  which  are  to  be  contra- 
 distinguished from  acts  of  homicide.  Where  two 
 people  then  fell  a  quarrelling,  and  the  one  struck  the 
 other  dead,  without  having  any  such  intention,  it  was 
 done  with  the  hand,  by  a  blow;  from  which  we  do  not 
 usually  look  for  such  an  effect.  Throwing  of  stones, 
 on  the  other  hand,  is  always  more  likely  to  prove 
 fatal,  and  every  one  who  attempts  it,  must  know  as 
 much ;  and  hence  the  malicious  and  deliberate  mur- 
 derer, who  durst  not  make  an  open  attack,  but  lay  in 
 wait,  determined  to  kill  his  enemy,  would  naturally 
 throw  a  stone  at  his  head.  Stoning  too,  we  may  re- 
 member, was  the  most  common  capital  punishment 
 among  the  Hebrews.  Here,  then,  for  once,  we  have 
 an  instance  of  the  derivation  of  a  legal  term,  from 
 the  artless  state  of  nature,  exactly  as  might  be  ex- 
 pected, in  a  very  ancient  language. 
 
 As  it  is  not  possible  to  suppose,  that  in  the  sixth 
 commandment,  killing  in  general  can  be  interdicted, 
 else  should  we  not  have  any  right  to  kill  fleas,  lice, 
 sheep,  goats,  oxen  ;  or  to  put  enemies,  robbers,  male- 
 factors, to  death ;  so  we  are  unquestionably  to  take 
 the  words,  rrcin  vh9  fLo  tirzachj  not  in  the  more 
 limited  sense,  and  to  translate  them,  Thou  shall  not 
 kill,  but,  Thou  shalt  not  murder,  or  commit  murder. 
 
 I.  First,  then,  of  murder. — The  accessory  circum- 
 stances, whereby  Moses  describes  it,  and  which  ex- 
 press the  marks  that  distinguish  it  from  homicide,  are 
 the  following. 
 
220  Mosaic  Marks  of  Murder.        [Art.  273. 
 
 1.  When  it  proceeds  from  haired  or  enmity ;  Numb. 
 xxxv.  20,  21.  Dent.  xix.  ]  1. 
 
 2.  When  it  proceeds  from  thirst,  that  is,  from  desir- 
 ing the  death  of  another,  or  wishing  to  satiate  revenge 
 with  his  blood.  The  Hebrew  term  is  IT"!*,  (Zedijja  J, 
 (Numb.  xxxv.  20.)  and  for  the  reason,  why  I  do  not 
 render  it,  with  other  translators,  way-laying,  but  thirst, 
 most  of  my  readers  will  rather  chuse  to  consult  my 
 second  Commentatio  ad  leges  divinas  de  poena  homicidii, 
 §  28.,  than  have  the  detail  here  interrupted,  by  the 
 repetition  of  a  long  philological  investigation.  Be- 
 sides, as  no  court  can  examine  the  heart,  or  discern, 
 whether  the  man  who  has  killed  his  neighbour  with  a 
 deadly  weapon,  or  a  stone,  had  it  merely  in  view  to 
 wound  him,  or  to  put  him  to  death  ;  and  as,  of  course, 
 almost  every  murder  would  escape  unpunished,  and 
 no  man  be  secure  of  his  life,  if  it  were  enough,  that 
 the  murderer  denied  the  intention  of  killing  ;  so,  I  am 
 inclined  to  believe,  that  where  only  the  intention  of 
 wounding  was  manifest,  the  act  was  considered  as 
 proceeding  from  Zedijja,  and  as  sufficient  to  consti- 
 tute murder,  Homicidium  qualificatum.  Such  a  per- 
 son manifested  a  thirst  for  his  neighbour's  blood,  and 
 although  he  only  said  in  his  justification,  /  should  nut 
 just  have  required  all  his  blood  to  extinguish  my  thirst, 
 but  have  been  satisfied  with  what  had  flowed  from  one 
 good  wound,  still  this,  according  to  the  etymology  of 
 the  word,  was  a  Zedijja. 
 
 .3.  When  it  is  committed  premeditately  and  deceit- 
 fully ;  Exod.  xxi.  14.  This  expression  seems  not 
 applicable  to  every  murder,  but  only  to  the  worst 
 species  of  that  crime,  namely,  assassination ;  and,  by 
 
Art.  273.]  Hatred,  Blood-thirst,  Assassination,  $c.  222 
 
 the  Mosaic  law,  the  assassin  was  to  be  dragged  even 
 from  the  altar  itself,  to  die  in  his  turn.  The  fate  of 
 Joab,  who  had  been  twice  guilty  of  assassination*, 
 and  who  was  put  to  death  even  at  the  altart,  by  the 
 grand-provost-marshal,  Benaiah,  who  was  at  the  same 
 time  high-priestt,  may  be  considered  as  an  example 
 illustrative  of  this  case. 
 
 4.  When  a  man  lies  in  wait  for  another,  falls  upon 
 him,  and  slays  him;  Deut.  xix.  11.  This,  indeed, 
 may  be  assassination  ;  but  it  may  also  be  different, 
 and  somewhat  more  honourable  ;  as,  for  instance, 
 where  a  man,  (which  is  the  common  way  in  cases  of 
 enmity  among  the  Arabs')  lies  in  wait  for  another, 
 till  he  find  him,  in  the  place  where  he  wishes  to  have 
 liim,  in  order  to  be  sure  of  killing  him  ;  but  then  em- 
 ploys not,  like  Joab,  the  cunning  of  an  assassin,  but 
 has  recourse  to  open  violence  against  him.  In  gene- 
 ral, such  way-layings,  as  well  as  assassinations,  pro- 
 perly so  called,  are  more  usual  in  southern  countries, 
 than  with  us,  and  the  mistaken  avengement  of  blood 
 multiplies  the  examples  of  both. 
 
 II.  Homicide  is  discriminated  by  the  following  ad- 
 juncts and  descriptive  circumstances : 
 
 1.  That  it  takes  place,  without  hatred  or  enmity, 
 Numb.  xxxv.  22,  23.  Deut.  xix.  4.  6.  In  the  former 
 of  these  passages  are  added,  the  explanatory  circum- 
 stances of  its  being  done  undesignedly,  or  by  the 
 throwing  of  a  stone,  which  has  unfortunately  hit  the 
 man  and  killed  him  j  while  yet  the  slayer  saw  him  not, 
 
 *  2  Sam.  iii.  26,  27.  xv.  S,— 10.  f  1  Kings  ii.  2S  -  St. 
 
 j  *ee  Art.  CC XXXII. 
 
222  Mosaic  Marks  of  Homicide.       [Art.  273. 
 
 nor  sought  to  harm  him.  In  the  latter,  is  specified  the 
 circumstance  of  its  being  done,  without  his  knowing  of 
 it;  so  that  in  these  passages,  it  is  merely  an  unlucky 
 accident,  a  homicidium  for  tuition,  that  is  spoken  of. 
 And  this  I  remark,  because  without  such  an  explana- 
 tion, the  phrase,  without  hatred  and  emniti/,  might 
 seem  to  comprehend  the  crime  of  homicide  committed 
 in  consequence  of  a  sudden  quarrel,  or  paroxysm  of 
 rage,  or  in  a  drunken  fit ;  which,  however,  is  not 
 what  Moses  means  on  the  present  occasion,  or  indeed 
 ever  speaks  of. 
 
 2.  When  it  takes  place,  without  thirst,  without 
 Zedijja,  Exod.  xxi.  13.  Numb.  xxxv.  22.  In  the  first 
 of  these  two  passages,  it  is  added  in  explanation, 
 where  God  lets  him  come  before  his  hand ;  that  is,  so 
 orders  events,  that  he  must  unfortunately  be  in  such 
 a  situation,  as  that  the  other's  hand,  without  his 
 either  knowing,  or  intending  it,  happens  to  hit  him  ; 
 as,  for  instance,  where  the  one  is  hewing  wood,  and 
 the  other  runs  directly  upon  the  axe. 
 
 3.  When  it  happens  from  mistake,  Numb.  xxxv. 
 11.  15. 
 
 4.  In  the  case  of  which  Moses  gives  the  following 
 as  an  example  ;  Deut.  xix.  5.  Where  a  num.  goes  with 
 his  neighbour  into  a  wood  to  fell  trees,  and  while  he 
 strikes  with  his  axe,  the  iron  slips  from  the  handle, 
 and  hits  the  other. 
 
 The  great  chasm  between  what  I  have  termed  mur- 
 der and  homicide,  or  between  Homicidium  dolosum 
 qualification,  and  Homicidium  for  tuition  vel  casualc,  as 
 formerly  mentioned,  every  person  skilled  in  law  will 
 immediately  perceive,  and,  of  course,  ask,  Where  did 
 
Art.  273.]  Question  as  to  Homicide  from  Raget  fyc.  i2'2:3 
 
 Moses  class  homicide  arising  from  rage,  or  from  a  sud- 
 den fray,  (duelling  he  needed  not  notice,  as  the  He- 
 brews had  no  such  thing)  or  from  drunken  fury  ?  Did 
 he  count  it  murder  and  punish  it  with  death  ;  or  mere 
 Jiomicide,  xihich  incurred  a  less  severe  punishment?  In 
 answer  to  these  questions,  I  have  to  observe,  that,  on 
 this  point,  I  find  in  the  writings  of  Moses  nothing  de- 
 cisive;   but  his  very   silence    may  sometimes  be  of 
 weight  in  our  present  jurisprudence  ;  because  some 
 people  have  fancied,  that,  by  the  divine  laws,  with 
 which  even  the  supreme  power  can,  in  a  Christian 
 state,  have  no  right  to  dispense,  murder  never  ought 
 10  be  pardoned,  but  in  every   case  to  be  invariably 
 punished  with  death  ;  because  the  commandment  in 
 Gen.  ix>  6.  applies  to  all  the  posterity  of  Noah  for 
 ever,  that  is,  applies  to  all  mankind.     I  am  not,  how- 
 ever, of  this  opinion,  but  believe,  that  that  command- 
 ment was  merely  an  interim- statute,  for  the  immediate 
 descendants  of  Noah,  before  they  were  under  civil 
 government  and  laws.     The  reasons  of  this  opinion  I 
 have  stated  in  another  place*,  and  as  the  matter  does 
 not  directly  belong  to   the  Mosaic  law,  I  shall  not 
 here  repeat  them  :  observing  only,  that  every  one  who 
 does  not  account  it  a  sin  to  eat  blood,  nor  believe  that 
 God  had  given  prwccpla  positiva  universalia,  and  re- 
 quired the  observance  of  them,   even   from    nations 
 who  could  not  possibly  have  had  any  information  with 
 regard  to  any  such  positive  laws,  must  admit,  that  the 
 arguments  I  have  adduced  are  valid.     There  are,  how- 
 ever, many  prudent,  conscientious  people,  who  deem 
 
 ■*  See  my  Commcntatio  prior  ad  divinos  leges  de  p<rna  fiQmici 
 
224?  Caution  to  Judges  and  Juries.       [Art.  273. 
 
 the  eating  of  blood  sinful ;  and  there  are,  me  thinks, 
 still  more,  not  so  prudent  and  conscientious,  but  more 
 the  slaves  of  prejudices,  who  believe  in  universal 
 positive  laws ;  persons  of  both  these  descriptions  will 
 think  differently  from  me  concerning  the  above  pas- 
 sage of  Genesis  ;  and  if  they  should  happen  to  have 
 any  share  in  the  pronouncing  of  a  capital  sentence,  it 
 may  be  worth  their  while  to  remember,  that  that  sort 
 of  homicide  which  proceeds  from  rage,  sudden  frays, 
 and  drunken  fury,  is  altogether  undefined  by  Moses, 
 and  left  in  medio  between  murder  and  chance-medley, 
 or  homicide  strictly  so  called  ;  and  that,  in  such  cases, 
 therefore,  on  their  own  principles,  and  without  pre- 
 judice to  the  force  of  Gen.  ix.  6.,  human  laws  alone, 
 as  established  in  each  particular  state,  ought  to  inter- 
 fere. 
 
 Indeed  we  see  from  Exod.  xxi.  17, — 19.,  that  when 
 a  man  was  wounded  in  an  affray,  and  died  of  the 
 wound  ;  but  was  not  killed  on  the  spot,  but  became 
 bed-rid  for  a  time ;  if  he  recovered  so  far  as  to  go 
 abroad  with  the  help  of  a  staff;  the  person,  who  had 
 given  him  the  wound  that  subsequently  proved  fatal, 
 was  entirely  free  from  all  inquisition,  and  criminal 
 prosecution,  and  only  incurred  the  expenses  of  the 
 cure,  with  the  payment  of  an  estimated  compensation 
 for  the  injury  and  the  pain  he  had  occasioned  his 
 neighbour.  But  how  the  procedure  was  to  be  regu- 
 lated, when  the  wounded  man  did  not  arise  from  his 
 bed,  or  was  killed  on  the  spot,  Moses  leaves  altoge- 
 ther undetermined;  for  the  expression,  life  for  life, 
 (Exod.  xxi.  23.)  does  not  apply  to  the  case  of  people 
 quarrelling  together,  but  to  that  of  their  injuring  a 
 
Art.  273.]  Murder  determined  by  the  Instrument.     225 
 
 pregnant  woman,  or  the  fruit  of  her  womb.  Now, 
 between  the  two  cases,  there  is  manifestly  a  very  great 
 difference.  The  pregnant  woman  is  a  third  party,  un- 
 concerned in  the  quarrel ;  and  if  she  loses  her  life,  the 
 matter  merits  quite  another  style  of  cognizance  from 
 what  it  would  merit,  were  one  of  the  two  quarrellers 
 to  lose  his ;  because  he  might  have  been  the  cause  of 
 the  quarrel,  or  at  any  rate  had  done  all  in  his  power 
 to  deprive  the  other  of  his  life  ;  so  that  it  depended 
 merely  on  chance,  and  a  cast  of  the  dice,  which  of 
 the  two  should  be  the  slayer,  and  which  the  slain. 
 Besides,  pregnant  women,  and  the  fruit  of  their  wombs, 
 do,  on  account  of  their  defenceless  state,  and  because 
 they  are  left  entirely  to  the  protection  of  the  laws, 
 deserve  to  experience  that  protection  in  a  pre-eminent 
 manner ;  and  injuries  done  them  ought  to  be  punished 
 with  peculiar  severity. 
 
 To  return  then  to  the  consideration  of  murder. — 
 Besides  enmity,  Moses  deems  it  as  essential  to  this 
 crime,  that  it  be  caused  by  a  blow,  or  a  thrust,  or  a 
 cast,  (or  whatever  else  it  be  that  occasions  it,)  of  such 
 a  nature,  as  that  it  must  in  reason  be  considered  as 
 what  was  likely  to  prove  fatal ;  as,  for  instance,  where 
 it  is  perpetrated  by  an  instrument,  a  deadly  instru- 
 ment. The  passage  in  Numb.  xxxv.  1 6, — 21.,  where 
 different  ways  of  killing  are  enumerated,  either  has 
 this  meaning,  or  else  it  is  nothing  better  than  idle 
 verbiage,  of  which  it  is  quite  contrary  to  its  author's 
 general  practice  and  character,  to  suppose  him  guilty. 
 Let  the  reader  only  peruse  it  in  its  full  connexion  with 
 the  context,  and  he  will  be  sensible,  that  it  is  the  de- 
 sign of  Moses  to  discriminate  between  murder,  of 
 
 VOL.  iv,  p 
 
22o         An  Iron  Tool — a  Stone — a  Blow.   [Art.  273. 
 
 which  the  punishment  was  to  be  death,  and  homicide, 
 for  which  there  was  to  be  an  asylum  provided  in  the 
 cities  of  refuge ;  and  that,  in  pursuance  of  this  dis* 
 tiuction,  he  specifies  as  decisive  proofs  of  murder, 
 
 1 .  The  use  of  an  iron  tool,  without  any  explanatory 
 addition  ;  it  being  obvious  that,  in  general,  any  in- 
 strument of  iron  may  prove  fatal. 
 
 2.  The  use  of  a  stoiie,  or  a  piece  of  wood,  with  this 
 addition,  such  as  may  kill.  Here  it  is  manifest  that 
 the  word  may,  is  not  to  be  understood  of  a  mere  phy- 
 sical possibility  ;  (for  that  is  always  proved  whenever 
 a  man  is  actually  killed  ;  and  the  addition,  in  this 
 sense,  would  be  perfectly  useless  j)  but  that  it  is  ex- 
 pressive of  the  constant  probability  of  death  ensuing 
 from  the  cause  in  question. — For  example,  if  a  man 
 throw  a  small  stone  at  another,  or  strike  him  with  a 
 thin  rod,  from  neither  of  which  it  could  be  previously 
 supposed  that  the  blow  would  prove  fatal,  although  it 
 unfortunately  happens  that,  in  the  present  instance, 
 such  is  the  case  ;  this,  even  if  done  not  from  rage,  but 
 purely  from  hatred  and  enmity,  is  not  murder,  but 
 only  homicide. 
 
 3.  Striking  a  man,  out  of  enmity,  with  Hie  fist,  so  as 
 io  cause  his  death,  ver.  21.  I  have  already  remarked, 
 that  blows  or  pushes  given  with  the  hand,  without  any 
 other  instrument,  may  be,  or  may  become,  fatal ;  as, 
 for  instance,  when  they  hit  the  temples,  and,  in  some 
 cases,  the  belly  or  the  breast,  &c.  At  the  same  time, 
 a  person,  in  striking,  has  his  hand  more  in  his  own 
 power,  than  any  instrument  whatever  ;  and  therefore, 
 if  a  blow  given  out  of  enmity,  (for  here  quarrelling 
 and  sudden  passion  are  out  of  the  question,)  shall 
 
Art.  273.]  A  Push  from  a  Roof— a  Throw,  &&, 
 
 prove  fatal,  it  is  presumable,  that  the  person  who  gave 
 it,  meant  it  to  be  so  ;  but  allowing  that  he  did  not, 
 but  only  meant,  out  of  spite,  to  give  a  right  tirm  blow, 
 (whieh,  however,  is  a  private  intention,  which  he  can 
 never  prove  to  a  judge;)  still,  as  reason  must  have 
 taught  him  that  such  a  blow  might  very  probably 
 be  fatal,  so,  unless  he  can  clearly  shew  that  it  became 
 so  merely  by  an  unfortunate  accident,  such  as  that  of 
 the  other  man's  bowing  to  avoid  it,  and  thus  making 
 the  blow  light  upon  a  more  dangerous  part  of  the 
 body  than  what  was  aimed  at,  it  cannot  well  be  re- 
 garded in  any  other  light  than  murder  ;  else,  to  the 
 very  great  insecurity  of  men's  lives,  almost  all  mur- 
 ders will  escape  unpunished. 
 
 4.  Pvsliing  a  man,  so  as  to  occasion  his  death ;  as, 
 for  instance,  when  I  (not  in  a  rage,  which  is  not  here 
 in  question,  but  out  of  hatred)  push  another  person 
 down  stairs,  and  he  breaks  his  neck  ;  or  when  I  push 
 him  off  from  a  narrow  footpath  into  a  deep  hole  ;  or, 
 to  take  an  example  truly  Oriental,  from  the  flat  roof, 
 on  which  it  is  usual  to  walk,  down  to  the  ground. 
 In  such  cases,  every  one  must  be  aware  that  he  en- 
 dangers his  neighbour's  life  ;  and  it  is,  besides,  highly 
 probable  that  he  has  it  in  view,  not  merely  to  hurt, 
 but  actually  to  kill  him,  when  it  happens,  not  in  the 
 heat  of  a  quarrel,  but  out  of  sheer  enmity. 
 
 5.  Throwing  any  thing  blood- thirstily  at  a  man,  so  as 
 to  occasion  his  death,  ver.  20.  The  design  of  the 
 limitations  here,  is  very  manifest.  Where  the  per- 
 sonal injury  of  his  neighbour,  to  which  a  man  was 
 prompted  by  enmity,  was  of  such  a  nature  that,  with- 
 out anticipating  every  possible  case  of  ill  luck,  it 
 
 v  2 
 
228      Death  occasioned  by  a  Tobacco-lJipe.  [Art.  273- 
 
 could  never  have  been  suspected  that  it  would  cause 
 his  death,  it  was  not  to  be  deemed  murder,  but  mere- 
 ly homicide. 
 
 The  example  related  in  my  second  Commentatio  ad 
 leges  divinas  de  poena  homicidii,  §'  30.  of  a  man  killed  by 
 a  tobacco-pipe,  seems  a  very  proper  illustration  of  this 
 case :  only  I  have  not  there  stated  it  with  perfect  ac- 
 curacy, not  having  been  able  to  find  it  in  any  book, 
 and  merely  relating  from  memory,  after  the  lapse  of 
 jnany  years,  what  I  had  heard  during  my  early  resi- 
 dence at  Halle.     I  now,  however,  know  the  circum- 
 stances of  the  story  more  correctly,  and  shall  here 
 give  it  in  terms  of  the  account  which  Mr.  Counsellor 
 Beckmann  has  had  the  goodness  to  communicate  to 
 me  concerning  it.     It  happened  in  the  year  1738,  at 
 the  village  of  Kolpin  in  Mecklenburgh.     A  peasant 
 who  was  smoking  tobacco,  took  the  pipe  out  of  his 
 mouth  into  his  hand,   and,  striking  another  peasant 
 with  the  back  of  his  hand  in  the  face,  the  mouth-piece 
 of  the  pipe,  which  projected  between  his  fingers,  went 
 into  his  eye,  penetrated  to  his  brain,  and  occasioned  his 
 death  within  six  hours.     It  was  not,  therefore,  with  the 
 hand  that  he  was  killed,  but  with  the  pipe,  an  instru- 
 ment that  could  never  be  considered  as  a  deadly  wea- 
 pon.    Besides,  having  been  done  in  a  passion,  it  was 
 not  murder,  homicidhim  dolosum  qualificatum  ;  and  the 
 author  of  it  was  accordingly  condemned  only  to  suffer 
 two  months  imprisonment,  and  to  be  fed  on  bread  and 
 water.     The  very  same  thing,  however,  might  unfor- 
 tunately happen  from  the  influence  of  hatred.     For, 
 from  a  mere  fillip  on  the  nose,  given  him  by  an  enemy, 
 in  order  to  affront  him,  a  man  rmght  die,  if  he  hap- 
 
Art.  273.]  Killing  a  Housebreaker  by  Night.  229 
 
 pened  to  be  in  such  a  posture  as  to  fall  backwards* 
 and  so  fracture  his  skull.  Of  such  a  catastrophe, 
 many  examples  might  be  given.  Now,  what  Moses 
 ordains  in  such  cases  is  in  itself  equitable  and  rational ; 
 and  it  may  even  be  still  applied  usefully  in  our  law,  if 
 we  are  of  the  opinion,  that  the  divine  command,  Who- 
 ever sheddeth  man's  blood,  by  man  shall  his  blood  be  shed, 
 in  return,  is  still  obligatory  upon  us.  But  although 
 we  do  think  so,  we  must  not  expound  it  more  rigo- 
 rously than  Moses  himself  has  done. 
 
 Besides  the  two  crimes  now  illustrated,  murder? 
 which  wras  capital,  and  that  sort  of  homicide  which 
 incurred  the  penalty  of  confinement  to  a  city  of  re- 
 fuge ;  there  were  yet  two  species  of  homicide,  to 
 which  no  punishment  was  annexed.  One  of  them 
 was  morally  lawful  j  and  the  other,  though  morally 
 unlawful,  was  nevertheless  tolerated,  on  account  of 
 that  hardheartedness  which,  in  respect  to  it,  formed  a 
 point  d*  honneur  among  the  people. 
 
 1.  If  a  man  caught  a  thief  breaking  into  his  house 
 by  night,  and  killed  him,  it  was  not  blood-guiltiness, 
 that  is,  he  could  not  be  punished ;  but  if  he  did  so 
 when  the  sun  was  up,  it  was  blood- guiltiness  /  for  the 
 thief's  life  ought  to  have  been  spared,  for  the  reason 
 annexed  to  the  law  j  (Exod.  xxii.  2,  3.)  viz.  because 
 then  the  person  robbed,  might  have  it  in  his  power 
 to  obtain  restitution  j  or,  at  any  rate,  the  thief,  if  he 
 could  not  otherwise  make  up  his  loss,  might  be  sold, 
 in  order  to  repay  him.  That  here,  it  is  not  the  resist- 
 ance made  against  a  highwayman,  who  attacks  us  by 
 day  in  the  open  field,  that  is  spoken  of,  but  merely 
 that  made  against  the  attempts  of  thieves,  is  quite  ob- 
 
 r  3 
 
230    Resistance  to  save  Property,  ${t.  lartfal.  [Art.  273 
 
 vious ;  and  indeed  the  reason  that  accompanies  the 
 Jaw,  implies  as  much ;  for  from  the  highwayman,  whom 
 I  do  not  know,  and  whom  the  magistrate  has  not  in 
 his  power,  I  cannot  hope  for  restitution,  or  that  he 
 should  be  sold  for  a  slave.  Whether,  on  the  other 
 hand,  the  man  who  killed  a  thief  after  sun-rise,  suf- 
 fered death  in  his  turn,  or  escaped  with  a  less  severe 
 punishment,  the  law  does  not  say. 
 
 From  the  analogy  of  this  law,  however,  it  clearly 
 follows,  that  resistance  was  lawful  in  other  cases.  For 
 if,  in  defence,  or  for  the  recovery  of  our  properly,  we 
 may  put  the  nocturnal  thief  to  death,  who  is  not  by 
 any  means  going  out  to  murder,  but  between  whom 
 and  the  diurnal  thief  there  is  merely  this  distinction 
 stated,  that,  from  the  latter,  our  property  is  recover- 
 able by  a  prosecution,  but  from  the  former,  as  being 
 unknown,  not  so ;  still  more  must  we  be  authorised, 
 in  defence  of  our  own  life,  to  resist,  and  even  to  kill, 
 the  robber  who  attacks  us  in  the  public  highway, 
 ■where  we  can  have  no  protection  from  the  magistrate  -y 
 or  the  man  who  offers  us  any  personal  violence,  or  who 
 attempts  by  force  to  violate  our  chastity.  In  this  re- 
 spect, the  Mosaic  law  seems  to  coincide  pretty  nearly 
 with  the  penal  code  of  Charles  the  Fifth.  Nor  does 
 it  require,  what  we  find  sometimes  enjoined  in  the  Ro- 
 man law,  that  a  man  should  call  three  times  to  a  noc- 
 turnal thief  before  he  killed  him.  It  was  sufficient 
 that  he  caught  him  in  the  fact. 
 
 2.  The  other  case  was  of  a  different  nature  ;  and  a 
 species  of  homicide,  wThich  Moses  appears  on  moral 
 grounds  to  have  disapproved,  was  yet,  from  civil  con- 
 siderations, and  on  account  of  the  people's  hardness 
 
Art.  273.]  Case  of  the  Goel,  $c.  23 1 
 
 of  heart,  permitted,  and  incurred  no  punishment.  For 
 although  the  man  who  had  the  misfortune,  undesign- 
 edly and  unwittingly,  to  deprive  another  person  of 
 life,  against  whom  he  entertained  no  enmity,  might, 
 by  the  law  of  Goelism,  be  put  to  death  in  his  turn,  by 
 that  person's  nearest  relation,  with  impunity  ;  yet,  ac- 
 cording to  the  Jaw  of  Moses,  this  was  morally  wrong : 
 it  was  shedding  innocent  blood,  and  if  the  nation  did 
 not  do  its  utmost  to  prevent  such  enormities,  it  brought 
 blood-guiltiness  upon  itself,  Deut.  xix.  10.  If,  how- 
 ever, the  Goel  fell  in  with  the  innocent  homicide,  be- 
 fore he  reached  a  city  of  refuge,  and  killed  him,  while 
 his  heart  was  hot,  it  wTas  considered  as  done  in  justifi- 
 able zeal,  (Deut.  xix.  6. ;)  and  even  if  he  found  him, 
 at  any  rate,  without  the  limits  of  his  asylum,  and  slew 
 him,  he  was  not  punishable,  Numb.  xxxv.  26,  27.  In 
 these  points,  Moses  yielded  to  the  natural  point  of 
 honour,  or,  as  we  may  say,  to  the  hardheartedness  of 
 the  Israelites.  This  has  been  already  illustrated  in 
 Art.  CXXXVI. ;  to  which  the  reader  is  referred. — It 
 was  under  this  pretext,  of  his  duty  as  Goel,  that  Joab, 
 with  a  very  different  object  in  view,  assassinated  Ab- 
 ner.  It  was  not,  however,  admitted  ;  for  he  was  re- 
 garded as  a  murderer ;  because  Abner  had  slain  his 
 brother,  in  war,  and  in  defence  of  his  own  life  j  and 
 with  regard  to  those  who  were  slain  in  war,  no  right 
 of  blood-avengement  was  allowed  to  be  exercised  in 
 peace,  2  Sam.  ji.  19, — 23.  iii.  26, — 34.  1  Kings  ii.  5, 
 6,  28,  34. 
 
 Before  concluding  this  Article,  I  must  yet  take  no- 
 tice of  the  expressions,  He  has  shed  blood ;  and,  it  is 
 bkod  ;  which  mean,  it  is  regarded  as  blood-guiltiness ; 
 
 p  4 
 
232  Of  the  Punishment  of  Murder.     [Art.  274. 
 
 and  it  is  not  blood ;  that  is,  it  is  not  deemed  blood- 
 guiltiness,  and  incurs  no  punishment.  The  phrase 
 •which  occurs  in  Numb.  xxxv.  33.  The  land  is  defiled 
 with  bloody  that  is,  become  unclean  and  criminal  in 
 the  sight  of  God,  so  that  he  will  no  more  regard  it  as 
 holy,  and  vouchsafe  it  his  protection,  but  rather  punish 
 jt,  if  ye  let  murder  escape  with  impunity,  the  reader 
 will  find  philologically  illustrated  in  my  Commentationes 
 ad  le^es  divinas  de  pcena  homicidii,  §21,  22. 
 
 ART.  CCLXXIV. 
 
 Of  the  Punishment  of  Murder. 
 
 §  3.  The  punishment  of  murder  was  death,  with- 
 out all  power  of  redemption. 
 
 By  the  Point  d'  honneur  of  Goelism,  the  nearest  rela- 
 tion of  the  murdered,  unless  he  chose  to  be  considered 
 as  a  mean  fellow,  felt  himself  bound,  and  by  a  very 
 ancient  usage,  which  Moses  kept  up  and  confirmed,  he 
 was  empowered,  to  put  the  murderer  to  death,  with- 
 out ceremony,  wherever  he  might  find  him,  except  in 
 the  holy  places  ;  even  the  magistrate  was  directed  to 
 afford  him  aid  in  this  duty,  and  if,  after  investiga- 
 tion, the  fugitive  was  proved  guilty  of  real  murder, 
 to  deliver  him  up  to  the  Goel,  that  he  might  put  him 
 to  death  in  his  turn.  (Art.  CXXXVI.)  Where  no 
 Goel  appeared,  or  where  lie  was  dilatory  in  the  pursuit 
 of  avengement,  it  became  the  business  of  the  magis- 
 trate'himself -to  punish  a  murderer ;  and  thus  we  find 
 that  David  deemed  this  his  duty  in  the  case  of  Joab, 
 and  that  {Solomon,  in  obedience  to  the  intreaty  of  his 
 
Art.  274.3       Murder  polluted  the  Land.  235 
 
 father,  when  on  his  death-bed,  actually  discharged  it, 
 by  putting  that  murderer  to  death,  1  Kings  ii.  5,  6. 
 28, — 34.  In  the  case  likewise  of  bloodshed  by  a  per- 
 son unknown,  the  rulers  of  the  nearest  city  were 
 obliged  to  purify  themselves  and  their  city,  by  certain 
 ceremonies,  to  be  described  in  the  sequel,  and  to  make 
 a  solemn  avowal,  that  they  were  ignorant  of  the  per- 
 petrator of  the  crime  ;  Deut.  xxi.  9.  And,  in  order 
 to  make  the  Israelites  still  more  vigilant  in  the  dis- 
 covery and  punishment  of  murder,  God,  moreover, 
 declared,  that  the  land,  wherein  he  wished  to  dwell 
 among  them,  would  become  polluted  by  the  shedding 
 of  innocent  blood,  and  could  only  be  re-purified  by 
 the  atonement  of  the  blood  of  the  murderer,  (Deut. 
 xxxv.  33, — 35.)  ;  in  other  words,  he  actually  threat- 
 ened to  abandon  the  land,  that  is,  not  to  protect  it, 
 nor  to  exercise  his  gracious  superinten dance  over  it, 
 but  rather  to  punish  its  inhabitants,  if  it  should  ever 
 become  common  among  them  to  overlook  murderers, 
 and  let  their  crimes  pass  unpunished. 
 
 In  order  to  render  human  blood  still  more  sacred, 
 and  to  represent  murder  to  the  view  of  the  common 
 people,  who  must  ever  be  governed  by  sensible  im- 
 pressions, as  a  crime  peculiarly  abominable  and  un- 
 pardonable, it  was  ordered,  that  even  an  ox,  if  he  had 
 gored  a  man  to  death,  should  be  stoned  ;  Exod.  xxi. 
 28,  29.  In  this  passage  Moses  only  mentions  the  ox  ; 
 but  this  was  his  practice  on  many  occasions,  when  he 
 meant  his  laws  to  apply  to  other  animals  also  ;  (Art. 
 CLXVI.)  ;  and  it  is  scarcely  to  be  doubted,  that 
 where  a  goat  pushed  a  child  to  death,  or  a  dog  bit 
 any  person,  these  animals  were  subjected  to  the  same 
 
234  True  Version  of  Gen.  ix.  6.      [Art.  274. 
 
 punishment  as  the  ox.  This  was  in  so  far  a  punish- 
 ment, or  at  least  a  loss  to  their  owners  ;  and  it  obliged 
 every  one  to  be  careful  in  preventing  his  oxen,  dogs, 
 &c,  from  injuring  his  neighbours ;  as  we  shall  have 
 occasion  to  notice  more  particularly  afterwards.  But 
 it  was,  at  the  same  time,  a  seeming  punishment  on 
 the  animals  themselves ;  and  a  relic  of  the  law,  for- 
 merly given  to  mankind  while  yet  in  their  infancy, 
 and  in  a  state  of  extreme  rudeness,  and  guided  solely 
 by  their  senses  ;  Whatsoever  creature  sheddelh  human 
 bloody  be  it  man,  or  beast,  by  man  shall  its  blood  in  like 
 manner  be  shed,  Gen.  ix.  6. ;  for,  according  to  the 
 tenor  of  the  preceding  verse,  where  beasts  as  well  as 
 man  are  mentioned,  and  where  God  had  said,  that 
 from  men  as  well  as  beasts,  he  would  require  the 
 blood  of  man,  not,  indeed,  immediately,  but,  as  he  ex- 
 pressly declares,  by  the  instrumentality  of  men,  to 
 whom  he  assigns  the  duty  of  avenging  it — the  sixth 
 verse  is  to  be  rendered  not  whosoever,  but,  whatsoever 
 sheddelh  human  blood,  so  as  to  include  beasts  as  well 
 as  man.  This  passage  is  more  fully  illustrated  in  my 
 Commentatio  prior  ad  leges  divinas  de  poena  homicidii, 
 §  15. ;  and  I  have  only  farther  to  observe,  that  to  the 
 list  of  those  expositors,  certainly  not  very  numerous, 
 who  thus  explain  it,  I  here  now  add  Ephrem  Syrus, 
 who,  in  commenting  on  ver.  5.  quotes  the  law  relative 
 to  the  stoning  of  the  ox,  that  gored  a  man  to  death. 
 
 That  other  nations  besides  the  Israelites  inflicted 
 punishment  not  only  on  beasts,  but  also  on  inanimate 
 things,  for  the  shedding  of  human  blood  ; — that  Plato, 
 philosophising  upon  laws,  theoretically  proposed  this 
 plan  , — that  Draco  actually  ordered  the  stone,  sword, 
 
Art.  274'.]  Similar  Punishments  in  other  Nations.    235 
 
 or  club,  wherewith  a  man  was  slain,  to  be  prosecuted, 
 when  the  real   murderer  remained   unknown  ; — that 
 Solon  caused  the  dog  who  bit  any  one,  to  be  bound, 
 and  delivered  over  to  justice  ; — that  a  statue  at  Athens 
 which  fell  and  killed  a  man,  who  had  insulted  it,  was 
 punished  as  a  murderer  ; — and  that  even  so  late  as  the 
 year  1540,  a  swore?  wherewith  a  murder  had  been  com- 
 mitted at  Thoitlouse,  was,  by  a  sentence  of  the  parlia- 
 ment,  hung  upon  a  gallows,  because  the   murderer 
 himself  could  not  be  discovered  ; — are  facts  which  I 
 have  already  stated  in   §  16.  of  my  Commentatio  just 
 quoted.     Here,  therefore,  the  laws  of  Moses  ordain 
 nothing  unusual  among  other  nations,  or  with  other 
 legislators,  although  it  be  a  departure  from  our  cus- 
 toms.     Whether   the   infliction   of   such    allegorical 
 punishments  upon  animals  be  expedient,  (I  do  not 
 here  speak  of  the  removal  or  death  of  dangerous  beasts, 
 such  as  the  goring  ox,  or  the  biting  dog,  for  that  is 
 unquestionably  reasonable,)  is  a  point  which  may  ad- 
 mit a  difference  of  decision,  and  depends  on  the  nation- 
 al way  of  thinking.     While  the  human  race  are  in  the 
 state  of  infancy,  or  where  murder  and  homicide  have 
 previously  been  crimes,  as  it  were,  of  daily  occurrence  ; 
 in  other  words,  in  the  circumstances  wherein  man- 
 kind were  after  the  flood  (Gen.  ix.  5,  6.)  and  must 
 always  long  continue,   it  is  highly  adviseable,    and, 
 indeed,  almost  indispensable  ;  in  order  to  introduce 
 an  abhorrence  of  bloodshed,  and  an  idea  of  the  sacred- 
 ness  of  human  life.     Among  a  people  not  far  removed 
 from  the  natural  state,  and  still  strongly  influenced  by 
 objects  of  sense,  it  is  likewise  useful,  and  always  the 
 more  so,  in  proportion  as  their  temperament  is  vindic- 
 
236     Compensation  for  Murder  prohibited,  [Art.  275. 
 
 live.  But.  when  a  nation  have  learned  to  reason, 
 such  a  measure  would  be  apt  to  excite  ridicule,  and, 
 of  course,  be  productive  of  effects  the  reverse  of  those 
 intended.  I  certainly  should  not  recommend  the  use 
 of  it  here  in  Germany.  Our  very  peasants  are  in  most 
 places  too  rational  for  it,  and  so  little  governed  by 
 sensible  impressions,  or  attracted  by  ceremonials,  that 
 on  such  occasions,  (which  would  not  be  the  case  ia 
 England,  where  the  people  are  more  curious  to  see 
 criminals  tortured,)  even  spectators  might  be  want- 
 ing ;  many  would  regret  the  creature's  fate,  and 
 others  would  laugh.  And  hence  the  same  laws  can 
 never  answer  for  all  nations.  Their  differences  in  the 
 way  of  thinking,  render  what  is  expedient  in  one 
 country,  hurtful  in  another. 
 
 ART.    CCLXXV. 
 
 The  taking  of  a  pecuniary  compensation  for  Murder 
 was  prohibited. — The  right  of  Pardon,  on  the  con- 
 trary, allowed  and  exercised. — The  different  Influ- 
 ence of  these  two  Species  of  Remission,  on  the  Secu- 
 rity of  Human  Life  and  the  Character  of  a  Nation, 
 considered* 
 
 §  4.  Among  those  eastern  nations,  where  the  right 
 of  blood-avengement  is  allowed,  the  Goe'l  will  some- 
 times accept  from  a  murderer  a  certain  sum  of  money, 
 settled  by  a  regular  negociation,  on  the  payment  of 
 which,  all  farther  punishment  is  superseded.  The 
 acceptance  of  this  pecuniary  expiation,  which  the 
 Hebrews  termed  "i^,  (Kofer)  Mahomet,  who  was  a 
 
Art.  275.]      Despised  also  among  the  Arafis.  237 
 
 very  short-sighted  legislator,  not  only  permitted,  but, 
 as  we  have  stated  in  Art.  CXXXIV.,  even  recom- 
 mended as  an  act  of  mercy,  pleasing  in  the  sight  of 
 God.  But  here  the  law  of  Moses  is  directly  the  re- 
 verse of  that  of  Mahomet,  and  in  Numb.  xxxv.  31., 
 expressly  prohibits  the  remission  of  murder,  on  any 
 such  terms ;  declaring  no  atonement  sufficient,  but 
 the  death  of  the  murderer.  The  design  of  this  pro- 
 hibition is  obvious.  The  lives  of  men  would  be  but 
 badly  secured,  and  more  especially  those  of  the  pool 
 against  the  violence  of  the  rich,  were  it  in  the  power 
 of  the  nearest  relation,  (who  might  be  either  indigent 
 or  avaricious,)  thus  to  screen  a  murderer  from  the 
 punishment  of  death.  And  besides,  in  the  accept- 
 ance of  any  such  ransom  for  the  blood  of  a  near  rela- 
 tion, a  father,  perhaps,  or  a  son,  there  appears  some- 
 thing so  mean  and  indelicate,  that  the  character  of  a 
 people,  among  whom  such  a  mode  of  satisfaction  for 
 murder  becomes  common,  must  either  be  shockingly 
 debased,  or,  to  say  the  least,  they  must  be  devoid  of  all 
 delicacy  and  sensibility.  I  appeal  here  to  the  feelings 
 of  any  reader.  What  would  he  think  of  the  son,  who 
 should  accept  a  recompence  in  money  for  his  father's 
 blood  ?  Even  among  the  Arabs  themselves,  in  spite  of 
 the  shameful  doctrine  of  the  Koran,  this  is  reckoned 
 among  the  two  vices,  which  they  denominate  La-ton, 
 that  is,  vulgar,  canailleux ;  and  as  to  the  light  in 
 which  it  appears  to  a  German,  unaccustomed  to  any 
 such  thing,  even  while  under  the  power  of  his  ene- 
 mies, and  unprotected  by  law,  and  where  the  recom- 
 pence is  offered  in  the  handsomest  manner,  I  have 
 lived  to  see  an  example  here  in  Gottingen,  so  very 
 
238  German  Widow  rejected  such  a  proposal.  [Art.  275. 
 
 very  remarkable,  that  I  must  here  relate  it  as  a  cu- 
 riosity. 
 
 In  the  late  war,  a  French  soldier  shot  a  shoe- 
 maker at  Gottingen  dead.  The  French  officers,  un- 
 acquainted with  the  noble  way  of  thinking  entertained 
 by  German  women,  even  of  the  lowest  station,  at 
 first  conceived  the  whimsical  idea  of  giving  the  widow 
 satisfaction,  by  making  the  soldier  marry  her ;  but 
 they  were  immediately  told,  that  such  a  proposal 
 would  be  rejected  with  abhorrence  and  contempt. 
 In  time  of  war  the  French  are  extremely  remiss  in  the 
 punishment  of  murder,  so  that  the  soldier  escaped 
 with  life  j  but  the  officers  were  unanimously  desirous 
 to  present  the  woman,  as  a  sort  of  atonement,  with  the 
 sum  of  100  great  dollars,  (about  150  rix-dollars  of  our 
 money)  which,  at  that  time,  when  the  money  was  bad, 
 and  yet  could  be  issued  for  good,  was  equivalent  to 
 from  300  to  400  rix-dollars,  and,  of  course,  a  small 
 capital  to  such  a  person.  But  here  likewise,  they 
 shewed  their  ignorance  of  the  point  d'honneur,  as  felt 
 in  Germany,  even  by  the  meanest  of  the  people  } 
 when  they  imagined,  that  600  livres  were  the  same  thing 
 to  the  wife  of  a  shoemaker  among  lis,  as  they  wrould, 
 perhaps,  have  been  thought  in  France.  In  short,  no 
 persuasions  whatever  could  prevail  with  the  woman 
 to  accept  the  money  ;  and,  in  my  opinion,  she  acted 
 nobly,  and  just  as  I  should  always  wish  to  see  my 
 country-women  act.  The  clergy  attempted  to  influ- 
 ence her,  but  in  vain  ;  at  last,  however,  she  yielded  to 
 the  proposal  made  her  by  our  theological  faculty,  of 
 assigning  it  over  to  the  Gottingen  orphan-house,  and 
 to  that  institution  it  was  actually  paid  by  the  Frenrh 
 
Art.  275.]  Legal  Pardon — Case  of  Lord  Ferrers.  23f) 
 
 officers.  Now,  there  was  here  nothing  of  an  artificial 
 point  of  honour — nothing  of  custom,  ancient  usage, 
 &c.  &c. — but  the  natural  point  d'honneur  of  that  noble- 
 mindedness,  which  holds  money  in  contempt,  where 
 it  ought  to  be  so ;  accompanied,  at  the  same  time,  with 
 true  conjugal  affection. — But  to  return. 
 
 It  does  not,  however,  follow  from  the  prohibition  of 
 pecuniary  expiations,  that  the  punishment  of  murder 
 should  in  no  case  be  remitted,  nor  the  perpetrator 
 pardoned.  Between  the  remission  purchased  from  the 
 nearest  kinsman,  and  the  pardon  granted  by  the  king, 
 or  by  the  power  invested  with  supreme  authority,  and 
 as  such  enjoying  the  right  of  pardon,  there  is  a  three- 
 fold distinction  to  be  made  of  great  importance. 
 
 1.  A  purchaseable  remission  exposes  the  lives  of 
 poor  persons,  and  who  happen  to  have  poor  relations, 
 to  very  great  danger  ;  and  if  it  be  but  possible,  a  rich 
 man  who  has  any  temptation  to  commit  a  murder, 
 will  not  be  deterred  by  the  fear  of  losing  his  life  for 
 it.  But  there  can  be  no  such  risk,  under  a  right  of 
 pardon,  if  it  be  rationally  exercised  ;  nor  can  even  a 
 criminal  of  the  highest  rank  look  for  the  forgiveness 
 of  a  murder,  from  a  wise  and  gracious  sovereign,  un- 
 less very  peculiar  circumstances  should  interfere,  to 
 recommend  him  to  mercy. 
 
 When  Lord  Ferrers,  in  the  year  1760,  shot  his 
 steward,  (trusting  perhaps  that  his  rank  would  secure 
 his  pardon)  George  II.,  notwitl  standing  the  very  ear- 
 nest intreaties  that  were  made  him,  did  not  pardon  him ; 
 nor  has  any  other  nobleman,  since  that  time,  ventured 
 upon  a  similar  outrage  ;  whereas,  had  the  steward's 
 nearest  relation  had  it  in  his  power  to  dispense  with 
 
240    George  Il.d's  Conduct  contrasted,  <Jr.  [Art.  275. 
 
 the  punishment,  his  Lordship's  money  might  have 
 been  irresistible  ;  and  then  more  such  villainies  (for 
 this  was  a  villainy,  in  the  literal  sense,  having  been 
 committed  against  a  defenceless  servant)  might  have 
 ensued,  and  the  nation,  by  degrees,  become  accus- 
 tomed to  proceedings  of  the  same  nature.  A  pardon 
 is  granted,  after  the  circumstances  of  the  case  are 
 duly  weighed ;  but  a  pecuniary  remission  is  the  re- 
 sult of  a  private  bargain,  without  any  regard  to  cir- 
 cumstances at  all.  It  is  seldom  that  the  king,  or  the 
 person  who  has  the  right  of  pardon,  will  be  partial  to 
 a  murderer :  but  the  man  who  receives  money,  there- 
 by becomes  partial,  and  to  attempt  offering  it,  is  much 
 the  same  as  openly  attempting  to  bribe  a  judge. 
 
 2.  To  an  impartial  sovereign,  mistaken  morality, 
 or  honour,  will  scarcely  preach  up  the  duty  of  re- 
 mitting a  murderer's  punishment,  where  no  weighty 
 consideration  interferes  ;  nor  will  they  merely  keep  si- 
 lence on  the  subject,  but  rather  remind  him  of  the  na- 
 ture of  the  office  he  holds  ;  and  the  sovereign  who  par- 
 dons a  downright  murderer,  unless  for  very  momentous 
 reasons,  must  be  ashamed  of  himself,  if  he  has  any  feel- 
 ing; and  if  he  has  not,  his  subjects  must  despise  him 
 at  heart,  and  foreigners  will  do  so  openly.  If  we  only 
 read  the  parellels  which,  on  occasion  of  Lord  Ferrers 
 execution,  were  drawn,  in  the  English  newspapers,  be- 
 tween George  II.  and  a  certain  foreign  potentate,  who 
 is  said  to  have  thrice  pardoned  a  murderer  of  rank,  for 
 three  most  atrocious  murders,  we  shall  not  require  any 
 farther  illustration  of  this  point,  but  be  convinced  that 
 the  king,  who  entertains  becoming  respect  for  the  senti- 
 ments of  the  public,  and  wishes  to  avoid  that  punishment 
 
Art.  275.  2  The  lings  of  Israel  pardoned  Criminals.  241 
 
 which,  in  the  voice  of  public  disapprobation,  reaches 
 even  a  sovereign,  will  not  be  apt  to  abuse  the  right  of 
 pardon.  It  is  quite  otherwise  where  the  matter  rests  with 
 the  nearest  kinsman.  A  misconception  of  moral  duty, 
 or  a  stupid  religion,  such  as  is  the  Mahometan,  in  the 
 point  in  question,  may  delude  him  into  the  idea,  that  he 
 ought  to  be  merciful  and  forgiving;  and,  among  a 
 people  not  vindictive,  but  magnanimous,  honour  itself 
 may  interfere,  and  represent  to  him,  as  the  injured 
 person,  how  noble  it  would  be  to  intercede  for  the 
 murderer  ;  in  either  of  which  cases,  men's  lives  would 
 be  but  very  imperfectly  secured  indeed. 
 
 3.  Finally,  when  a  man,  for  a  sum  of  money,  remits 
 to  a  murderer  the  blood  of  his  father,  his  son,  his  bro- 
 ther, or,  in  general,  of  his  nearest  relation,  he  is  guilty 
 of  a  very  mean  action.  It  looks  as  if  he  were  the 
 slave  of  avarice  ;  and  many,  in  such  cases,  actually 
 shew  themselves  to  be  so.  The  character  of  the  na- 
 tion, at  last,  becomes  tainted,  where  numerous  exam- 
 ples of  such  baseness  are  exhibited.  Whereas,  in  re-^ 
 gard  to  the  exercise  of  the  right  of  pardon,  the  case 
 is,  as  before,  quite  different ;  for  it  is  obvious  that 
 pardons  are  granted  gratis,  and  will  not  be  sold  by  a 
 prince,  as  if  he  were  in  want  of  money  to  relieve  his 
 hunger.  If,  for  example,  a  king  pardons  the  man 
 who  has  stabbed  another  in  a  duel,  it  proceeds  from 
 consideration  of  the  circumstances  in  which  a  duellist 
 is  placed,  and  of  the  unfortunate  weakness  and  ineffi- 
 ciency of  the  laws. 
 
 That  the  Israelitish  monarchs  exercised  the  right  of 
 pardon,  appears  certain,  from  the  history  of  Absalom's 
 pardon,  in  the  xivth.  chapter  of  2  Samuel.     Had  this 
 
 VOL.  iv.  <i 
 
242  On  What  fooling  Absalom  was  pardoned.  [Art.  275. 
 
 been  nothing  more  than  a  father  pardoning  his  son,  it 
 might  be  said,  this  was  quite  a  singular  case,  in  which 
 paternal  love  set  aside  the  law  ;  and  this  is  the  light 
 in  which  expositors  have  commonly  viewed  it,  and 
 then  made  theological  remarks,  from  the  consequences 
 of  the  pardon,  as  to  its  legality  ;  but  let  the  reader  at- 
 tend to  the  whole  story,  and  then  judge  for  himself. 
 Absalom,  had,    after  long  premeditation,  insidiously 
 perpetrated  the  crime  of  murder,  indeed,  of  fratricide  : 
 and  as  his  father  would  not  pardon  him,  he  was  under 
 the  necessity  of  fleeing  from  his  native  country,  and 
 he  found  protection  from  his  maternal  grandfather, 
 the  king  of  Geshur.     Joab,  who  wished  to  reconcile 
 him  with  his  father,  but  durst  not  attempt  to  intercede 
 for  him  directly  himself,  endeavoured,  first  of  all,  to  ob- 
 tain for  another  pretended  fratricide  a  pardon,  which  he 
 might  afterwards  apply  to  the  case  of  Absalom.     For 
 this  purpose,  a  widow,  whom   he  had  previously  in- 
 structed how  to  play  her  part,  fell  at  the  king's  feet,  and 
 represented  to  him,  in  all  the  bitterness  of  grief,  that 
 she  had  had  two  sons,  who  quarrelled  in  the  fields, 
 while  no  one  was  near,  and  that  the  one  had  slain  the 
 other ;  and  that  now  the  whole  family  were  clamor- 
 ous for  the  punishment  of  the  slayer,  and  would  thus, 
 as  she  expressed  it,  extinguish  her  last  spark*    Now 
 Joab,  in  planning  this  scheme,  must  have  known  that 
 the  king  claimed,  and  sometimes  actually  exercised  a 
 right  of  pardon,  else  it  would  have  been  a  very  strange 
 method  indeed,  for  procuring  Absalom's  forgiveness. 
 It  would  seem,  that  he  only  meant  to  move  him  by 
 this  fictitious  tale,  and,   at  the  same  time,  to  mak& 
 him   sensible,  that  it  was  neither  repugnant  to  his 
 
Art.  275.]    Joab's  Device  to  obtain  his  Pardon,      243 
 
 honour,  as  the  father  of  the  murdered  Amnon,  nor 
 yet  to  his  love  of  justice,  as  a  king,  to  do  that  for 
 his  own  son,  which  he  would  have  done  in  the  case  of 
 an  entire  stranger,  where  he  was  quite  impartial. 
 Nor  was  Joab  deceived  in  his  expectation  :  for  David 
 pardoned  the  pretended  fratricide.  The  woman  upon 
 this,  in  a  very  piteous  style,  expressed  her  fears  of  the 
 blood-avenger  still  circumventing  and  killing  her  son, 
 notwithstanding  the  royal  pardon  ;  but  David  told 
 her,  she  had  only  to  let  him  know  of  any  person,  who 
 dared  to  speak  one  word  on  that  subject,  and  he  would 
 take  sufficient  care,  that  he  should  not  repeat  it.  Not 
 satisfied,  however,  with  this,  she  still  importuned  the 
 king  with  her  pretended  fears  for  her  son,  until  at 
 last,  he  swore  an  oath,  that  he  should  be  safe.  She 
 now,  it  would  seem,  had  obtained  what  she  aimed  at ; 
 for  she  instantly  proceeded  to  apply  her  story  to  the 
 case  of  Absalom ;  telling  the  king  that  the  whole  people 
 of  Israel  had  been  doing  for  him,  what  she  had  done, 
 and  had  besought  the  king  to  pardon  him  ;  but  that 
 he  had  hitherto  acted  like  a  cruel  blood-avenger,  and 
 sought  his  blood.  In  short,  she  effected  what  Joab 
 hoped  for,  the  pardon  of  Absalom*. — No  doubt,  we 
 might  say,  with  regard  to  this  fictitious  case,  of  one 
 brother  slaying  another  in  the  field,  that  it  might 
 admit  a  question,  whether  by  our  laws  it  would  have 
 amounted  to  a  homicidium  doloswn  qiialificatum  ;  and 
 
 Q  2 
 
 *  See  more  on  this  point,  in  the  Second  Edition  of  my  Disserta- 
 tions De  Pizna  Hcmicidii  (in  the  first  part  of  the  Syntasma  Commentd- 
 tianuth.)  $  34, — 37. 
 
244  The jictilious  case  not  quite parallel,  Sp,  [Art,  275. 
 
 this  would  depend  upon  circumstances  :  but  we  see, 
 at  any  rate,  that  it  was  a  murder,  to  which,  according 
 to  the  common  law  of  those  times,  the  punishment  of 
 death  was  annexed,  else  it  would  not  have  required  a 
 pardon.  The  murder,  however,  to  which  the  pleader 
 made  the  application,  was  not  only  a  homieidium  quali- 
 fication in  the  utmost  sense  of  the  term,  but  even  a 
 most  insidious  assassination,  perpetrated  at  the  dis- 
 tance of  two  years  from  the  time  of  the  injury  that 
 prompted  it,  and  not  by  the  hand  of  Absalom  him- 
 self, but  by  his  servants,  when  the  wink  was  given 
 them  for  the  purpose.  True  it  is,  that  Absalom  had 
 been  deeply  injured  by  Amnon  in  the  dishonour  of 
 his  uterine  sister  j  for  which  Amnon  (and  here  we 
 must  say,  David  shewed  too  much  lenity,)  had  not 
 been  punished  :  but  then  Absalom  had  not  complain- 
 ed :  and,  at  any  rate,  assassination  was  still  assassina- 
 tion. Nevertheless,  David,  by  his  indulgence  to 
 Amnon,  in  not  taking  cognizance  of  his  crime,  had 
 so  great  a  share  in  the  blame  of  all  the  misery  to  which 
 it  gave  birthi  that  if  he  had  the  right  of  pardon,  there- 
 were  here,  to  all  appearance,  good  reasons  for  exercis- 
 ing it. 
 
 That  the  kings  thought  themselves  possessed  of  this 
 right,  is  undeniable,  from  the  story  now  related  ;  but, 
 whether  they  were  correct  in  thinking  so,  might,  per- 
 haps, admit  of  a  question  :  nor  can  I  bring  foward 
 any  thing  decisive  on  the  subject.  That  there  should 
 exist  a  right  of  pardon  somewhere  in  the  government, 
 appears  almost  obvious,  because  (as  we  have  noticed 
 in  Art.  X.)  extraordinary  cases  may  occur,  which 
 require  pardon.     Moses,  it  is  true,  says  not  a  syllable 
 
Art.  275.]  People  should  have  no  tight  to  Pardon.  24.3 
 
 concerning  such  a  right ;  and  it  is  as  true,  of  course, 
 that  he  has  nowhere  conferred  it  upon  the  king  :  but 
 then  this  is  neither  wonderful,  nor  are  we  to  draw  any 
 conclusion  from  it;  because  he  did  not  establish  any 
 king,  but  left  the  people  with  a  mixed  government, 
 partly  democratical   and  partly  aristocratical.     And 
 under  such  circumstances  it  was  better  for  him  to  say 
 nothing  concerning  a  right  of  pardon,  unless  he  meant 
 to  condemn  it,  even  in  the  most  extraordinary  cases ; 
 because  in  the  hands  of  the  people  it  is  a  very  dan- 
 gerous weapon  indeed,  in  consequence  of  their  being 
 too  apt  to  exercise  such  rights  in  too  arbitrary  a  man- 
 ner, and  under  the  influence  of  favour  and  partiality, 
 often  proceeding  from  causes  utterly  unaccountable. 
 Wilkes  might  have  committed  as  many  murders  as  he 
 pleased,  had  the  mob  of  London  (I  do  not  say,  the 
 people  of  England — and,  besides,  as  I  write  this  in 
 1774,  the  case  may  now,  in  the  course  of  six  years,  be 
 very  different)  possessed  a  jus  adgratiandi ;   for  they 
 would  have  pardoned  him  them  all.     Under  such  cir- 
 cumstances, the  most  atrocious  criminal,  who  happens 
 to  have  popular  relations,    or   who  can    only  excite 
 pity,  or  whose  advocate  understands  the  art,  (and  to 
 courts,  and  for  the  purposes  of  deliberate  justice,  it  is 
 a  most  mischievous  art,)  of  moving  the  passions,  will 
 be  sure  to  escape  with  impunity.     Where  a  govern- 
 ment, therefore,  inclines  to  democracy,  it  were  better 
 that  the  people  (though  they  may  have  it)  knew  of  no 
 right  of  pardon,  but  regarded  the  laws  as  absolutely 
 indispensable  :    for  they  will,  notwithstanding,   exer- 
 cise it,  when  any  extraordinary  case  occurs,  and,  in  all 
 probability,  do  so  but  too  often.     In  the  hands  of  a 
 
 Q3 
 
246  Inference  from  Samuel's  conduct     [Art.  276. 
 
 king,  however  bad,  it  is  not  liable  to  such  abuses.  Per- 
 haps, indeed,  where  a  king  is  too  weak  and  good- 
 hearted,  and  wishes  to  be  gracious  par  force,  it  may 
 Sometimes  be  abused  ;  but  still  never  so  frequently,  or 
 so  far,  as  in  a  democratical  government. 
 
 From  the  perfect  silence  of  Moses  on  the  subject, 
 and  from  the  confidence  with  which  it  was  believed  in 
 the  time  of  David,  that  the  kings  possessed  the  right 
 of  pardon,  even  in  cases  of  murder  and  homicide,  we 
 would  almost  be  led  to  suppose,  that  it  had  been  con- 
 ferred upon  them  by  the  capitulations  entered  into 
 between  king  and  people,  which  were  mentioned  under 
 Art.  LV.  At  the  making  of  the  first  of  these,  Samuel 
 assisted,  by  God's  command ;  and  thus  it  would  ap- 
 pear, that  it  was  not  contrary  to  the  will  of  the  Al- 
 mighty legislator  of  the  Israelites,  in  whose  name 
 Moses  had  acted,  that  such  a  measure  had  taken  place. 
 
 ART.  CCLXXVI. 
 
 The  mode  of  punishing  Murderers  undetermined,  and 
 lejtin  a  great  measure  to  the  pleasure  of  the  Goel. 
 
 §  5.  How  the  punishment  of  death  was  to  be  in- 
 flicted on  a  murderer,  I  find  nowhere  prescribed  by 
 Moses:  and,  therefore,  it  would  seem,  that  it  had 
 been,  in  a  great  measure  left  to  the  pleasure  of  the 
 nearest  kinsman,  whose  duty  it  was  to  be  its  execu- 
 tioner. 
 
 According,  indeed,  to  the  spirit  of  the  law  in  other 
 instances,  the  jus  talionis  (as  explained  in  Art.  CCXL.) 
 inight  seem  to  have  operated  here  :  so  that  the  mur- 
 
Art.  276.]  If  Murder  punishable  by  Retaliation  ?    24ft 
 
 4erer  would  have  had  to  undergo  the  same  death, 
 which  he  had  inflicted  on  the  murdered  ;  and  this,  no 
 doubt,  speaking  of  the  matter  merely  in  a  theoretical 
 way,  might,  by  no  means,  be  an  improper  law,  in  the 
 view  at  least  of  deterring  those  who  perpetrated  mur- 
 der, from  being  at  the  same  time  guilty  of  cruelties  in 
 doing  so.  But  then  it  can  never  go  beyond  theory  : 
 for  seldom,  indeed,  can  the  fatal  blow,  or  wound,  be 
 accurately  imitated,  so  as  at  the  same  time  to  prove 
 mortal.  In  many  cases  we  cannot  know  what  the 
 murdered  person,  who  can  no  longer  speak,  suffered, 
 nor  how  long  he  suffered ;  upon  which,  however,  the 
 matter  chiefly  depends ;  and,  besides,  a  murder  is 
 sometimes  perpetrated  in  such  a  painful  and  horrible 
 manner,  that  were  its  tortures  anticipated,  and  to  be 
 repeated  in  cold  blood,  they  would  be  infinitely  aggra- 
 vated— to  a  pitch,  indeed,  disgraceful  to  humanity, 
 productive  of  public  disapprobation,  and  calculated 
 at  last  only  to  harden  the  feelings  of  the  people  ;  and 
 where  these  effects  take  place,  punishments  no  longer 
 attain  their  end.  Let  the  reader  call  to  mind,  what  I 
 have  already  observed,  when  treating  of  the  law  of  re- 
 taliation, concerning  the  high  degree  to  which  sensibil- 
 ity is  increased,  when  the  pain  of  blows,  or  any  other 
 punishment,  hangs,  as  it  were,  over  the  criminal's 
 head. 
 
 We  must  recollect  too,  that  the  Goelwas  authorized, 
 and,  by  the  point  d'honneur,  even  obliged  to  put  the 
 murderer  to  death,  wherever  he  found  him  :  and  as 
 the  latter,  when  attacked,  would  not  probably  always 
 submit  quietly  to  be  butchered,  and  without  making 
 any  resistance,  the  former,  of  course,  could  aot  requite 
 
 q  4 
 
248  Strict  Retaliation  in  some  cases  justifiable.  [Art.  276. 
 
 him  like  for  like  ;  but  would  be  glad  to  dispatch  him 
 with  whatever  wounds  lie  could  inflict,  however 
 speedy  and  painless  his  death  might  prove.  This 
 may  often  have  taken  place  among  the  Israelites, 
 even,  where  the  murderer  was,  by  a  judicial  deliver- 
 ance, given  up  to  the  vengeance  of  the  GoeL  Such, 
 at  least,  is  the  case  in  the  East  at  this  day,  where 
 relations  are  the  executioners  of  capital  punishments. 
 For  Char  din,  in  the  Second  Part  of  his  Persian  Travels, 
 p.  SOO.  relates,  that  a  man,  who  murdered  a  young 
 husband,  because  he  would  not  join  him  in  some 
 shameful  crime,  was  instantly  attacked  by  his  wife, 
 mother,  and  sister,  who  dispatched  him  with  daggers, 
 and,  out  of  revenge,  drank  his  blood.  And  he  also 
 relates  p.  109.,  that  a  man,  who  had  killed  his  wife, 
 having  been  delivered  into  the  hands  of  his  father-in- 
 law  for  execution,  the  latter  proceeded,  as  if  he  had 
 been  to  slaughter  an  ox,  holding  him  by  the  head, 
 while  the  mother-in-law  cut  his  throat  with  a  knife. 
 
 The  infliction,  however,  of  exquisite  and  tedious 
 torments  had  not,  in  all  probability,  been  permitted 
 to  the  Goel,  when  the  magistrate  delivered  the  mur- 
 derer into  his  hands ;  except,  perhaps,  in  the  case  of 
 his  having  himself  inflicted  them  on  the  murdered  ; 
 in  which  case  I  certainly  should  not  consider  them, 
 on  the  principle  of  the  jus  talionis,  as  by  any  means 
 unsuitable  to  the  spirit  of  the  Mosaic  law  :  and,  in- 
 deed, without  any  reference  to  that  law,  it  seems 
 both  natural  and  reasonable,  that  the  murderer,  who 
 kills  his  neighbour  by  painful  and  exquisite  tortures, 
 should  be  punished  with  more  severity  than  the  man, 
 who,  without  putting  him  to  much  pain,  dispatches 
 
Art.  276.]   Ripping  up,  a  common  Punishment.         249 
 
 him  as  quickly  as  possible.  If  no  such  distinction  is 
 made,  we  shall  sometimes  find  that  robbers  will  take 
 pleasure  in  prolonging  the  tortures  of  the  unfortunate 
 victims  of  their  barbarity  :  and  the  only  means  of 
 deterring  from  the  practice  of  such  cruelties,  is  by  re- 
 gulating the  punishment,  according  to  the  nature  of 
 the  murder;  and  by  observing  the  law  of  retaliation, 
 if  not  with  perfect  strictness,  which  would,  in  some 
 cases,  be  almost  too  horrible,  at  any  rate,  by  approxi- 
 mating to  it  in  similarity  of  punishment  to  a  certain 
 degree. 
 
 But  what  if  there  was  nothing  of  all  tin's  in  the 
 case  ? — if  the  wound  was  very  simple,  and  the  mur- 
 derer happened  to  be  delivered  up  to  a  Goel,  who 
 had  no  inclination  to  butcher  him  ?  What  happened 
 in  this  case  ?  He  took  off  his  head  perhaps?  I  should 
 scarcely  think  so ;  for  this  is  a  punishment  which 
 requires  more  skill  and  practice  in  executions,  than  the 
 blood-avenger  might  happen  to  possess.  It  is  more 
 probable  that  he  ripped  him  up,  in  the  good  Japanese 
 fashion ;  for  this  was  a  process  that  seems  to  have 
 been  pretty  common  among  the  Israelites,  and  in 
 which,  of  course,  they  were  very  dextrous ;  and  as 
 murders  may  have  been  frequently  perpetrated  in  this 
 manner,  the  punishment  of  ripping  up  would  be  a 
 proper  retaliation.  —  For  farther  particulars  on  this 
 subject,  the  reader  is  again  referred  to  §  27.  of  the 
 Dissertation,  De  porna  homicidii,  already  so  often 
 quoted. 
 
250  Killing  a  Slave.  [Art.  277. 
 
 ART.  CCLXXVII. 
 
 An  Exception  to  the  Severity  of  the  Law,  in  the  case  of 
 a  Servant  or  a  Maid. 
 
 §  6.  Although  a  man  had  struck  any  of  his  slaves, 
 ■whether  male  or  female,  with  a  stick,  so  as  to*  cause 
 their  death,  unless  that  event  took  place  immediately, 
 and  under  his  hand,  he  was  not  punished.  If  the 
 slave  survived  one  or  two  days,  the  master  escaped 
 with  impunity:  it  being  considered,  that  his  death 
 might  not  have  proceeded  from  the  heating,  and  that 
 it  was  not  a  master's  interest  to  kill  his  slaves,  because, 
 as  Moses  says  (Exod.  xxi.  20,  21.),  they  are  his  money. 
 
 In  general,  slaves  have  not  equal  political  rights 
 with  free  citizens  in  any  country  ;  and  hence  we  find 
 that,  by  the  laws  of  the  Koran,  which  Mahomet  prin- 
 cipally adopted  from  the  more  ancient  usages  of  the 
 Arabs,  the  retribution  of  capital  punishment,  in  cases 
 of  murder,  only  takes  place,  when  a  free  man  kills  a 
 free  man,  or  a  slave  a  slave,  but  not  when  a  tree  man 
 kills  a  slave  *.  This  alone,  however,  amounts  only  to 
 a  mitigation  of  the  punishment,  and  not  to  absolute 
 impunity.  But  it  is  farther  to  be  observed,  that  it  is 
 the  master  who  is  here  spoken  of  as  beating  his  own 
 slave,  and  that  the  instrument  of  chastisement  is  spe- 
 cified, viz.  a  stick  ;  so  that  the  law  does  not  extend  to 
 the  case  of  his  punishing  him  in  a  manner  utterly  un- 
 usual, such  as  that,  for  instance,   of  running  him 
 
 *  Koran,  Sura  ii.  173. 
 
Art.  277.]  Right  of  chastising  Slaves  necessary.       251 
 
 through  the  body  with  a  sword,  or  breaking  his  skull 
 with  an  axe.  In  every  nation  where  slavery  is  esta- 
 blished, a  master  must  have  a  right  to  chastise  his 
 slaves.  If  they  are  obstinate,  and  provoke  him  into 
 a  passion,  his  blows  may  prove  fatal,  contrary  to  his 
 inclination  ;  but  a  predetermination  to  kill  a  slave, 
 will  not  be  imputed  to  him  ;  because  slaves  are  worth 
 money,  and  when  they  die  he  is  a  loser.  And  even  if 
 through  passion  he  has  exceeded  the  legal  degree  of 
 discipline,  he  is  sufficiently  punished  in  the  loss  of  his 
 slave. 
 
 If  the  slave  died  under  his  master's  hand,  while 
 beating  him,  or  even  during  the  same  day,  his  death 
 was,  as  Moses  says,  to  be  avenged ;  but  in  what  man- 
 ner he  does  not  mention ;  nor  can  I  suppose  that  it 
 was  by  a  capital  punishment ;  because,  on  the  one 
 hand,  the  aboveinentioned  law  of  the  Arabs,  who  were 
 so  nearly  related  to  the  Israelites,  stands  in  opposition 
 to  such  an  idea,  and  leads  us  rather  to  conjecture  a 
 more  lenient  procedure ;  besides,  that,  on  the  other 
 hand,  to  have  punished  the  master  capitally,  would 
 really  have  been  unjust.  For  if  he  has  a  right  to  beat, 
 and  to  beat  severely,  (and  without  such  a  right,  slavery 
 can  hardly  subsist,  particularly  where  captives  taken 
 in  war  are  enslaved,)  as  there  may  be  slaves  who  rebel 
 under  correction,  and  by  their  insolent  language  pro- 
 voke him  to  such  a  degree  that,  in  the  excess  of  his 
 rage,  he  may  happen  to  give  one  of  them  such  a  blow 
 with  his  stick  (certainly  not  in  itself  a  marderous  wea- 
 pon,) as  to  kill  him  on  the  spot ;  it  were  very  hard 
 indeed,  that,  for  a  mere  excess  in  a  permitted  act,  he 
 should  be  condemned  to  atone  with  his  life.     I  there- 
 
252  Israelitish  Servants  protected.       [Art.  277- 
 
 fore  suspect,  that  in  such  a  case,  the  Israelitish  master 
 was  subjected  only  to  an  arbitrary  punishment,  which, 
 according  to  the  variation  of  circumstances,  was  re- 
 gulated by  the  pleasure  of  the  judge. 
 
 The  law,  moreover,  seems  to  apply  only  to  perfect 
 slaves,  not  to  those  of  Israelitish  descent ;  for  the 
 Hebrew  servant,  as  we  have  seen  in  Art.  CXXVIL, 
 was  regarded  not  as  a  servant^  but  as  a  day-labourer, 
 hired  for  six  years,  and  previously  paid  for ;  and  so 
 did  not  lose  his  civil  rights,  nor  durst  his  master 
 harshly  lord  it  over  him  ;  and  consequently,  the  legis- 
 lator did  not,  as  in  the  case  of  the  foreign  slave,  pre- 
 suppose the  existence  of  the  master's  right  to  beat 
 him,  and  to  beat  him  severely ;  although  neither  did 
 he,  by  any  express  law,  deprive  him  of  it.  A  lawyer 
 would  perhaps  say,  he  did  not  know,  that  the  master 
 can  beat  him  ;  and  if  any  misfortune  ensued  from  his 
 chastisement,  it  of  course  exceeded  what,  all  circum- 
 stances considered,  was  usual.  The  servant's  nearest 
 kinsman,  or,  in  other  words,  his  Goel,  who,  in  matters 
 of  blood,  was  so  formidable  a  character  among  the 
 people  of  Israel,  would  not,  at  any  rate,  forego  \\w 
 right,  nor  could  the  master,  who  had  killed  his  servant, 
 be  secure  from  his  vengeance,  unless  he  fled  to  a  city 
 of  refuge ;  and  even  then,  whether  he  would  be  there 
 admitted  and  protected,  depended  on  the  investiga- 
 tion of  the  circumstances  of  the  case.  I  suspect, 
 therefore,  that  masters  were  thus  pretty  much  put 
 on  their  guard  against  beating  their  Israelitish  ser- 
 vants to  death.  —  Some  other  particulars  connected 
 with  this  subject,  but  relating  more  immediately  to 
 the  opinions  of  the  Rabbins,  and  probably,  therefore. 
 
Art.  278.]    Expiation  of  an  unknown  Murder.        253 
 
 less  interesting  to  most  of  the  readers  of  the  present 
 work,  will  be  found  in  §  29.  of  my  Commentationcs  de 
 poena  homicidii. 
 
 That  the  person  who  killed  a  thief  in  day-light  was 
 punished,  but  probably  not  capitally,  has  been  already 
 noticed  in  Art.  CCLXXIII. 
 
 ART.  CCLXXVIII. 
 
 Of  the  Expiation  of  an  unknown  Murder,  and  the  Peo- 
 ple's Solemn  Acknowledgment  of  their  Ignorance  of 
 the  Perpetrator. 
 
 §  7.  In  order  to  increase  their  abhorrence  of  mur- 
 der and  homicide,  and  to  represent  it  as  polluting  both 
 the  land  and  the  people  ;  or,  in  other  words,  in  order 
 not  only  to  deter  them  from  murder,  but  (much  as 
 informers,  in  other  cases,  were  discountenanced,)  to 
 make  every  man,  who  knew  any  thing  of  a  murder, 
 disposed  to  give  every  information  concerning  it,  there 
 was,  in  the  case  of  a  murdered  person  being  found  in 
 the  fields,  and  his  murderer  remaining  unknown,  a 
 certain  ceremonial  ordained,  by  way  of  expiation  ;  in 
 which  we  can  trace  some,  but  yet  not  a  perfect,  re- 
 semblance to  the  purifications  in  use,  in  such  cases, 
 among  other  ancient  nations.  The  statute  relative  to 
 it  is  recorded  in  Deut.  xxi.  1, — 9.  Such  ceremonies 
 must  ever  be  adapted  to  the  circumstances  of  the  cli- 
 mate and  the  times  ;  but  it  would  appear,  in  general, 
 that  the  people  of  the  more  southern  countries  of  Asia 
 must  be  more  influenced  by  sensible  impressions  than 
 we  are  j  and  that  the  more  the  world,  or  a  nation  is  in  a 
 
2S4  The  Ceremonial  on  that  Occasion.    [Art.  278. 
 
 state  of  infancy,  in  other  words,  the  more  ancient 
 the  times  are,  so  much  the  more  necessary  do  such 
 impressions  become. — I  now  proceed  to  detail  the 
 particulars  of  the  ceremonial  in  question. 
 
 When  a  person  was  found  murdered  in  the  fields, 
 his  murderer  remaining  unknown,  and  suspicion  at- 
 taching to  no  individual,  the  first  thing  done,  was  to 
 ascertain,  by  a  mensuration,  to  which  city  the  corpse 
 lay  nearest ;  after  which,  the  elders  of  that  city,  or,  as 
 we  would  say,  the  magistrates,  were  obliged  to  expiate 
 the  guilt  of  the  murder  in  the  following  manner;  not 
 indeed  by  any  peculiar  offering,  (for  offerings  could 
 only  be  made  in  the  sanctuary,  Art.  CLXXXVIII. ;) 
 but  by  something  resembling  an  offering;  and  they 
 were  at  the  same  time  obliged  to  make  a  solemn  avow- 
 al of  their  utter  ignorance  of  the  murderer. 
 
 They  had  first  to  seek  out  a  stream  that  never  dried 
 up  throughout  the  whole  year,  and  whose  bed,  of 
 course,  could  never  be  plowed  nor  cultivated.  Now, 
 in  Palestine,  and  still  more  in  Arabia,  there  are  many 
 streams  that  are  quite  dry  in  summer,  and  many 
 which,  though  flowing  at  that  season,  nevertheless  dry 
 up  in  October,  and  do  not  begin  to  flow  again  until 
 November  or  December ;  and  there  are  many  dales  of 
 considerable  breadth,  which,  though  in  the  rainy  sea- 
 son they  convey  streams  of  water,  are  at  other  times 
 cultivated*.     All  such  streams  and  dales  were  here 
 
 *  To  prevent  the  reader  from  thinking  that  I  may  here  have  made  a 
 mistake,  I  must  make  some  remarks  on  the  weather  in  these  coun- 
 tries. There  is  no  rain  almost  through  the  whole  summer,  so  that 
 many  streams  dry  up  ;  but  those,  of  which  the  sources  are  in  deeper- 
 lying  springs,  hold  out  perhaps  till  September;  in  the  course  of 
 
Art.  278.]     Such  a  Law  would  tiow  be  useless.        255 
 
 excepted,  and  the  elders  had  to  look  out  for  a  peren- 
 nial stream,  perhaps  at  a  considerable  distance  from 
 the  city,  and  there  to  perform  the  ceremonial ;  which 
 was,  taking  a  heifer  that  had  never  worked,  either  in 
 plowing,  or  drawing  a  yoke,  and  slaughtering  her 
 over  the  stream,  in  such  a  manner  as  that  the  water 
 might  float  away  the  blood,  and  leave  none  of  what 
 represented  the  impure  blood  of  the  murderer,  to  pol- 
 lute the  land.  This  done,  the  elders  were,  in  the  pre- 
 sence of  the  priests,  who  accompanied  them  thither  for 
 the  purpose,  to  wash  their  hands  in  the  stream,  over 
 the  slaughtered  heifer,  and  say,  Our  hands  have  not 
 shed  this  blood,  nor  have  our  eyes  seen  it  shed ;  Jorgive 
 it,  0  God,  to  thy  people  whom  thou  hast  redeemed,  and 
 impute  it  not  as  blood-guiltiness  to  Israel. 
 
 Among  us,  a  ceremony  like  this  would  be  quite 
 useless  ;  for  even  upon  the  common  people,  at  least  in 
 Northern  Germany,  ceremonies  make  no  very  strong 
 impression.  They  are  more  given  to  reasoning,  and 
 rather  disposed  to  censure  them.  But  if  a  corpse  be 
 found  in  the  fields,  it  is  instantly  made  known  by  a 
 variety  of  accounts  from  the  press  ;  and  the  neigh- 
 bouring magistrates  required  to  give  information,  if 
 
 which  month,  and  of  October,  there  is  usually  some  rain,  but  so  little, 
 that  it  cannot  reach  the  springs;  and  hence  still  more  of  the  streams 
 are  drying  up  every  day ;  so  that  in  the  month  of  October  none  are 
 to  be  found,  except  those  that  are  truly  perennial.  With  us,  there 
 is  generally  more  rain  in  October;  but  in  dry  seasons,  our  brooks 
 are  generally  smallest  in  September,  if  not  quite  dried  up.  The 
 reader  here,  may  recollect  the  state,  in  ordinary  years,  of  a  stream  in 
 the  immediate  vicinity  of  Gottingen  ;  that,  namely,  which  runs  be- 
 tween our  citv  and  Wehnde, 
 
256       Punishment  of  unintended  Homicide.  [Art.  2*79. 
 
 suspicion  of  having  been  the  perpetrator,  lights  upon 
 any  particular  individual.  No  such  thing,  however, 
 could  then  take  place,  in  those  times,  when  the  world 
 had  neither  printing  nor  newspapers,  nor  any  of  the 
 modern  means  of  communicating  intelligence  ;  and 
 least  of  all,  under  a  democratic  government,  in  which, 
 moreover,  every  city  was  in  some  measure  a  free  re- 
 public, and  not  so  closely  connected  with  the  rest,  as 
 is  the  case  with  us.  These  ceremonies,  therefore, 
 were  then  useful,  in  contributing  to  place  men's  lives 
 in  greater  security. 
 
 ART.  CCLXXIX. 
 
 The  Punishment  of  unintended  Homicide  was  Relegation, 
 and  Confinement  in  a  City  of  Refuge. 
 
 §  8.  For  an  act  of  homicide,  that  took  place  acci- 
 dentally, and  without  any  injurious  design,  there  was 
 appointed  a  punishment,  not  only  necessary,  according 
 to  the  then  notions  of  the  point  of  honour,  for  the 
 security  of  the  unfortunate  manslayer  ;  but  likewise 
 useful  for  the  better  prevention  of  all  such  rash  and 
 imprudent  actions,  as  might  endanger  the  lives  of 
 other  men.  Whoever  had  the  misfortune  to  deprive 
 his  neighbour  of  life,  either  by  his  axe  slipping  from 
 orTthe  helve,  or  by  any  similar  accident,  was,  in  order 
 to  avoid  the  vengeance  of  the  Goel,  who  had  a  right 
 to  kill  him,  obliged  instantly  to  flee  into  one  of  the 
 six  cities  of  refuge,  and  there  to  remain,  until  the 
 death  of  the  high-priest ;  when  an  amnesty  of  the 
 transgression  took  place,  and  the  right  of  blood-avenge. 
 
Art.  279.]   Punishment  of  unintended  Homicide.      251 
 
 merit  ceased.  But  if  at  any  time  previous  to  this 
 event,  he  went  beyond  the  limits  of  his  asylum,  that 
 is,  beyond  a  thousand  ells  from  the  city-walls,  the 
 Goel,  if  he  met  him,  had  a  right  to  kill  him,  without 
 incurring  any  punishment.  The  statutes  on  this  point 
 are  recorded  in  Exod.  xxi.  13.  Numb.  xxxv.  9, — 35. 
 Deut.  xix.  1, — 13. 
 
 This  was  not  a  very  pleasant  predicament  to  be 
 placed  in.  In  fact,  it  was  a  sort  of  relegation,  or  exile 
 from  his  home,  and  the  more  attended  with  inconve- 
 nience and  disadvantage,  that,  in  general,  every  Is- 
 raelite had  his  paternal  field  in  his  possession ;  which, 
 of  course,  he  could,  in  such  a  case,  no  longer  culti- 
 vate himself,  but  would  be  under  the  necessity  of  sel- 
 ling its  crops  to  another,  to  the  loss  both  of  the  profits 
 he  might  derive  from  his  own  labour,  and  of  the  mo- 
 ney that  he  might  otherwise  be  in  the  way  of  making. 
 In  fact,  he  was  obliged  to  leave  house  and  home,  and 
 to  hire  himself  out  in  some  one  of  the  six  sacerdotal 
 cities,  which  were  the  places  of  refuge,  and  there  labour 
 for  his  bread,  instead  of  consuming  the  fruits  of  his 
 industry  with  his  family,  and  among  his  relations. — Nor 
 could  the  society  to  be  found  in  such  a  place,  and  con- 
 sisting of  entire  strangers,  and  persons  of  quite  a  dif- 
 ferent class,  or  of  fugitives,  like  himself,  from  different 
 corners,  be  very  agreeable  ;  and  indeed,  if  I  may  judge 
 from  my  own  feelings,  that  species  of  confinement 
 which  precluded  him  from  venturing  more  than  a 
 thousand  ells  without  the  walls  of  a  little  town,  unless 
 at  the  risk  of  his  life,  could  not  fail  to  be  the  most 
 vexatious  circumstance  of  all.  So  that  even  his  secu- 
 rity in  this  asylum  was,  without  doubt,  most  irksome," 
 
 VOL,  iv,  R- 
 
258       Necessity  of  Asylums  in  those  times,  [Art.  279. 
 
 and  equal  to  a  severe  punishment ;  and  I  suppose,  those 
 who  were  obliged  to  put  up  with  it,  would  be  very  apt 
 most  heartily  to  wish  the  high-priest  at  his  life's  end. 
 
 The  state  of  things,  however,  really  rendered  com- 
 pliance with  these  disagreeable  restraints  absolutely 
 necessary  j  for  the  unfortunate  manslayer,  in  conse- 
 quence of  the  point  dy  honneur  of  Goelism,  could  not 
 have  been  safe  out  of  a  city  of  refuge,  whatever  pro- 
 vision besides  the  legislator  had  made  for  his  security. 
 (Art.  CXXXL— CXXXVI.)  In  order,  therefore,  to 
 prevent  new  acts  oireal  murder,  and  homicide,  which 
 the  laws  could  not  punish,  Moses  was  under  the  neces- 
 sity of  punishing  accidental  homicide  with  exile  in  a 
 city  of  refuge  j  just  as  in  Portugal,  when  a  man  in- 
 jures his  neighbour  in  a  way  that,  according  to  the 
 point  of  honour  in  that  country,  requires  to  be  avenged, 
 he  must  make  his  escape,  and  go  abroad,  if  he  wishes 
 to  save  his  life,  because  no  man,  in  such  a  case,  is  al- 
 lowed to  forgive. 
 
 Thus  far,  therefore,  relegation  to  a  city  of  refuge 
 was  merely  a  matter  of  necessity  ;  but  it  would  appear 
 that  the  legislator  applied  this  necessity  to  farther 
 purposes,  and  to  the  better  prevention  of  all  such  in- 
 considerate proceedings,  as  might  be  likely  to  endanger 
 human  life.  Confinement  within  the  narrow  limits  of 
 an  asylum  is  no  doubt  a  severe  punishment  for  a  mere 
 piece  of  inadvertence,  which  happens  to  prove  fatal  to 
 a  neighbour  ;  but  according  to  the  national  ideas  of 
 honour,  it  was  impossible  to  make  it  milder.  Among  us, 
 perhaps,  such  inadvertences  are  but  too  slightly  punish- 
 ed ;  and  hence  we  see  too  many  instances  of  unfortu- 
 nate and  fatal  accidents,  particularly  by  playing  with 
 
Art.  280.]     Carelessness,  a  Cause  of  Death  259 
 
 fire-arms. — But  whatever  was  the  design  of  Moses 
 here — whether  to  punish  the  manslayer  for  his  inad- 
 vertence, so  sensibly,  as  to  make  all  cautious  and  con- 
 siderate ;  or  whether  to  prevent  all  acceptance  of 
 pecuniary  expiation  of  bloodshed,  which  he  expressly 
 disapproved  ;  or  again,  whether  it  was  that  he  con- 
 ceived that  the  manslayer,  even  though  he  paid  such 
 an  expiation,  would  never  be  in  perfect  security  ; — he 
 prohibited  all  pecuniary  negotiation  for  liberty  to  him 
 to  return  to  his  home ;  and  therefore  such  a  man,  if 
 he  wished  to  live  in  safety,  had  no  other  alternative 
 than  to  submit  to  exile  in  a  city  of  refuge,  until  the 
 death  of  the  high-priest ;  Numb.  xxxv.  32. 
 
 ART.  CCLXXX. 
 
 Of  inexcusable  Carelessness,  as  chargeable  with  the  blame 
 of  another  Maris  Death. 
 
 §  9.  When  a  man,  without  having  himself  given 
 the  fatal  blow,  was,  in  consequence  of  gross  careless- 
 ness, the  cause  of  his  neighbour's  death  in  any  other 
 way,  he  became  liable  to  the  cognizance  of  the  law. 
 The  principal  passage  relative  to  this  point,  is  that 
 concerning  the  pushing  ox,  in  Exod.  xxi.  28, — 32. ; 
 according  to  the  analogy  whereof,  it  is  probable,  that 
 procedure  was  also  regulated  in  the  case  of  any  other 
 beast  previously  known  to  be  dangerous,  such,  for 
 instance,  as  a  biting  dog  not  taken  care  of  by  his 
 owner,  and  occasioning  a  man's  death.  I  shall  here 
 give  the  words  of  Moses  himself,  because  it  is  impos- 
 sible to  state  the  case  more  briefly  and  distinctly.     If 
 
 r  2 
 
260    J  Man  or  Beast falling  into  a  Cistern.  [Art.  280. 
 
 an  ox  push  a.  man  or  a  woman,  and  death  ensue,  the  ox 
 shall  be  stoned,  and  its  flesh  shall  not  be  eaten  ;  but  the 
 owner  can  not  be  impeached.  (He  suffered,  however, 
 the  loss  of  his  ox.)  But  if  the  ox  has  been  before  given 
 to  pushing,  and  this  has  been  notified  to  his  owner,  and 
 he  has  not  kept  him  secure  ;  the  ox,  if  he  gore  a  man 
 or  woman  to  death,  shall  be  stoned,  and  the  owner  shall 
 also  die.  If  however,  a  ransom-price  be  imposed  upon 
 him,  he  shall,  for  the  redemption  of  his  life,  pay  whatever 
 sum  may  be  demanded.  The  law  is  the  very  same,  if 
 the  ox  has  gored  a  child,  whether  male  or  female.  But 
 if  he  has  gored  a  slave,  either  male  or  female,  his  owner 
 shall  pay  to  the  slave's  master  thirty  shekels  of  silver,  and 
 the  ox  shall  be  stoned.  Here  again,  it  may  be  remark- 
 ed, by  the  way,  that  the  life  of  a  slave  was  not,  in  point 
 of  value,  placed  on  a  footing  with  that  of  a  citizen. 
 
 In  the  verses  immediately  following,  Moses  ordains, 
 that  the  man  who  does  not  cover  his  cistern,  shall,  if  an 
 ox  or  ass  fall  into  it,  and  be  killed,  pay  for  him  to  the 
 owner,  and  have  the  dead  beast  to  himself.  What 
 was  here  to  happen,  if  a  man  was  killed  by  falling  in  ; 
 whether,  if  a  slave,  he  was  paid  for  at  the  rate  of  thirty 
 shekels,  as  before  ;  or,  if  a- free  man,  the  owner  of  the 
 cistern  had  to  answer  for  his  life  with  his  own,  with 
 the  privilege,  however,  of  saving  himself  by  a  ransom, 
 — cannot  be  discovered  from  the  analogy  of  the  law, 
 because  the  case  here  is  not  parallel.  For  a  man  may 
 take  heed,  and  not  tumble  into  an  open  cistern ;  but 
 a  beast  cannot.  No  doubt,  the  owner  of  an  uncovered 
 cistern  had  to  answer  very  seriously  for  his  careless- 
 ness in  the  case  of  such  fatal  accidents ;  but  it  would 
 appear,  that  Moses  left  the  case,  in  so  far  as  it  re- 
 
.Art.  280.]       Death  by  a  fall  from  a  Roof  361 
 
 garded  the  death  of  a  man,  and  which,  indeed,  might 
 be  of  all  cases  the  most  dubious,  to  be  decided  after- 
 wards, according  to  the  judgment  of  legislative  autho- 
 rity ;  because  it  could  hardly  occur  in  the  wilderness, 
 where  the  people  yet  wandered  about,  without  posses- 
 sing any  property,  and,  of  course,  without  any  of 
 them  having  cisterns  of  their  own.  It  is  only  the 
 clearer  case  of  the  animal,  that  he  previously  decides  j 
 leaving  the  decision  of  the  other  to  future  legislators, 
 according  to  the  circumstances  which  they  might  have 
 laid  before  them,  when  the  people  were  settled  in 
 their  land. 
 
 The  injunction  in  Deut.  xxii.  8.  to  raise  a  parapet 
 around  the  roof  of  a  new-built  house,  that  people 
 might  not  tumble  down,  has  been  already  considered 
 in  Art.  CCXXIII.  If  a  man  neglected  to  raise  such 
 a  parapet,  and  any  person  fell  down,  and  was  killed, 
 the  law  declared  that  the  owner  had  brought  the  guilt 
 of  blood,  not  upon  himself  indeed,  but  upon  his  house. 
 Whether,  and  to  what  extent,  this  offence  was  to  be 
 cognizable  by  the  secular  magistrate,  Moses,  in  like 
 manner,  left  it  to  future  times  to  determine ;  when 
 the  Israelites  should  have  houses,  which  at  present 
 they  had  not  in  the  wilderness.  But  his  very  silence 
 on  the  points  now  mentioned,  is  just  of  that  sort 
 which  we  might  expect,  in  the  case  of  laws  given  in 
 the  wilderness ;  and  it  is  to  be  numbered  among  the 
 internal  evidences  of  the  high  antiquity  and  authen- 
 ticity of  the  Mosaic  writings. 
 
 r  3 
 
262  Injuries  arising  from  Quarrels.    [Art.  281. 
 
 ART.  CCLXXXI. 
 
 The  Punishment  of  Corporal  Injuries, 
 
 §  10.  The  statutes  relative  to  corporal  injuries  are 
 recorded  in  Exod.  xxi.  18, — 27.  Lev.  xxiv.  19,  20,  22. 
 Deut.  xxv.  11,  12.  and  include  the  following  parti- 
 culars. 
 
 If  the  injury  happened  in  consequence  of  a  fray, 
 where  it  may  always  naturally  be  supposed  that  both 
 parties  are  to  blame,  even  though  the  beginner  of  the 
 quarrel,  or  the  first  aggressor,  was  known,  it  was  to 
 be  considered,  that  when  a  fray  was  once  begun,  he 
 had  to  defend  himself,  and  had  not  either  his  blows 
 or  his  passions  in  his  own  power ;  and  therefore  no 
 farther  punishment  was  inflicted  on  the  injurer,  than 
 that  of  being  obliged  to  pay  the  expenses  of  the  other's 
 cure,  and  of  his  bed,  that  is,  probably,  the  loss  of  his 
 time  arising  from  his  confinement;  Exod.  xxi.  18,  19. 
 This  is  a  much  milder  punishment  than  our  laws  usual- 
 ly inflict  in  such  cases. 
 
 If,  however,  a  pregnant  woman  was  hurt,  in  con- 
 sequence of  a  fray  between  two  individuals,  the  mat- 
 ter was  taken  up  much  more  seriously ;  in  theirs* 
 place,  because  she  was  no  party  in  the  fray;  and, 
 secondly,  because  the  law  must  protect  a  woman  in 
 that  helpless  situation,  and  also  the  fruit  of  her  womb, 
 With  pre-eminent  care.  If  the  consequence  only  was 
 her  premature  delivery,  the  author  of  her  misfortune 
 was  obliged  to  give  her  husband  a  recompense  in 
 money,  according  to  his  demand  ;  but  in  order  that 
 
Art.  2S1 .]  Rights  of  Strangers  and  Natives  equal.    263 
 
 his  demand  might  not  be  unreasonable,  if  the  payer 
 thought  it  too  high,  it  was  determined  by  the  decision 
 of  arbiters.  On  the  other  hand,  if  either  the  woman 
 or  her  child  was  in  any  part  hurt  or  maimed,  the  law 
 of  retaliation  operated,  in  the  manner  stated  under 
 Art.  CCXL. ;  an  eye  being  f&i&Jbf  an  eye,  a  toolk 
 for  a  tooth,  a  hand  for  a  hand,  a  foot  for  a  foot,  a  burn 
 for  a  burn,  a  xcoundjbr  a  Kowid,  a  bruise  for  a  bruise  ; 
 and,  as  we  have  seen  in  Art.  CCLXXIII.  it  went  the 
 length  of  even  life  for  life  ;  Exod.  xxi.  22, — 25. 
 
 If  one  hurt  another,  without  having  for  an  excuse 
 that  it  happened  in  a  fray ;  in  other  words,  by  either 
 assaulting  him  openly,  or  by  any  insidious  attack,  the 
 law  of  retaliation  operated  likewise  in  this  case  to  the 
 full  extent  5  Lev.  xxiv.  19,  23.  It  is  observable  that 
 on  occasion  of  giving  this  law,  Moses  expressly  de- 
 clares that  both  foreigners  and  natives  were  to  have 
 equal  rights  in  this  respect ;  and  that  therefore,  if  an 
 Israelite  assaulted  a  foreigner,  the  law  of  retaliation 
 was  to  operate  in  the  very  same  manner,  as  when  the 
 case  was  reversed.  This  is  contrary  to  the  usage  of 
 many  Oriental  nations,  and  more  conformable  to  ours. 
 
 This  equality  of  the  law,  however,  did  not  extend 
 to  slaves,  because  a  master  had  a  right  to  beat  them  5 
 and  our  blows  are  not  always  in  our  own  power,  but 
 may,  contrary  to  our  intention,  hit  our  slave  in  the 
 eye.  If,  however,  a  master  thus  knocked  out  the  eye 
 or  tooth  of  a  siave,  in  return  for  this  injury,  the  slave 
 received  his  freedom  ;  but  no  farther  punishment  was 
 inflicted  on  the  master,  Exod.  xxi.  26,  27.  We  have 
 already  remarked,  in  Art.  CXXV1.,  that  this  rule  was 
 probably  applicable  to  the  mutilation  of  the  other 
 
 R  4 
 
264     A  Practice  among  Israelitish  Women.  [Art.  281. 
 
 organs  of  the  body,  and  that  the  eyes  and  teeth  are 
 merely  specified  as  examples. 
 
 In  Deut.  xxv.  11,  12.  mention  is  made  of  a  practice, 
 at  once  extremely  dangerous,  and  altogether  repug- 
 nant to  decency,  which  must,  however,  have  been  very 
 common  among  the  Israelitish  women,  when  they 
 wished  to  relieve  their  husbands,  on  seeing  them  over- 
 powered, in  a  fray,  by  their  adversaries.  They  laid 
 hold  of  the  victor  by  the  Verenda,  and  thereby  com- 
 pelled him  to  let  go  the  vanquished.  To  put  a  stop 
 to  this  indecent  outrage,  Moses  ordered  it  to  be 
 punished  by  chopping  off"  the  hand, 
 
CHAPTER  V. 
 
 CRIMES  AGAINST  PROPERTY. 
 
 ART.  CCLXXXII. 
 
 Restitution,  or  Slavery,  the  Punishment  of  Theft. — Ge- 
 neral Observations  on  this  Law. 
 
 §  1.  On  the  crime  of  theft,  Moses  imposed  the 
 punishment  of  double  (and,  in  certain  cases,  still  high- 
 er) restitution  ;  and  if  the  thief  was  unable  to  make 
 such  restitution,  he  was  ordered  to  be  sold  for  a  slave, 
 and  payment  to  be  made  to  the  sufferer,  out  of  the 
 purchase-money,  Exod.  xxi.  37.  xxii.  3. — Before  I 
 proceed  to  speak  of  the  more  special  applications  of 
 this  law,  to  the  different  cases  wherein  restitution  was 
 to  be  made,  from  two  to  five  fold,  I  beg  leave  to  offer 
 two  general  remarks  on  this  species  of  punishment. 
 
 I.  In  the  first  place,  while  I  think  on  theft  alone, 
 and  not  as  preceded  by  actual  murder,  I  must  look 
 upon  restitution  as  the  most  equitable  and  rational  of 
 all  punishments,  and  what  will  most  effectually  deter 
 from  the  commission  of  the  crime,  if  it  can  only  be 
 effectually  enforced ;  that  is,  if  either  the  thief  have 
 property,  or  if  slavery  be  established.  It  is  much 
 more  proportioned  to  the  nature  of  the  offence,  as 
 well  as  much  more  terrific,  than  the  punishment  of 
 
266     Theft  improperly  punished  with  Death.  [Art.  282. 
 
 death,  which  we  so  often  inflict  upon  it.  This  is  an 
 idea  which  the  Persians,  whose  law  on  this  subject 
 pretty  much  resembles  that  of  the  Israelites,  expressed 
 to  Chardin  ;  and  I  shall  first  let  him,  or  rather  them, 
 speak  for  themselves,  and  then  take  the  liberty  to 
 annex  my  own  independent  opinion  concerning  it. 
 
 Speaking  of  a  great  theft,  for  which  restitution  had 
 been  made,  Chardin  thus  proceeds :  Cest  la  bourse  in 
 Perse,  qui  porte  la  peine  de  tout.  II  n'y  a  que  les  der- 
 niers  des  miserables,  qu'on  chdtie  corporellement :  ceux 
 qui  ont  de  quoi  se  tirent  de  toute  affaire.  Les  Persans 
 disent,  qu'il  fant  prendre  les  medians  par  cet  endroit, 
 
 011  Us  sont  si  sensibles,  et  que  s*ils  les  punissoient  autre- 
 ment,  il  se  commetteroit  mil fois plus  de  mat I:  car,  disent 
 Us,  les  gens  perdus  sont  peu  sensibles  aux  peines  corpor- 
 elles,  puree  qu'elles  ne  durent  qu'un  moment :  Us  ne  le 
 sont  point  a  V  infamie,  qui  les  accompagne,  parce  qiCils 
 n'ont  point  de  vertu  ;  mats  Us  le  sont  injiniment  a  la 
 pauvrete,  et  a  la  misere,  a  cause  que  la  resource  en  est 
 longue  et  malaisie,  sur  tout  dans  les  Pais  policez,  comme 
 celui  ci,  oii  les  vols  sont  a  la  verite  assez  Jaciles  a  com* 
 mettre,  mais  tres  difficiles  a  couvrir  *. 
 
 Let  us  only  consider  the  motives  that  in  general 
 make  a  man  a  thief,  without  reference  to  any  of  those 
 artificial  points  of  honour,  such,  for  instance,  as  the 
 payment  of  gaming  debts,  that  drive  unfortunate 
 wretches  to  the  highway.  It  is  seldom  from  real  hun- 
 ger, and  which  he  cannot  otherwise  keep  at  a  distance, 
 that  a  man  steals  j  else  would  he,  in  ordinary  cases, 
 
 *  See  Chardin's  Travels,  part  ii.  p.  101.  edition  of  I71!/in  large 
 
 1 2  mo. 
 
Art.  282.]    Hunger  seldom  a  Cause  of  Theft.  267 
 
 deserve  to  escape  without  any  punishment ;  in  confor- 
 mity to  the  indulgence  manifested  to  thieves  of  this 
 description,  by  the  criminal  code  of  Charles  the  Fifth  j 
 —that  truly  venerable  monument  of  legislative  wis- 
 dom and  clemency,  of  which  Germany  has  reason  to 
 be  proud.  But  although  we  might  be  inclined  to 
 punish  theft,  committed  from  hunger,  capitally,  it 
 would  be  of  little  avail ;  for  any  man  would  prefer 
 being  hanged  or  beheaded,  to  dying  of  hunger  by 
 inches.  It  is  quite  a  different  thing  whether,  in  cases 
 of  extreme  famine,  or  during  a  blockade,  or  after  a  ship- 
 wreck, we  have  a  right  to  shoot,  or  stab,  and  then  per- 
 haps to  roast  and  eat,  the  man,  who  compels  us  to  do  so 
 for  the  preservation  of  our  own  lives,  and  who  wishes 
 to  seize  the  food  belonging  not  to  him,  but  to  us ;  for 
 in  such  circumstances,  this  is  nothing  more  than  the 
 defence  of  our  own  property,  and  allowable  by  the 
 very  same  law,  which  gives  a  hungry  dog  a  right  to 
 worry,  even  to  death,  another  dog  who  attempts  to 
 seize  his  morsel.  But  of  rare  cases  like  this,  which 
 always  form  exceptions,  and  which,  when  they  do 
 occur,  require  to  be  regulated  by  the  police,  laws  say 
 as  little,  as  of  what  is  to  happen  at  the  last  day.  Hun- 
 ger, therefore,  as  a  prompter  of  theft,  may  be  put  out 
 of  the  question. 
 
 In  general  people  steal,  I  will  not  say  from  avarice, 
 for  thieves  are  generally  spendthrifts,  but  from  the 
 desire  of  gain,  or  from  the  love  of  luxuries,  and  be- 
 cause they  wish  for  more  of  them  than  they  can  earn 
 by  industry,  or  from  aversion  to  hard  and  unvaried 
 labour. 
 
 Now,  to  theft  from  the  desire  of  gain,  legislative 
 
265        Restitution,  the  best  Check  to  Theft.  [Art.  282. 
 
 wisdom  cannot  possibly  devise  a  better  counter-check 
 than  that  of  manifold  restitution,  to  be  regulated  ac- 
 cording to  the  variation  of  circumstances,  and  to  be 
 always  increased  in  proportion  as  the  difficulty  of  de- 
 tection is  greater,  and,  of  course,  the  chance  of  the 
 thief  securing  what  is  stolen,  in  such  and  such  a  num- 
 ber of  instances,  before  one  theft  be  found  out.     Char- 
 din  remarks,  in  the  passage  above  quoted,  that,  in  his 
 time,  it  was  become  extremely  difficult  to  steal  in 
 Persia,  without  detection,  because  every  body  cau- 
 tiously avoided  buying  any  thing,  in  regard  to  which 
 he  conceived  it  but  barely  possible,  that  it  might  have 
 been  stolen.      This,   no  doubt,  proceeded  from  the 
 dread  of  pecuniary  punishments,  which  the  greedy 
 magistrate  regulated  not  by  the  greatness  of  the  crime, 
 but  by  the  weight  of  the  culprit's  purse  ;  and  the  con- 
 sequence was,  that  theft  became  very  rare,  because 
 the  probable  amount  of  the  restitution  to  be  exacted, 
 was  a  formidable  consideration  to  the  thief.     For  the 
 man,  however  miserly,  or  greedy  of  gain  he  may  be, 
 who  thinks  with  himself,  For  every  dollar  I  steal,  I 
 may  have  two  to  repay,  will,  from  motives  of  economy, 
 ]et  stealing  alone ;  indeed  the  true  miser  will  be  apt 
 almost  to  shake  off  his  hand,  to  prevent  even  the  dust 
 of  any  suspicious  article  from  sticking  to  it;  and  though 
 God  will  not  perhaps  reward  him  in  heaven,  for  this 
 scrupulous  conscientiousness  in  keeping  the  eighth 
 commandment,  because  it  is  not  virtue  ;  our  property 
 on' earth  will  nevertheless  be  safe  from  any  danger  of 
 his  invading  it. 
 
 The  idler,  again,  who  is  averse  from  working  with 
 bis  hands,  will  perceive  that,  if  he  steal,  slavery  awaits 
 
Art.  282.]        Transportation  to  America.  269 
 
 him;  in  which  he  will  be  compelled  to  work,  by  the 
 power  of  blows;  and  therefore,  that  he  may  not  have 
 to  submit,  as  a  slave,  to  triple  or  quadruple  labour,  he 
 will  do  something,  as  a  free  man,  to  earn  his  bread. — 
 The  same  dread  of  slavery  will  operate  also  upon 
 those  who  wish  to  live  luxuriously  ;  and  even  upon  the 
 vigilant  Chevaliers  dy  Industrie,  who  care  not  a  fig  for 
 their  lives,  but,  above  all  things,  love  liberty,  and  those 
 vagrant  and  idle  habits,  which  give  them  numberless 
 opportunities  of  labouring  with  as  much  industry  as 
 they  chuse,  in  their  own  vocation.  A  man  of  this 
 last  description  will,  at  any  rate,  rather  steal  in  a 
 country  where  he  is  sure  of  the  gallows,  than  where 
 he  will  be  condemned  to  slavery.  It  is  no  objection 
 to  this  doctrine,  that  the  punishment  of  transportation, 
 which,  by  the  laws  of  England,  was  annexed  to  cer- 
 tain sorts  of  theft,  and  which  subjected  the  culprit  to 
 servitude  for  the  first  seven  years,  if  he  could  not  pay 
 his  passage,  did  not  prove  sufficiently  effectual ;  for 
 the  punishment  of  servitude  in  America,  wanted  the 
 most  essential  of  all  requisites  for  rendering  any  pu- 
 nishment answer  its  proper  purpose, — it  was  not  visible 
 in  England,  and  therefore  did  not  operate  sufficiently, 
 in  terro7,em  ;  and  besides,  the  culprit  was  only  carried 
 to  a  country,  to  which  multitudes  had  an  inclination 
 to  emigrate,  of  their  own  accord,  and  where  he  would 
 suppose  he  might  have  it  in  his  power  to  make  a  great 
 fortune;  never  thinking,  however,  of  the  hardships  to 
 which  he  would  infallibly  be  subjected,  if  he  landed 
 in  it  without  money.  Seven  years  slavery,  on  the 
 other  hand,  in  England  itself,  would  have  had  more 
 
270  Restitution  compared  rath  Death.   [Art.  282. 
 
 effect  than  even  the  gallows,  with  which  the  highway, 
 man  may  there  lay  his  account  at  last. 
 
 The  punishment  even  of  manifold  restitution,  is, 
 besides,  so  little  severe,  that  it  will  be  regularly  put  in 
 execution  ;  whereas  the  punishment  of  death,  which, 
 among  us,  is  annexed  to  so  many  kinds  of  theft,  often 
 deters  from  prosecution,  especially  in  cases  of  house- 
 theft  ;  or,  at  least,  because  it  is  better  to  let  a  hundred 
 thieves  escape,  than  hang  one  innocent  man,  it  makes 
 trials  so  difficult,  that  many  notorious  offenders  are 
 always  sure  to  be  acquitted. 
 
 The  milder  punishment  of  restitution  for  theft,  is 
 attended  with  this  farther  advantage  over  our  capital 
 punishments,  that  a  thief  will  not  be  so  apt  to  proceed 
 to  murder ;  whereas  if  he  knows  that  his  crime  may 
 cost  him  his  life,  should  any  of  the  members  of  a  family 
 be  so  unfortunate  as  to  awake  and  surprise  him,  he 
 will  not  spare  them.  The  very  same  remark  is  appli- 
 cable to  highway-robbery.  In  Chardin's  time,  mur- 
 der along  with  theft  was  scarcely  ever  heard  of; 
 which  is  to  be  ascribed,  not,  as  he  thinks,  to  the  more 
 humane  manners  of  southern  nations,  but  to  the  supe- 
 rior mildness  of  their  punishments. 
 
 And  now,  the  reader  will  perhaps  expect,  in  the 
 second  place,  to  find  me  preaching  it  up,  as  an  incum- 
 bent duty  on  us  Christians,  to  imitate  here  the  cle- 
 mency of  the  Mosaic  laws,  and  to  abolish  the  punish- 
 ment  of  death  for  theft.  But  though  such  laws  are, 
 along  with  slavery,  most  efficacious,  it  is  manifest  that 
 they  will  never  answer  in  a  country  wherein  perfect 
 and  severe  slavery  is  not  established. 
 
Art.  283.3     This  Punishment  unsuitable  noxv.  271 
 
 Nay,  where  restitution  is  to  be  the  punishment  of 
 theft,  it  is  plainly  presupposed  that  a  thief  must  al- 
 ways have  some  property,  (at  any  rate  his  own  per- 
 son,) whence  he  can  make  restitution.  Now,  among 
 the  Israelites,  he  generally  had  some  such  property, 
 exclusive  of  his  person ;  for,  by  law,  every  man  had 
 his  paternal  field,  the  crops  of  which  might  be  attach- 
 ed. Then,  again,  in  consequence  of  the  law  of  slavery, 
 he  might  sell  his  wife,  his  children,  and  at  last  himself, 
 to  raise  money ;  and  in  the  case  of  theft,  it  would  ap- 
 pear that  this  might  be  done,  not  for  six  years  only, 
 to  which  period  the  sale  of  a  Hebrew  servant  was 
 limited ;  but  for  as  long  a  term  of  years  as  was  requi- 
 site to  make  up  the  amount  of  the  restitution  adjudged, 
 and,  of  course,  perhaps  for  life. — We  have  nothing  like 
 complete  slavery,  and  where  we  see  any  appearance 
 even  of  imperfect  slavery,  we  strive  to  abolish  it ;  and 
 we  see  those  countries  flourish,  in  which  it  is  abolished. 
 It  is  therefore  to  be  hoped,  that  we  will  never,  out  of 
 mere  clemency  to  thieves,  be  anxious  to  re-establish 
 the  hard  slavery  of  ancient  times  ;  and,  of  course,  our 
 punishments  for  theft  must  be  of  a  different  nature 
 from  those  of  ancient  nations. 
 
 ART.  CCLXXXIII. 
 
 The  Punishment  of  Theft  was  probably  more  severe  be- 
 fore the  time  of  Moses,  particularly  in  Egypt. 
 
 §  2.  II.  The  second  general  remark  which  I  have 
 to  make  upon  the  Mosaic  statute  respecting  theft  is, 
 that  the  punishment  annexed  to  that  crime  by  Moses, 
 
272  Egyptian  Punishment  of  Theft.     [Art.  283. 
 
 which  was  so  mild,  and  yet  so  effectual,  and  so  well 
 adapted  to  the  circumstances  of  his  people,  does  not 
 appear  to  have  been  retained  from  any  more  ancient 
 consuetudinary  law,  but  to  have  been  instituted  in  the 
 place  of  one  more  severe,  that  was  in  use  in  Egypt, 
 and  perhaps  in  Palestine  likewise.  The  story  related 
 in  the  xlivth.  chapter  of  Genesis,  seems  to  insinuate 
 as  much. 
 
 Joseph,  whom  his  eleven  brethren  knew  not  yet  as 
 their  brother,  but  only  as  the  all-powerful  prime- 
 minister  of  Egypt,  and  who  had  a  great  inclination  to 
 detain  his  uterine  brother,  Benjamin,  under  a  good 
 pretext,  without  letting  the  rest  of  the  brothers 
 know  his  design,  or  suspect  the  connection  *,  made 
 the  silver  cup,  out  of  which  he  himself  had  drunken, 
 when  they  sat  with  him  at  table,  be  secretly  conveyed, 
 at  their  departure,  into  Benjamin's  corn-sack ;  on 
 purpose  that,  for  this  theft,  which  could  thus  with  such 
 probability  be  charged  upon  him,  he  might,  first  of 
 all,  have  it  in  his  power  to  detain  him  as  a  slave. 
 The  Egyptian  law,  therefore,  could  not  then,  like 
 that  of  Moses  afterwards,  have  merely  required  two- 
 fold restitution,  as  the  punishment  of  theft ;  for  al- 
 though, from  the  rarity  of  silver  in  those  days,  a  silver 
 cup  may  have  been  more  valuable  than  a  gold  one  is 
 at  present,  yet  the  eleven  brethren,  and  their  father, 
 with  whose  circumstances  Joseph  was  well  enough 
 acquainted,  were  sufficiently  opulent  to  have  been 
 able  to  pay  the  cup  ten  times  over.  Besides,  Joseph 
 had -himself  played  silver  into  their  hands,  to  greater 
 
 *  See  the  Notes  to  this  chapter,  annexed  to  my  German  translation. 
 
Art.283.]     Inference  from  the  Story  of  the  Cup.      273 
 
 amount  probably,  than  the  weight  of  the  cup,  and 
 silver  too,  to  which,  though  he  might  have  kept  it,  he 
 renounced  all  claim  ;  namely,  the  price  of  two  cargoes 
 of  corn,  which  they  had  carried  out  of  Egypt*.     He 
 had  not,  however,  it  would  seem,  the  most  distant 
 apprehension  of  their  having  it  in  their  power,  by  any 
 existing  law,  to  employ  it  for  the  purpose  of  procur- 
 ing, by  a  double,  or  a  higher  restitution,  an  exemption: 
 from  the  consequences  of  their  crime.     His  steward 
 was  ordered,    soon  after  their   departure,  to  pursue 
 them,   and  charge  them  with  stealing  the  cup  ;  and 
 as  we  find,  that  in  answer  to  this  charge,  their  very 
 first  proposal  was  in  these  terms,   With  whomsoever  of 
 us  the  cup  is  found,  let  him  die,  and  let  all  the  rest  b& 
 my  lord's  servants ;  we  must  conclude,  that  the  law, 
 as  they  knew  it,  required  something  more  than  even 
 multiplied  restitution,  and  that  even  the  punishment 
 of  death  was  not  unheard  of.     The  steward,  in  obe- 
 dience to  his  master's  orders,  did  not  altogether  ac- 
 cept their  proposal,  but  only  thus  far,  that  the  person 
 in  whose  possession  he  might  find  the  cup,  should  be 
 his  servant.     On  proceeding  to  search,  the  cup,  to 
 their  universal  grief,  was  found  in  Benjamin's  sack. 
 To  offer  restitution,  even  ten-fold  restitution,  and  in  the 
 mean  time,  a  hostage,  until  it  should  be  made  good, 
 (although,  indeed,  they  had  actually  silver  enough  in. 
 VOL.  iv.  s 
 
 *■  For  the  price  of  the  first  cargo,  which  had  been  slipt  into  their 
 sacks,  they  had  brought  back,  in  order  to  pay  it  again,  but  it  was 
 not  accepted  ;  and  now,  in  like  manner,  the  price  of  the  second  cargo 
 had  been  put  into  their  sacks,  and  thus  distributed  among  them,  as 
 their  lawful  property. 
 
274      Two-fold  and  Four-fold  Restitution,     [Art.  284. 
 
 their   sacks,    to   which    no   claim   had  been  made,) 
 never  once  came  into  their  thoughts  ;   and,  therefore, 
 there  could  be  no  such  common  law  -,  but,  in  their  em- 
 barrassment, they  offered  themselves  all  as  slaves,  be- 
 cause without  Benjamin,  they,  durst  not  return  to  their 
 father  ;  yet  neither  was  that  offer  accepted. — With  the 
 moving  scene  that  followed  I  have  here  no  concern  ; 
 only  thus  much  we  see,  that  the  Egyptians  had  inflicted 
 severer  punishments  on  theft  than  the  law  of  Moses  in- 
 flicts. The  political  evil  of  slavery  existed  among  them ; 
 but  instead  of  making  it,  as  we  have  seen  that  it  may 
 be  made,  subservient  to  the  establishment  of  a  most 
 excellent  alternative  in  the  penal  law  of  theft ;  and 
 enacting,  that  the  delinquent  should  have  his  choice  of 
 either  slavery,  or  twofold  restitution ;    they  inflicted 
 on  that  crime  the  punishment  of  death,  which,  under 
 such  circumstances,  was  too  severe. 
 
 ART.  CCLXXXIV. 
 
 A  more  particular  specification  of  Restitution,  accord- 
 ing to  its  several  gradations,  as  applicable  to  the 
 different  circumstances  of  Theft. 
 
 §  3.  I  now  return  to  the  consideration  of  the  Mo- 
 saic statutes  respecting  theft. — The  most  gentle  pun- 
 ishment, then,  of  this  crime,  when  not  voluntarily 
 acknowledged  and  pointed  out  by  the  thief  himself, 
 was,  if  no  circumstances  of  aggravation  interfered, 
 twofold  restitution  to  the  owner,  who  thus  obtained  a 
 profit  for  his  risk  of  loss  ;  Exod.  xxii.  3.  This 
 punishment  was  applicable  to   every  case,  in  which 
 
Art.  284.]    Theft  of  an  Ox,  jive-fold — and  why,       1~5 
 
 the  article  stolen,  remained  unaltered  in  the  thief's 
 possession  ;  that  is,  was  neither  sold  nor  slaughtered  ; 
 and  he  was  considered  as  only  standing  on  the  lowest 
 step  of  the  ladder  ;  where  repentance,  and  the  restitu- 
 tion or  abandonment  of  his  prey  might  always  be 
 hoped  for. 
 
 If,  however,  the  article  stolen  was  already  alienated 
 or  slaughtered  ;  and,  of  course,  the  apologetic  con- 
 jecture,— that  he  might  yet,  by  the  impulse  of  con- 
 science, be  disposed  to  restore  it,  as  soon  as  he  found 
 an  opportunity  to  do  so,  unnoticed  and  unexposed — 
 no  longer  possible  ;  the  punishment  was  more  severe  ; 
 being  fourfold  restitutio?!,  in  the  case  of  a  sheep,  and 
 probably  also  of  all  other  animals,  except  in  that  of 
 an  ox,  where  it  was  fivefold,  Exod.  xxi.  37.  :  this 
 higher  degree  of  punishment  being  annexed  to  the 
 theft  of  oxen,  for  the  purpose  of  more  effectually 
 securing  their  owners  against  the  danger  of  having 
 animals,  so  indispensable  in  the  rural  ceconomy  of  the 
 Israelites,  killed  when  stolen :  for,  as  the  reader  will 
 recollect,  from  some  of  the  preceding  Articles,  the 
 Israelites  used  no  horses  in  their  husbandry,  but  only 
 oxen.  The  ox  did  every  thing  on  their  farms.  He 
 plowed ;  he  threshed  out  the  corn,  either  with  his 
 feet,  or  by  being  yoked  to  a  threshing- wain  ;  and  he 
 drew  it  when  threshed  to  the  barn.  If,  therefore,  the 
 theft  of  an  ox  was  more  severely  punished,  than  that 
 of  any  thing  else,  it  was  upon  the  same  principle,  on 
 which,  in  some  places,  an  increase  of  punishment  is 
 inflicted  on  the  crime  of  stealing  from  a  farmer  his 
 plough,  or  any  part  of  the  apparatus  that  belongs  to 
 it.     It  is  amusing,  however,  to  find  some  expositors 
 
 s2 
 
276  Thief  sold  for  a  Slave.  [Art.  284* 
 
 supposing,  that  the  reason  why  the  ox  was  to  be  re- 
 stored Jive-foh\,  and  the  sheep  only  Jour  was,  that  the 
 one  was  dearer  than  the  other  ;  just  as  if  the  propor- 
 tion between  one  and  Jour,  were  not  the  same  as 
 between  one  thousand  and  Jour  thousand. 
 
 If  the  thief  had  nothing  to  pay,  he  was  sold  as  a 
 slave,  (Exod.  xxii.  2.)  ;  probably  for  as  many  years 
 as  were  necessary  for  the  extinction  of  the  debt ;  and, 
 of  course,  perhaps,  for  life  j  though,  in  other  cases, 
 the  Hebrew  servant  could  be  made  to  serve  only  for 
 six  years.  (Art.  CXXVII.)  But  it  will  here  be 
 asked,  "  Could  a  purchaser  be  looked  for  ?  Who 
 "  would  have  chosen  to  buy  a  thief  for  a  servant  V* 
 Among  us,  no  doubt,  nobody  would  chuse  to  do  so  ; 
 for  we  have  only  hired  servants,  over  whom  we  can- 
 not lord  it  with  such  severity,  as  would  be  requisite 
 with  a  thief;  and  if  they  steal,  we  must  directly 
 apply  to  the  magistrate  for  justice  against  them  as. 
 our  equals,  and,  therefore,  we  generally  prefer  dis- 
 charging them  at  once.  But  where  rigorous  slavery 
 is  established,  the  master  himself  can  inflict  punish- 
 ment on  his  slaves,  and  sufficiently  deter  them  from  theft 
 by  blows ;  or  he  can  lock  them  up  in  work-houses,  where 
 there  is  nothing  to  steal,  and  where  stolen  goods  can- 
 not be  concealed ;  and  which,  though  as  public  in- 
 stitutions, they  may  be  very  expensive  and  unecono- 
 mical, yield  a  profit,  under  the  superin tendance  of  a 
 private  master.  For  then  meat  and  drink  are  generally 
 supplied  them,  that  profit  may  come  out. 
 
 If  a  thief,  after  having  denied,  even  upon  oath,  any 
 theft  wherewith  he  was  charged,  had  the  honesty  to 
 retract  his  perjury,  and,  from  the  impulse  of  con- 
 
Art.  284.]  Confession  of  Theft.  277 
 
 science  to  own  his  guilt,  instead  of  double  restitution, 
 he  had  only  to  repay  the  amount  stolen,  and  one-fifth 
 ■more;  Levit.  vi.  1, — 5.  Concerning  the  trespass- 
 offering  ordained  to  be  made  in  such  cases  of  perjury, 
 I  have  already  treated  in  Art.  CCXLIV. 
 
 With  regard  to  the  case  of  theft  committed  from 
 pure  hunger,  we  find  in  the  Mosaic  laws  no  ordi- 
 nance, similar  to  that  which  I  already  noticed  with 
 approbation,  in  the  penal  code  of  Charles  V. ;  but  it 
 seems  to  be  obvious  from  the  analogy  of  the  laws 
 mentioned  in  Art.  CXXX.  and  CLXI.,  that  the  man 
 who  stole  out  of  real  hunger,  had  his  fault  overlooked. 
 The  laws  of  hospitality,  which  are  very  powerful 
 among  the  Orientals,  would,  at  any  rate,  say,  If  he 
 is  a  stranger,  or  a  traveller,  thou  shouldest  give  him 
 food ;  nor,  indeed,  are  the  people  of  the  East  very 
 apt  to  neglect  this  duty.  At  the  same  time,  it  would 
 appear,  that  in  Solomon's  time,  the  man  who  stole 
 from  hunger  had  been  punished  ;  Prov.  vi.  30,  31. 
 In  this  passage,  however,  Solomon  certainly  does  not 
 speak  of  the  case  of  a  man,  who  has  absolutely  no 
 means  whatever  of  appeasing  the  calls  of  hunger,  but 
 theft;  for  it  makes  him,  besides  manifold  restitution, 
 give  up  the  whole  substance  of  his  house ;  so  that  he 
 must  be  supposed  to  have  had  some  property  belong- 
 ing to  him. 
 
 s  S 
 
278  Punishment  of  Theft  augmented.     [Art.  285. 
 
 ART.  CCLXXXV. 
 
 The  Punishment  of  Theft,  in  Solomon's  time,  augmented. 
 
 §  4.   The  passage  just  quoted  from  the  book  of 
 Proverbs,  farther  shews,  that  in  Solomon's  time,  the 
 punishment  of  theft  had  been   augmented.     In  the 
 days  of  David,  no  other  than  the  Mosaic  punishment 
 was  known,  even  when  circumstances  of  aggravation 
 were  to  be  taken  into  account.     Thus,  in  a  case  re- 
 presented to  that  king,  not  of  simple  theft,   but  of 
 violent  robbery,  where  a  rich  man  took  by  force  from 
 a  poor  man,  his  only  sheep,  which  he  kept  and  tamed 
 for  his  amusement,  and  not  with  any  intention  of  kil- 
 ling it ;  much  as  David's  passions  were  moved  at  the 
 detail,    he  denounced  against   the  offender   nothing 
 more  than  fourfold  restitution.      For  if  the  reader 
 supposes,  from  the  account  of  this  case  in  2  Sam.  xii. 
 1, — 5.,  that  David  condemned  the  thief  to  suffer  a 
 double  punishment,  first,  that  of  death,  and  then,  that 
 of  quadruple  restitution  ;  he  will  see,  from  the  con- 
 clusion of  Art.  X.,  that  it  appears  to  me,  at  least,  in 
 a  different  light.     Instead  of  this,  however,  under  the 
 reign  of  Solomon,  we  read  of  sevenfold  restitution,  aa 
 a  matter  quite  well  understood,  even  in  that  case  of 
 theft,  which  of  all  others  admits  the  best  excuse,  viz. 
 when  it  proceeds  from  hunger.     For  he  says  in  Prov. 
 vi.  .30,  31.   We  do  not  overlook  it  to  the  thief,  that  he 
 steals  to  fill  his  belly,  when  he  is  hungry.     If  lie  he 
 caught,  he  must  pay  sevenfold,  and  even  give  up  all  that 
 he  hath  in  his  house.     Yet,  after  all,   this  increase  of 
 
Art.  286.]     Theft  in  a  Commercial  Country,  279 
 
 punishment  was  not  then  to  be  wondered  at.  For  in 
 process  of  time,  so  many  ways  are  devised  of  conceal- 
 ing theft,  and  parrying  the  charge  of  it,  that  those 
 moderate  terms  of  restitution  which  were  once  suffi- 
 cient to  deter  from  this  crime,  prove  at  last  but  an 
 insufficient  counterpoise  to  the  hope  of  committing  it 
 without  detection,  and  of  thus  abundantly  retrieving 
 any  loss  that  the  necessity  of  occasional  restitution 
 may  cause.  Stolen  goods  can  be  much  more  easily 
 secured  against  discovery,  in  a  country  where  there 
 are  great  cities,  and  where  extensive  commerce  is  car- 
 ried on  ;  both  which  circumstances  took  place  under 
 Solomon.  Add  to  this,  that  commerce  requires  great- 
 er security  against  thefts,  and  yet  presents  additional 
 temptations  to  thieves ;  whom  we  nowhere  rind  more 
 numerous  than  in  trading  cities,  and  at  fairs.  I  am 
 therefore  so  far  from  wondering  at  this  sevenfold  res- 
 titution, which  was  introduced  in  the  time  of  Solomon, 
 that  I  should  rather,  considering  the  increase  of  trade 
 and  luxury,  have  expected,  that  the  punishment  of 
 theft  would  have  been  still  more  augmented. 
 
 ■&■ 
 
 ART.  CCLXXXVL 
 
 No  Statute  relative  to  Highway-Robbery,  or  Burglary. 
 
 §  5.  Concerning  highway-robbery  and  burglary, 
 whereby  the  life  of  the  person  robbed  is  endangered, 
 if  he  does  not  surrender  1  i is  property  without  resist- 
 ance,— a  circumstance  which  aggravates  the  crime 
 far  beyond  that  of  simple  theft, — I  fmd  nothing  men- 
 tioned in  the  Mosaic  laws;  for  although  the  passage 
 
 s  4 
 
280    No  Law  respecting  Highway  Robbery.  [  Art.  287 
 
 in  Exod.  xxii.  1,  2.  speaks  of  breaking  in,  yet  this 
 may  take  place  where  there  is  no  intention  of  violent 
 robbery,  but  only  of  secret  theft.  Here,  therefore, 
 there  is  a  chasm  in  our  knowledge,  and  in  the  written 
 law  of  Moses,  which,  however,  must  'have  then  been 
 easily  supplied  from  the  law7  of  usage.  But  in  fact,  in 
 the  wilderness,  where  the  people  lived  so  close  toge- 
 ther, violence  in  robbery  could  not  often  be  possible  ; 
 and  that  may  be  the  cause  of  this  chasm.  With  regard 
 to  foreign  banditti,  who  attacked  travellers,  or  made 
 inroads  into  the  land,  there  was  no  occasion  for  any 
 special  laws ;  because  against  them  the  laws  of  war 
 operated,  which  permitted  the  infliction  of  far  more 
 unlimited  punishments  than  we  dare  to  inflict  on  our 
 fellow  citizens  ;  for  with  the  latter,  we  must  fix  by 
 law  wrhat  punishment  they  have  to  expect,  when  they 
 commit  any  crime,  and  we  have  no  right  to  punish 
 them  beyond  the  law.  It  is  this,  indeed,  which  makes 
 the  distinction  between  a  citizen  and  an  enemy  j  who 
 is  a  person  not  under  the  protection  of  our  laws,  and 
 whom  we  may  warrantably  endeavour  to  annihilate, 
 when  he  does  us  any  injury.  The  Amalekites,  a  pre- 
 datory people  of  this  description,  were  ordered  to  be 
 exterminated,  as  we  have  seen  under  Art.  LXIII. 
 
 ART.  CCLXXXVIL 
 
 Of  Sacrilege. 
 
 §  5.  Concerning  what  we  usually  denominate  sac- 
 rilege, there  is,  in  like  manner,  no  specific  law  to  be 
 found  in  the  Mosaic  writings.     In  the  case,  no  doubt, 
 
Art.  287.]  Punishment  of  Sacrilege.  281 
 
 of  a  person  purloining  any  part  of  that  species  of  Che- 
 rem  described  in  Art.  CXLV.,  and  to  which  I  might 
 apply  the  epithet  sanctissimum,  the  punishment  of 
 stoning  was  inflicted  upon  him,  as  a  robber  of  the 
 sanctuary,  as  we  see  from  the  instance  recorded  in 
 the  viith.  chapter  of  Joshua.  But  between  this  species 
 of  Cherem  and  other  holy  things,  there  was  a  great 
 difference  ;  and  neither  from  the  letter  nor  from  the 
 analogy  of  the  Mosaic  law,  should  I  know  what  judg- 
 ment to  have  pronounced  upon  the  man,  who  had 
 stolen  any  part  (for  instance)  of  the  flesh  or  wine  of 
 an  offering,  or  of  the  tithes,  or  of  the  articles  belonging 
 to  the  sanctuary  ;  those,  at  least,  in  its  courts,  and  not 
 within  the  holy  place,  or  the  holy  of  holies.  Had  he, 
 from  the  impulse  of  his  conscience,  made  a  voluntary 
 acknowledgment  of  any  such  theft,  in  all  probability 
 nothing  more  would  have  been  required  of  him,  than 
 the  restitution  ordained  in  Lev.  v.  14,  15.  with  one- 
 fifth  more,  and  an  offering.  This,  however,  is  only 
 an  analogy,  and  not  the  letter  of  the  law  ;  for  the  pas- 
 sage now  quoted,  refers  not  to  things  stolen,  but  to 
 sacred  things,  such  as  tithes  and  firstlings,  either  not 
 paid,  from  carelessness,  or  purloined  and  withholden, 
 from  avarice ;  for  the  offering  ordained  to  be  made 
 for  them,  is  only  a  trespass-offering,  that  is,  the  offer- 
 ing appointed  for  sins  of  omission. 
 
 Let  it  suffice  that  I  have  here  taken  an  opportunity 
 of  mentioning  the  statute  relative  to  the  purloining 
 or  withholding  of  things  due  to  the  sanctuary ;  be- 
 cause I  shall  not,  in  the  sequel,  have  any  occasion  to 
 treat  particularly  on  the  subject. 
 
282  Man-stealing  punished  Capitally.    [Art.  288. 
 
 ART.  CCLXXXVIII. 
 
 Man-stealing  punished  Capitally. 
 
 §  7.  Against  the  crime  of  man-stealing,  committed 
 on  an  Israelite,  that  is,  where  any  one  stole  or  seized 
 a  free-born  person  of  Israeli tish  descent,  either  to  use 
 him  as  a  slave  himself,  or  to  sell  him  as  a  slave  to 
 others,  the  punishment  of  death  was  expressly  de- 
 nounced ;  and  that  with  sucli  a  degree  of  rigour,  that 
 the  alleviations  which  operated  in  the  case  of  other 
 thefts,  as  when  no  alienation  had  taken  place,  or  when 
 there  was  reason  to  look  for  repentance  and  restitu- 
 tion, had  here  no  effect  in  mitigating  the  punishment. 
 For  the  man-stealer  was  absolutely  doomed  to  die,  whe- 
 ther he  had  already  sold  the  person  stolen,  or  whether 
 he  still  had  him  in  his  own  hands,  neither  alienated 
 nor  used  for  service ;  Exod.  xxi.  1 6.  Deut.  xxiv.  7. 
 
 The  design  of  man-stealing,  and  what  seems  to  dis- 
 criminate between  it  and  other  crimes  that  approach 
 unto  it,  is  clearly  stated  in  Deut.  xxiv.  7.  to  be,  either 
 the  using  the  person  stolen,  as  a  slave,  or  selling  him 
 as  such  to  another.  Where  such  thefts  are  frequent, 
 and  require  the  interposition  of  legislative  authority, 
 the  latter  is  the  purpose  most  commonly  in  view;  be- 
 cause it  is  but  seldom  that  man-stealers  can  have  it  in 
 their  power  to  make  use  of  their  prize  within  their 
 own  country,  since,  as  he  can  speak,  he  has  only  to 
 make  himself  known,  in  order  to  be  free  ;  for  if  locked 
 up,  he  can  be  of  no  use.  To  this,  to  be  sure,  there 
 are  exceptions  j  for  in  very  large  cities,  such  as  Lon- 
 
Art.  288.]    Men  stolen  chiefly  for  Sale  abroad.  283 
 
 don,  child-stealing  may  be  carried  on,  without  much 
 risk  of  detection ;  and  rich  people,  who  have  work- 
 houses for  their  servants,  may  keep  them  therein 
 Jocked  up  ;  but  here,  again,  exceptions  take  place ; 
 for  the  rich  who  have  servants  by  hundreds  and  thou» 
 sands  are  very  few  in  number  ;  and  of  great  cities  there 
 were  none  in  Israel  for  several  centuries  after  the  days 
 of  Moses  ;  nor  indeed  do  such  cities  ever  arise  during 
 the  period  of  a  nation's  first  establishment,  but  only 
 gradually,  in  after  times,  and  in  consequence  of  un- 
 foreseen events.  The  most  common,  and  the  safest 
 species  of  man-stealing  therefore  is,  when  the  persons 
 stolen,  can  be  immediately  sold  into  foreign  countries: 
 and  this  is  at  present  sometimes  practised  in  London, 
 Amsterdam,  and  the  vicinity  of  Hamburg,  by  the  kid- 
 nappers,  as  they  are  called,  who  contrive  immediately 
 to  transport  the  unfortunate  wretches  whom  they  seize, 
 to  the  East  or  West  Indies  ;  and  it  is  thus  too  that 
 America  is  supplied  with  Negro  slaves  from  Guinea, 
 or  Western  Africa,  by  merchants,  of  whom,  for  all  the 
 money  they  make,  I,  for  my  part,  should  not  chuse  to 
 be  one. — Of  this  sort  of  man-stealing,  Moses  himself 
 relates  an  instance  in  the  book  of  Genesis,  where  we 
 read  first  of  the  sale  of  Joseph,  by  his  brothers,  to  a 
 company  of  merchants  passing  by,  and  then  of  his 
 being  re-sold  by  them  in  Egypt. 
 
 Although  a  person  had  aided  a  slave  in  his  flight 
 from  his  master,  or  had  concealed  him,  or  given  him 
 food,  or  let  him  labour  voluntarily  for  it ; — that  this 
 was  not  ma?i-stei\\ing,  is  almost  obvious,  if  we  attend 
 only  to  the  term  stealing ;  but  should  any  etymologi- 
 cal scruple  yet  arise,  (which,  so  far  from  wishing  to 
 
284         Distinguished  from  similar  Crimes.  [Art.  288. 
 
 deny  that  there  may  be  ground  for  it,  I  most  rea- 
 dily allow  the  etymologist  the  gratification  of  here 
 making,)  I  have  to  observe,  that  this  is  a  case,  to 
 which  the  statute  above  mentioned,  did  not  apply ; 
 and  that  the  laws  of  Moses  were  even  favourable  to 
 runaways  ;  Art.  CXXII.     If  a  person  had  carried  off 
 a  damsel  either  to  gratify  his  lust,  or  to  marry  her, 
 neither  was  this  man-stealing,  unless  he  used  her  as  a 
 slave.     In  the  former  case  it  was  rape,  of  which  we 
 have  treated  in  Art.  CCLXVI.  CCLXVII.     In  the 
 latter,  it  was  indeed  an  act  of  violence,  but  so  rare  a 
 one,  that  no  notice  is  taken  of  it  in  the  laws ;  although, 
 indeed,  there  occurs  in  the  Israelitish  history,  one  ex- 
 ample of  it,  pretty  much  akin  to  the  rape  of  the  Sabine 
 virgins,  and  which,  on  account  of  the  extreme  neces- 
 sity of  the  case,  was  proposed  to  the  Benjaminites  by 
 the  supreme  authority  itself,  as  a  means  of  obtaining 
 wives;  Judg.  xxi.  19, — 23. 
 
 The  first  of  the  two  statutes  in  Exod.  xxi.  16. 
 speaks  of  man-stealing  without  limitation  to  any  par- 
 ticular people  ;  but  the  second,  in  Deut.  xxiv.  7.,  ex- 
 pressly limits  it  to  the  case  of  a  person  stealing  an 
 Israelite,  one  of  his  brethren  ;  so  that  this  crime  was 
 only  capital  when  committed  against  an  Israelite ; 
 and,  of  course,  as  every  Israelite  was  free-born,  and 
 even  if  he  sold  himself  for  a  slave,  regained  his  free- 
 dom in  the  seventh  year,  it  was  not  capital  when  com- 
 mitted against  a  true  and  perfect  slave ;  who,  with 
 the  exception  of  one  very  rare  case,  could  only  be  a 
 foreigner.  Hence  we  see,  that  in  the  case  where 
 Moses  ordained  the  punishment  of  death  for  this 
 crime,  he  had  not  that  theft  in  view,  by  which  a  per- 
 
Art.  288.]    Mosaic  §  Roman  Laxv  compared.  28 J 
 
 son  has  his  servant  stolen  from  him.  No  doubt  such 
 a  proceeding  is  wrong  ;  for  even  to  covet  a  neighbour's 
 servant,  or  maid,  or  any  thing  else  belonging  to  him,  is 
 forbidden  *  in  the  tenth  commandment.  But  what 
 punishment  was  annexed  to  that  theft,  or  to  the  crime 
 of  stealing  a  free-born  person  of  any  other  nation,  in 
 friendship  with  the  Israelites,  we  do  not  know.  Pro- 
 bably it  was  not  a  capital  punishment,  but  only  resti- 
 tution to  a  certain  extent,  according  to  ancient  and 
 established  usage. 
 
 We  shall  now  be  able  to  comprehend  the  origin  of 
 the  great  difference  between  the  Mosaic  law  on  this 
 point,  and  the  most  ancient  Roman  law ;  which  has 
 indeed  been  noticed  in  Tit.  XIV.  of  the  Collatio  Mo- 
 saicarum  et  Romanarum  Legum,  but  without  any  phi- 
 losophical glance  at  the  cause  of  this  distinction.  In 
 the  earliest  times  of  Rome,  the  crime  of  plagium,  as 
 it  was  termed,  incurred  only  the  punishment  of  a  fine, 
 which  was  found  quite  sufficient ;  because,  as  Rome 
 had  but  little  foreign  commerce,  man-stealing  was  not 
 very  prevalent.  It  was  difficult  to  commit  it,  and 
 more  difficult  to  conceal  it,  because  those  who  were 
 stolen,  could  not  be  hurried  away,  and  sold  to  distant 
 countries.  In  process  of  time,  however,  a  more  severe 
 punishment  was  inflicted  on  this  crime ;  a  plebeian 
 being  at  first  condemned  to  die,  or  to  labour  in  the 
 mines ;  and  a  patrician,  to  exile  for  life,  with  the  loss 
 of  half  his  property.  At  last,  it  was  made  a  capital 
 crime  to  all  without  distinction  ;  and  thus  the  Roman 
 law  here  came  at  length  to  resemble  the  Mosaic,  only 
 
 *  Exod.  xx.  14.  Peut.  v.  18, 
 
286        Man-stealing  common  in  Palestine.     [Art.  288. 
 
 that  the  Romans  had  different  capital  punishments 
 from  those  of  Moses.  Their  cruel  punishment  of 
 crucifixion  kept  the  sufferer  alive  for  several  days,  in 
 the  agonies  of  pain  and  intolerable  thirst ;  whereas 
 stoning,  which  was  the  severest  of  the  Mosaic  punish- 
 ments, could  scarcely  last  beyond  a  few  minutes. 
 
 Moses,  from  the  first,  punished  man-stealing  with 
 death  ;  for  in  the  country  to  which  he  gave  laws,  that 
 punishment  was  absolutely  necessary  in  order  to  place 
 adults,  and,  still  more,  children,  in  a  state  of  security. 
 Palestine  was  at  that  time  the  country  where,  of  all 
 others,  man-stealing  could  be  most  easily  carried  on, 
 being  the  seat  of  the  whole  trade  of  the  world.  For, 
 in  theirs?  place,  the  caravans  from  Asia  passed  through 
 it,  in  their  way  to  Egypt ;  and  the  person  who  had 
 stolen  a  man,  could  thus  easily  make  money  of  him, 
 and  have  him  carried  into  a  foreign  country,  where  he 
 would  never  be  heard  of,  as  the  sons  of  Jacob  had  al- 
 ready done  with  their  brother  Joseph. — -In  the  next 
 place,  the  Phoenicians  extended  their  maritime  com- 
 merce to  the  most  distant  regions,  to  which  no  other 
 Asiatic  people  had  access  ;  and,  in  fact,  as  we  see 
 from  the  example  of  Joseph,  and  from  Moses  repeat- 
 ing his  law  a  second  time,  man-stealing  had  become  a 
 very  common  practice.  The  punishment  of  fines, 
 would,  therefore,  have  been  quite  insufficient  to  re- 
 press it.  Kidnappers  would  have  laughed  at  them, 
 and  carried  on  their  trade  with  great  advantage  :  for 
 before  they  were  so  unfortunate  as  to  be  once  dis- 
 covered, they  might  have  realized  the  profits  of  sel- 
 ling a  hundred  men.  Under  such  circumstances, 
 nothing  short  of  death  could  sufficiently  operate  in 
 
Art.  288.]  Sense  of  Plagium.  287 
 
 terrorem  ;  nor  would  any  one  look  upon  that  punish- 
 ment as  too  severe,  but  the  man  whose  mind  was  only 
 suited  to  servility,  and  such  a  man  would,  at  all 
 events,  prefer  being  a  slave.  To  us,  freedom  is  as 
 dear  as  life  ;  and  slavery,  particularly  in  a  strange 
 land,  is  often  worse  than  death.  Even  the  very  ne- 
 groes, that  are  sold  into  America,  have  this  idea  ;  and 
 hence  suicide,  far  from  rare,  is,  on  the  contrary,  quite 
 common  among  them ;  and  we  sometimes  rind  in- 
 stances of  several  of  them  combining  together,  and 
 going  into  the  woods  to  hang  one  another. 
 
 I  have  yet  farther  to  remark,  that  the  word  Plagium, 
 is  of  more  extensive  signification,  than  the  Mosaic- 
 crime  of  man-stealing,  with  its  capital  punishment ; 
 because  it  included  the  case  of  stealing  a  foreign  ser- 
 vant, or  seducing  him  to  run  away,  or  aiding  his 
 escape,  or  concealing  him.  These,  however,  were 
 crimes  punished  only  by  fines*,  atleast^by  the  Fabian 
 laws.  But  Moses,  as  we  have  already  observed, 
 speaks  only  of  the  crime  of  stealing  an  Israelite,  that. 
 is,  a  free-born  person. — The  two  species  of  theft  are 
 very  different ;  for  by  the  one,  the  master  of  a  slave 
 only  loses  a  commodity,  which,  though  worth  money, 
 may  be  abundantly  repaid  him  ;  but  by  the  ether,  a 
 free  man  loses  what  is  of  inestimable  value,  his  liberty 
 and  himself. 
 
 *  Ejusdem  legis  capite  secundo  ienetur,  qui  alieno  servo  persuaserit, 
 ut  dominumfugiat,  ipdve  alienum  servum  invito  domino  eclaverit,  tin- 
 diderit,  emerit  dolo  malo,  quite  in  ea  re  socius  fuerit ;  jubciurque  popid* 
 sesceriium  quinquaginta  millia  dare.  Mosaic,  ct  Roman.  Legem  CoJ- 
 latio  j  Tit.  xiy.  at  the  end. 
 
28S  Denial  of  a  Deposit,  $c.         [Art.  289, 
 
 ART.  CCLXXXIX. 
 
 The  crime  of  denying  any  thing  taken  in  trusty  or  found, 
 
 §  8.  Where  a  person  was  judicially  convicted  of 
 having  denied  any  thing  committed  to  his  trust,  or 
 found  by  him,  his  punishment,  as  in  the  case  of  theft, 
 was  double  restitution ;  only  that  it  never,  as  in  that 
 crime,  went  so  far  as  quadruple,  or  quintuple  restitu- 
 tion ;  at  least,  nothing  of  this  kind  is  ordained  in 
 Exod.  xxii.  8. 
 
 If  the  person  accused  of  this  crime  had  sworn  him- 
 self guiltless,  and  afterwards,  from  the  impulse  of  his 
 conscience,  acknowledged  the  commission  of  perjury, 
 he  had  only  one-fifth  beyond  the  value  of  the  article 
 denied,  to  refund  to  its  owner ;  Levit.  vi.  5.  or  (ac- 
 cording to  some  Bibles)  v.  20.  Of  the  offering  to  be 
 made  in  cases  of  perjury,  we  have  already  treated  in 
 Art.  CCLVI. 
 
CHAPTER  VI. 
 
 (RIMES      OF     MALIC! 
 
 ART.  CCXC. 
 
 Informers  odious  in  the  eye  of  the  Law. 
 
 §  I .  Before  I  proceed  to  observe  that  false  accusers 
 ought  to  be  punished,  I  must,  in  justice,  premise,  that 
 Moses  was  so  far  from  imposing  on  the  Israelites  any 
 obligation,  to  make  known  every  transgression  of  the 
 law,  which  came  to  their  knowledge,  that  he  rather 
 interdicted  unnecessary  and  malicious  informations. 
 His  prohibition  on  this  subject,  we  find  in  Lev.  xix. 
 16,-18.,  and  it  deserves  to  be  here  transcribed  at 
 length  ;  Thou  slialt  not  creep  about  as  an  informer 
 among  thy  people,  neither  shalt  thou  appear  against  thy 
 blood.  I  am  Jehovah!  Thou  shalt  not  secretly  hate 
 thy  brother.  If  he  does  any  thing  bad,  thou  mayest 
 warn  him  ;  so  thou  shalt  not  make  thyself  a  partaker  in 
 his  sin.  Thou  shalt  not  be  vindictive  or  spiteful  against 
 the  man,  who  belongs  to  the  same  people  with  thyself,  but 
 shalt  love  thy  neighbour  as  thyself     I  am  Jehovah  ! 
 
 I.  From  this  passage  it  is  evident,  in  theirs/  place, 
 that  in  the  case  of  common  crimes  already  committed, 
 and,  in  some  instances,  even  of  those  that  were  punish- 
 ed capitally,  such  as  adultery,  no  Israelite  was  under 
 
 VOL.  IV.  T 
 
290  Informers  discouraged,  $c.        [Art.  290„ 
 
 any  obligation  to  become  an  informer.  It  was  only 
 in  the  case  of  idolatry,  that  an  express  exception  was 
 made  *  ;  though,  indeed,  from  the  law  illustrated  un- 
 der Art.  CCLXXVIIL,  we  might  almost  conclude  it 
 to  have  likewise  been  the  wish  of  Moses,  that  not  only 
 the  magistrate  should  make  inquiry  into  the  circum- 
 stances of  an  unknown  murder,  but  also  that  every 
 other  person  who  knew  any  thing  about  it,  should 
 give  his  assistance  towards  the  discovery  of  the  mur- 
 derer. But  in  the  case  of  other  common  crimes,  in- 
 forming was  not  to  be  a  general  practice  ;  nor  did 
 the  law  given,  either  require  or  approve  of  any  one 
 but  the  person  injured,  giving  information,  without 
 some  particular  call  to  do  so.  And  as  there  will  always 
 be  people,  whose  consciences,  from  ignorance  of  the 
 nature  of  civil  law,  are  so  extremely  contracted,  as  to 
 impress  them  with  the  notion  of  its  being  their  duty 
 to  publish  all  the  wickedness  they  know  of,  that  they 
 may  not  be  partakers  of  other  men's  sins  ;  to  remove 
 the  scruples  of  such  people,  Moses,  in  the  law  just 
 quoted,  says  in  effect,  Information  of  crimes  is  not  re* 
 quired  of  you  ;  but  if  you  wish  to  do  any  thing  for  the 
 prevention  of  any  wickedness,  warm  the  man  who  has 
 done  it,  and  exhort  him  to  amend. 
 
 Any  penal  law  against  false  accusers,  must  be 
 founded  on  the  non-obligation  of  informing ;  for  were 
 every  one  bound  to  notify  to  the  magistrate  every 
 crime  that  came  to  his  knowledge,  it  would,  in  many9 
 I  might  perhaps  say,  in  most  cases,  be  both  unjust  and 
 absurd  to  punish  false  accusers.     Before  a  court  of 
 
 *  Deut.  xiii.  7,  8,  9.— See  also  Art.  CCXLVII.  towards  the  end. 
 
Art.  290.]  The  Non-Obligation  to  notify  Crimes.     291 
 
 justice,  every  accusation  must  be  deemed  false  that 
 cannot  be  proved  ;  and,  of  course,  the  accused  must 
 be  acquitted.  Yet  many  a  man  may  know  the  fact  of 
 a  crime,  without  having  proof,  at  least  full  proof,  of 
 it  in  his  power,  because  it  was  not  committed  before 
 several  witnesses  ;  and  were  he  then  bound  to  notify 
 what  he  knew,  he  certainly  ought  not  to  be  punished, 
 if  he  could  not  verify  his  accusation ;  else  would  he 
 beliable  to  punishment  for  doing  what  the  law  enjoin« 
 ed.  Should  he,  however,  remain  unpunished,  then,  as 
 man  cannot  see  into  the  heart,  every  one  who  is  wit- 
 tingly guilty  of  false  accusation,  will  likewise  necessa- 
 rily escape  with  impunity,  as  long  as  he  remains  un- 
 convicted of  having  wittingly  and  wickedly  calumni- 
 ated his  neighbour.  Yet  this  would  be  a  most  unfor- 
 tunate circumstance ;  under  which,  even  the  most 
 innocent  man  could  never  be  secure  of  his  life,  or  at 
 any  rate,  of  his  reputation  and  his  peace ;  because 
 every  false  accusation  leaves  some  unfavourable  im- 
 pression behind  it,  if  the  accuser  be  not  exemplarily 
 punished  ;  and  such  would  always  be  the  consequence, 
 were  the  doctrine  of  every  man  being  bound  to  give 
 information  of  every  bad  thing  he  sees,  which  some 
 people  take  into  their  heads,  and  even  ascribe  to  Moses, 
 in  spite  of  him,  ever  to  be  adopted  by  the  civil  law. 
 
 "  But  who  are  they,"  I  shall  perhaps  be  asked, 
 "  who  father  this  doctrine  upon  Moses  ?"  And  my 
 answer  is  ;  those  who  explain  Lev.  v.  ] .  in  sucti  a  man- 
 ner, as  if  it  were  incumbent  on  a  man  to  make  a  tres- 
 pass-offering, every  time  he  heard  such  a  curse  as, 
 Devil  take  me,  and  did  not  give  information  of  it- 
 Now,  such  an  explanation  would  make  rational  people- 
 
 t  2 
 
2912       Moses  condemns  officious  Informers.  [Art.  290. 
 
 if  they  were  conscientious,  and  wished  to  regard  Mo- 
 ses' supposed  doctrine,  absolute  fools,  and  insufferable 
 in  the  community  ;  and  therefore  it  becomes  the  mors 
 necessary  to  notice,  how  little  Moses  patronised  in- 
 formers. That  it  is  not  actually  attended  with  such 
 effects,  proceeds  from  this,  that  many  conscientious 
 people  are  not  so  rational  as  to  survey  the  conse- 
 quences of  any  doctrine  ;  that  many  rational  people 
 are  not  conscientious ;  and  that  many,  who  are  both 
 rational  and  conscientious,  know  nothing  of  the  false 
 explanations  of  this  passage,  and  perhaps  have  never 
 read  it  since  they  were  children. 
 
 II.  It  appears,  in  the  second  place,  that  Moses  at- 
 taches a  certain  degree  of  blame  to  unnecessary  in- 
 formation of  those  crimes,  that  do  not  concern  us, 
 particularly  where  it  proceeds  from  malice  ;  still,  how- 
 ever, not  in  that  case  only,  but  also  where  we  inform 
 upon  a  person,  whom  we  might  have  it  in  our  power 
 to  warn,  and  so  to  amend ;  in  other  words,  a  person 
 to  whom  we  ought  to  shew  friendship.  To  be  sure, 
 he  imposes  no  punishment  on  such  a  proceeding,  nor 
 could  he  injustice  do.  so,  if  the  information  were  not 
 a  false  accusation  ;  but  still  thus  much  follows  from 
 his  law,  that  a  rational  magistrate  has  a  right  to  give 
 officious  informers  a  rebuke  for  their  pains,  and  to  pay 
 no  regard  to  their  informations,  unless  where,  for 
 other  reasons,  he  looks  upon  an  enquiry  as  necessary. 
 
 In  a  matter,  where  it  was  impossible  for  a  legislator 
 to  specify,  with  legal  accuracy,  every  case  that  might 
 occur,  and  where  he  was  under  the  necessity  of  ad- 
 mitting a  mixture  of  moral  doctrine ;  nothing  could 
 be  more  judicious  than  the  clause  of  loving  their  neigh* 
 
Art.  290.]    Sense  o/Toving  our  Neighbour.  293 
 
 hours  as  themselves,  which  we  find  added  to  this  law  ; 
 although  the  connection  in  which  it  stands,  and  the 
 application  thence  depending,  has  not  been  commonly 
 attended  to.  For  the  rule  whereby,  keeping  this  pas- 
 sage in  my  view,  I  ought,  if  not  the  injured  party,  to 
 regulate  my  procedure,  as  to  informing,  or  not  inform- 
 ing, is  plainly  this;  If  thou  jinde  si  fault  with  no  one, 
 not  even  the  man  who  loves  thee,  for  giving  information 
 against  thee,  then  thou  may  est  inform  upon  others.  Now 
 this  would  naturally  be,  where  the  laws  expressly  re- 
 quired it ;  (Deut.  xiii.  7, — 9.)  or  where  one  might 
 think  that  the  land  would  be  polluted  in  the  sight  of 
 God,  by  reason  of  unpunished  blood-guiltiness  ;  (Num. 
 xxxv.  33.  Deut.  xxi.  8,  9.)  or  that  he  was  bound  to 
 give  information  of  any  gross  and  crying  outrage,  of 
 which  an  unknown  person  had  been  guilty,  to  the 
 person  who  had  suffered  it,  if  he  did  not  otherwise 
 obtain  such  information  ;  or  finally,  that  the  public 
 safety  required  him  to  notify  a  crime,  that  might 
 otherwise  be  continued.  But,  on  the  other  hand,  where 
 thou  lookesi  upon  it  as  reasonable,  that  the  man  who 
 loveth  thee,  shoidd  not  give  information  of  thy  crimes, 
 until  he  be  questioned  concerning  them  in  a  court  of  jus- 
 lice,  there  do  thou  also  hold  thy  peace. — A  rule  more 
 equitable,  and  at  the  same  time,  for  every  man  who 
 honestly  consults  his  own  heart,  more  clear  and  intel- 
 ligible, it  is,  methinks,  impossible  to  devise. 
 
 T   3 
 
294         Prohibition  of  Calumnious  Reports.  £  Art.  291. 
 
 ART.  CCXCL 
 
 Of  the  Propagation  of  defamatory  Untruths. 
 
 §  2.  The  publication  of  false  reports,  affecting  the 
 character  of  others,  is  prohibited  by  Moses  in  Exod. 
 xxiii.  1.,  although  he  does  not  annex  any  punishment 
 to  it.  Whether  that  was  left  to  the  pleasure  of  the 
 judge,  or  whether  it  was,  that  no  punishment  what- 
 ever was  inflicted  oil  it,  I  cannot  tell.  This  last  is 
 often  the  case  with  respect  to  the  greater  number  of 
 extrajudicial  offences,  during  the  infancy  of  nations; 
 which  approaches  closely  to  a  state  of  barbarism  and 
 lawlessness,  wherein  mere  verbal  attacks  on  reputation 
 are  not  so  highly  estimated,  nor  yet  even  violent  outr 
 rages  so  strictly  interdicted,  as  afterwards ;  but,  on 
 the  contrary,  a  person  thus  injured,  is  permitted  to 
 avenge  himself  on  his  traducer,  if  only  he  does  not 
 beat  him  to  death,  or  render  him  a  cripple*.  If  the 
 wicked  action,  which  a  man  related  concerning  his 
 neighbour  was  true,  he  incurred  no  punishment  what- 
 ever; for  the  eocceptio  veritatis  then  operated  in  full 
 force. 
 
 There  was  only  one  single  case  wherein  Moses  im- 
 posed a  punishment,  and  that  a  pretty  severe  one,  upon 
 the  publication  of  calumnious  falsehood  ;  and  that  was, 
 where  a  man  falsely  accused  his  bride  of  not  having 
 proved  a  virgin  on  the  wedding  night,  Deut.  xxii.  13, 
 
 *  The  reader  will  recollect,  from  Art.  CCXXXXL,  that  in  cases 
 of  affrays,  wherein  no  bodily  organ  was  injured,  or  rendered  useless 
 no  punishment  was  awarded. 
 
Art.  291.3    One  Exception  to  the  Prohibition.  295 
 
 —19.  Here,  regard  was  had,  on  the  one  hand,  to  the 
 gross  reproach  cast  upon  the  woman  herself,  her  pa- 
 rents, her  brothers  and  sisters,  and  her  whole  family*  ; 
 and,  on  the  other,  to  the  two  following  circumstances  ; 
 first,  that  the  woman,  being  defenceless,  and  in  the 
 power  of  her  accuser,  neither  could  nor  would  avenge 
 herself,  as  any  other  injured  person  might  do,  and,  of 
 course,  required  the  more  ample  protection  from  the 
 laws ;  and,  secondly,  that  a  wife  can  never  have  the 
 means  of  exculpating  herself  to  the  world,  from  the 
 disgrace  of  a  charge,  that  relates  to  the  secrets  of  the 
 marriage-bed,  unless  a  court  of  justice  enquire  into 
 the  case,  and  award  her  a  satisfaction  proportioned  to 
 the  greatness  of  the  injury  she  has  sustained. 
 
 The  punishment  of  the  husband,  in  such  a  case,  was 
 threefold ; 
 
 1.  Corporal,  or  stripes. — The  literal  meaning  of  the 
 words  of  Moses  is,  They  shall  chastise  him, — See  Art. 
 CCXXXIX. 
 
 2.  Pecuniary ;  a  fine  of  a  hundred  shekels  being 
 paid  to  the  woman's  father ;  which  was  the  highest 
 fine  imposed  by  the  Mosaic  law. 
 
 3.  The  forfeiture  of  the  right  of  divorce  ;  so  that 
 the  woman,  by  way  of  satisfaction,  lived  with  him  for 
 life,  in  a  matrimonial  state  precisely  like  ours. — From 
 a  perusal  of  the  following  Article,  it  will  probably  oc- 
 cur to  the  reader,  that  the  punishment  here  had  been 
 milder  than  the  analogy  of  that  part  of  the  Mosaic 
 law,  which  admitted  the  lex  talionis  in  cases  of  false 
 
 t  4 
 
 *  See  Art.  CCLXI. 
 
296     Punishment  of  a  Calumnious  Husband.  [Art.  292. 
 
 accusation,  demanded  that  it  should  be ;  because  the 
 woman,  if  found  guilty,  was  condemned  to  be  stoned. 
 This,  however,  really  was  not  the  case;  for,  in  the 
 Jirst  place,  the  question  here  is,  not  concerning  a  hus- 
 band who  judicially  impeaches  his  wife,  nor  yet  con- 
 cerning a  false  witness  ;  but  concerning  a  person  who 
 brings  an  evil  report  upon  her ;  and  between  the  pro- 
 pagation of  injurious  untruths,  and  actual  false  accu- 
 sation, or  actual  false  witness,  there  is  a  distinction  to 
 be  made.  In  the  next  place,  it  has  been  already  re- 
 marked, under  Art.  CCLXX.,  that  the  mere  want  of 
 the  signa  virginitatis,  without  any  farther  proof  of 
 whoredom,  was  in  all  probability  not  accounted  suffi- 
 cient to  authorise  the  infliction  of  the  punishment  of 
 stoning  *. 
 
 ART.  CCXCII. 
 
 Of  False  Accusation,  and  False  Witness. 
 
 §  3.  All  manner  of  false  witness,  in  judgment,  was 
 prohibited  ;  as  well  that  whereby  an  innocent  person 
 was  aggrieved,  as  that  whereby  a  guilty  person  was 
 acquitted,  and  a  crime,  really  committed  by  him,  de- 
 nied ;  or  what,  in  a  Hebrew  tribunal,  was  the  same 
 thing,  where  a  witness  concealed  the  truth,  after  being 
 solemnly  adjured  to  declare  it.  In  a  particular  man- 
 ner, we  rind  the  legislator  exhorting  the  Israelites  not 
 
 *  I  perceive,  that  by  what  I  have  here  written,  the  second  argu- 
 ment employed  in  the  passage  referred  to,  for  the  more  mild  exposi- 
 tion of  the  law  in  question,  becomes  not  a  little  weakened;  and  I 
 consider  it  my  duty  to  notice  this  circumstance. 
 
Art.  292.]      Punishment  of  False  Witness.  297 
 
 to  follow  the  multitude,  in  testifying  a  falsehood,  and 
 swerving  from  the  truth,  nor  yet,  out  of  compassion 
 to  a  poor  man,  to  give  a  partial  evidence  in  his  be- 
 half; Exod.  xx.  13.  xxiii.  1, — 3. 
 
 Yet  no  punishment  was  annexed  to  this  last  species 
 of  false  witness,  although  it  redounded  not  to  the  loss, 
 but  to  the  advantage  of  the  person  accused  :  in  other 
 words,  the  denial,  or  concealment,  of  a  crime,  well 
 known  to  the  witness,  incurred  no  punishment.  For 
 here  the  legislator  merely  availed  himself  of  the  aid  of 
 the  conscience  of  the  witness  ;  who,  if  he  had  a  mind 
 to  disburden  himself  of  a  perjury,  and  did  not  chuse 
 to  await  the  vengeance  of  God  on  account  of  it,  had 
 no  other  alternative  in  his  power,  than  to  retract  the 
 falsehood  of  his  testimon}r,  and  to  present,  as  an 
 atonement  for  his  guilt,  the  trespass-offering  men- 
 tioned in  Arts.  CCXLIV.,  CCLVI. 
 
 On  the  other  hand,  when  a  false  testimony  was 
 given  against  an  innocent  man,  the  matter  was  ordered 
 to  be  investigated  with  the  utmost  strictness,  and,  as 
 a  species  of  wickedness  altogether  extraordinary,  to 
 be  brought  before  the  highest  tribunal,  where  the 
 priests  and  the  judges  of  the  whole  people  sat  in  judg- 
 ment :  and,  after  conviction,  the  false  witness  was 
 subjected  to  punishment,  according  to  the  law  of  re- 
 taliation, and  beyond  the  possibility  of  reprieve ;  so 
 that  he  suffered  the  very  same  punishment  which 
 attended  the  crime,  whereof  he  accused  his  innocent 
 brother  ;  Deut.  xix.  16, — 21. 
 
 According,  likewise,  to  this  same  law  of  retribu- 
 tion,   it  is   probable,   that    malicious    false   accusers 
 
298  Funishfnents  of  False  Witness.    [Art.  292. 
 
 were  dealt  with ;  not  those,  however,  who,  having 
 been  injured,  erroneously  accused  an  innocent  per- 
 son ;  but  only  those,  who  were  convicted  of  having 
 given  false  information,  respecting  crimes  committed 
 by  others,  and  whereby  they  were  not  themselves 
 injured. 
 
CHAPTER  VII 
 
 CRIMES   AGAINST    PARENTS   AND    RULERS. 
 
 ART.  CCXCIII. 
 
 Jleinous  Crimes  against  Parents,  such  as  Citrsingt  or 
 Striking  them,  punished  xvith  death. 
 
 §1.1  have  already  remarked,  in  treating  of  the 
 rights  of  fathers,  in  Art.  LXXXIII.,  that  the  most 
 heinous  offences  of  children  against  their  parents  were 
 punished  capitally  ;  and  these  were,  (1.)  Cursing  their 
 parents,  Exod.  xxi.  1 7.  Lev.  xx.  9. ;  and,  (2.)  Striking 
 them,  Exod.  xxi.  15. 
 
 By  the  term  cursing,  we  are  here  to  understand, 
 not  only  what  may  be  peculiarly  so  termed,  that  is, 
 imprecating  evil  on  a  parent,  but  probably,  all  rude 
 and  reproachful  language  used  towards  him  ;  at  least, 
 the  Hebrew  word  ^p,  (to  which  I  cannot  find  any 
 German  term  altogether  equivalent ;  and  the  Latin, 
 makdicere,  which  more  nearly  resembles  it,  has  rather 
 a  wider  range  of  signification  ;)  would  seem  to  com- 
 prehend as  much,  according  to  the  common  usage  of 
 the  language. 
 
 An  example  of  this  crime,  and,  indeed,  one  alto- 
 gether in  point,  is  given  by  Christ,  in  Mattli.  xv. 
 
300  Pharisaical  Doctrine  of  Korban.     [Art.  293. 
 
 4, — 6.  or  Mark  vii.  9, — 12.;  where  lie  upbraids  the 
 Pharisees  with  their  giving,  from  their  deference  to 
 human  traditions  and  doctrines,  such  an  exposition 
 of  the  divine  law,  as  converted  an  action,  which,  by 
 the  law  of  Moses,  would  have  been  punished  with 
 death,  into  a  vow,  both  obligatory  and  acceptable  in 
 the  sight  of  God.  It  seems,  that  it  was  then  not  un- 
 common for  an  undutiful  and  degenerate  son,  who 
 wanted  to  be  rid  of  the  burden  of  supporting  his 
 parents,  and,  in  his  wrath,  to  turn  them  adrift  upon 
 the  wide  world,  to  say  to  his  father  or  mother,  Kor- 
 han9  or,  Be  that  Korban  (consecrated)  which  I  should 
 appropriate  to  thy  support ;  that  is,  Every  thing  where- 
 with I  might  ever  aid  or  serve  thee,  and,  of  course, 
 every  thing,  which  I  ought  to  devote  to  thy  relief  in  the 
 days  of  helpless  old  age,  I  here  vow  unto  God.-— A  most 
 abominable  vow  indeed !  and  which  God  would,  un- 
 questionably, as  little  approve  or  accept,  as  he  would 
 a  vow  to  commit  adultery  or  sodomy.  And  yet  some 
 of  the  Pharisees  pronounced  on  such  vows  this  strange 
 decision  ;  that  they  were  absolutely  obligatory,  and 
 that  the  son,  who  uttered  such  words,  was  bound  to 
 abstain  from  contributing,  in  the  smallest  article,  to 
 the  behoof  of  his  parents  ;  because  every  thing,  that 
 should  have  been  so  appropriated,  had  become  con- 
 secrated to  God,  and  could  no  longer  be  applied  to 
 their  use,  without  sacrilege  and  a  breach  of  his  vow. 
 But  on  this  exposition,  Christ  not  only  remarked,  that 
 it  abrogated  the  fifth  commandment,  but  he  likewise 
 added,  as  a  counter-doctrine,  that  Moses,  their  own 
 legislator,  had  expressly  declared,  that  the  man  who 
 cursed  father  or  mother  deserved  to  die.    Now,  it  is 
 
Art.  293.]  Obedience  to  parents  enjoined  by  Moses.    301 
 
 impossible  for  a  man  to  curse  his  parents  more  effec- 
 tually, than  by  a  vow  like  this,  when  he  interprets  it 
 with  such  rigour,  as  to  preclude  him  from  doing  any 
 thing  in  future  for  their  benefit.  It  is  not  imprecat- 
 ing upon  them  a  curse  in  the  common  style  of  curses; 
 which  but  evaporate  into  air,  because  neither  the 
 devil,  nor  the  lightning  are  wont  to  be  so  obsequious, 
 as  to  obey  our  wishes  every  time  we  call  upon  the  one 
 to  take,  or  the  other  to  strike  dead,  our  adversaries  : 
 but  it  is  fulfilling  the  curse,  and  making  it  to  all  in- 
 tents and  purposes  effectual. 
 
 That  the  Hebrew  legislator  looked  upon  it  as  a 
 very  important  point,  to  secure  obedience  to  parents, 
 we  see  from  the  severity  of  the  punishments  annexed 
 to  offences  against  them.  In  order  to  render  this 
 duty  the  more  sacred,  we  find  God,  as  the  lawgiver 
 and  king  of  the  people  of  Israel,  distinguishing  it  still 
 farther  by  the  following  procedure  :  first,  giving  it  a 
 place  among  those  ten  commandments,  which  he  him- 
 self immediately  published  from  mount  Sinai,  and, 
 indeed,  the  first  place  among  those  of  them,  which 
 determine  our  duties  towards  men ;  and  secondly, 
 annexing  to  it  a  promise  in  these  words  ;  that,  in  the 
 land  which  Jehovah  thy  God  is  about  to  give  unto  thee, 
 thou  mayest  live  long,  and  attain  a  good  old  age  ; — 
 words,  which,  while  they  remind  us  of  St.  Paul's 
 remark  in  Eph.  vi.  5.  that  this  is  the  first  command- 
 ment  with  a  promise  annexed  to  it,  at  the  same  time 
 convey,  to  the  man  who  violates  this  command,  a 
 threatening,  that  he  may  dread  the  contrary  fate. 
 God,  therefore,  inasmuch  as  he  was  king  of  the  Israel- 
 ites, and  had  promised  to  exercise  among  that  people  a 
 
302    Sanction  of  the  5th  commandment  local.  [Art.  295. 
 
 particular  providence  in  respect  to  temporal  rewards 
 and  punishments,  took  upon  himself  the  sanction  of 
 this  commandment,  just  as  he  did  of  those  command- 
 ments of  the  Jirst  table,  which  include  man's  duty  to 
 himself;  in  regard  to  which  we  find  him  likewise 
 promising  rewards  and  denouncing  threatenings,  in 
 Exod.  xx.  5,  6,  7. 
 
 I  may  here  observe,  in  passing,  that  Philo,  who,  to 
 be  sure,  philosophises,  in  general,  rather  too  artifi- 
 cially and  platonicallg  on  the  laws  of  Moses,  has,  in 
 his  Book  kepi  Ustux.  Koytuv,  a  long  remark  in  illustra- 
 tion of  the  circumstance  of  the  commandment  rela- 
 tive to  the  duty  which  we  owe  to  parents,  standing  in 
 the  middle  between  those  of  the  Jirst  and  second  table  ; 
 and  obedience  to  parents,  being,  in  some  measure, 
 inculcated  as  obedience  towards  God  himself.  This 
 remark  contains  some  truth,  but  is,  as  usual,  carried 
 too  far  by  his  philosophical  subtilties  and  refinements. 
 The  reader  who  chuses  to  take  the  trouble  of  perusing 
 \t,  may  consult  Mangey's  edition  of  his  works,  part  ii. 
 p,  198.,  &c. 
 
 The  promise  added  to  the  fifth  commandment  has 
 as  little  reference  to  mankind  at  large,  as  the  deca- 
 logue in  general ;  which  contains  many  things  ad- 
 dressed only  to  the  people  of  Israel.  The  very  ex- 
 pression, in  the  land  which  Jehovah,  thy  God,  is  about 
 to  give  unto  thee,  shews  this  ;  for  that  land  was  Pales- 
 tine, in  which  we  of  these  times  have  no  desire  to 
 live  and  grow  old  ;  but  most  willingly  leave  it  to 
 Dahir,  and  other  personages  of  the  same  cast,  whom 
 the  newspapers  at  present  tell  us  of,  to  torment  and 
 kill  one  another  on  this  account.     The  promise  m 
 
Art.  294.]  Sanctto7i  of  the  5th  commandment  local.  305 
 
 question  was  never  given  to  us,  but  to  the  Israelites, 
 as  long  as  they  should,  as  a  people,  fulfil  their  duty 
 towards  God.  Since,  then,  we  find  no  trace  of  the 
 fulfilment  of  the  sanction  of  the  fifth  commandment, 
 we  must  consider  it  as  a  matter  in  which  religion  is 
 not  concerned  ;  that  it  held  only  in  that  particular 
 state,  to  which  God  himself  gave  civil  laws,  and  that 
 it  was  a  part  of  the  theocracy. — But  still  we  cannot, 
 after  all,  help  thinking,  that  even  yet,  on  some  occa- 
 sions, Providence  would  seem  to  fulfil  it.  On  this 
 point,  however,  I  leave  it  to  every  one  to  collect  obser- 
 vations for  himself,  for  it  does  not  belong  to  my 
 present  subject  to  shew,  that  God,  in  order  to  render 
 the  duties  owing  to  parents  more  sacred  among  other 
 peoples,  may  sometimes  do  among  them,  what  he 
 only  expressly  promised  and  threatened  to  the  people 
 of  Israel,  whose  civil  sovereign  he  was.  Every  na- 
 tion in  which  the  duties  of  children  to  their  parents 
 become  grossly  neglected,  and  where  the  legislative 
 authority  allows  that  to  be  the  case,  will  naturally, 
 and  without  any  particular  interposition  of  Provi- 
 dence, be  sure,  ipso  facto,  to  render  itself  miserable. 
 
 ART.  CCXCIV. 
 
 The  Drunkard,  "whom  his  Parents  were  unable  to  keep 
 in  Order,  and  who,  in  his  cups,  endangered  the  lives 
 of  his  neighbours,  was  punished  with  Stoning. 
 
 §  2.  There  is  still  another  statute,  which  inflicts 
 the  punishment  of  death  upon  an  undutiful  son, 
 and  which  we  find  in  Deut,  xxi.  18, — 21.    It  applies 
 
304        The  Drunken  and  Rebellious  Son.     [Art.  294. 
 
 however,  at  least  as  far  as  I  am  able  to  understand  it, 
 not  so  much  to  the  punishment  of  any  particular 
 crime  against  parents,  as  to  the  case  of  parents  hav- 
 ing a  son  addicted  to  drinking,  and  in  his  drunken 
 fits  apt  to  pick  quarrels,  and  to  disturb  the  public 
 peace,  whom  they  could  not  controul,  nor,  of  course, 
 prevent  from  endangering  the  safety  of  others.  The 
 words  themselves,  indeed,  shew  this ;  If  a  man  have 
 a  son  mischievous*  and  disobedient,  who  heedeth  not  the 
 words  of  his  parents,  and,  though  they  have  actually 
 chastised  him,  yet  hearkeneth  not  unto  them  ;  his  father 
 and  mother  shall  bring  him  to  the  gate  of  the  city  before 
 the  elders,  and  say,  Jliis  our  son  is  always  engaged  in 
 wicked  deeds  ;  he  is  refractory,  and  disobedient ;  a  pro- 
 fligale  and  a  drunkard,  &$c.  $$c.  Here  it  is,  at  any 
 rate,  evident,  that  Moses  is  speaking  of  a  person  ad- 
 dicted to  drinking,  and  habitually  guilty  of  mischief; 
 and  whom  his  parents,  finding  admonitions  in  vain, 
 have  chastised;  (and,  from  the  connection,  that  can 
 hardly  mean  any  thing  less  than  actual  discipline ; J 
 though  it  has  produced  no  good  effect  upon  him.  In 
 such  a  case,  the  incorrigible  drunkard,  from  whose 
 
 *  As  the  explanation  of  this  passage  depends  chiefly  upon  the 
 word  *niD,  (Sorer)  which  others  render  only  vndutiful,  I  must  here 
 remark,  that  it  cannot  grammatically  come  fiom  the  verb  11D,  (Sur) 
 to  deviate,  because  then  the  participle  of  Kul  would  be  IV,  (Sar) 
 and  of  Piel,  TV1D73,  (Mesorer)  ;  but  from  the  verb  1")D,  (Sarar) 
 Arabice,  Scharar.  This  verb  is,  in  Arabic,  used  of  evil  deeds ;  and 
 hence  Sorer  comes  in  Hebrew  to  signify  maleficus,  and  Sam,  (ttid) 
 maleficium.  I  cannot  here  enter  farther  into  philological  illustra- 
 tion, because  my  printer  has  no  Arabic  types,  and  because  to  most 
 of  my  readers  it  would  be  irksome. 
 
Art.  294.]     The  Punishment  justly  Capital  305 
 
 outrages  the  lives  and  limbs  of  his  neighbours  were 
 in  continual  hazard,  when  his  parents  had  in  vain 
 tried  every  possible  method  to  prevent  him  from 
 doing  mischief  to  others,  was  to  be  stoned  to  death. 
 
 This  was  no  doubt  a  severe  punishment ;  but  cer- 
 tainly not  more  so,  than  we  should  indict  in  the  state 
 of  nature.  For,  let  us  suppose  ourselves  in  that  state, 
 and  without  magistrates  ;  and  that  there  were  among 
 us  a  person  who  frequently  got  drunk,  and  had  the 
 misfortune  of  becoming  very  quarrelsome  in  his  cups, 
 attempting  to  kill  every  one  he  met,  and  revenging 
 imaginary  insults  with,  his  sword ;  and  that  he  had 
 been  repeatedly  warned,  and  even  soundly  beaten,  but 
 without  any  effect ;  is  it  to  be  supposed,  that  we 
 would  still  continue  to  run  such  risks  from  him  ?  I 
 hardly  think  so ;  but  that  we  would,  without  farther 
 ceremony,  take  his  life,  in  order  to  save  our  own. — 
 Let  us  suppose  farther,  that  his  parents  were  still 
 alive  ;  that  they  had  been  previously  applied  to  ;  had 
 admonished  him  ;  and  had  even  in  his  sober  moments, 
 and  before  he  had  absolutely  rebelled,  actually  cor- 
 rected him  ;  but  all  to  no  manner  of  purpose,  and 
 without  being  able  to  wean  him  in  the  least  from  that 
 intemperance,  which  proved  so  dangerous  to  his  neigh- 
 bours ;  we  certainly  should  think,  that  he  had  thus  ex- 
 perienced all  the  lenity  and  forbearance  that  was  due 
 to  him,  and  that  we  could  not  have  any  reason  to  re- 
 proach ourselves,  although  we  rid  the  world  of  such 
 a  troublesome  fellow,  by  shooting,  stabbing,  or  stonirg 
 him  to  death.  Now,  it  was  this  last  punishment  that 
 was  inflicted  on  the  drunken  son  by  the  Mosaic  sta- 
 tute ;  not,  however,  as  in  the  state  of  nature  would 
 
 VOL.  TV,  U 
 
306  Objection  respect,  its  Seventy,  answered.  [Art.  294, 
 
 have  been  done,  in  the  very  act  of  outrage  ;  but  with 
 all  proper  solemnity,  and  as  an  example  to  others  j 
 that  others  in  Israel  might  hear,  and  be  deterred  jrom 
 the  like  wickedness  ;  and  not  until  his  parents  had 
 found  themselves  compelled,  after  many  unsuccessful 
 efforts  with  him,  judicially  to  acknowledge,  that  they 
 were  not  capable  of  keeping  him  in  order,  and  answer- 
 ing for  the  safety  of  the  neighbours.  That  such  an 
 acknowledgment  would  be  made  but  very  seldom,  and 
 only  in  eases  of  the  most  extreme  necessity,  and  where 
 the  father  himself  was  called  to  account  for  his  son's 
 misdeeds,  I  need  not  mention  to  any  one  who  is  a 
 lather,  and  feels-  the  power  of  paternal  affection. 
 
 It  willy  however,  still  be  thought  a  severe  procedure* 
 because,  though  we  might  not  perhaps  condemn  it  in 
 a  state  of  nature,  we  nevertheless,  in  civil  society, 
 proceed  with  more  clemency  towards  the  man  who 
 enjoys  the  title  of  a  citizen, — that  title,  which  conveys 
 the  idea  of  so  many  rights  and  privileges,  and  may  be 
 considered  as  a  recommendation  to  mercy.  But  we 
 must  not  forget,  that  to  those  means  which  *we,  as 
 members  of  civil  society,  have  for  securing  such  dan- 
 gerous citizens,  the  Israelites,  in  the  days  of  Moses, 
 and  long  afterwards,  were  just  as  great  strangers,  as  a 
 people  in  the  state  of  nature.  Prisons,  my  readers 
 will  recollect  from  Art.  CCXXXVIII.,  they  had  none ; 
 and  none  of  them,  I  hope,  entertain  those  new-fashioned 
 ideas  of  compassion,  which,  by  wTay  of  avoiding  capital 
 punishments,  condemn  delinquents  to  be  cast  into  dun- 
 geons, and  there  fed  ;  for,  not  to  mention  the  ques- 
 tion, Who  is  to  bear  the  expense  f  this,  like  most  of  the 
 tender  mercies  of  those  who  seek  to  avoid  capital  pu« 
 
Art.294/]  Montesquieu's  Remark  on  Intemperance.  307 
 
 nishments,  would  be  much  more  cruel  than  any  death 
 to  which  a  felon  could  be  subjected.  In  the  infant 
 state  of  architecture  among  the  Israelites  ;  which,  in- 
 deed, continued  for  many  centuries  after  Moses  so  lit- 
 tle improved,  that  the  temple  of  Solomon  itself,  though 
 extolled  as  one  of  the  wonders  of  the  ancient  world, 
 did  not  surpass  our  larger  sort  of  private  houses  ;  the 
 generality  of  habitations  were  probably  no  better  than 
 what  we  call  huts,  or  cottages,  and  of  course  had  no 
 conveniences  for  the  confinement  of  unruly  sons  :  or 
 if  the  more  opulent  had  such  conveniences,  they  would 
 not  be  likely  to  have  complained,  but  would  have  lock- 
 ed them  up,  and  so  have  prevented  all  cause  for  in- 
 flicting the  punishment  of  the  law. 
 
 With  all  this,  however,  the  just  remark  of  Montes- 
 quieu still  claims  our  attention  ;  that  in  southern  coun- 
 tries, drunkenness  is  attended  with  far  more  formid- 
 able consequences  than  in  northern,  and  must  be  re- 
 garded by  a  legislator  in  a  different  light.  Among 
 us,  the  case  of  a  drunkard  doing  mischief  is  really  not 
 very  frequent-  No  doubt,  we  see  instances  of  people 
 under  the  influence  of  liquor  ;  but  then  they  are 
 neither  so  determined  on  mischief,  nor  yet  half  so 
 extravagant,  as  in  warmer  climates.  How  it  comes 
 to  pass,  I  know  not ;  but  we  certainly  often  find  them 
 quite  rational,  friendly,  and  affable ;  and  there  are 
 men  of  particular  temperaments,  on  whom,  if  we  wish 
 to  make  any  impression,  we  must  previously  ply  them 
 with  drink. — In  no  place  whatever,  have?  I  had  it  in 
 my  power  to  make  remarks  on  people  overcome  with 
 liquor,  in  such  numbers,  as  in  London  ;  and  I  shall 
 now  mention  how  they  appeared  to  me,  not  by  tens, 
 
 U  2 
 
30S  Sunday  Drunkenness,  in  London.     [Art.  294. 
 
 but  by  thousands.  In  the  vicinity  of  that  metropolis, 
 though  I  have  on  a  Sunday  walked  some  miles,  through 
 long  strings  of  them  returning  from  the  country,  yet 
 not  one  of  them  ever  said  a  word  to  me  ;  so  that  I  had 
 much  amusement  in  making  such  experiments  on  the 
 harmlessness  of  their  intemperance,  the  reality  of 
 which  I  had  no  difficulty  in  ascertaining,  as  they  stag- 
 gered lustily  along.  Once  only  was  I  addressed  by  a 
 person,  who  pointed  to  the  sun  sinking  in  the  west, 
 and  very  politely  begged  to  know  what  it  was.  A 
 friend  who  accompanied  me,  was  indeed  rather  more 
 unlucky  ;  for  happening,  out  of  the  abundance  of  his 
 benevolence,  to  call  to  a  very  drunken  rider,  that  his 
 horse  was  in  some  danger  or  other,  the  man  appeared  to 
 take  it  much  amiss  j  though  nothing  more  serious  fol- 
 lowed, than  his  exclaiming  after  him,  Damn  your  blood, 
 perhaps  a  hundred  times,  as  he  rode  along.  So  harmless 
 is  northern  drunkenness.— Our  great  lords,  too,  may  no 
 doubt  sometimes  drink  a  little  more  wine  than  a  court- 
 chaplain  would  approve  or  advise ;  but  to  such  scenes  as 
 took  place  at  the  table  of  Alexander  the  Great,  or,  as 
 we  read  of  in  Chardin's  Travels,  as  occurring  at  Ispa- 
 han, when  the  Schah  of  Persia,  contrary  to  Mahometan 
 orthodoxy,  got  himself  drunk,  we  are  utter  strangers  ; 
 indeed  we  know  nothing  even  of  such  intemperance 
 as  that  of  Philip,  after  the  battle  of  Cheeronea,  which 
 was  more  moderate.  For  this,  we  have  natural  tem- 
 perament in  a  great  measure  to  thank  ;  not,  however, 
 as  if  it  were  always  the  case,  that  those  of  the  keenest 
 tempers  become,  when  drunk,  the  most  unmanageable 
 and  extravagant  in  their  conduct ;  for  the  very  reverse 
 is  probably  the  truth  5  for  those  who,  in  their  sober 
 
Art.  295.]     Intoxication  in  Warm  Climates.  309 
 
 hours,  are  the  most  sedate  and  patient,  become,  when 
 drunk,  the  most  dangerous ;  and  besides,  constitution- 
 al  vivacity  does  not  increase,  as  we  proceed  south- 
 ward ;  but  wre  first  meet  with  pensive  melancholy, 
 and  then,  in  still  warmer  countries,  where  there  are 
 no  mountains  to  modify  the  heat,  a.  phlegmatic  temper- 
 ament, which  is  visible  even  in  the  youngest  children. 
 Is  it  then  the  case  that  the  people  of  southern  coun- 
 tries, w'ho  are  in  other  respects  so  peacefully  inclined, 
 have  thus  a  temperament  which  impels  them,  when 
 drunk,  to  commit  the  greatest  excesses  ;  or  is  the 
 reason  this,  that  in  a  warm  climate  a  much  greater 
 quantity  of  wine  is  requisite  to  produce  inebriation, 
 than  in  a  cold  one,  where  impeded  perspiration  ren- 
 ders a  man  sooner  intoxicated  ?  These  questions  I 
 leave  it  to  physicians  to  answer.  It  is  sufficient  for  my 
 purpose,  to  have  observed  that  a,  climate,  wherein 
 liquor  produces  more  formidable  effects  than  with  us ; 
 and  a  people,  whose  confined  habitations  preclude 
 them  from  the  means  of  securing  drunkards,  and  pre- 
 venting them  from  doing  mischief,  must  have  different 
 Jaws  from  those  which  wre  require. 
 
 ART.  CCXCV. 
 
 Of  gross  Verbal  Injuries  towards  the  Magistrate  ;  Cri- 
 men la;sse  Majestatis. 
 
 §  ?>.  Reproachful  words  or  curses  uttered  against 
 persons  invested  with  authority,  are  prohibited  in 
 Exod.  xxii.  28. ;  and  indeed  under  an  express  decla- 
 ration, that  the  crime  is  regarded  as  an  offence  against 
 
 U  3 
 
S10  Crime  of  cursing  Magistrates,      [Art.  295. 
 
 God  himself,  whose  place  the  magistrate  fills  in  the 
 seat  of  judgment ;  Thou  shall  not  curse  the  gods  *,  nor 
 imprecate  evil  on  the  rulers  of  thy  people ;  that  is,  The 
 godSy  or  rulers  of  thy  people,  thou  shalt  not  curse.  This, 
 at  any  rate  shews,  that  gross  verbal  injuries  against  the 
 magistrate  were  deemed  highly  criminal  by  the  legis- 
 lator, and  were  not  to  be  suffered  to  pass  with  impu- 
 nity. Their  punishment,  however,  he  has  not  speci- 
 fied ;  nor  indeed  can  it  be  universally  the  same.  It 
 must  be  left  to  the  decision  of  the  judge,  because  it 
 ought  to  be  different,  according  to  the  extent  of  the 
 crime,  and  the  rank  of  the  magistrate,  whether  su- 
 preme or  subordinate.  Most  probably  it  generally  con- 
 sisted of  stripes.  As  long  as  the  Mosaic  polity  remain- 
 ed unaltered,  the  crime  of  (Icesce  majestatis)  treason 
 could  not  be  committed  against  any  mortal  sovereign, 
 but  only  against  God  himself,  who  was  regarded  as 
 king  of  Israel ;  for  during  that  period,  none  of  the 
 rulers  possessed  royal  authority.  Afterwards,  how- 
 ever, when  kings  were  established,  the  crime  of  trea- 
 son appears  to  have  been  punished  with  death.  This 
 we  see  from  the  story  in  2  Sam.  xix.  22, — 24.,  where 
 Shimei  is  pardoned  by  David  ;  though  Abishai  sup- 
 posed that  could  never  happen,  and  that  he  must  die 
 without  mercy,  because  he  had  cursed  the  Lord*s  a- 
 nointed.  At  the  same  time,  it  would  appear,  that  the 
 wound  which,  according  to  the  Asiatic  way  of  think- 
 ing, the  reverence  due  to  kings  had  suffered,  by  the 
 long  delay  of  the  punishment  of  this  treason,  was,  in 
 the  judgment  of  David  himself!,  extremely  dangerous , 
 
 '  See  Art.  XXXV.  No.  2. 
 
Art.  295.]      The  Royal  Person  inviolable.  31 1 
 
 and  that,  in  conformity  to  David's  counsel,  his  suc- 
 cessor, who  was  bound  to  no  promise  to  Shimei,  put 
 him  to  death,  for  what  certainly  was  a  very  trifling  act 
 of  disobedience,  viz.  the  violation  of  a  promise  he  had 
 given  upon  oath,  that  he  would  never  go  without  the 
 walls  of  Jerusalem  ;  and  which  was  construed  into  a 
 forfeiture  of  his  former  pardon ;  1  Kings  ii.  8,  9.  36, 
 — 46. 
 
 The  very  circumstance  of  Moses  appointing  no  king, 
 serves  to  account  for  our  finding,  in  his  laws,  so  little 
 notice  of  other  crimes  of  a  treasonable  nature.  When 
 the  Israelites,  however,  were  under  royal  authority,  it 
 would  appear  to  have  been  a  maxim  in  their  law,  that  the 
 person  of  the  king  w as  inviolable,  even  though  he  might  be 
 tyrannical  and  unjust,  (2  Sam.  xxiv.  5, — 8.) ;  and,  in 
 fact,  this  maxim  is  necessary,  not  only  to  the  security  of 
 the  king,  but  also  to  the  welfare  of  the  subject ;  for  it  is 
 the  dread  of  assassination  and  treacheries,  that  usual!) 
 makes  kings  tyrants,  and  novices  in  tyranny  absolute 
 despots.  Even  the  Amalekite  who  told  David  the 
 improbable,  and  probably  untrue,  story,  of  his  having 
 put  the  mortally-wounded  Saul  to  death,  at  his  own 
 request,  that  he  might  not  fall  into  the  hands  of  the 
 Philistines,  was,  merely  on  this  his  own  confession, 
 ordered  by  David  to  be  instantly  dispatched,  because 
 he  had  laid  his  hand  on  the  Lord's  anointed.  This, 
 however,  was  not  authorised  by  the  Mosaic  law  ;  and 
 may  partly  have  been  a  measure  dictated  by  policy  ; 
 at  least,  David  could  not  have  taken  a  more  prudent, 
 plan  to  clear  himself  of  all  suspicion,  and  to  secure 
 the  life  of  the  king  in  future.  On  this  point  I  shall 
 enlarge,  in  my  Notes  upon  the  books  oi  Samuel,  or 
 
 u  4 
 
312  Cursing  a  Neighbour.  [Art.  295. 
 
 in  my  Life  of  David ;  but  at  present,  I  am  looking 
 forward  with  anxiety  to  the  conclusion  of  this  work, 
 which  has  extended  far  beyond  the  limits  within  which 
 I  meant  to  confine  it. 
 
 With  regard  to  verbal  injuries  towards  fellow  citi- 
 zens, or,  as  Moses  would  have  expressed  it,  cursing  a 
 neighbour,  I  find  nothing  in  the  law,  except  what  has 
 been  stated  under  Art.  CCXCI.  It  is  probable  that, 
 as  was  often  the  case  among  other  ancient  peoples, 
 they  remained  unpunished  j  though  perhaps  a  retali- 
 ation of  abuse,  or  the  avengement  of  it  by  blows, 
 when  a  person  was  too  much  provoked,  may  have 
 been  allowed  as  a  civil  right. 
 
CHAPTER  VII I. 
 
 OF     JUDICIAL      PROCEDURE. 
 
 ART.  CCXCVL 
 
 Little  is  known  relative  to  Judicial  Procedure. — Where- 
 fore Moses  has  given  so  few  directions  concerning  it. 
 
 §  1.  With  regard  to  judicial  procedure,  or  the  form 
 of  process,  as  it  may  be  called,  concerning  which  I  am 
 aware,  that  many  of  my  readers  of  the  legal  profes- 
 sion, and  among  them,  persons  eminent  for  their  know- 
 ledge, have  been  anxious  to  obtain  information,  I  really 
 can  say  but  very  little,  and  that  little  is  almost  all 
 purely  of  a  negative  nature.  The  blame,  however, 
 here  lies  not  with  me,  but  with  Moses  himself,  who  is, 
 for  the  most  part,  silent  on  the  subject;  prescribing 
 scarcely  any  rules  for  legal  proceedings,  and,  at  any 
 rate,  nothing  like  a  form  of  process,  properly  so  called. 
 
 Hence,  in  the  Jirst  place,  I  infer,  that  judicial  pro- 
 cedure was  very  summary.  This,  indeed,  is  common- 
 ly the  case  in  Asia,  and  it  has  both  its  advantages  and 
 its  evils  ;  but  among  a  people  at  their  first  establish- 
 ment, it  must  have  been  still  more  summary,  than  we 
 now  find  it  in  other  parts  of  that  quarter  of  the  globe. 
 Let  the  reader  place  himself,  in  idea,  among  the  Is- 
 raelites of  those  days.     Hitherto  they  had  not  been  a 
 
314      Judicial  Procedure  at [first  summary.  [Art.  296, 
 
 distinct,  at  least  a  free,  people  ;  but  oppressed  slaves, 
 over  whom  the  Egyptian  overseers  exercised  a  very 
 compendious  sort  of  justice.  All  at  once  they  ob- 
 tained their  freedom,  and,  as  brethren  who  had  expe- 
 rienced the  hardships  of  oppression  in  common,  they 
 entertained  strong  feelings  of  national  attachment  to 
 each  other.  They  likewise  had  a  high  sense  of  honour 
 and  honesty,  and  a  peculiar  abhorrence  of  oaths.  They 
 were  under  the  guidance  of  a  leader,  whom  they  re- 
 vered as  an  immediate  messenger  of  the  Deity.  They 
 saw  his  miracles  witli  their  own  eyes ;  and  therefore 
 Ins  look,  or  his  word,  was  in  most  cases  sufficient  to 
 discover  the  truth,  and  bring  the  guilty  to  a  confession 
 of  their  crimes.  In  such  circumstances,  it  is  evident, 
 that  judicial  procedure  must  have  been  very  summary  ; 
 and  indeed,  if  it  had  not  been  so,  it  would  have  been 
 impossible  for  Moses  to  have  continued,  as  he  did,  for 
 a  month,  or  six  weeks,  as  the  sole  judge  of  such  a 
 numerous  people  ;  Exod.  xviii.  13, — 26. 
 
 Add  to  this,  in  the  second  place,  that  it  would  have 
 been  quite  premature  to  have  thought  of  a  complete  form 
 of  judicial  procedure,  while  the  people  were  yet  but  be- 
 ginning to  be  established.  That  legislator  acts  with 
 most  prudence,  who,  in  such  a  situation  of  affairs, 
 leaves  judicial  procedure  in  its  original  simplicity,  and, 
 as  much  as  possible,  in  the  way  wherein  it  was  regu- 
 lated in  the  patriarchal  state  j  and  who  satisfies  him- 
 self with  repressing  any  particular  abuses  that  may 
 make  their  appearance.  This  simple  arrangement  will, 
 for  a  time,  answer  much  better  than  any  new  form  of 
 process,  however  carefully  contrived.  Afterwards, 
 indeed,  such  a  form  will  become  indispensable,  not 
 
Art.  296.]      //  must  afterwards  be  altered.  SIS 
 
 only  from  the  chicaneries  that  will  be  devised  by  de- 
 linquents, and  particularly  by  those  who  are  experi- 
 enced in  crimes,  and  have  made  themselves  acquainted 
 with  legal  proceedings,   in   order  to  carry  on   their 
 wicked  practices  with  impunity  *  ;  but  also,  from  the 
 false  accusations  that  will  be  made,  and  the  unjust  or 
 precipitate  decision  of  judges.     But  how  it  is  even 
 then  to  be  framed,  must  depend  entirely  on  the  nature 
 of  the  chicaneries  that  are  practised,  or  the  acts  of  in- 
 justice, &c.  that  prevail  among  the  people.     Not  un- 
 frequently   will   a  single   individual  of  an  inventive 
 genius,   who  has  succeeded  in  his  chicanery,   or  in 
 overwhelming  an  accused  person  whom  he  did  not 
 favour,  have  so  many  followers  in  the  same  track,  as 
 to  render  a  change  of  procedure  absolutely  necessary. 
 — Let  the  reader,  then,  transport  himself  again  to  the 
 Mosaic  times.    The  people  of  Israel  were  not  yet  come 
 into  the  country,  wherein  they  were  to  dwell ;  but 
 were  encamped,  as  they  marched  through  the  desert,  so 
 closely  together,  that  witnesses  could  seldom  be  want- 
 ing on  any  occasion.     They  were  in  some  measure 
 under  martial  law,   and  quite  unaccustomed  to  the 
 quirks  of  barristers  ;  for  these  were  not  yet  to  be  found 
 among  them.     This,  then,  surely  was  not  the  proper 
 time  for  giving  them  a  form  of  process  that  should  be 
 useful  throughout  future  ages ;  nor  do  I  go  too  far 
 when  I  assert,  that  the  Deity  could  not  then  have  pre- 
 scribed any  such  form.     He,  it  is  true,  perfectly  knew 
 
 *  Instances  of  this,  we  not  unfrequently  observe  among  the  banditti 
 that  appear  before  our  courts  of  justice  ;  and  we  cannot  but  wonder 
 at  that  knowledge  of  criminal  jurisprudence  and  procedure,  which 
 culprits  often  display,  when  on  their  trials. 
 
316  Chicaneries  and  Crimes  change.     [Art.  296. 
 
 all  the  chicaneries,  acts  of  injustice,  and  abuses,  that 
 were  ever  to  exist  among  them ;  but  to  have  pre- 
 scribed a  form  of  procedure  adapted  to  counteract 
 such  things,  at  so  early  a  period,  while  the  people 
 were  yet  in  a  state  of  honest  simplicity,  would  only 
 have  been  to  render  the  administration  of  justice  tedi- 
 ous and  troublesome,  where  it  was  expeditious  and 
 easy,  and  at  the  same  time  could  only  have  served  to 
 make  them  acquainted  with,  and  lead  them  to  the 
 practice  of,  many  pieces  of  chicanery,  to  which  they 
 were  yet  strangers,  much  sooner  than  would  other- 
 wise have  been  the  case. 
 
 It  is,  moreover,  to  be  remarked,  that  acts  of  chi- 
 canery and  villainy  do  not  always  continue  the  same, 
 but  are  perpetually  changing.  Those  that  are  now 
 practised,  perhaps  require  a  new  law,  in  order  to  drive 
 the  culprit  out  of  his  cover  ;  and  a  century  afterwards, 
 this  law  comes  to  be  abused  by  a  judge,  out  of  ill-will 
 to  some  unhappy  criminal.  In  this  abuse  he  is  fol- 
 lowed by  others  ;  and  thus  another  new  law  becomes 
 requisite  to  put  a  stop  to  this  ingenious  mode  of  op- 
 pression. Now  we  only  accelerate  the  succession  of 
 such  base  artifices,  when  we  anticipate  chicaneries 
 that  are  not  yet  invented. 
 
 Forms  of  judicial  procedure,  therefore*  cannot  be 
 framed,  until  a  nation  has  arrived  at  a  state  of  matu- 
 rity, and  when  its  vices  and  devices  have  grown  to 
 maturity  along  with  it ;  and  even  then,  only  after 
 many  unsuccessful  attempts,  from  which  experience 
 has  been  acquired.  They  will  by  this  means  be  cal- 
 culated to  maintain  their  ground  for  a  long  period  ; 
 but  still  they  will  not  answer  for  ever,  because  the 
 
Art.  296.]     Oaths  at  first  are  held  sacred,  8$c.  317 
 
 chicanery  of  delinquents,  on  the  one  hand,  and  that 
 of  judges  who  want  to  condemn  the  innocent,  on  the 
 other,  will  never  cease.  But  at  no  time,  certainly,  is 
 it  more  improper  to  set  about  any  such  measure,  than 
 while  a  people  are  yet  honest,  virtuous,  and  conscien- 
 tious. At  this  period,  they  hold  oaths  very  sacred, 
 and  are  so  much  afraid  of  the  vengeance  of  heaven, 
 that  even  a  vicious  man  will  hardly  be  guilty  of  per- 
 jury. Much  of  this  national  virtue  will,  no  doubt, 
 gradually  vanish  ;  but  still  the  greater  part  of  the 
 people  will  shudder  at  the  thoughts  of  a  false  oath, 
 and  none  but  the  few  who  are  thoroughly  corrupted, 
 will  have  fortitude  enough  to  resolve  upon  taking  it. 
 Should  it,  however,  ever  prove  otherwise  ;  and  here  in 
 Germany,  for  instance,  should  those  doctrines,  which, 
 notwithstanding  their  swearing  to  the  Symbolical  Boohs, 
 we  sometimes  find  spiritual  persons  not  only  practising, 
 but  even  publicly  owning  and  defending,  once  become 
 the  universal  sense  of  the  nation,  and  should  laymen, 
 judges,  accusers,  accused,  and  witnesses,  follow  such 
 teachers,  we  should  then,  no  doubt,  require  a  form  of 
 judicial  procedure  very  different  indeed  from  the  pre- 
 sent. But  any  such  form,  framed  upon  the  ancient 
 principle  of  German  honesty,  and  that  maxim  of  our 
 forefathers,  which  called  a  xcord  a  word,  and  a  man  a 
 man,  would,  under  such  a  state  of  morals,  be  quite 
 ridiculous  and  useless. 
 
318       Taking  of  Gifts — ImpartialJudges.  [Art.  297. 
 
 ART.  CCXCVII. 
 
 Warnings  against  Partiality  and  Bribery. 
 
 §  2.  What  little  I  have  to  say  on  these  subjects, 
 may  be  comprehended  under  the  following  particulars. 
 
 1.  Gifts  from  a  party  to  a  judge  are  absolutely  pro- 
 hibited, even  though  not  given  on  condition  of  his 
 pronouncing  a  favourable  decision  ;  for,  as  Moses  says, 
 they  blind  even  the  wise,  and  render  a  just  cause  uncer- 
 tain ;  Exod.  xxiii.  8.  Among  those  secret  sins  on 
 which  the  Israelites  were  to  pronounce  curses,  in  ma- 
 king their  covenant  with  God,  and  invoking  his  ven- 
 geance on  transgressors,  we  find,  in  Deut.  xxvii.  25., 
 the  taking  of  gifts  ;  but  that  passage  seems  to  refer  to 
 the  case  of  murdering  the  innocent :  for  it  is  to  this 
 effect,  Closed  be  he  that  accepteth  a  gift  to  shed  inno- 
 cent blood.  For  bribes  given  to  a  judge,  the  Hebrew 
 law  has  a  particular  term,  in^,  Schochad,  which  is  not 
 usually  applied  to  denote  other  kinds  of  gifts,  and  so 
 seems  to  involve  the  idea  of  something  reprehensible  ; 
 but  its  etymology,  as  is  also  the  case  with  many  other 
 legal  terms,  has  not  been  yet  satisfactorily  pointed  out. 
 
 2.  In  many  passages,  Moses  enjoins  judges  to  ma- 
 nifest thai  impartiality  which,  without  respect  of  per- 
 sons, or  friendship,  or  passion,  follows  the  law  alone ; 
 reminding  them,  at  the  same  time,  that  a  judge  sits  in 
 the  seat  of  God,  and  that  therefore,  no  man  should 
 have  any  pre-eminence  in  his  sight,  neither  ought  he 
 to  be  afraid  of  any  man,  in  declaring  the  law  *.     He, 
 
 *  Exod.  xxiii.  6,  7.  Lev.  xix.  15.  Deut.  i.  17.  xxi.  18,-20. 
 
Art.  297.]  Partiality  to  the  Poor  in  his  Cause.         319 
 
 moreover,  expressly  specifies,  as  partiality,  not  only  all 
 respect  to  the  persons  of  the  rich  and  great,  but  also  that 
 mistaken  sympathy,  which  is  sometimes,  unjustly,  favou- 
 rable to  the  poor.  This  /^-mentioned  perversion  of 
 justice,  into  which,  as  it  has  something  of  a  pious  appear- 
 ance, the  man  of  benevolence  would  be  apt  to  be  hur- 
 ried, especially  where  a  fine,  as  in  the  case  of  certain 
 restitutions,  might  ruin  a  poor  man  altogether,  is  pro- 
 hibited in  Exod.  xxiii.  8.  and  Lev.  xix.  15.  In  fact,  it 
 is  just  as  unfair,  and  indeed,  in  some  respects,  more 
 mischievous- than  the  Jirst ;  for  a  rich  man  certainly 
 does  not  become  a  member  of  civil  society,  with  any 
 view  of  being  in  a  worse  situation  than  the  poor : 
 lie  only  requires,  and  he  has  a  right  to  be  put  on  a 
 footing  of  perfect  equality  with  them ;  and  where  he 
 does  not  find  that  equality,  he  will  naturally  abandon 
 such  society.  Now,  for  the  poorer  part  of  the  com- 
 munity, that  must  always  be  a  great  misfortune,  be- 
 cause it  is  by  the  employment  given  them  by  men  of 
 .  opulence,  that  the  poor  live  ;  and  the  more  the  former 
 extend  their  concerns,  so  much  the  better  for  the 
 latter.  Both,  indeed,  ought  ever  to  have  equal  rights  ; 
 but  if  the  poor  man  knew  his  own  interest,  he  might, 
 of  the  two  evils,  rather  wish,  that  partiality  should 
 sometimes  cause  injustice  to  the  poor,  than  to  the 
 rich.  For  in  England,  for  instance,  were  but  one 
 opulent  and  extensive  manufacturer  to  meet  with  such 
 injustice  in  any  cause,  as  to  induce  him  to  migrate 
 into  another  country,  this,  to  a  multitude  of  poor 
 journeymen-wreavers,  who  would  thus  be  without  em- 
 ployment, would  prove  a  much  greater  misfortune, 
 than  if  several  of  themselves  had  been  wronged  in  any 
 
320  Judges  durst  receive  ne  Presents.   [Art.  298. 
 
 matter  of  property. — I  may  add,  that  the  warnings 
 given  by  Moses  on  the  subject  of  partiality  in  favour 
 of  the  poor,  were  more  necessary  among  a  people 
 whose  government  had  so  much  of  a  democratical 
 cast,  than  they  would  be  in  ours ;  because  this  is  a 
 fault  to  which  a  democracy  has  an  inherent  tendency. 
 Among  60,355  judges  over  tens,  and  6035  over  hun- 
 dreds, (Art.  L.)  there  could  not  but  be  many  poor 
 men,  who  were  much  more  likely  to  sympathise  with 
 their  equals  than  with  the  rich. 
 
 What  punishment  was  inflicted  on  a  judge,  when 
 he  was  convicted  of  having  accepted  a  bribe,  or  mani- 
 festing partiality,  I  cannot  tell ;  for  Moses  nowhere 
 specifies  it.  Nor  yet  does  he  say,  whether  a  judge  durst, 
 by  way  of  perquisite,  and  remuneration  for  his  trouble, 
 accept  of  that  sort  of  present,  which  is  in  the  East  al- 
 ways offered  to  a  person  of  distinction,  when  any  one 
 waits  upon  him.  But  it  is  most  probable  that  he  durst 
 not,  and  that  justice  was  administered  gratuitously. 
 
 ART.  CCXCVIIL 
 
 The  Seat  of  Public  Justice  %vas  at  the  City -gate. — Whe» 
 ther  Advocates  were  employed? 
 
 §  3.  That  both  before  and  after  the  time  of  Moses, 
 the  place  where  justice  was  administered,  used  to  be 
 the  gate  of  the  city,  and  that  he,  of  course,  presup- 
 posed that  the  Israelites,  when  they  came  to  live  in 
 cities,  would  hold  their  courts  at  the  gates,  is  a  cir- 
 cumstance too  well  known,  to  make  it  necessary  for 
 me  to  trouble  the  reader  with  a  collection  of  passages 
 
Art.  298.]  No  Advocates,  such  as  ours,  mentioned.   321 
 
 in  proof  of  it.  It  appears,  therefore,  that  their  courts 
 were  public,  and  so  constituted,  as  that  every  one 
 might  hear  what  was  going  on.  This  is  an  ancient 
 usage,  which,  no  doubt,  is  attended  with  its  incon- 
 veniences ;  but  then  it  is  attended  with  this  advantage, 
 that  it  compels  the  judge,  from  a  dread  of  public  dis- 
 pleasure,, to  impartiality,  and  a  more  careful  inquiry 
 into  the  merits  of  causes.  It  was  no  contrivance,  or 
 institution  of  Moses,  who,  indeed,  gave  his  laws  to  a 
 people,  that  then  dwelt  not  in  cities  ;  but  an  ancient 
 consuetudinary  practice,  which  he  left  as  he  found  it. 
 
 Of  advocates,  such  as  ours,  there  is  no  appearance, 
 either  in  the  writings  of  Moses,  or  in  any  of  the  other 
 books  of  the  Old  Testament.  Every  man  managed 
 his  own  cause  :  and  we  even  see,  in  1  Kings  iii.  15— 
 28.,  an  instance  of  an  altercation  between  two  whores, 
 before  the  king,  sitting  as  judge.  In  the  ancient  He- 
 brew there  is  not  so  much  as  a  word  equivalent  to 
 advocate,  nor  does  the  term  Try^ocxXyToc,  occur  any 
 where  in  the  Septuagint.  The  Jews  of  later  times, 
 indeed,  have,  in  the  Chaldaic  and  Talmudical  dialects, 
 some  words,  which  they  use  to  denote  a  person  of  this 
 profession  ;  but  they  are  all  of  Greek  origin,  as  Dico- 
 logos,  Nicologos,  Sanigur,  (rwr/opi)  Paraclit* ;  be- 
 cause they  became  first  acquainted  with  it  from  the 
 Greeks,  and  found  no  name  for  it,  either  in  their 
 mother  tongue,  or  its  kindred  Chaldee. 
 
 The  circumstance,  nevertheless,  of  the  courts  being 
 
 VOL.  IV.  x 
 
 *    See    Buxtorf's   Chaldako-Talmudkal  Lexicon,   p.    53".    1388- 
 1509.  18-13. 
 
8%&  Occasional  Intercessors.  [Art.  29& 
 
 held  in  the  gate,  gave  room,  as  we  mast  conclude  from 
 Job  xxix.  15, — 17.  (and  I  beg  the  reader  to  peruse 
 the  whole  passage,  from  ver.  7.  in  my  German  ver- 
 sion) for  the  interference  of  another  sort  of  pleaders, 
 who  were  something  like  the  ancient  Roman  Patroni, 
 and  still  more  closely  resembled  a  modern  personage, 
 who  is  seldom  quoted  in  illustration  of  the  book  of 
 Job  ;  I  mean  Voltaire,  when  he  stood  forth  the  inter- 
 cessor of  the  Calas  family,  and  saved  the  reputation  of 
 the  unjustly  condemned  father.     The  city  gate  was 
 not  only  the  place  of  justice,  but  also  of  public  con- 
 course, where  the  people  assembled  to  hear  the  news, 
 and  to  pass  away  the  time.     Thither  the  man  of  for- 
 tune went  for  his  amusement ;  and,  if  he  happened  to 
 be  a  man  of  understanding,  and  distinguished  for  his 
 love  of  justice,  he  would,  though  not  properly  a  mem- 
 ber of  the  college  of  justice,  sometimes,  no  doubt,  be 
 asked  for  his  opinion  in  difficult  cases  ;  to  which  prac- 
 tice, indeed,  the  above  passage,  from  ver.  7.  to  14., 
 5eems  pointedly  to  refer.     If,  then,  there  came  any 
 very  intricate  cause  before  this  public  court,  and  he 
 thought,  that  a  malicious  accuser  was  doing  injustice 
 to  a  poor  man,  or  to  a  person  who  could  not  help 
 himself,  he  might  naturally  be  inclined  to  take  his 
 part ;    and  having  made  himself,   perhaps  with   no 
 small  trouble,  acquainted  with  the  circumstances  of 
 the  cause,  might  plead  (as  was  allowed)  in  behalf  of 
 the  accused  ;    thus   becoming,   merely  from  noble- 
 mindedness,  and  a  regard  to  justice,  the  advocate  of 
 the  unknown.     If  the  book  of  Job  was,  as  I  believe, 
 written  by  Moses,  the  passage  now  under  considera- 
 tion, is  to  be  considered  as  so  much  the  more  closely 
 
Art.  298.]    This  illustrated  from  the  booh  of  Job.      323 
 
 connected  with  the  Mosaic  jurisprudence  :  if  it  was  not 
 written  by  him,  it  is,  at  any  rate,  more  ancient  than  the 
 departure  of  the  Israelites  from  Egypt,  and,  therefore, 
 shews  us,  what  was  the  practice  of  the  neighbouring 
 and  kindred  nations  of  Arabia  before  this  law  was 
 given,  and  which  we  nowhere  find  abolished  by  him. 
 It  would  appear,  that  it  had  afterwards  subsisted  also 
 among  the  Israelites :  for  the  exhortation,  in  Isa. 
 i.  17.  Plead  the  cause  of  the  zvidow,  can  scarcely  ba 
 understood  otherwise  than  in  reference  to  it ;  because 
 the  judge  could  not  himself  be  the  widow's  advocate, 
 or,  in  other  words,  a  judge  and  a  party  at  the  same 
 time.  Nor  can  we  look  upon  such  actions,  in  men  of 
 wealth,  which  require  much  more  trouble  and  resolu- 
 tion than  almsgiving,  and  are  of  much  more  moment 
 than  any  sum  so  bestowed,  in  any  other  light  than  as 
 by  far  the  noblest  kind  of  charity  ;  more  especially 
 considering,  that  if  common,  they  must  have  a  power- 
 ful effect  in  the  prevention  of  injustice.  What  a  bene- 
 ficial influence  on  the  administration  of  justice  in 
 France,  has  not  Voltaire* s  pleading  the  cause  of  Calas 
 had?  There  is  no  Christian  who  will  not,  ont  hat  ac- 
 count alone,  wish  him  (what,  perhaps,  he  does  not  wish 
 himself)  a  firm  conviction  of  the  truth  of  the  Chris- 
 tian religion. 
 
32$  Adjuration  of  Witnesses.  [Art.  299* 
 
 ART.  CCXCIX. 
 Of  Witnesses. 
 
 5  4.  That  witnesses,  before  they  gave  their  evi- 
 dence, were  obliged  to  take  an  oath,  or,  more  properly 
 speaking,  to  hear  an  oath  read  over,  which  was  pre- 
 cisely tantamount  to  swearing  themselves,  we  see  from 
 Lev.  v.  1. ;  and  the  reader  may  peruse  both  what  we 
 have  already  stated  concerning  it,  in  Arts.  CCXLIV. 
 No.  3.  CCLVI.  No.  1.  and  CCXCI. ;  and  what  will 
 appear  in  the  Article  immediately  following  the  pre- 
 sent one. 
 
 In  the  Mosaic  law,  therefore,  none  other  than  sworn 
 witnesses  were  known  :  what  they  spoke,  was  declared 
 upon  oath  ;  and  if  they  concealed  what  they  knew,  they 
 were  guilty  of  perjury.  Now  this  plan  must  have  had 
 a  powerful  effect  in  making  truth  come  out ;  for  every 
 one  will  readily  conceive,  that  if  he  had  to  give  his 
 evidence  in  the  presence  of  a  delinquent  of  rank,  ct 
 with  whom  he  stood  in  terms  of  friendship,  he  might, 
 if  not  on  oath,  feel  himself  strongly  tempted  not  to 
 speak  the  truth  ;  and  in  reality,  our  courts  would  dis- 
 cover very  little  indeed,  were  they  to  proceed  on  such 
 a  plan  ;  whereas,  when  a  witness  has  sworn,  the  ac- 
 cused cannot  take  it  amiss,  that  he  should  declare  the 
 truth,  and  he  has  more  courage  to  do  so. — Even  by 
 the  custom  of  our  universities,  where  there  is  more 
 lying,  perhaps,  than  is  to  be  found  any  where  else,  no 
 man  is  offended  at  another  for  speaking  truths  that 
 
Art.  299.]  Nicmber  of  Witnesses  neces.for  Proof.     325 
 
 serve  to  fix  guilt  upon  him,  when  once  a  cause  comes 
 to  an  oath. 
 
 In  matters  where  life  was  concerned,  (the  crime  of 
 idolatry,  against  which  Moses  is,  in  other  respects,  so 
 very  rigorous,  not  excepted,)  one  witness  was  not  suf- 
 ficient. More  were  requisite,  or,  as  he  usually  ex- 
 presses it,  two  or  three  ;  and  if  these  were  not  to  be 
 found,  it  was  thought  better  that  a  guilty  person,  who 
 would  not  spontaneously  confess,  should  remain  un- 
 punished, than  the  risk  be  run,  of  punishing  one  who 
 was  innocent.  In  Numb.  xxxv.  30.  Deut.  xvii.  6,  7. 
 and  xix.  15.  the  phrase,  two  or  three  witnesses,  is  pro- 
 bably to  be  understood  on  this  footing,  that  if  the 
 witness,  who  had  seen  the  fact,  was  at  the  same  time 
 accuser,  or  even  informer,  other  two  witnesses  were 
 requisite  besides  him  ;  that  is,  three,  including  him. 
 For  if  wre  were  not  to  admit  this  explanation,  but  to 
 leave  the  phrase  as  indefinite  and  arbitrary,  as  the  ex- 
 pression six  or  seven,  which  the  English  commonly  make 
 use  of,  when  they  do  not  wish  to  state  a  number  ac- 
 curately; it  would,  in  a  law  relating  to  life  and  death, 
 be  a  very  unsuitable  term,  which  even  a  mere  human 
 legislator,  of  but  middling  capacity,  would  not,  if  he 
 had  dropt  it  even  once,  be  likely  to  employ  a  second 
 time ;  except,  indeed,  in  the  case  of  his  copying  a 
 foreign  law,  in  which  case,  we  often  see  imprudent 
 things  very  inconsiderately  adopted. 
 
 It  would  appear,  from  Moses  only  requiring  two  or 
 three  witnesses  in  capital  cases,  that,  in  matters  of  Jess 
 moment,  particularly  those  merely  relating  to  money 
 and  value,  he  had  considered  a  single  witness,  if  unex- 
 ceptionable, and  upon  oath,  as  capable  of  deciding  be 
 
826     Witnesses  on  Chris fs  Trial,  discordant.  [Art.  299. 
 
 tween  the  plaintiff  and  defendant.  Were  we  to  take 
 the  word  "JJJ,  Ed,  (witness)  in  Exod.  xxii.  12.  and 
 which  I  have  there  rendered  Bexveis,  (a  proof,)  in  the 
 strict  sense,  we  should  have  express  authority  for  this 
 opinion  ;  for  it  is  in  the  singular  number ;  and  the 
 clause  might  be  rendered,  He  shall  bring  a  witness 
 thereof.  But  even  if  it  be  translated,  as  I  certainly 
 think  it  ought,  Beweis,  (proof,)  still  it  would  appear, 
 that  the  owner  could  not  have  required  more  than  one 
 witness.     (Art.  CLXII.) 
 
 From  the  account  of  Christ's  trial  before  the  su- 
 preme council,  we  see  that  witnesses  were  examined 
 separately,  and  without  hearing  each  other's  declara- 
 tion, and  that  it  was  necessarily  in  presence  of  the 
 accused :  for  with  all  the  trouble  that  court  took  to 
 procure  false  witnesses,  they  could  find  none  sufficient 
 to  bring  guilt  home  to  Jesus,  because  their  testimony 
 did  not  accord  * ;  and  even  when  at  last  two  came 
 forward,  whose  declaration  was  really  founded  on  a 
 fact,  which  they  only  varied  a  little,  in  order  to  make 
 it  amount  to  a  crime  t ;  still  their  evidences  did  not 
 coincide ;  (Mark  xiv.  59.)  for  the  one  pretended  to 
 have  heard  Jesus  say,  /  can  demolish  the  temple  of  God, 
 and  build  it  again  in  three  days,  (Matth.  xxvi.  61.) — a 
 speech  altogether  unworthy  to  be  laid  hold  of — for  if 
 it  was  but  a  piece  of  impudent  gasconading,  we  must 
 remember  that  people  are  not  usually  put  to  death  for 
 such  bravadoes  ;  and  the  other,  (Mark  xiv.  58.)  I  xvill 
 
 *  See  Matth.  xxvi.  59.  Mark  xiy.  50. 
 
 f  Jesus  had  said,  (speaking  in  the  imperative  mood,}  Destroy   (I 
 icnipk,  and  in  three  days  wiU  J  raise  it  again* 
 
Art.  299.]     Procedure  in  the  Mosaic  times.  'si\ 
 
 destroy  the  temple  of  God,  which  is  built  with  hands, 
 (words  which  Jesus  never  spoke,  but  on  which  alone 
 the  charge  against  him  could  be  said  to  be  founded, 
 on  the  footing  of  his  meaning  the  reat  temple  of  Jeru- 
 salem, and  threatening  to  destroy  it,)  and  in  three  days, 
 raise  one  not  made  with  hands.  Had  both  these  wit- 
 nesses been  admitted  into  court  together,  this  contra- 
 diction might  easily  have  been  avoided.  We  see  that 
 Jesus  was  present  when  they  gave  their  evidence ;  for 
 the  high-priest  asked  him,  saying,  Anszverest  thou  no- 
 thing to  what  these  xvitnesses  testify  against  thee  ?  (Matt, 
 xxvi.  62.)  ;  but  he  held  his  peace,  because  he  knew 
 that  their  evidence  could  not  criminate  him,  and  that 
 they  had,  besides,  contradicted  each  other. 
 
 No  one  will  deny  that  this  procedure  is,  in  many 
 respects,  -  extremely  fair  and  rational ;  although,  for 
 other  reasons,  and  particularly,  from  the  dread  which 
 witnesses  often  have  of  the  accused,  and  from  the  cir- 
 cumstance of  a  person  on  his  trial  having  it  more  in 
 his  power  to  contrive  lies,  if  he  knows  all  that  has  or 
 has  not  been  declared  against  him,  it  cannot  always 
 be  introduced  into  our  courts  ;  which,  in  their  merci- 
 ful spirit  of  deliberate  investigation,  have  generally 
 adopted  a  more  private  procedure.  I  am  inclined  to 
 believe,  that  it  may  have  existed  even  in  the  time  of 
 Moses,  from  its  being  so  accordant  to  the  nature  of 
 his  public  judicial  proceedings,  although  we  find  no 
 written  mandate  on  the  subject;  the  whole  process 
 of  the  examination  of  witnesses  being  presupposed  suf- 
 ciently  understood,  either  from  established  usage,  or 
 the  suggestions  of  sound  reason. 
 
 That  witnesses  were  obliged  to  lend  a  hand  in.  the 
 
 x  4 
 
•328  Story  f*/*  Susanna  fictitious.         [Art.  300. 
 
 execution  of  capital  punishments,  and  for  what  rea- 
 sons, we  have  already  noticed  under  Art.  CCX XXIII. 
 
 ART.  CCC. 
 
 The  Story  of  Susanna  and  Daniel.  * 
 
 §  5.  Whether  the  story  of  Susanna  and  Daniel, 
 which  we  find  among  the  apocryphal  books,  be  true, 
 or  fabulous,  it  is  at  any  rate  much  too  recent  to  be 
 considered  as  an  authority,  in  regard  to  any  point  of 
 the  Mosaic  jurisprudence  ;  for  it  is  placed  during  the 
 time  of  the  Babylonish  captivity,  and,  of  course,  eight 
 centuries  and  a  half  after  the  days  of  Moses ;  and  at 
 a  period  when  the  state  founded  by  him  was  already 
 destroyed,  and  the  people  living  in  Babylon  under  a 
 foreign  yoke.  I  should  not,  therefore,  have  taken  the 
 least  notice  of  it,  had  it  not  been,  that  it  contains  so 
 many  strange  particulars  respecting  witnesses,  and 
 that  many  people,  even  of  the  Lutheran  persuasion, 
 and  who  acknowledge  the  book  itself  to  be  apocryphal, 
 have  quoted  it,  as  exhibiting  a  pattern  of  the  Mosaic 
 judicial  procedure  ;  and,  from  ignorance  of  every  prin- 
 ciple Gf  jurisprudence,  admired  the  plan  of  examining 
 witnesses,  which  it  details,  as  something  superlatively 
 excellent. 
 
 *  If"  tliis  work  should  happen  to  find  readers  of  the  Roman  Catho- 
 lic religion,  I  must  heg  them  to  remember,  that,  in  regard  to  what  J 
 advance  in  this  Article,  I  am  to  be  considered  as  a  Lutheran,  and  as 
 such,  do  not  look  upon  the  story  of  Susanna  as  canonical  Scripture ; 
 or  if  they  ate  likely  to  take  offence  at  this,  they  had  perhaps  belter 
 pass  by  the  Article  altogether. 
 
Art.  300.]        Story  of 'Susanna Jictitious.  329 
 
 In  my  opinion,  the  story  is  a  mere  fiction,  and  a 
 very  modern  one  too,  belonging  entirely  to  the  period 
 when  the  Greeks  were  masters  of  Asia,  and  when  its 
 author,  of  course,  could  not  be  acquainted  with  the 
 state  of  the  Jews  during  their  captivity  in  Babylon. 
 I  think  I  have  discovered  very  distinct  traces  of  its 
 having  been  originally  written  in  Greek  *  j  but  to  the 
 Jews,  at  the  time  of  the  Babylonish  captivity,  that 
 language  was  altogether  unknown  ;  and  did  not,  until 
 some  centuries  afterwards,  become  familiar  in  Syria 
 and  Egypt,  where  many  Jews  dwelt,  under  the  domi- 
 nion of  Alexander's  successors. 
 
 The  beginning  of  the  story  is  pretty  good,  bating 
 the  improbability,  that  the  Jews  should,  in  the  city  of 
 Babylon,  have  had  their  own  courts,  and  that  their 
 supreme  judge,  Joiakim,  the  husband  of  Susanna, 
 should  there  have  had  such  a  magnificent  residence. 
 This  does  not  look  like  what  was  naturally  to  be  sup- 
 posed, in  the  case  of  a  people  that  had  been  lately  car- 
 ried away  as  captives  from  their  native  land ;  but 
 rather  like  what  we  should  have  expected  to  find  many 
 hundred  years  afterwards,  when  the  Jews  had  become 
 almost  masters  of  the  country.  With  this,  however, 
 I  am  not  here  concerned,  as  the  whole  story  is  a  mere 
 fiction  ;  but  I  must  now  remark,  that  whenever  it  be- 
 gins to  speak  of  judicial  matters,  it  becomes  extremely 
 awkward,  and  betrays  an  incredible  ignorance  of  those 
 maxims  of  law,  which  must  be  established  in  every 
 
 *  Some  of  these  the  reader,  if  conversant  in  the  Greek  language, 
 will  find  noticed  in  p  2,'j,- — 2ti.  of  Part  IV.  of  my  Oriental-  Bibliothek, 
 although  I  have  i.here  touched  upon  them  hut  slightly  :  intending  I  > 
 t.reat  the  suhject  at  greater  length  afterwards. 
 
330  Two  Editions  of  the  Story.        [Art.  300. 
 
 nation,  unless  the  life  and  death  of  every  citizen  are 
 to  depend  on  the  mere  caprice  of  a  judge,  and  even 
 of  a  youth  who  constitutes  himself  a  judge,  and  has 
 once  gained  the  ears  of  the  populace.  Of  the  story 
 itself,  however,  we  have  two  different  editions ;  the 
 one,  which  may  be  the  original,  and  is  not  very  well 
 dressed  up  or  complete,  in  the  Septuagint  version  *  ; 
 and  the  other,  which  is  both  more  elegant  and  perfect, 
 in  Theodotion* s  version  t  of  what  appears  to  have  been 
 a  Hebrew  translation  from  a  Greek  original.  And 
 that  I  may  not  do  any  injustice  to  the  story,  I  will 
 found  my  observations  on  the  latter  of  these ;  which 
 the  reader,  if  he  does  not  understand  Greek,  or  has 
 not  a  Greek  Bible,  may  peruse  in  Luther's  transla- 
 tion. 
 
 Till  we  arrive,  then,  at  verse  27th,  if  we  can  only 
 forget  that,  at  this  period,  the  Jews  in  Babylon  were 
 not  people  of  opulence,  and  possessed  of  magnificent 
 establishments,  every  part  of  the  detail  has  a  tolerable 
 
 *  The  story  of  Susanna,  as  given  by  the  LXX.,  we  must  not  ex- 
 pect to  find  in  any  of  the  editions  of  the  Greek  Bible  hitherto  pub- 
 lished from  that  version ;  I  mean,  neither  in  Bos's,  nor  Brcitinger'a, 
 nor  any  other  edition  previous  to  the  year  1772.  It  is  well  known, 
 that  these  have  the  book  of  Daniel  and  its  appendages,  only  accord- 
 ing to  Thsodotion's  translation ;  and  that  the  Septuagint  version  of 
 Daniel  was  lost,  or  rather  lay  hid  in  one  of  the  libraries  at  Rome,  un- 
 til that  year  when  it  was  first  published.  In  1773,  it  was  reprinted 
 at  Gottingen,  by  Vandenhoeck,  the  text  of  it  at  least;  and,  in  1774, 
 accompanied  with  the  Roman  prefaces,  commentaries,  &c. — See 
 Orient.  Bibllothck,  No.  50.  Part  IV. 
 
 f  This  is  that  which  we  find  in  all  the  editions  of  the  Greek  Bible 
 prior  to  the  year  1772;  and  which  the  Vulgate  and  Luther  chiefly 
 rollovv,  although  in  some  readings  they  depart  from  it. 
 
Art.  300.]  Improbability  of J oiakim's  Ignorance.     331 
 
 shew  of  probability ;  and  thus  far  we  meet  with  no- 
 thing relative  to  law,  or  judicial  procedure.     But  in 
 the  very  next  verse  we  find,  that  the  two  elders,  who 
 are  at  once  judges,  accusers,  and  witnesses,  though, 
 indeed,  they  lay  aside  their  judicial  functions,  while 
 acting  in  the  other  two  capacities,   demanding  that 
 Susanna  should  be  summoned  before  a  court  of  jus- 
 tice ;  and,  strange  to  tell,  the  very  court  wherein  her 
 own  husband  sat  as  president.     Thus  the  husband, 
 who  is  the  only  injured  party,  is  not  her  accuser ;  but 
 two  other  persons  appear  in  that  character ;  and  this, 
 notwithstanding  that  it  was  on  the  preceding  day  that 
 his  wife  had  been  so  very  publicly  proclaimed  before 
 all  his  servants,  as  a  person  caught  in  adultery,  and 
 the  whole  family  called  out  on  the  occasion.     The 
 husband  does  nothing  in  the  business,  and  it  would 
 seem,  as  if  he  had  been  the  only  member  of  the  family 
 who  had  heard  nothing  of  it,  or  that  he  had  given  him- 
 self so  very  little  trouble  about  it,  as  that  we  might 
 really  entertain  various  suspicions  of  his  motives ;  for 
 what  wife  is  there,  in  such  circumstances  as  Susanna 
 is  said  to  have  been  in,  who  would  not  have  given  her 
 husband  an  account  of  what  had  befallen  her,  the  mo- 
 ment she  came  into  the  house  ?     And  this  same  hus- 
 band is,  moreover,  the  judge  !  certainly  a  very  inac- 
 tive magistrate  indeed,  and  such  a  drowsy  fellow,  that 
 one  would  almost  be  tempted  to  think  he  really  de- 
 served to  have  suffered,  what  these  witnesses  asserted 
 to  be  true. 
 
 Susanna  now  makes  her  appearance,  accompanied 
 by  her  whole  family,  who,  of  course,  were  acquainted 
 with  the  whole  affair,  though  it  seems  her  husband 
 
332      Unmosaic  procedure  of  the  Elders.     [Art.  300. 
 
 knew  nothing  about  it.     On  the  entrance  of  the  beau- 
 tiful culprit,  the  two  accusers  again  resume  their  ju- 
 dicial functions,  in  so  far  at  least,  as  to  command  her 
 to  unveil  her  face  ;  and  having  now  given  their  evi- 
 dence, Susannah  is  condemned  to   die.     Now,  it  is 
 quite   unmosaic,    and   also   quite  irrational,   that   the 
 testimony  of  these   two   accusers  should  have   been 
 accounted   sufficient  to  condemn  her ;    considering, 
 that  besides   the  accuser,   two  more  witnesses  were 
 requisite  according  to  Moses ;  for  it  was  the  evidence, 
 which  decided  where  the  truth  lay,  between  the  affirm- 
 ing accuser,   and  the  denying  accused.      It  is   also 
 improbable,  that  either  the  Jewish  court,  or  the  sur- 
 rounding multitude  (for  the  term  q  a-vvayoeyvi  in  ver.  41. 
 is   ambiguous)  should  have  pronounced  a   sentence, 
 which  was  to  be  immediately  put  in  execution,  with- 
 out  being   confirmed   by   a    Babylonian    magistrate. 
 This  is  a  right,  which  is  seldom  conceded  to  a  people, 
 when  they  are   carried  into  exile  as  a  punishment. 
 The  husband,  during  the  whole  procedure,  remains  the 
 same  mute  man  of  straw  as  before,  nor  does  the  wife 
 once  address  herself  to  him,  though  the  Prseses  of  the 
 court,  but  only  calls  upon  God  to  vindicate  her  inno- 
 cence.    It  is  very  strange  too,  that  no  inquiry  what- 
 ever is  made  concerning  the  youth,  who  was  said  to 
 have  had  to  do  with  her,  and  to  have  made  his  escape  ; 
 not  to  mention,  that  the  discovery  of  him  afterwards 
 is,  by  the  hasty  execution  of  the  sentence,  rendered 
 impossible.     In  short,  the  trial  hitherto  is  conducted 
 in  such  a  style,  that  a  stranger  procedure  can  hardly 
 be  conceived  j  and  yet  the  absurdest  part  of  it  yet 
 remains  to  be  detailed. 
 
Art,  300.]  Improbability  of  the  part  acted  by  Daniel.  335 
 
 For  we  are  next  informed,  that  when  they  were 
 conducting  Susanna  to  the  place  of  execution,  a  very 
 young  boy  (ttoc^si^igv  vsoots^ov)  cried  out  with  a  loud 
 voice,  /  am  guiltless  of  this  blood.  In  answer  to  such 
 speech,  xve  should  have  said,  Nobody  doubts  that ;  and 
 have  given  ourselves  no  farther  trouble  about  Ms  decla- 
 ring, that  he  neither  had,  nor  wished  to  have,  any  share 
 in  the  woman's  condemnation ;  but  here  we  find  the 
 people  turning  to  him  with  attention,  and  listening  to 
 what  was  rather  an  impertinent  lecture,  and  the  con- 
 clusion of  which  was,  These  men  have  given  a  false 
 testimony.  Now,  such  a  declaration  forms  no  parti- 
 cular recommendation  of  a  man  for  the  office  of  a 
 judge.  An  accuser  he  may  be,  if  he  is  not  a  mere 
 boy,  or,  at  any  rate,  if  he  is  a  youth  :  but  we  must 
 deprecate  the  idea  of  making  that  man  a  judge,  who 
 forms  and  declares  his  decision,  before  he  sits  down 
 upon  the  bench  and  begins  to  hear  evidence.  Ac- 
 cording to  Theodotion,  however,  (for  here  the  Septua- 
 gint  omits  some  particulars)  the  boy  is  appointed 
 judge  by  the  people;  but  whoever  it  was  that  called 
 him  to  the  chair,  we  see  this  wise  young  gentleman 
 immediately  acting  as  judge.  If  any  such  thing  took 
 place  among  us,  it  might,  for  a  person  conducting  to 
 the  gallows,  be  an  easy  and  convenient  device  for 
 obtaining,  at  any  rate,  a  short  respite,  provided  he 
 happened  to  have  but  a  few  friends  among  the  people  ; 
 for  there  would  be  little  difficulty  of  finding  some 
 compassionate  youth,  who,  for  money,  or  fair  words, 
 would  enact  a  Daniel.  Accordingly  he  begins  by 
 ordering  the  two  witnesses  to  be  separated ;  whence 
 we  must  conclude,  that  the  court  had  not  before  had 
 
334>  His  Pre-judgment  of  the  Elders.    [Art.  300. 
 
 common  sense  enough  to  examine  each  of  them  sepa- 
 rately and  circumstantially,  nor  had  it  occurred  to 
 those  persons  of  distinction  related  to  the  accused, 
 and  who  had  accompanied  her  to  her  trial,  to  insist  on 
 that  being  done.  And  yet  to  what  purpose  had  they 
 gone  along  with  her,  if  they  were  not  inclined  to  do 
 her  that  service  ? 
 
 To  impartiality  our  little  impassioned  judge  ap- 
 pears to  make  no  great  pretensions.  He  has  his  sen- 
 tence already  prepared,  and  he  begins  the  examination 
 of  the  first  witness  in  these  words  ;  Thou  aged  villain, 
 thy  past  sins  shall  now  come  upon  thy  head.  Thou 
 hast  condemned  the  i?i?iocent,  and  acquitted  the  guilty, 
 8fC.  $c.  A  mode  of  address,  which  could  hardly  fail 
 to  unhinge  any  witness  to  such  a  degree,  as  almost  to 
 render  him  incapable  of  giving  a  distinct  answer. 
 We  have  reason  to  be  thankful  that,  in  Germany,  no 
 judge  would  be  permitted  to  address  an  accused  per- 
 son in  such  terms  :  or  if  he  did,  the  person  would 
 only  need  to  have  the  words  recorded,  and  then  to 
 add,  that  he  had  no  occasion  to  answer  such  a  judge. 
 But,  indeed,  the  judge  who  says  to  a  witness,  Thou 
 old  villainf  how  many  lies  hast  thou  told  ?  They  shall 
 now  come  upon  thine  own  head ;  can  only  appear  as 
 desirous  to  bring  off  the  culprit,  and  to  frighten  the 
 witnesses  with  that  view. 
 
 As  to  the  question  itself,  which  Daniel  is  said  to 
 have  now  put  to  the  two  elders,  and  upon  which  the 
 whole  issue  of  the  business  is  made  to  hinge,  Under 
 "shat  sort  of  a  tree  didst  thou  catch  tJiem  together  ? 
 none  could  be  more  preposterous.  It  was  nothing  at 
 all  to  the  purpose,  and  could  only  serve  to  confuse 
 
Art.  300.]     Absurdity  of the  Questio?is  jmt.  335 
 
 the  witnesses.  If  the  judge,  instead  of  being  this 
 young  boy,  had  been  the  very  youth  who  made  his 
 escape,  he  could  not  have  put  a  more  impudent  ques- 
 tion. The  person  who  had  caught  two  people  in  such 
 a  situation,  would  naturally  look  at  them,  and  not  at 
 the  tree  \  and,  indeed,  would  be  as  little  likely  to 
 notice  what  sort  of  a  tree  it  was,  as  would  a  witness 
 of  adultery  in  any  common  case,  to  mark  what  sort  of 
 wood  the  bed  were  made  of.  It  would  have  been 
 much  more  pertinent  to  have  asked,  "  What  appear- 
 "  ance  had  the  youth  who  escaped  ?  Was  he  big  or 
 "  little  ?  What  was  the  colour  of  his  clothes  ?  Shew 
 "  us  the  part  of  the  garden,  in  which  you  could  con- 
 "  ceal  yourself,  so  as  to  observe  them  r" 
 
 Unfortunately  for  the  credit  of  the  story,  the  an- 
 swer given  by  each  witness  being  so  contrived,  as  to 
 give  the  judge  an. opportunity  of  introducing  a  pun, 
 thus  acquires  a  still  higher  degree  of  improbability. 
 For  this  pun  is,  in  the  first  case,  merely  a  Greek 
 paronomasia,  between  <ryj,cc,  and  tr%t^u  ;  according  to 
 Porphyry's  shrewd  remark,  which  we  know  from  Je- 
 rom's  preface  to  his  exposition  of  Daniel,  and  to 
 which,  as  an  objection,  Jerom  very  properly  replied, 
 that  it  did  not  at  all  affect  the  book  of  Daniel,  because 
 the  story  of  Susanna  and  Daniel  was  not  found  in  the 
 Hebrew  ;  nor  did  it,  even  in  the  Greek,  belong  to  that 
 prophet  5  being  only  part  of  a  book  ascribed  to  Ilabak- 
 kuk,  the  son  of  Jesus,  of  the  tribe  of  Levi.  We  find, 
 moreover,  Jerom  himself  adducing  these  Greek  puns, 
 as  a  proof  that  this  book  was  not  genuine,  but  a  fic- 
 tion of  a  later  period. 
 
 The  word  o-yjvog  does  not  mean,  as  Luther  lias  red- 
 
336    The  Schinos  then  unknoxcn  at  Babylon.  [Art.  300. 
 
 dered  it,  a  lime  tree,  but  a  mastich  tree.  The  island 
 of  Chio  is  the  native  country  of  mastich,  which  was 
 anciently  so  entirely  unknown*  in  Asia,  that  it  has 
 not  so  much  as  a  name  in  Hebrew,  Arabic,  Syriac, 
 or  Chaldee.  For  the  Arabs  and  Chaldeans  borrow  it 
 from  the  Greek,  and  in  this  very  passage,  the  Orien- 
 tal translators,  not  understanding  what  <r%ivos  meant, 
 name  any  tree  that  occurs  to  them  :  and  one  Arabic 
 version  absolutely  retains  the  Greek  word,  expressing 
 it  very  awkwardly  in  Arabic  letters,  Al-Schakin. 
 The  reader  will  find  more  information  on  this  point, 
 and  concerning  the  ayjvog  in  general,  in  my  intended 
 edition  of  the  Hierobotanicon  of 'Celsius  :  for  this  is  not 
 the  place  to  expatiate  on  philological  subjects,  or  ques- 
 tions belonging  to  natural  history. 
 
 A  tree,  therefore,  is  specified,  in  the  first  man's 
 answer,  which,  in  all  probabiliy,  was  not  then  known  at 
 Babylon  ;  or,  at  least,  one  so  rare,  that  a  witness  was 
 more  likely  to  have  excused  himself  from  giving  it  a 
 name  at  all,  on  the  footing  of  ignorance,  or  of  his  not 
 being  conversant  in  the  history  of  exotic  vegetables, 
 than  to  have  ventured  on  the  dangerous  ground  of 
 positively  calling  it  by  a  particular  name,  and  saying, 
 vn-o  c-yjvov.  To  which  answer,  the  reply  from  the 
 judge,  whom  we  still  find  taking  a  side,  was,  Good! 
 thou  hast  lied  against  thine  own  head.  The  angel  of 
 the  Lord  Qr%txrsi  as  [axtov)  shall  cleave  thee  in  twain. 
 
 *  It  is  to  be  hoped,  that  nobody  will  maintain  that  the  *x<v«j, 
 according  to  Diodorus  Siculus  (ii.  49.)  grew  in  Arabia.  Those  who 
 make  this  objection,  have  only  to  consult  Wesseling's  edition  of  that 
 author  for  its  refutation. 
 
Art.  300.]  Strange  Address  to  the  Second  Elder.    337 
 
 The  second  witness  being   now,  in  like   manner, 
 summoned  to  appear,  is,  with  the  very  same  disregard 
 to  impartiality,  addressed  in  the  rudest  manner,  as  a 
 liar,  and  a  felon  ;   Thou,  who  art  a  Canaa?iite,  and  not 
 a  Jew,  beauty  hath  enticed,  and  wicked  lust  corrupted 
 thee. — (This  smart  youth,  then,  can  already  talk  know- 
 ingly of  wicked  lust.     Indeed,  according  to  the  LXX., 
 he  seems  to  know  that  it  is  not  a  pleasure  of  long  du- 
 ration ;  for  he  there  calls  it  a  little,  or  a  brief  lust ; 
 and  the  story  would  insinuate,  as  if  he  had  been  hard 
 by  himself.     Indeed,  were  it  not  that  he  is  a  little 
 boy,  we  might  almost  suppose,  that  he  were  himself 
 the  youth  who  had  escaped  ;  but  he  could  not  so  in- 
 stantaneously have  reduced  his  stature.     It  is  true,  I 
 have  no  such  suspicion  ;  but  still  I  cannot  but  won- 
 der at  the  clumsiness  of  the  fiction.) — Thus  have  ye 
 dealt  with  the  daughters  of  Israel  (of  the  ten  tribes) 
 and  they  through  fear,  yielded  to  your  wishes  ;  but  this 
 daughter  of  Judah  (out  of  compliment  to  that  tribe, 
 she  is  made  more  sinless  and   chaste ;)  hath  not  en- 
 dured  your  wickedness. — And  now  again  comes  the  en- 
 snaring question,  which,  after  such  a  preamble,  might 
 confound  the  very  best  witness,   Under  what  sort  of  a 
 tree  didst  thou  surprise  them  together  ?  We  might  sup- 
 pose, however,  that  of  two  witnesses,  one,  at  any  rate, 
 would  be  prudent  enough  to  answer,  This  is  a  circum- 
 stance which  I  cannot  recollect :  for  I  saw  so  much 
 besides,  that  I  could  not  take  any  notice  of  the  tree. 
 But  no  such  thing.     This  witness  falls  into  the  same 
 snare  as  the  other,  and  says,  Under  an  Ilexy  vtto  tt^vov  ; 
 thus  happily  helping  the  young  judge  to  a  fine  Greek 
 pun  as  before  j  who  accordingly  replies,  Good!  thou 
 vol.  iv.  y 
 
338     Conclusion  from  the  Story — Of  Oaths.  [Art.  30  £. 
 
 hast  lied  against  thine  own  head.  The  angel  of  the  Lord 
 shall  with  the  sword  cat  thee  in  iivo  ;  tt^ktui  <rs  u&<rm*  or 
 as  the  LXX.  has  it,  iva.  JcaraTTMcnj  as. 
 
 The  two  judges  being  now  convicted  of  false  wit- 
 ness, are,  without  having  any  opportunity  of  making 
 a  defence,  condemned  to  die  by  the  universal  voice  of 
 the  people,  and  the  sentence  immediately  executed. 
 According  to  the  LXX.,  the  angel  of  the  Lord  him- 
 self lends  a  hand  in  their  execution.  The  people  first 
 throw  them  down  a  precipice ;  (which,  by  the  way, 
 is  much  in  the  style  of  the  Jewish  fiction,  relative  to 
 stoning ;)  and  then  the  angel  of  the  Lord  utterly  con- 
 sumes them  with  fire ;  which  may  be  founded  on 
 another  Greek  paronomasia,  that  occurs  in  Aristo- 
 phanes ;  TTgivog  sfATrpyicrQetg* 
 
 I  shall  only  add,  that  from  a  country,  wherein  any 
 such  judicial  procedure  were  established,  every  man 
 who  had  any  regard  to  his  life,  would  certainly  flee  j 
 and  that  those  who  think  fit  to  deduce  it  from  the 
 Mosaic  law,  traduce  that  law  in  the  grossest  manner. 
 
 ART.  CCCI. 
 
 Of  Oaths. 
 
 §  6.  An  Oath,  as  is  remarked  in  the  epistle  to  the 
 Hebrews,  (vi.  16.)  is  an  end  of  all  dispute,  that  is,  the 
 final  test  of  the  truth  ;  wherewith  men  must  be  satis- 
 fied, when  they  come  before  a  court.  It  would  appear, 
 that  it  been  more  easy  and  common  to  tender  oaths 
 among  the  Israelites,  than  it  is  with  us.     In  the  cases 
 
Art.  301.]     Cause  of  the  supposed  Sin  of  Oaths,       :Z\\ 
 
 mentioned  by  Moses  in  Exod.  xxii.  9,  10.  Lev.  vi.  2,  3., 
 respecting  theft,  the  denial  of  things  taken  in  charge 
 or  found,  claims  of  debt,  and  violations  of  promise,  an 
 oath  might,  indeed,  be  urged  and  imposed,  even  in 
 our  courts,  where  the  action  were  only  civil,  and  not 
 criminal ;  still,  however,  it  would  require  the  interven- 
 tion of  certain  circumstances,  concerning  which  we 
 find  nothing  in  the  Mosaic  law.  But  to  the  oath  of 
 purgation,  which  the  husband  had  it  in  his  power  to 
 impose  upon  his  wife,  we  have,  in  our  laws,  nothing 
 that  bears  any  resemblance  ;  and  this  awakens  the 
 conjecture,  that,  in  other  criminal  cases  likewise,  a 
 similar  oath  might  be  more  easily  demanded,  than 
 with  us. 
 
 How  a  person,  who  had  accounted  oaths  unlawful, 
 could  have  kept  his  ground  under  such  a  law,  it  is  not 
 easy  to  perceive.  Among  us  he  may,  no  doubt,  some- 
 times lose  a  suit,  where  he  has  right  on  his  side  ;  but 
 there  not  only  would  his  property,  but  even  his  life,  have 
 been  very  frequently  in  danger.  It  was  not  optional 
 to  the  wife,  on  whose  nuptial  fidelity  a  husband  had 
 cast  any  suspicion,  how  groundless  soever,  whether 
 she  would,  or  would  not,  take  the  oath  of  purgation. 
 Moses,  therefore,  presupposes,  the  legality  of  an  oath 
 as  indisputable  ;  nor  does  he  conceive,  that  any  citizen 
 of  Israel  would  ever  be  weak  enough,  to  look  upon 
 oaths  in  general,  as  sinful ;  of  which  we  find  frequent 
 instances,  from  scruples  of  conscience,  in  consequence 
 of  the  misconception  of  a  passage  in  the  Sermon  on  the 
 Mount.  In  fact,  among  a  people,  to  whom  God  himself 
 had  given  civil  laws,  and  had  prescribed  oaths,  any  such 
 erring  conscience  was  impossible  \  and.  indeed,  with 
 
 \  2 
 
340    Cause  of  the  supposed  Sin  of  Oaths.       £  Art.  SOI- 
 
 us  it  commonly  proceeds  from  the  ignorance  of  religi- 
 ous teachers ;  at  least,  from  their  being  too  little  con- 
 versant with  the  original  language  of  scripture,  to  be 
 able  to  strike  at  the  root  of  such  mistakes  in  conscien- 
 tious people.     Some  points  of  morality  are  treated  of 
 more  fully  and  explicitly  in  the  Old  Testament,  and 
 others  again  in  the  New.     To  the  former  class  belongs 
 the  doctrine  of  oaths  ;  but  there  are  many  religious 
 teachers,  who  of  the  Old  Testament  understand  almost 
 nothing.      The   scruple   in    the   present   case   arises 
 from  the  Sermon  on  the  Mount,  the  explanation  of 
 which  actually  requires  a  much  more  extensive  ac- 
 quaintance with  Rabbinical  learning,  than  any  other 
 passage  of  either  Testament  whatever ;  because  it  is 
 occupied  in  combating  certain  Pharisaical  errors  pre- 
 valent in  those  days,  and,  of  course,  cannot  be  under- 
 stood,  unless  we  know   the  nature  of  those  errors. 
 But  if  a  person  of  no  learning  looks  upon  it  as  the 
 clearest  fountain  of  morality,  and  as  quite  intelligible, 
 without  the  help  of  any  learned  expositor,  and,  of 
 course,  understands  it,  without  any  commentary,  pre- 
 cisely in  the  light  in  which  it  appears  to  him  ;  or,  if 
 he  consults  a  teacher  about  it,  who,  though  he  may 
 have  learned  to  preach,  has  no  philological  knowledge 
 of  the  original  text  of  the   Bible,  the  consequence 
 must  be,  what,  indeed,  we  often  find  it,  that  the  want 
 of  that  sort  of  learning,  which  is  indispensably  neces- 
 sary, in  order  to  understand  the principium  cognoscendi 
 of  the  Christian  religion,  will  give  birth  to  a  variety 
 of  errors,  which  become,  at  last,  material  to  the  in- 
 terests of  the  community. 
 
 If  Moses  gave  his  laws  by  divine  authority,  it  is 
 
Art.  301 .]  If  Moses*  law  divine,  Oaths  not  Sinful     sn 
 
 :mpossible  that  oaths  can,  in  themselves,  be  sinful ; 
 more  especially  considering  that,  both  by  him  and  the 
 other  prophets,  an  oath  is,  on  some  occasions,  regard- 
 ed as  a  part  of  religion  ;  being  an  appeal  to  God,  or  a 
 prayer  offered  to  him,  accompanied  with  an  acknow- 
 ledgement of  his  omniscience,  omnipotence,  truth,  and 
 justice.  A  knowledge  of  the  Mosaic  law  were  of  no 
 trivial  importance,  did  it  only  serve  to  tranquilize  the 
 consciences  of  those,  who  entertain  improper  notions 
 on  this  subject ;  and  such  people  will,  in  the  sequel, 
 obtain  farther  satisfaction  respecting  it. 
 
 Those  to  whom  the  Mosaic  jurisprudence  appears 
 too  profuse  in  its  oaths,  and  not  sufficiently  careful  to 
 prevent  perjuries,  will  perhaps  find,  in  Art.  CCLVL, 
 some  remarks,  that  may  serve  to  answer  this  objec- 
 tion. Among  a  people,  still  honest  and  religious,  im- 
 pressed with  a  belief  of  the  vindictive  providence  of 
 God,  and  yet  strangers  to  many  evasions  invented  in 
 after  times,  the  legislator  had  but  little  occasion  to 
 take  many  precautions  for  the  prevention  of  perjury  ; 
 particularly,  if  God,  according  to  his  promise,  really 
 exercised  his  theocracy,  and  became  by  his  providence 
 the  avenger  of  false  oaths.  The  possibility,  likewise, 
 of  retracting  an  oath  without  incurring  any  civil  infamy, 
 was  an  admirable  contrivance  of  legislative  policy,  for 
 preventing  perjuries  ;  which  could  never  be  attended 
 with  much  satisfaction,  because  conscience  would 
 never  be  at  rest,  until  they  were  retracted.  At  any 
 rate,  we  have  no  right  to  reproach  the  Mosaic  juris- 
 prudence with,  a  profusion  of  oaths  ;  for  our  own  law 
 is,  at  least,  as  profuse  ;  only  that  our  kinds  of  them  are 
 •different.      To  be  sure,  we  interfere  but  sparingly, 
 
 y  3 
 
542  Modem  Abases  of  Oaths.  [Art.  302. 
 
 with  oaths  of  testimony  and  purgation,  and,  in  general, 
 with  those  that  relate  to  facts  ;  in  consequence  of  the 
 prevalence  of  Augustine's  doctrine  of  soul-murder ; 
 but  of  oaths  of  promise  and  assurance,  we  have  a  great 
 many  more  than  are  necessary  or  useful ;  such  as,  (1.) 
 Official  oaths,  which  are  too  comprehensive,  and  thus 
 only  habituate  us  to  forget  all  oaths; — (2.)  Oaths  merely 
 ceremonial,  which  include  many  things,  that  nobody 
 ever  thinks  of  minding ;  such  as  oaths  of  promotion  at 
 our  universities ; — (3.)  Oaths  of  religion,  which  are 
 exacted  even  from  those  that  are  not  to   teach   re- 
 ligion ;  sometimes  from  the  very  lowest  officers  of 
 government,  and  taken,  perhaps,  upon  books,  of  which 
 the  swearer  does  not  so  much  as  know  the  very  title. 
 Oaths  of  these  descriptions  contribute  much  more  to 
 the  corruption  of  morals,  than  judicial  oaths  relative 
 to  matters  of  fact. 
 
 ART.  CCCII. 
 
 Ceremonies  accompanying  the  Administration  of  Oaths. 
 
 §  7.  I  have  yet  the  following  particulars  to  notice, 
 relative  to  the  manner  in  which  oaths  were  to  be 
 taken. 
 
 In  general,  the  person  to  be  sworn  did  not  pro- 
 nounce the  formula  of  the  oath,  either  when  it  was  a 
 judicial  one,  or  taken  on  any  other  solemn  occasion. 
 He  only  heard  it  pronounced ;  but,  as,  when  it  was 
 finished,  he,  in  all  cases,  ratified  it,  by  uttering  the 
 words  Amen,  Amen,  thus  subjecting  himself  to  the 
 curse  it  contained  ;  so  what  he  then  answered  was  on 
 
Art.  302.]  The  mode  of  Adjuration — The  Amen.    343 
 
 oath  ;  and  his  silence  with  regard  to  any  tiling  that 
 he  knew,  or  was  questioned  about,  was  deemed  per- 
 jury. This  wre  plainly  see  from  the  two  passages, 
 Lev.  v.  2.  and  Pro  v.  xxix.  24.  illustrated  under  Arts. 
 CCLVL,  CCLVII.  ;  and,  in  like  manner,  from  the 
 circumstantial  description  of  the  oath  of  purgation, 
 to  be  taken  by  a  wife  in  case  of  a  charge  of  adultery  ; 
 Numb.  v.  16,-25;  (illustrated  under  Art.  CCLXIII;) 
 where  we  find  the  priest  ordered  to  pronounce  the  oath 
 and  the  curse,  and  the  woman,  when  he  had  done, 
 only  to  answer,  Amen,  Amen.  In  1  Kings  also,  chap, 
 viii.  31.,  the  person  imposing  the  oath,  pronounces  the 
 curse  of  its  violation  against  his  adversary  ;  for  the 
 words  of  this  passage  literally  mean,  If  any  man  hath 
 wronged  his  neighbour,  and  his  neighbour  pronounce 
 the  curse  against  him  to  adjure  him  ;  and  the  oath  come 
 before  thine  altar  in  this  house  ;  then,  S$c.  fyc. — Nay,  the 
 very  verb  p3Kft,  (NischbaJ  used  to  express  swearing, 
 is  in  the  passive  voice,  and  properly  signifies  to  he 
 sworn,  or  adjured,  from  JTOttttl  (Hischhia)  adjuravit. 
 And  hence  we  see,  that  Christ  himself,  at  his  trial, 
 took  an  oath  in  the  strictest  sense,  when,  in  answer  to 
 the  question  of  the  high-priest,  (Matth.  xxvi.  63.) 
 I  adjure  thee  by  the  living  God,  say  whether  thou  art 
 the  Christ,  he  replied,  that  he  was  so  :  and,  therefore, 
 we  can  hardly  suppose,  that  in  the  sermon  on  the 
 mount,  he  meant  to  prohibit  all  manner  of  oaths  what- 
 ever. 
 
 The  Amen  above  mentioned,  and  which  we  might 
 render  in  Latin  by  the  words,  frmum,  ratum,  is  not, 
 in  itself,  an  oath,  as  many  expositors  of  the  New  Tes- 
 tament ridiculously  imagine  ;  thus  making  Christ  him- 
 
 ir  4 
 
344      Oaths  sworn  amidst  Seven  Sacrifices.  [Art.  502. 
 
 self  scarcely  ever  open  his  mouth  without  swearing, 
 even  where  no  oath  is  required  of  him  *  ;  it  is  only  an 
 oath,  when  it  is  uttered,  after  an  adjuration,  that  is,  the 
 curse  of  an  oath,  has  been  pronounced ;  as  in  Numb. 
 v.  22.  or  Deut.  xxvii.  15,— -26.  We  cannot  but  smile 
 at  the  two  opposite  mistakes  into  which  expositors 
 have  been  betrayed ;  by  fancying,  on  the  one  hand, 
 that  Christ  prohibited  all  oaths ;  and  making  him,  on 
 the  other,  scarcely  utter  a  word  without  an  oath. 
 
 The  most  solemn  oaths  were  taken  amidst  sacri- 
 fices ;  the  person  who  imposed  the  oath,  dividing  the 
 victims  in  pieces,  and  the  person  who  took  it,  passing 
 between  the  parts,  with  an  imprecation  either  expres- 
 sed or  understood,  to  the  following  purport ;  May  God 
 do  to  me,  if  I  am  perjured,  what  has  been  done  to  these 
 victims  ;  or  punish  me  still  more,  in  proportion  to  his 
 greater  power.  On  this  point  I  do  not  here  expatiate, 
 but  merely  refer  the  reader  to  the  109th  note  of  my 
 Explanation  of  the  Epistle  to  the  Hebrews.— The  oath 
 of  purgation,  in  case  of  adultery,  was  likewise  admi- 
 nistered, during  a  curse-offering. 
 
 Hence,  too,  has  an  oath  a  name  in  Hebrew,  of 
 which  we  can  trace  the  etymology;  a  circumstance 
 that  seldom  happens  in  the  case  of  legal  terms.  As, 
 in  ancient  times,  it  was  customary,  when  oaths  were 
 administered,  to  sacrifice  seven  beasts  t,  either  oxen 
 or  sheep,  and  Schiba  (J73B?)  meant  seven  ;  so  Schebua, 
 (ppOW)  q.  d.  Septimatio,  came  to  signify,  swearing  an 
 
 *  That  is,  where  in  the  Greek  the  word  «pjv  occurs,  and  is  ren- 
 dered, Verily,  I  say  unto  you. 
 ■\  Gen.  xxL  28,-3  3. 
 
Art. 302.]     Swearing  by  the  Altar — What?  345 
 
 oath ;  Hischbia  (yWH),  q.  d.  Septimavit,  to  signify, 
 he  has  adjured,  or  taken  an  oath  from  any  one ;  and 
 Nischba  (J^t^),  q.  d.  Septimatus  est,  to  signify,  he  has 
 sworn. 
 
 The  consequence  of  this  was,  that  an  oath  had  a 
 certain  special  relation  to  the  temple  ;  and  hence  So- 
 lomon, in  his  prayer  at  the  dedication  of  the  temple, 
 (1  Kings  viii.  31,  32.)  says,  If  any  man  hath  xvrongcd 
 his  neighbour,  and  his  neighbour  tender  an  oath  to  him 
 on  that  account,  and  that  oath  come  before  thine  altar  in 
 this  temple,  (that  is,  shall  be  taken  at  thine  altar,) 
 hear  thou  effectually  in  heaven,  and  so  judge  thy  sub- 
 jects, as  to  condemn  the  guilty,  and  bring  his  deed  on 
 his  own  head,  but  to  acquit  the  innocent,  and  make  it 
 happen  to  him,  according  to  the  justice  of  his  cause.  In 
 like  manner,  David  describing,  in  the  xvth.  Psalm, 
 what  ought  to  be  the  qualifications  of  the  citizens  of 
 Jerusalem,  who  live  so  near  the  sanctuary,  specifies, 
 in  ver.  4.  a  regard  to  their  oaths  in  all  cases,  as  one  of 
 them ;  Who  keepeth  his  oath,  even  though  it  be  to  his 
 loss. 
 
 The  reader  will  now  understand,  what  Christ,  when, 
 in  Matth.  xxiii.  18, — 20.,  he  wishes  to  represent  the 
 oath  of  a  person  who  swears  by  the  altar  as  binding, 
 means  by  saying,  that  he  swears  not,  perhaps  as  might 
 be  expected,  by  God,  whose  altar  it  is,  but  by  the  al- 
 tar, and  all  that  is  upon  it.  An  explanation,  more 
 grammatically  correct,  of  an  oath  by  the  altar,  could 
 not,  according  to  Hebrew  manners,  be  given  than 
 this. 
 
346  Chicanery  of  the  later  Jews,      [Art.  303. 
 
 ART.  CCCIII. 
 
 The  Chicanery  of  the  later  Jews,  with  respect  to  certain 
 Oaths,  combated  by  Christ  in  his  Sermon  on  the  Mount. 
 
 §  8.  There  was  in  the  lime  of  Christ,  a  sort  of 
 chicanery  relative  to  oaths,  very  common  among  the 
 Jews,  and  the  source  of  many  reproachful  epithets 
 applied  to  them  as  oath-breakers,  by  the  Romans ; 
 concerning  which,  though  the  consideration  of  it  pro- 
 perly belongs,  not  to  the  subject  of  the  Mosaic  law, 
 but  to  that  of  its  perversions  and  abuses  in  later  times, 
 I  wish  here  to  take  notice  of  the  principal  particulars  ; 
 because  it  actually  rests  on  a  misinterpretation  of  a 
 passage  in  Exodus  (chap.  xx.  7.),  and  because  those 
 who  happen  to  be  interested  in  the  subject,  may  be 
 likely  to  look  for  some  account  of  it  in  this  work. 
 
 The  reader  will  recollect,  from  what  was  stated 
 under  Art.  CCLVI.  that  the  Israelites  swore  not  only 
 by  the  name  of  God,  but  also  by  the  Jang,  (that  is, 
 when  they  had  one,)  by  the  temple,  the  altar,  and  the 
 liolv  city.  This,  if  Moses  did  not  command,  neither 
 did  he,  on  the  other  hand,  forbid  j  and  it  might  be 
 quite  an  innocent  practice,  and  be  even  attended  with 
 a  pious  effect,  which  will  be  noticed  immediately.  If 
 a  man  swore  by  the  king,  it  might  either  be  a  mere 
 civil  protestation,  equivalent  to  saying,  As  I  value  the 
 king,  I  avouch  this  to  be  true  ;  or  it  might  be  an  oath, 
 properly  so  called,  and  to  this  effect;  If  I  now  swear 
 falsely,  may  God's  vengeance  light  on  the  king.  Jn 
 peither  view  was  there  much  reason  to  apprehend, 
 
Art.  SOS.]  Swearing  by  the  King.  347 
 
 that  such  a  practice,  whether  as  a  protestation,  or  an 
 oath,  would  be  used  to  sanction  untruths,  because, 
 in  the  East,  that  would  have  been  regarded  as  a  species 
 of  the  crime  of  treason.     This  case,  strictly  speaking, 
 does  not  belong  to  the  Mosaic  law,  because  Moses 
 did  not  appoint  a  king  ;  but  among  the  Israelites,  in 
 the  days  of  David,  the  practice  appears  to  have  been 
 viewed  not  merely  in  the  light  of  a  protestation,  but 
 of  a  real  oath  ;  in  taking  which,  it  was  presupposed, 
 that  nothing  could  be  so  dear  to  them  as  the  welfare 
 of  the   king  ;    that  God  could   never   punish   them 
 more  severely,    than  by  bringing   misfortunes  upon 
 him  ;  and,  of  course,  that  it  was  an  oath  much  of  the 
 same  nature,  as  when  a  person,  in  swearing,  imprecates 
 evil  not  only  on  himself,  but  on  all  his  posterity. — 
 The  expression  in  Psal.  lxiii.  12.  He  who  hath  sworn 
 by  the  king,  shall  exult,  (viz.  because  the  king  prospers, 
 and  God  thereby  appears  to  legalize  his  oath  as  true  ;) 
 but  the  mouth  of  liars  shall  be  stopt,  leads  to  this  expla- 
 nation ;  and  thus  it  was,  in  the  end,  an  oath  by  God 
 himself,  who  was  to  punish  the  king,  in  the  event  of 
 the  swearer's  being  guilty  of  perjury. 
 
 Swearing  by  the  altar 9  I  have  already  explained  to 
 be  equivalent  to  swearing  by  God.  Oaths  by  heaven, 
 the  temple,  or  the  holy  city  *,  were  likewise  oaths  by 
 God;  only  that,  instead  of  his  name,  some  place  was 
 
 *  Besides  the  passage  in  Psal.  cxxxix.  20.  who  swear  perjuries  by 
 thy  cities,  we  find  an  example  of  a  similar  oath,  in  Amos  viii.  14-.; 
 only  that  it  is  sworn  by  cities  which  God  did  not  acknowledge,  but 
 which  only  superstition,  or  rather  idolatry,  had  dedicated  to  him  : 
 They  ivho  swear  by  the  guilt  of  Samaria,  and  say,  "  As  (rue  as  thy  Cod 
 '•'  liveth,  0  Dan;"  or  by  the  pilgrimage  to  Beersheba. 
 
34S     Passage  from  Philo  concerning  Oaths.  [Art.  303. 
 
 mentioned,  wherein  he  dwelt ;  and  that  might  be  done 
 with  a  pious  design,  and  from  reverential  awe,  because 
 they  dreaded  to  utter  the  name  of  God.  Concerning 
 this  point,  we  find  a  remarkable  passage  in  PJiilo, 
 which,  at  any  rate,  expresses  the  sentiments  common 
 among  the  Egyptian  Jews  of  his  day.  It  occurs  at 
 the  very  beginning  of  his  book,  De  specialibus  Legi- 
 bus,  and  is  founded  on  an  improper  explanation  of  the 
 third  commandment;  which  Philo,  who  was  not  par- 
 ticularly conversant  in  Hebrew,  conceived,  from  the 
 Greek  version,  x  A;;-J;;?  70  ovouoc  Kvpix  th  Q:-z  era  stti  px- 
 tatw,  to  imply  the  prohibition  of  a  needless  and  vain 
 utterance  of  the  name  of  God.  M  The  bare  word," 
 says  he,  "  of  a  virtuous  man,  should  be  an  oath,  and 
 "  equally  stedfast,  inviolable,  and  true.  Should,  how- 
 "  ever,  necessity  absolutely  require  an  oath,  let  a  man 
 "  swear  by  his  father  and  mother,  if  they  be  alive,  or 
 "  by  their  health,  and  old  age  ;  and  if  they  be  dead, 
 ci  by  their  memory ;  for  they  are  the  image  of  the 
 "  creative  power  of  the  Deity,  inasmuch  as  they  have 
 "  given  being  to  what  existed  not  before." — He  then 
 proceeds,  in  corroboration  of  this  advice,  to  state  his 
 opinion,  that  Jacob,  in  Gen.  xxxi.  53.  swore  by  his 
 father  Isaac  ;  represents  this  as  an  example ;  and  goes 
 on  thus  :  "  We  cannot  but  commend  those,  who,  when 
 <c  constrained  to  swear,  hesitate,  delay,  stop  short,  and 
 "  thus  impress  not  only  the  spectators,  but  the  very 
 "  persons  who  compel  them  to  take  the  oath,  with  fear  ; 
 "  as  when,  for  instance,  having  uttered  the  word  By — 
 "  they  break  off  without  mentioning  any  name  at  all ; 
 "  but  in  such  a  way,  that  it  is  manifest  enough,  by 
 *'  whose  name  thev  swear.     At  all  events,  instead  of 
 
Art.  303.3  Mahomet's  Use  of  Oaths  in  the  Koran.    349 
 
 "  the  name  of  the  highest  and  first  Essence,  we  ought 
 "  to  use  the  names  of  other  venerable  beings,  such 
 *'  as  the  earth,  the  sun,  the  stars,  or  the  whole 
 "  world  5  for  these  are  more  ancient  than  human  ex- 
 "  istence,  and  will,  without  growing  old,  exist,  by  the 
 "  will  of  their  great  Architect,  throughout  eternities. 
 "  Instead  of  thus  acting,  however,  there  are  some  so 
 "  inconsiderate,  as,  passing  by  all  created  things,  to 
 "  name  at  once  the  maker  and  Father  of  all  things," 
 &c.  &c.  Philo's  doctrine  here  is  well  meant,  and 
 quite  Platonic  ;  but  it  would  not  have  been  to  Moses' 
 taste ;  for  swearing  by  the  sun,  moon,  and  stars,  bor- 
 ders too  closely  upon  idolatry  ;  although,  indeed,  it 
 here  receives  a  more  favourable  explanation.  And  I 
 must  add,  that  as,  in  the  opinion  of  Moses,  swearing 
 is  an  act  of  religion,  and  of  prayer  to  God,  (Deut.  vi. 
 13.  x.  20.)  no  good  reason  can  be  given,  why  his 
 name  should  not  be  named. 
 
 Oaths  of  this  description  became  very  numerous 
 among  the  people  of  the  East.  The  Arabs,  even  in 
 their  poetry,  have  a  great  many  of  them,  which  Ma- 
 homet introduces  into  various  chapters  of  his  Koran, 
 in  a  most  ridiculous  manner.  Having  once  persuaded 
 himself  that  he  was  an  inimitable  poet,  (which  the 
 Mahometans  believe  on  his  word,  although  we  can 
 seldom  feel  it,)  he  wished  to  do  his  best  to  merit  that 
 title  ;  and  with  this  view,  he  has  ornamented  some  of 
 his  chapters  with  words,  which  were  accounted  beau- 
 tiful in  other  poets,  both  singly,  and  in  connection : 
 But  not  having  it  in  his  power  to  introduce  them 
 otherwise,  he  was  forced  to  have  recourse  to  oaths  for 
 the  purpose  j  and  so  we  find  him  swearing  by  the 
 
350  Oaths  always  Appeals  to  God,     [Art.  303. 
 
 stone-strewing  winds,  the  mountain-rending  winds,  the 
 swift-flying  steeds,  &c.  &c. ;  and  sometimes  without 
 even  mentioning  what  he  meant  to  adjure.  Of  these 
 poetical  oaths,  and  even  of  those  that  were  usual  in 
 common  life,  particularly  the  oaths  of  lovers,  there 
 may  have  been  many,  that  were  not  just  oaths  by  God, 
 but  mere  imitations  of  some  civil  adjuration,  such  as 
 that  whereof  we  have  an  example  in  1  Sam.  xi.  7. — 
 And  as  in  that  passage,  God  is  not  called  upon  to  take 
 vengeance  on  the  oxen  of  those  who  would  not  join 
 the  host,  but  it  is  merely  threatened  that  the  rest  of 
 the  people  would  hew  them  in  pieces ;  so  the  words 
 in  Canticles  ii.  7.  /  adjure  you,  ye  daughters  of  Jeru- 
 salem, by  the  roes  and  the  stags  of  the  field,  not  to  awake 
 my  love,  may  mean  nothing  more  than  /  will  kill  your 
 favourite  roe  wherein  ye  delight,  if  ye  awake  my  love* 
 Such  oaths  as  this,  were  no  doubt  often  merely  jocu- 
 lar, and  here  merit  no  further  notice  ;  and  it  is  like- 
 wise obvious,  that  even  more  serious  protestations, 
 which  gave  another  a  right  to  punish  or  to  despise  me, 
 if  I  spoke  falsely,  ought  to  be  distinguished  from  pro- 
 per oaths. 
 
 The  consideration  of  these  we  now  resume  ;  ob- 
 serving, that  they  always  imply  a  direct  call  upon 
 God  as  their  avenger,  whether  his  name  be  expressly 
 mentioned,  or  whether  it  be  left  out  from  reverential 
 awe,  and  something  sacred  to  God  mentioned  in- 
 stead of  it,  which  is  understood  to  be  a  metonymical 
 expression  for  God  ;  some  sanction  being  always  spe- 
 cified, which  not  the  other  party  before  whom  I  swear, 
 but  God  alone,  has  a  right  to  enforce. 
 
 Now  with  respect  to  such  oaths,  there  came  a  doc- 
 
Art.  303.]  Jewish  Abuses  of  Oaths,  3.71 
 
 trine  into  vogue  among  the  Jews,  in  the  time  of  Christ, 
 which  made  such  a  nice  distinction  between  what  was, 
 and  what  teas  not,  an  oath,  that  illiterate  people  were 
 really  incapable  of  comprehending  it,  or  indeed,  form- 
 ing any  idea  of  it :  and  thus  a  Jew  had  it  in  his  power 
 to  be  guilty  of  the  grossest  treachery  to  his  neigh- 
 bour, even  when  the  latter  thought  he  had  heard  him 
 swear  by  all  that  was  sacred.  Who  could  suppose,  for 
 instance,  that  a  Jew  did  not  speak  seriously,  when  he 
 swore  by  the  temple.  Yet,  by  this  doctrine,  such  an 
 oath  was  a  mere  nothing,  because  the  stones  of  the  tern- 
 pie  were  not  consecrated.  This  base  morality  had 
 tainted  the  whole  blood  of  the  nation  to  such  a  degree, 
 that  we  find  even  strangers  upbraiding  them  with  it. 
 — Martial,  in  one  of  his  Epigrams,  lib*,  xi.  No.  95. 
 says, 
 
 Ecce  negas,  jurasque  mihi  per  tecta  Tonanils ; 
 Non  credo  .'  Jura,  Verpe,  per  Anclilalum. 
 
 I  do  not  mean  to  describe  this  morality  by  passages 
 from  the  writings  of  the  Rabbins,  both  because  suffi- 
 cient collections  of  these  have  already  been  made  by 
 others,  and  because  they  are  not  only  too  extensive, 
 but  also  too  modern  for  my  purpose,  as  I  have  princi- 
 pally to  do  with  it,  as  it  stood  in  the  time  of  Christ. 
 I  rather  chuse  to  take  what  the  Jewish  moralists  of 
 his  day  taught,  from  his  own  mouth,  and  to  accom- 
 pany their  doctrine  with  his  refutation.  The  reader 
 who  wishes  to  see  passages  from  the  Rabbins,  may 
 either  consult  learned  commentators  on  Matth.  v.  33, 
 — 37.  xxiii.  16, — 22.  or  peruse  what  Wetstein  has  col- 
 lected from  them,  in  whose  New  Testament  he  wilt 
 find  a  pretty  copious  collection  of  such  passages. 
 
352       Christ's  Confutation  of  the  Pharisees.  [Art.  303, 
 
 Christ  himself,  then,  in  Matth.  xxiii.  16, — 22.  men- 
 tions some  specimens  of  their  doctrine,  which  he  finds 
 it  necessary  to  controvert.  The  Pharisees,  whom  he 
 censured,  were  in  the  way  of  saying,  If  a  man  swear 
 by  the  temple,  he  is  not  bound  by  that  oath  ;  but  if  he 
 swear  by  the  gold  of  the  temple,  he  is  bound.  This  was 
 a  very  paradoxical  distinction ;  and  no  one  who  heard 
 their  oaths,  could  possibly  divine  it,  unless  he  happened 
 to  be  initiated  into  the  whole  villainy  of  the  business. 
 One  would  naturally  entertain  the  very  same  idea  con- 
 cerning it,  which  Christ  expresses  in  his  refutation  of  it, 
 viz.  that  the  temple  which  consecrates  the  gold,  is  of 
 greater  account,  and  belongs  more  immediately  to  God 
 than  the  gold.  But  the  foundation  of  the  refined  dis- 
 tinction made  by  the  Pharisees  was,  that  the  gold  was 
 sanctified,  but  not  the  materials  of  the  edifice. — Again, 
 the  Pharisees  said,  If  a  man  swear  by  the  altar,  it  is 
 no  oath ;  but  if  he  swear  by  the  offering,  he  is  bound  ; 
 because,  forsooth,  the  offering  was  consecrated,  but 
 the  stones  of  the  altar,  nothing  more  than  common 
 stones.  But  to  this  doctrine,  Jesus,  with  equal  rea- 
 son, makes  the  following  objection ;  that  the  altar 
 which  sanctifies  the  offering,  is  greater  than  the  offering  ; 
 and  he  founds  it  on  this  unanswerable  argument ;  "  If 
 "  I  appear  to  swear,  and  use  the  language  of  an  oath, 
 "  my  words,  though  perhaps  otherwise  equivocal,  must 
 u  be  understood  in  the  sense  which  they  generally 
 "  have  in  oaths.  Thus,  if  I  merely  mention  heaven, 
 "  that  word  may  have  various  meanings ;  it  may  mean 
 "  heaven,m  the  physical  sense  of  the  term,  that  is,  either 
 "  the  blue  atmosphere,  which  we  behold,  or  that  unknown 
 •«  matter  which  fills  the  remote  regions  of  space  above 
 
Art.  303.]  Pharisees*  Gloss  on  the  3d.  Command.      3.13 
 
 "  us,  and  which  the  ancients  called  ccther ;  but  nei- 
 "  ther  of  these  is  God.  When,  however,  I  swear  by 
 "  heaven,  every  one  understands  me  as  regarding  hea- 
 "  ven,  in  its  relation  towards  God,  as  his  dwelling* 
 "  place,  or  as  his  throne ;  and  thinks  I  forbear  pro- 
 '*  nouncing  the  name  of  God,  merely  from  reverential 
 M  awe,  and  that,  in  naming  the  throne  of  God,  I  in- 
 "  chide  the  idea  of  him  who  sitteth  upon  it ;  so  that, 
 "  if  my  words  are  to  be  explained  honestly  and  gram- 
 "  maticallv,  I  have  really  sworn  by  God.  In  like  man- 
 "  ner,  if  a  man  swear  by  the  temple,  that  is  not  swear- 
 "  ing  by  the  stones  or  other  materials  of  which  the 
 "  temple  is  composed,  but  by  the  God  who  dwelleth  in 
 "  the  temple :  And  thus  also,  he  who  swears  by  the 
 "  altar,  is  not  to  understand  the  bare  stones,  as  such, 
 "  but  as  they  form  an  altar,  and  have  offerings  made 
 '*  upon  them  ;  so  that  lie  swears  by  the  altar,  and  what 
 "  is  upon  it ;  an  oath  no  less  solemn  and  binding,  than 
 "  that  most  awful  oath  which  is  taken  amidst  a  sacri- 
 "  fice,  by  passing  between  the  dismembered  pieces  of 
 "  the  victim. "  (Art.  CCC.)  A  most  rational  expo- 
 sition ;  without  which  we  can  never,  in  any  compact, 
 be  sure  of  understanding  our  neighbours  words  ;  not- 
 even  though  he  name  the  name  of  God  in  his  oath, 
 and  swear  without  any  mental  reservation  whatever  ; 
 for  the  syllables,  perhaps,  might  still  be  susceptible  of 
 another  signification ! 
 
 The  Pharisees,  on  the  other  hand,  founded  their 
 subtle  doctrine  on  the  words  of  the  third  command- 
 ment ;  Thou  shalt  not  pronounce  the  name  of  Jehovah 
 thy  God  in  confirmation  of  a  falsehood ;  /or  Jehovah 
 will  not  let  the  man  go  unpunished,  who  utters  his  nam" 
 
 VOL.  IV.  7 
 
354      Pharisees?  Gloss  on  the  3d,  Command.  [Art.  303. 
 
 to  untruths ;  Exod.  xx.  7.  "  Therefore,"  argued  they, 
 "  it  is  no  oath,  nor  will  God  punish  the  falsehood,  if 
 "  only  I  do  not  name  the  name  of  God  ;  or"  (as  they 
 arbitrarily  enough  added)  "  that  of  any  thing  sacred  to 
 him.,,  But  they  might,  with  more  reason,  have  conclud- 
 ed, either  (1.)  that  there  was  no  oath,  when  the  name  of 
 Jehovah  was  not  uttered,  and  then  they  would  scarcely 
 have  had  any  oaths  at  all,  because  they  made  con- 
 science of  uttering  it  but  on  the  most  solemn  occa- 
 sions ;  or  (2.)  that  all  oaths  were  prohibited,  and 
 accounted  as  idolatry,  in  which  the  name  of  the  true 
 God  was  not  expressly  mentioned  ;  in  confirmation  of 
 which,  they  might  have  quoted  Deut.  vi.  13.  x.  20, 
 I  do  not,  it  is  true,  believe  that  this  is  Moses'  mean- 
 ing ;  because  he  nowhere  gives  any  express  prohibi- 
 tion to  this  effect  \  and  because,  in  Hebrew,  the  word 
 name  is  taken  in  a  more  extensive  sense  than  with 
 us ;  but  thus  much  is  certain,  and  has  indeed  been 
 already  mentioned,  that  oaths  by  the  earth,  sun,  moon, 
 or  stars,  would,  in  the  eyes  of  Moses,  have  appeared 
 suspicious,  either  as  direct  idolatry,  or  as  gradually 
 leading  to  it ;  of  course,  that  he  would  have  highly 
 disapproved  of  them,  as  contrary  to  the  spirit  of  his 
 laws.  And  if  any  man  had  sworn  any  such  oath,  he 
 would  either  have  incurred  the  punishment  of  death, 
 as  guilty  of  idolatry,  or  have  been  obliged  so  to  un- 
 derstand and  explain  it,  as  if  he  regarded  the  earth, 
 sun,  moon,  or  stars,  merely  in  their  relation  to  the 
 true  God,  and  had,  of  course,  really  sworn  a  true 
 oath. 
 
 And  very  much  to  the  same  purpose,  do  we  find 
 Jesus  speaking  against  the  doctrine  of  the  Pharisees, 
 
Art.  303.]  Proper  Exposition  of  Swear  not  at  all.     355 
 
 in  a  passage  of  his  sermon  on  the  mount,  Matth.  v. 
 33, — 37. ;  of  which  the  meaning  has  been  so  often 
 misapprehended.  He  does  not  say,  Swear  not  at  all,  as 
 if  the  sense  then  were  perfect  without  any  farther  addi- 
 tion, and  he  thus  meant  to  prohibit  even  oaths  by  ( 
 which  Moses  had  authorised  as  acts  of  religion  ;  but, 
 Swear  not  at  all  by  heaven,  earth,  Jerusalem,  or  your 
 head ;  so  that,  to  the  doctrine  of  the  Pharisees,  which 
 permitted  such  oaths,  but,  in  contradiction  to  every 
 principle  of  grammar,  truth,  and  honesty,  declared 
 them  not  binding,  he  only  opposes  this  counter-doctrine, 
 that  "  men  should  altogether  abstain  from  such  oaths, 
 i(  which  were  used  only  for  the  purposes  of  chicanery ; 
 "  and,  if  they  had  occasion  to  swear,  should  swear  by 
 "  naming  the  name  of  God5  as  enjoined  by  Moses  ;  or 
 "  if  they  had  any  hesitation  in  naming  the  name  of 
 M  God,  because,  perhaps,  the  matter  in  question  had 
 "  not  a  reference  to  him,  or  was  not  of  much  import- 
 "  ance,  and  there  was  no  need  for  any  protestation  ; 
 "  neither  should  they,  in  such  cases,  employ  those 
 **  words  as  protestations,  which  were,  in  fact,  oaths 
 "  by  God ;  but  on  all  occasions  adhere  steadily  to 
 "  the  truth  ;  so  that  their  yea  and  nay  might  be  as 
 n  sure  and  sacred  as  any  oath  ;  and  then  they  would 
 "  have  no  necessity  for  such  ceaseless  protestations.'* 
 — To  each  example  of  these  deceitful  oaths,  he  then 
 annexes  the  reason  for  which  it  is  to  be  regarded  as  a 
 real  oath  ;  for  instance,  to  that  by  Jerusalem  ;  because 
 it  is  the  city  of  the  great  King ;  (for  at  this  time  it 
 had  no  other  king,  Herod  having  been  twenty-eight 
 years  dead,  and  Archelaus  twenty-one  years  banished,) 
 and  nobody  who  heard  a  person  swear  by  Jerusalem.; 
 
 Z   2 
 
U6  By  my  Head,  $c.  real  Oaths.      [Art.  303. 
 
 could  think  any  thing  else  than  that  he  regarded  it 
 as  the  holy  city,  and  swore  by  the  true  God  who 
 dwelt  in  it.  In  like  manner,  that  by  my  head,  (ycc 
 would  say,  by  my  soul,)  could  only  be  understood  as 
 implying  an  invocation  of  God,  on  whom  all  our  con- 
 cerns depend,  to  hurl  his  vengeance  against  our  heads 
 and  lives,  if  we  were  perjured.  And,  in  fact,  to  say 
 nothing  of  the  explanation  given  by  Jesus,  we  must 
 thus  understand  it;  for  it  is  not  probable  that  its 
 meaning  should  be,  that  any  other  person  should  have 
 a  right  to  kill  us,  if  we  were  not  speaking  the  truth  ; 
 because  that  the  magistrate  could  not  suffer,  even  if 
 we  had  given  him  such  a  right  a  hundred  times  over ; 
 but,  indeed,  any  one  might  safely  swear  by  a  more 
 sacred  oath,  that  we  had  no  such  intention. 
 
 Christ,  therefore,  does  not  prohibit  oaths  in  general ; 
 neither  oaths  by  God,  for  he  nowhere  says  a  word  of 
 any  such  thing,  and  he  himself  even  swore  in  court  ac 
 his  trial ;  nor  yet  all  extrajudicial  oaths,  as  some,  in 
 order  to  tranquillize  anxious  consciences,  have  pre- 
 tended, and  have  thereby  only  disquieted  them  the 
 more ;  for  every  one,  who  has  eyes,  may  see,  that  no- 
 thing to  this  effect  occurs  in  the  text ;  and  we  besides 
 observe,  that  even  the  apostles,  more  than  once,  make 
 use  of  such  oaths,  in  the  most  solemn  manner,  in  their 
 epistles,  as  in  Rom.  ix.  I, — 5.  2  Cor.  i.  23.;  and  in- 
 deed, sound  reason  teaches  us,  that,  in  some  cases,  an 
 oath  out  o/'court  may  be  as  necessary  and  important, 
 as  any  oath  whatever  in  court.  He  only  forbids  those 
 oaths,  in  taking  which,  a  man  may  hesitate  at  naming 
 the  name  of  God,  because,  conscious  that  he  medi- 
 tates some  piece  of  chicanery,  or  something  disrespect- 
 
Art.  304.]     Abuse  of  Oaths  by  the  Jews,  §c.  SJ7 
 
 fill  to  the  divine  omniscience  ;  and  those  by  heaven 
 or  earth,  the  temple,  or  the  altar,  the  soul,  or  the  head, 
 because  at  that  time  so  common,  and  so  frequently 
 and  basely  abused,  as  to  have  become  perfectly  dis- 
 graceful to  the  Jews,  even  in  the  eyes  of  the  less 
 treacherous  heathens  around  them,  and  justly  distin- 
 guished by  the  name  of  Jewish  oaths. 
 
 The  man,  therefore,  who  now  wishes  to  observe  the 
 precept  of  Christ  with  literal  strictness,  should  abstain 
 from  all  oaths,  in  which  the  name  of  God  is  not  ex- 
 pressly mentioned  ;  such,  for  instance,  as  by  my  souly 
 or  the  Devil  take  me ;  which,  by  the  way,  as  he  can- 
 not do  without  God's  leave,  this  is  still  an  oath  by 
 God.  At  the  same  time,  now  that  Jewish  chicanery 
 has  ceased,  I  do  not  think  that  the  prohibition  would 
 affect  the  man,  who,  with  all  due  deliberation  and 
 reverence,  should  take  an  oath  by  his  soul's  salvation. 
 — More  I  cannot  here  add ;  the  rest  belongs  to  morals, 
 or  the  exposition  of  the  sermon  on  the  mount ;  and, 
 indeed,  the  little  I  have  said,  is  rather  an  excursion 
 into  those  fields ;  though  probably  such  a  one,  as,  on 
 a  point  so  important,  and  so  closely  connected  with 
 the  Mosaic  law,  most  readers  would  naturally  have 
 looked  for. 
 
 ART.  CCCIV. 
 
 Of  the  Sacred  Lot. 
 
 §  9.  That  in  making  distributions  of  property,  and 
 in  ca^es  of  disputes  relative  to  meum  and  tuum,  re- 
 conrse  was  had  to  the  lot,  in  default  of  any  other 
 
 z  3 
 
358  The  Lot  a  Divine  Decision.       [Art.  304. 
 
 means  of  decision,  will  naturally  be  supposed.  The 
 whole  land  was  partitioned  by  lot ;  and  that,  in  after- 
 times,  the  lot  continued  to  be  used,  even  in  courts  of 
 justice,  we  see  from  Prov.  xvi.  33.  xviii.  18.  ;  where 
 we  are  expressly  taught  to  remember,  that  it  is  Provi- 
 de/ice which  maketh  the  choice,  and  that  therefore  we 
 ought  to  be  satisfied  with  the  decision  of  the  lot,  as 
 the  will  of  God.  It  was  for  judicial  purposes,  in  a 
 particular  manner,  that  the  sacred  lot,  called  Urim 
 end  Thummim  was  employed  ;  and  on  this  account, 
 the  costly  embroidered  pouch,  in  which  the  priest 
 carried  this  sacred  lot  on  his  breast,  was  called  the 
 judicial  ornament. 
 
 I  cannot  here  enter  into  a  philological  and  antiqua. 
 rian  enquiry  concerning  Urim  and  Thummim,  because 
 it  would  be  too  extensive,  particularly  considering 
 how  much  it  has  already  been  the  subject  of  contro- 
 versy. Those  who  wish  to  know  my  sentiments  upon 
 it,  in  a  few  words,  will  find  them  in  my  Note  upon 
 Exod.  xxviii.  30. ;  and  the  passage  whence  I  have 
 principally  deduced  the  explanation  there  given,  in 
 1  Sam.  xiv.  41.  of  the  Hebrew  original. 
 
 But  was  this  sacred  lot  used  likewise  in  criminal 
 trials  ?  Yes  ;  but  only  to  discover  the  guilty,  not  to 
 convict  them  :  for  in  the  only  two  instances  of  its  use 
 in  such  cases,  which  occur  in  the  whole  Bible,  viz.  in 
 Josh.  vii.  14,— -18.  and  1  Sam.  xiv.  37,- — 45.  we  find 
 the  confessions  of  the  two  delinquents,  Achan  and 
 Jonathan,  annexed.  It  appears  also,  to  have  been 
 used  only  in  the  case  of  an  oath  being  transgressed, 
 which  the  whole  people  had  taken,  or  the  leader  of 
 the  host  in  their  name  j  but  not  in  the  case  of  other 
 
Art.  305.2  CoJifession  might  criminate  Capitally.       35% 
 
 crimes ;  for  an  unknown  murder,  for  example,  was 
 not  to  be  discovered  by  recourse  to  the  sacred  lot.— 
 See  Art.  CCLXXVIII. 
 
 ART.  CCCV. 
 
 "Of  Confession  of  Crimes. 
 
 §  10.  From  the  examples  of  Achan  and  Jonathan, 
 adverted  to  in  the  preceding  Article,  we  in  some 
 measure  see,  that  a  delinquent's  confession  might 
 criminate  him  capitally ;  although,  in  these  instances, 
 there  was  proof  independent  of  confession  ;  because* 
 in  Achan's  case,  the  corpus  delicti  was  actually  found 
 buried  under  his  tent,  the  very  place  which  he  himself 
 specified ;  and  as  to  Jonathan's  case,  several  people 
 had  been  witnesses  to  his  violation  of  his  father's  oath. 
 We  find,  however,  one  example,  where  a  man  was  con- 
 demned to  die  on  his  own  confession  alone,  and  for  a 
 •crime  too  which  perhaps  he  had  not  actually  perpe- 
 trated, but  only  boasted  of,  in  expectation  of  a  reward. 
 This  is  the  case  of  the  Amalekite,  who  declared  he 
 had  killed  Saul ;  2  Sam.  i.  13, — 16.  But  whether  this 
 man  suffered,  in  terms  of  the  Mosaic  law,  or  by  a 
 military  law  made  on  the  spur  of  the  occasion,  and 
 according  to  David's  idea  of  justice,  I  cannot  say, 
 No  doubt,  David  was  under  the  necessity  of  doing 
 what  he  did,  unless  he  chose  to  be  considered  as  the 
 man  who  sent  out  the  assassin,  and  meant  to  render 
 the  lives  of  all  future  kings  insecure.  But  the  case 
 was  altogether  an  extraordinary  one. 
 
 If  the  delinquent  was  fully  convicted  by  the  evi- 
 
3oo  Conviction  by  Evidence,  §c.       [Art.  306. 
 
 dence  of  witnesses,  the  sentence  of  death  might  be 
 pronounced  against  him,  even  without  his  own  con- 
 fession. We  see  this,  partly  from  the  perfect  silence 
 of  Moses  with  respect  to  the  necessity  of  making  a 
 confession,  and  partly  from  considering  the  subject  of 
 the  following  Article  ;  for  where  no  man  can  be  capi- 
 tally punished,  who  has  not  confessed  his  crime,  tor- 
 ture is  indispensable ;  because,  without  it,  every  cul- 
 prit has  in  his  own  power  the  means  of  escaping  the 
 punishment  he  deserves.  This  is  always  the  trying 
 dilemma,  in  which  legislative  policy  is  placed,  between 
 two  cruelties ;  either  there  must  be  torture,  or  else  a 
 right  to  punish  a  man  even  with  death,  though  he  will 
 not  own  his  guilt.  Of  the  two,  however,  I  should  cer- 
 tainly always  prefer  the  latter  ;  especially  where  trials 
 are  conducted  as  in  Germany,  where  it  is  scarcely 
 possible  that  an  innocent  person  should  suffer. 
 
 ART.  CCCVI. 
 
 Torture  unknown. 
 
 §  11.  The  Mosaic  law  knows  of  no  such  expedient 
 as  torture,  for  the  purpose  of  extorting  either  a  confes- 
 sion of  guilt,  or  a  discovery  of  accomplices ;  nor  do  we 
 find  any  account  of  it  in  the  history  of  the  people  of 
 Israel,  down  to  the  time  of  the  Babylonish  captivity  ; 
 although,  in  the  course  of  that  period,  there  were  in- 
 troduced many  other  cruel  things  unknown  to  Moses, 
 or  which  he  even  expressly  prohibited.  It  is  true, 
 that,  in  Art.  CCXXXVI1L,  some  mention  was  made 
 pf  a  sort  of  torture-prisons,  which  were  used  towards 
 
Art.  307.]    Speedy  Infliction  of  Punishment.  361 
 
 the  end  of  the  kingdom  of  Judah  ;  and  it  is  possible, 
 that  they  may  have  begun  to  employ  them,  as  means 
 of  torture,  for  extorting  the  truth :  but  of  this,  we 
 have,  at  any  rate,  no  positive  knowledge ;  for  in  the 
 instances  recorded,  they  are  merely  places  of  punish- 
 ment. 
 
 But  how  did  they  manage  to  bring  delinquents  to 
 the  discovery  of  their  accomplices  ? — Just,  I  imagine, 
 as  other  nations  do,  who  have  no  torture,  by  gen- 
 tle admonitions,  and,  perhaps,  too,  by  artifice ;  and 
 where  these  would  not  avail,  they,  no  doubt,  thought 
 it  better,  that  a  thousand  accomplices  should  remain 
 undiscovered,  than  that  an  individual,  who,  perhaps, 
 was  innocent,  or,  at  any  rate,  might  have  no  accom- 
 plices to  criminate,  should  suffer  torture  in  addition  to 
 the  punishment  of  death. 
 
 ART.  CCCVIL 
 
 Speedy  Injliction  of  Punishment. 
 
 §12.  Nothing  could  be  more  expeditious  than  the 
 execution  of  punishments,  even  capital  ones,  among 
 the  Israelites.  It  took  place  immediately  after  sen- 
 tence was  pronounced  ;  nor  have  we  any  mention  of 
 preparations  for  death.  See  Josh.  vii.  16, — 26.  1  Sam. 
 xvii.  11, — 19.  2  Sam.  i.  13, — 16.  iv.  9, — 12.  1  Kings 
 ii.  23, — 25.  28, — 35.  41, — 46. 
 
 This  is  quite  in  the  Oriental  style  ;  but  then  is  it 
 not  cruel  ?  and  is  it  not  unsuitable  to  the  character  of 
 a  civil  law  given  by  God  himself? — I  grant,  for  my 
 own  part,  that  I  much  approve  of  the  tenderness  of  our 
 
862    Preparation  for  Death  ajter  Condemnation, 
 
 laws  with  respect  to  the  welfare  of  criminals  in  a  fu- 
 ture world  ;  particularly  when  I  read  of  its  producing 
 such  happy  effects,  as  in  the  case  of  Count  Struensee't 
 repentance ;  and  yet  I  must  observe,  that  this  anxi- 
 ous concern  for  the  souls  of  malefactors,  is  sometimes 
 productive  also  of  bad  effects,  when  it  is  carried  too 
 far.  But  still,  the  rapidity  wherewith  punishments 
 are  executed  in  the  East,  is  not  too  cruel,  either  in 
 God  or  man  :  not  in  God ;  for  we  see  his  provi- 
 dence acting  in  the  same  manner  every  day,  and 
 hurrying  away  sinners  in  the  midst  of  their  crimes ; 
 so  that  the  Mosaic  punishments  are  thus  quite  ana- 
 logous to  those  inflicted  by  God  in  the  kingdom  of 
 nature :  not  in  man  ;  for  in  war,  we  really  act  pre- 
 cisely in  the  same  manner,  and  when  we  fight  or  pur- 
 sue our  enemies,  we  do  not  first  prepare  them  for 
 death,  by  the  aid  of  clergymen. 
 
 Hence  it  follows,  as  one  consequence  ;  that  should 
 the  legislative  authority,  even  in  our  times,  think  fit 
 to  make  any  change,  with  respect  to  the  punishment 
 of  certain  crimes,  to  which  our  clemency  in  the  pre- 
 paration of  malefactors,  gives  encouragement,  such,  for 
 instance,  as  that  of  murder,  committed  by  a  man,  that, 
 after  previous  repentance,  he  may  get  quit  of  a  life  of 
 which  he  is  tired,  by  the  hand  of  the  magistrate ;  or 
 such  as  that  of  perjury  in  the  case  of  deserters;  our 
 theologians  would  have  no  business  to  rise  up  in  arms 
 against  the  judges  on  that  account :  because  their  cen- 
 sures would  strike  still  more  severely  against  the  Mosaic 
 jurisprudence  ;  so  that  they  ought  to  leave  the  matter 
 entirely  to  legislative  policy,  as  not  at  all  belonging  to 
 their  province. 
 
AN 
 
 ESSAY 
 
 «N 
 
 THE    NATURE    AND    END 
 
 OF 
 
 $tmt0&mettt0  ♦ 
 
 INTENDED  AS  AN 
 
 APPENDIX  TO   BOOK  V. 
 
ADVERTISEMENT, 
 
 RESPECTING  THE  DESIGN  OF   THIS   ESSAY. 
 
 I  now  proceed  to  offer  those  reflections  on  the  Na- 
 ture and  Design  of  Punishments,  which  I  promised  to 
 put  together,  in  vindication  of  certain  doctrines  which 
 I  advanced  when  treating  of  criminal  law  ;  and  be- 
 cause I  was  then  under  the  necessity  of  taking  many 
 tilings  for  granted,  with  respect  to  which,  I  could  not 
 hope  that  every  reader  would  coincide  with  me  in 
 opinion.  It  is  by  no  means  my  intention  to  give  a 
 systematic  theory  of  the  doctrine  of  punishments, 
 nor  yet  to  combat,  in  the  polemic  style,  those  theories 
 which  appear  to  me  to  be  false  ;  but  merely  to  discuss 
 some  particular  points,  taking  those  for  granted  that 
 are  generally  understood  and  admitted.  The  reader, 
 therefore,  need  not  here  look  for  any  developement 
 of  the  ideas  attached  to  the  words,  law,  crime,  punish- 
 ment; nor  yet  for  any  thing  like  a  philosophical  in- 
 vestigation of  the  lawfulness  of  laws  and  punishments  ; 
 and  more  especially,  as  I  have  already  treated  on 
 these  subjects  in  another  work ;  of  which,  as  it  has 
 now  been  long  out  of  print,  I  mean  very  soon  to 
 publish  a  second  edition,  augmented  and  entirely  new- 
 modelled,  namely,  my  Reflections  on  the  Doctrine  of 
 Scripture  concerning  Sin,  as  a  Doctrine  consonant  to 
 Reason.  Nor  do  I  now,  as  some  readers  seem  to  have 
 expected,  from  too  partial  a  perusal  of  the  Fifth  Part 
 of  the  present  work,  intend  to  treat  of  divine  punish- 
 ments in  a  future  world,  but  only  of  those  which  are 
 inflicted  by  civil  laws  in  the  present. 
 
AN 
 
 SSAY 
 
 NATURE  AND  END  OF  PUNISHMENTS, 
 
 PART   I. 
 
 OF    THE    PRIMARY    END    OF   PUNISHMENT 
 
 5  1 .  The  General  Principles  of  Punishment. 
 
 Xhe  greatness  of  punishments  should  always  be  de- 
 termined by  the  effect  they  are  intended  to  produce. 
 They  should  be  sufficiently  great  to  attain  their  pro- 
 per end ;  but  at  the  same  time,  as  small  as  that  end 
 will  possibly  permit.  If  we  could  ascertain  this 
 quantum  with  unerring  mathematical  accuracy,  we 
 certainly  ought  never  to  go  one  hair-breadth  beyond 
 the  requisite  degree  of  severity ;  for  punishments  are 
 an  evil,  and  where,  for  the  attainment  of  a  certain 
 purpose,  such  as  the  prevention  of  a  greater  evil,  we 
 must  necessarily  have  recourse  to  any  thing  of  that 
 nature,  we  ought  to  make  choice  of  the  least  possible 
 evil,  and  not  needlessly  increase  the  evil  that  is  in  the 
 world.     But  as  this  point  cannot  be  accurately  deter- 
 
366  Misery  not  the  End  of  Punishment 
 
 mined,  and  still  less  so,  determined  apriore,  from  mere 
 theoretical  speculation,  there  remains,  between  the 
 two  extremes,  of  punishments  that  are  demonstrably 
 of  unnecessary  severity,  and  those  that  are  inadequate 
 to  the  proper  end,  a  middle  path,  of  pretty  consider- 
 able breadth,  upon  which  legislative  policy  has  always 
 proceeded.  We  see  her,  it  is  true,  verging  some- 
 times to  the  one  side,  sometimes  to  the  other;  and 
 making  experiments,  whereof  some  succeed,  while 
 others  fail ;  but  that  she  may  not  make  too  many  ex- 
 periments in  a  matter  so  delicate,  and  only  acquire 
 knowledge  in  the  midst  of  racks  and  bloodshed  and 
 unbridled  licentiousness,  she  studies  to  avail  herself  of 
 the  aid  of  history  and  philosophy,  and  of  laws  both 
 ancient  and  modern,  together  with  the  experience 
 which  mankind  have  had  of  their  effects. 
 
 The  end  of  punishment  can  hardly  be,  to  inflict  on 
 a  delinquent  a  quantum  of  misery  or  evil,  exactly  pro- 
 portioned to  his  depravity,  and  the  wickedness  of  his 
 actions.  This,  no  doubt,  may  take  place,  nor  shall  I 
 say  a  single  word  against  the  principle  being  adopted, 
 as  a  definition  of  punishments  ;  but,  at  any  rate,  it  is 
 not  their  end.  For  what  purpose  could  any  such  evil 
 serve,  without  some  farther  object  to  justify  it?  The 
 delinquent  is  a  wicked  man  ;  this  is  one  evil ;  he  does 
 many  bad  things,  and  injures  others  ;  this  is  still 
 another  evil.  Wherefore,  then,  should  I,  without  any 
 farther  reason,  add  to  these  a  third  evil,  by  inflicting 
 pain  and  punishment  upon  him,  if  it  be  to  serve  no 
 other  purpose,  than  to  bring  into  the  world,  instead  of 
 two  evils,  which  I  shall  reckon  one  and  one,  a  third, 
 which  being  supposed  equal  in  magnitude  to  them 
 
An  Error  of  some  in  regard  to  this  point.      367 
 
 both,  only  makes  four  evils,  in  place  of  two.  Many- 
 people  suppose  that  God  acts  on  this  principle,  and 
 punishes  solely  out  of  hatred  to  sin,  from  an  essential 
 attribute  of  his  nature,  which  they  think  fit  to  deno- 
 minate holiness,  and  which  impells  him  to  manifest  an 
 irresistible  antipathy  against  moral  evil.  But  of  this, 
 sound  reason  (I  had  first  written  philosophy,  but  have 
 altered  it  -,  because  it  was  from  scholastic  philosophy, 
 that  this  conceit  had  its  origin,)  teaches  us  nothing, 
 nor  yet  does  the  Bible.  Nor  can  I  allow  myself  to 
 think  otherwise  on  this  point,  than  that  God,  in 
 punishing,  has  the  very  same  end  in  view,  which  I 
 shall  mention  by  and  by,  as  the  end  of  human  punish- 
 ments; but  on  this  theologico-philosophical  topic,  I 
 cannot  here  expatiate,  having  done  so  in  the  treatise 
 above  quoted.  Allowing,  however,  that  out  of  rever- 
 ential awe  of  the  incomprehensible  perfections  of  the 
 Deity,  we  were  to  ascribe  to  him  quite  a  different  law 
 from  what  is  called  law  among  men,  and  quite  different 
 motives  for  punishment,  still  it  is,  at  any  rate,  mani- 
 fest, that  human  laws  do  not  generally  recognize  any 
 such  end  of  punishment  as  this  ;  and,  if  any  theorist, 
 just  escaped  from  his  study,  were  to  propose  such  an 
 abominable  innovation,  he  would  be  told,  that  punish- 
 ments inflicted  with  such  a  view,  could  only  serve 
 unnecessarily  to  multiply  the  evils  that  exist  in  the 
 world. 
 
 The  error,  which  I  have  now  described,  is  not  one 
 into  which  a  lawyer  will  be  so  likely  to  be  betrayed, 
 because  every  thing,  both  in  law  and  practice,  counter- 
 acts it,  as  a  closet-philosopher  or  theologian,  who  has 
 never  had  any  thing  to  do  with  punishments,  if  he  has 
 
3G8  Blasphemy  of  Christ,  by  a  Christian,  not  punished. 
 
 not  sufficient  penetration  to  find  out  the  true  end  of 
 inflicting  them.  Many  people,  however,  allow  them- 
 selves to  entertain  a  doctrine  respecting  the  greatness 
 of  punishments,  which  is  nothing  more  than  a  conse- 
 quence of  the  preceding  false  doctrine  concerning 
 their  end,  and  which  obtains  so  much  the  more  atten- 
 tion, from  our  feeling,  with  regard  to  the  villainy 
 wherewith  a  crime  is  committed,  a  degree  of  indigna- 
 tion bordering  on  revenge.  Many  at  least  suppose, 
 and  are  thus  tempted  to  suppose,  that  the  greatness  of 
 the  wickedness  should  be  the  measure  of  the  greatness 
 of  the  punishment. 
 
 Nor  do  I,  indeed,  deny,  that,  in  some  cases,  the 
 punishment  of  the  same  crime  may,  where  the  guilt  is 
 greater,  be  augmented,  and  where  less,  diminished*  ; 
 but  the  blackness  or  whiteness  of  a  crime,  which,  by 
 a  human  judge,  at  any  rate,  who  cannot  see  into  the 
 heart  of  man,  can  scarcely  ever  be  indubitably  ascer- 
 tained, should  not  be  made  the  general  rule  of  pro- 
 cedure here,  nor  indeed  is  it  so.  To  illustrate  this  by 
 an  example.  Two  people  are  guilty  of  blaspheming 
 Christ,  that  is,  speaking  reproachfully  and  contemptu- 
 ously concerning  him  ;  the  one  a  Christian,  the  other 
 a  Jew.  In  a  moral  point  of  view,  this,  when  done  by 
 a  Christian,  particularly  one  who,  in  his  heart,  believes 
 the  truth  of  Christianity,  and  only  means,  in  a  com- 
 pany, perhaps,  to  shew  himself  an  esprit  fort ;  or  who 
 is  outrageously  discontented  with  his  fate,   seems  a 
 
 *  More  properly  speaking,  however,  it  is  pity,  that,  in  the  latter 
 case,  interferes,  and  brings  about  pardons  :  for.  beyond  the  letter  of 
 the  law,  punishments  ought  .never,  in  any  case,  to  be  increased. 
 
Jews  punished  for  Blasphemy — Why  ?         36(j 
 
 crime   of  the  deepest  dye  ;    and  yet,  in  Protestant 
 countries  at  least,   we  seldom  punish  it,  because  it 
 would  only  excite  outcries  and  pity  for  the  sufferer, 
 and  make  him  of  too  much  consequence.     Nor  do  I 
 think  that  here  we  act  improperly.     Let  him  be  left 
 to  the  contempt  he  deserves  ;   and  he  will  unquestion- 
 ably be  expelled  from  all  well-bred  society,  not,  per- 
 haps, as  guilty  of  a  crime  against  religion,  but  against 
 decency ;  and  should  any  good  stout  Christian  happen 
 to  mistake  his  motive,  and  give  him  a  good  sound 
 beating,  it  is  no  more  than  he  deserves,  and  let  him 
 take  it.     It  is  only  when  he  complains  on  that  score, 
 and  seeks  to  be  avenged,  that  the  cause  of  the  beat- 
 ing which  his  impertinence  gained  him,  merits  to  be 
 made  the  subject  of  a  criminal  enquiry. — When  the 
 Jew,  on  the  other   hand,    is   guilty  of  blaspheming 
 Christ,  whom  he  deems  an  impostor,  his  crime,  in  a 
 moral  view,  is  far  less  black.     He  is  only  in  an  error, 
 — an  error  too  in  which  he  has  been  educated ;  and 
 he  does  nothing  more  than  what  we  ourselves  do, 
 when  we  call  Mahomet  an  impostor.       Yet,    in  his 
 case,  the    crime  of  blasphemy,  if  brought  before  a 
 court,  would  hardly  pass  unpunished.     Perhaps  the 
 regular  punishment,  as  fixed  by  the  laws,  would  be 
 inflicted  upon  him  j  at  least  I  would  not  insure  his 
 tongue,  unless  he  happened  to  have  plenty  of  money  5 
 and  had  he  gold  by  tons,  he  would,  in  a  country  in 
 which  an  Imperial  Debt-Commission  were  expected, 
 or  had  already  arrived,  be  a  most  desirable  object  of 
 plunder  to  the  sovereign,  and  might,  in  a  good  mea- 
 sure, help  him  out  of  his  difficulties. — It  will  here  be 
 said,  "  This  inequality,  no  doubt,  does  take  place  j  but 
 vol.  iv.  a  a 
 
370        Punishment:  of  Perjury,  when  necessary  ? 
 
 it  is  not  reasonable."  I  beg  leave,  however,  to  be  of  a 
 different  opinion.  Why  the  Christian  is  not  punished, 
 I  have  already  mentioned  ;  but  to  let  the  Jew  remain 
 unpunished,  were — I  know  not  what.  For  to  allow 
 ourselves  to  be  grossly  insulted  by  an  individual  be- 
 longing to  a  people  whom  we  merely  tolerate;  wrho  all 
 have  an  aversion  at  us  ;  who  cannot  with  arms  defend 
 the  state  in  which  they  live,  and  yet  wish  to  be  de- 
 fended and  protected  by  it ;  is  what  the  ruling  power, 
 and  the  people  who  vouchsafe  them  protection,  can 
 not  be  expected  to  do. — To  give  another  example  : 
 That  a  religious  people  may  subsist,  without  inflicting 
 any  civil  punishment  on  perjury,  has  been  already  as- 
 serted in  Art.  CCLVI.  If,  however,  the  same  people 
 become,  in  process  of  time,  less  religious,  yet  still  re- 
 tain the  appeal  to  an  oath,  such  punishments  must 
 necessarily  be  introduced,  and  must  always  have  their 
 severity  and  rigour  increased,  in  proportion  to  the 
 spread  of  infidelity  among  them.  For  if  this  were  not 
 to  take  place,  the  state  could  not  subsist,  nor  could 
 any  thing  like  justice  be  administered.  And  yet  it  is 
 evident,  that  perjury,  on  the  part  of  a  man  who  be- 
 lieves religion,  is  a  much  blacker,  and  a  more  horrible 
 crime,  than  in  one  who  does  not  believe  in  a  God,  or 
 at  least  in  a  God  who  takes  any  concern  with,  or 
 is  to  judge  the  world  ;  for  the  latter,  when  he  swears 
 falsely,  in  confirmation  of  an  untruth,  only  makes  use 
 of  words  to  which  he  can  attach  no  meaning,  and  so, 
 in  his  conscience,  swears  by  a  nonentity.  His  saying, 
 So  may  God  help  me,  and  his  holy  word,  is  nothing 
 more  than  if  I  were  to  say,  So  help  me  the  Great 
 Mogul ;  nor  indeed  quite  so  much  j  for  it  is  just  as 
 
The  Design  of  Punishments.  ^71 
 
 possible  that  I  might  one  day  have  occasion  for  the 
 help  of  the  Great  Mogul,  who  is  at  any  rate  my 
 neighbour,  as  the  Jew,  who  fell  among  the  thieves, 
 had  of  the  Samaritan's.  I  shall  hereafter  have  to  speak 
 on  this  point  again,  and  make  an  application  to  a  ques- 
 tion, for  which  we  are  not  yet  sufficiently  prepared. 
 
 §  2.  Determent  from  Crimes,   the  Design  of  Punislu 
 
 merits. 
 
 The  essential  purpose  of  punishments  is  no  other 
 than  what  is  usually  expressed  in  indictments  and 
 sentences,  viz.  to  serve  as  an  example  to  others.  And 
 though  those  who  have  nothing  to  do  with  punish- 
 ments, and  who  philosophize  in  corners  without  any 
 experience,  have,  out  of  those  treasures  of  thoughts, 
 which  they  denominate  philosophy,  and  in  their  zeal 
 for  the  improvement  of  theology  and  criminal  juris- 
 prudence, brought  forward  this  proposition,  that  all 
 punishments  should  have  amendment  for  their  object ; 
 still  the  proposition  above  mentioned,  that  punish- 
 ments are  meant  for  an  example  to  others,  is  so  evident, 
 that  no  man,  who  has  to  administer  justice,  can  mis- 
 take it ;  and  every  one  who  has  any  experimental 
 knowledge  of  the  subject,  admits  it  as  an  established 
 point,  though,  perhaps,  without  knowing  how  he  has 
 come  to  do  so. 
 
 Were  I  to  translate  this  proposition  into  language 
 of  my  own,  I  would  say,  Punishment  is  an  evil ;  but  it 
 is  necessari)  in  order  to  avoid  a  greater  evil :  it  is  a 
 single  evil,  employed  for  the  prevention  of  a  thousand, 
 
 a  a  2 
 
372     Author's  Obligations  to  Von  Segner's  Oration* 
 
 or  rather  of  numberless  evils  ;  and  its  end  is,  determent 
 from  crimes  *. 
 
 If  we  think  of  deterring  a  man  from  a  crime,  in  the 
 commission  of  which  he  sees,  or  thinks  he  sees,  his 
 advantage,  we  must  menace  him  with  more  evil  than 
 the  supposed  advantage  amounts  to,  according  even 
 to  his  own  calculation  ;  that  is,  with  such  an  evil,  as 
 he,  taking  every  thing  into  account,  both  the  cer- 
 tainty of  the  advantage,  and  the  uncertainty  of  the 
 evil,  shall  estimate  to  be  greater  than  the  advan- 
 tage. But  as  a  threatening  wTill  not  have  much  effect, 
 if  any  reason  be  given  to  hope,  that  it  may  remain  un- 
 fulfilled, it  must  be  put  in  execution  on  every  one  who 
 is  convicted  of  the  crime.  The  more  uniformly  and 
 inexorably  this  takes  place,  the  more  effectual  will  the 
 punishment  prove  ;  and,,  on  the  other  hand,  thegreat- 
 
 *  For  a  great  part  of  what  I  advance  on  this  subject,  I  am  in- 
 debted to  an  oration  of  Mr.  Von  Segner,  member  of  the  privy  coun- 
 cil, delivered,  as  Protector  of  our  University,  in  the  year  17  1-9  ;  the 
 very  same  one  which  I  have  quoted  in  my  treatise  on  the  Scripture 
 Doctrine  of  Sin,  and  promised  to  reprint  as  an  Appendix  thereto ; 
 which,  however,  remained  undone,  because  the  book  was  printed  out 
 of  Gottingen,  and  ready  before  I  knew  of  it.  This  oration  gave  me 
 so  very  great  satisfaction,  that  I  could  not  omit  testifying  my  appro- 
 bation of  it,  to  its  Author;  which  occasioned  his  presenting  the 
 MS.  to  me,  with  permission  to  have  it  printed.  This,  as  I  have  said, 
 I  intended  to  have  got  done  in  1752,  but  was  disappointed;  and 
 therefore  I  annex  it  to  the  present  Essay,  not  doubting  that  it  will 
 prove  a  gratification  to  my  readers.  1  omit  the  exordiwn,  and  the 
 conclusion,  and  only  quote  from  the  place  where  it  treats  of  the  pro- 
 portion of  punishments.  He  there  begins  with  observing,  that 
 ihe  science  of  mathematics  is  useful  in  many  more  points  than  were 
 then  supposed,  and  that  it  might  be  of  importance  even  to  the  law- 
 yer.   Ne  enimpuUtis,  &c. 
 
Danger  oj  remitting  Punishments.  373 
 
 er  the  probability  is  of  ever  escaping  with  impunity, 
 so  much  the  more  severe  must  the  punishment  be; 
 and  after  all,  where  many  instances  of  remission  oc- 
 cur, it  will  be  of  no  effect ;  that  is,  it  will,  in  any  case 
 where  Ihe  cruel  despot  (for  such,  in  fact,  is  the  title 
 suitable   to   the  sovereign  who   pardons  crimes  fre- 
 quently, and  without  extreme  necessity,)  orders  it  to 
 be  inflicted,  be  nothing  better  than  an  useless  profu- 
 sion of  evil ;  and,  at  the  same  time,  a  piece  of  pecu- 
 liar cruelty  to  the  poor  unfortunate  culprit  who  suf- 
 fers, and  who  perhaps  ventured  on  tlie  commission  of 
 the  crime,  just  from  the  influence  of  example,  which 
 would  have  deterred  him  from  it,  having  been  with- 
 drawn ;  and  from  his  thus  being  led  to  hope,  that  he 
 would  be  no  more  rigorously  dealt  with  than  others. 
 And  does  not  that  man  deserve  the  name  of  a  tyrant, 
 who  grants  pardons  in  such  a  manner  ?  I  shall  be  told, 
 he  has  not  a  bad  heart,   (though,  very  possibly,  it  is  a 
 selfish  and  dastardly  one  ;)  but  it  is  not  so  often  a 
 bad  heart  that  makes  a  prince  a  tyrant,  as  a  weak 
 one  ;  or  at  least,  a  nation  is  more  apt  to  suffer  tyranny 
 under  weak  princes,  than  under  severe  ones. 
 
 The  relation  of  punishments  to  their  end,  and  the 
 consequences  thence  resulting,  will  be  best  shewn, 
 by  representing  them  as  a  weight  placed  in  a  scale, 
 which  another  weight,  in  the  opposite  scale,  has  to 
 hold  in  equilibrio.  The  transgressor  of  the  laws  is 
 hurried  into  crimes,  at  one  time,  by  the  advantage 
 which  he  himself  actually  reaps  from  them  ;  and  at 
 another,  by  that  which  he  conceives  them  likely  to 
 yield  him,  though  it  be  not  immediate,  and  may  in- 
 deed be  connected  with  a  much  greater  loss,  which 
 
 a  a  3 
 
37*  The  Good  and  Bad  Scales. 
 
 he  does  not  attend  to  ;  but  still  oftener  is  he  impelled 
 by  the  violence  of  his  passions;  by  his  rage,  revenge, 
 fear,  or  lust.  Now  all  this  is  the  weight  to  be  put  in- 
 to the  one  scale,  which  1  shall  take  the  liberty  of  de- 
 nominating the  bad  scale.  In  the  opposite  scale,  which 
 may  be  termed  the  good  one,  there  is  a  counterpoise 
 to  be  laid  ;  and,  in  fact,  it  is  seldom,  in  any  case,  al- 
 together empty ;  for  in  it  lie  (1.)  Religion,  which  alone, 
 in  most  of  those  who  not  only  theoretically  believe, 
 but  feel  it,  proves  more  than  sufficient  to  counter- 
 balance criminal  propensities.  (2.)  Natural  honesty, 
 which,  in  some  people,  is  almost  invincible,  and  al- 
 ways more  than  a  counterbalance  ;  though  in  others, 
 indeed,  only  a  drachm  against  a  hundred-weight.  (3.) 
 Sympathy,  goodness  of  heart,  natural  good  disposition, 
 and  education  ;  which,  in  some  cases,  are  of  most 
 powerful  influence  ;  as  we  see  in  that  almost  insuper- 
 able aversion  to  theft,  which  is  displayed  by  people  of 
 good  education,  and,  strictly  speaking,  flows  solely 
 from  the  point  dy  honneur  ;  and,  (4.)  Cool  and  deli- 
 berate reason,  which,  in  regard  to  many  crimes,  per- 
 ceives how  detrimental  any  present  advantage  may  in 
 future  prove.  In  a  great  many  persons,  however,  one 
 or  other  of  the  weights  now  mentioned,  is  deficient  in 
 the  good  scale,  and  what  we  find  there,  is  far  from 
 being  a  counterpoise  to  the  selfishness  and  passion  of 
 the  bad  one.  It  is,  besides,  an  unfortunate  character- 
 istic of  the  human  heart,  that  trifles,  in  the  bad  scale, 
 often  weigh  more  than  all  the  weight  of  reason  and 
 religion  that  lie  in  the  good  one.  We  may  call  this 
 what  we  will.; — the  fantasticalness  of  the  human 
 'heart,  natural  corruption,  hereditary  sin.  prcnonder- 
 
punishments  cannot  wholly  prevent  Crimes,     375 
 
 ance  of  sensuality  over  reason  ;  (they  are  terms  pure- 
 ly synonymous,  against  one  of  which,  while  we  some- 
 times manifest  much  zeal,  we  nevertheless  know  and 
 acknowledge  the  thing  under  another  ;)  still  we  see  it, 
 after  all,  like  a  balance  which  is  not  as  it  should  be, 
 but  has  one  of  its  scales,  (the  had  one,  unfortunately,) 
 somewhat  heavier  in  itself  than  the  other ;  and  yet 
 we  give  it  the  additional  advantage  of  a  longer  arm  ; 
 so  that  the  pound  put  into  it,  becomes,  by  reason  of 
 its  greater  distance  from  the  centre  of  suspension, 
 more  than  a  pound  ;  and  perhaps,  indeed,  if  we  are  in 
 a  passion,  a  grain  becomes  a  quintal. 
 
 Hence  it  is,  then,  that  the  greatness  of  punishments 
 is  to  be  determined ;  they  should  just  be  of  sufficient 
 magnitude  to  answer  their  end,  that  is,  to  deter  from 
 crimes.  This  does  not,  however,  mean,  that  they  are 
 to  be  sufficient  so  to  deter  from  crimes,  as  that  not  one 
 shall  on  any  account  be  committed ;  (that  were,  in- 
 deed, to  require  an  impossibility ;  for  though  we  make 
 punishments  ever  so  severe  and  irremissible,  still  our 
 passions,  which  are  apt  to  exaggerate  a  trifling,  and 
 merely  apparent  good,  in  an  infinite  degree,  will  some- 
 times have  a  preponderance  ;)  but  only  to  make  crimes 
 as  rare,  and  to  deter  from  them  as  far,  as,  considering 
 the  depraved  state  of  the  human  heart,  it  is  possible 
 for  a  legislator  to  do,  without  thereby  occasioning  a 
 greater  evil. 
 
 §  3.  Of  Slight  Punishments. 
 
 Were  it  possible  to  put  a  stop  to  the  most  formid- 
 able of  all  crimes  by  a  slight  punishment,  we  ought, 
 
 a  a  4 
 
S76        S?noJcing  on  the  Ramparts  of  a  Fortress. 
 
 in  justice,  to  chuse  the  very  least  one  that  will  be  suf- 
 ficient for  that  purpose.  To  smoke  tobacco  on  the 
 ramparts  of  a  fortified  town,  where  there  is  a  powder 
 magazine,  is  prohibited  ;  and  it  is  indeed  a  crime,  that 
 may  be  attended  with-much  more  terrible  consequen- 
 ces than  murder  or  robbery.  Even  setting  fire  to  any 
 other  town,  can  be  but  a  mere  trifle  compared  to  it, 
 if  we  look  only  to  the  probable  damage.  And  yet  it 
 is  not  usually  punished  with  death  :  much  slighter 
 punishments  being  found  sufficient ;  for  however  much 
 a  person  may  have,  by  habit,  become  a  slave  to  tobac- 
 co, he  will  not,  at  the  very  moment  he  is  walking  on 
 the  ramparts,  look  upon  it  as  a  pleasure  so  perfectly 
 indispensable,  as  that  he  will  chuse  to  suffer  a  pair  of 
 firm  thrusts  in  the  ribs  from  the  guard,  (with  whom 
 he  certainly  will  not  venture  to  contend,  at  the  risk  of 
 his  life,  and  of  a  capital  punishment,)  together  with 
 imprisonment,  or  some  other  corporal  infliction  after 
 them.  This  were  like  contending  with  the  gallows 
 or  the  wheel ;  and  no  man  will  allow  himself  to  be 
 thus  hurried  away  by  any  passion.  In  the  case,  how- 
 ever, of  the  man,  of  whom  the  habit  of  smoking  tobac- 
 co has  got  such  a  powerful  hold,  that  he  does  it,  with- 
 out knowing  it,  even  where  it  is  certainly  much  more 
 dangerous  to  the  public  safety,  than  the  commission 
 of  robbery ;  or  in  the  case  of  the  stranger  who  knows 
 nothing  of  the  prohibition,  neither  the  gallows  nor 
 the  wheel  would  operate  effectually  in  terrorem,  be- 
 cause 'her  is  unacquainted  with  the  law,  or,  from 
 habit  vices  not  think  of  it;  and  therefore  any  such 
 putoishment  would  only  be  a  foolish  and  cruel  waste 
 pfevi'. ;  whereas  a  good  thrust  in  the  ribs,  from  the 
 
Imaginary  Punishments,  if  effectual,  lest  of  all  377 
 
 centinel,  together  with  a  hearty  doze  of  the  cudgel, 
 will  so  thoroughly  strengthen  his  memory,  that  every 
 time  he  approaches  the  ramparts  witli  a  tobacco-pipe 
 in  his  mouth,  the  expcclatio  casuum  similium,  which  is 
 so  famous  among  logicians,  will  make  a  forcible  im- 
 pression upon  him,  and  remind  him  to  put  an  end  to 
 his  smoking. 
 
 §  4.  Of  Imaginary  Punishments. 
 
 Were  it  possible  to  employ  mere  imaginary  evils  as 
 punishments,  it  would  be  still  better.  Parents,  who 
 know  the  hearts  of  their  children,  and  whose  will  is 
 their  law,  may  do  this  in  the  course  of  their  educa- 
 tion ;  but  even  in  that  case,  they  are  not  so  properly 
 punishments,  as  chastisements  ;  and  parents  must 
 here  take  care  not  to  make  their  children  averse  from 
 any  thing  useful,  such  as  their  learning,  by  habituating 
 them  to  look  upon  it  as  a  punishment  and  an  evil. — 
 Magistrates  have  not  that  unlimited  power  which 
 parents  have  over  their  children  j  nor  ought  they  to 
 have  it,  because  they  cannot  be  so  safely  entrusted 
 with  it ;  and  hence  it  is  but  very  rarely  that  they  can 
 have  recourse  to  this  artifice,  in  the  use  of  which,  our 
 procedure  must  always  be  regulated  by  the  phantasia 
 of  the  culprit,  and  the  punishment  changed,  whenever 
 he  has  the  sagacity  to  discern  that  it  is  but  a  bugbear. 
 Sometimes,  however,  legislative  policy  will  for  a  while 
 successfully  avail  itself  of  the  notions  and  errors  of  the 
 people  for  this  purpose.  A  punishment,  which  has  in 
 some  places  been  inflicted  on  Gypsies,  (I  mean,  taking 
 their  children  from  them,  and  giving  them  education,) 
 
378        Sometimes  employed  by  the  Magistrate, 
 
 proved  so  powerfully  terrific  to  them,  that,  though 
 the  gallows  and  the  wheel  had  never  been  able  to 
 scare  them  away,  they  immediately  disappeared  from 
 the  country ;  and  yet,  in  doing  this,  the  police  only 
 did  what  many  parents  would  account  a  very  great 
 favour,  even  were  it  to  be  done  in  an  orphan-house,  and 
 what  perhaps  parents,  even  in  good  circumstances, 
 sometimes  petition  for,  in  vain. — In  like  manner,  to 
 many,  who  cannot  earn  a  livelihood,  a  place  in  the 
 house  of  correction,  is  really  an  important  favour.  It 
 secures  them  from  the  numerous  evils  and  vices  of  a 
 vagabond  life,  and  yet  affords  them  sufficient  variety 
 of  companions,  and  these  too,  moralized  by  labour 
 and  superintendence,  who  talk  away  the  time  of  their 
 work,  particularly  the  female  part  of  them  ;  and  were 
 it  not,  that  the  name  of  a  house  of  correction  has  some- 
 thing terrific  in  it,  poor  people  would  be  as  anxious 
 for  admission  into  it  as  into  an  hospital ;  more  espe- 
 cially if  it  were  as  clean  as  that  at  Zelle  is,  where  the 
 prisoners,  who  sit  together,  maintain  such  a  strict 
 police,  that  no  vermin,  which  are  the  usual  pest  of 
 poor  people,  are  ever  seen  ;  and  most  of  them  have 
 much  more  the  appearance  of  happiness  than  they 
 had  before.  Any  such  imaginary  evil  as  this,  how- 
 ever, must,  ab  extra,  and  in  name,  have  a  very  dismal 
 aspect :  for  whenever  it  loses  its  terrors,  and  is  un- 
 masked, it  from  that  moment  ceases  to  be  useful ;  and 
 we  shall  then,  probably,  find  crimes  committed  for  the 
 express  purpose  of  getting  lodging  and  maintenance 
 in  our  houses  of  correction  ;  with  the  confinement  of 
 which,  though  no  doubt  a  real  evil,  the  man  who  has 
 strongly  felt  the  cravings  of  hunger  will,  to  be  sure 
 
They  mast  always  appear  formidable.  579 
 
 of  food,  be  glad  to  put  up  with  for  life.  Only  the 
 worst  of  it  is,  that  these  seeming  punishments  com- 
 monly require  more  expense  than  the  state  can  afford  ; 
 together  with  a  deep  acquaintance  with  the  human 
 ,  heart,  and  a  despotic  power,  to  vary  the  punishments 
 at  pleasure,  by  abolishing  the  old,  whenever  culprits 
 discover  the  benevolence  of  the  artifice  that  has  been 
 practised  upon  them,  and  substituting  new  ones  in 
 their  room.  This  is,  therefore,  a  device  of  penal  po- 
 licy, which  the  Deity  might  reserve  for  himself,  and 
 which  might,  with  becoming  propriety,  be  used  by 
 him  ;  but  which  it  is  only  in  a  small  degree,  at  most, 
 that  we  can  adopt  and  imitate :  and  states  and  magis- 
 trates have  this  still  less  in  their  power  than  parents. 
 So  much  with  regard  to  very  slight  punishments. 
 
 §  5.  Of  Severe  Punishments. 
 
 On  other  occasions,  we  must  have  recourse  to  pu- 
 nishments which  form  a  much  greater  physical  evil, 
 than  the  individual  injury,  wherein  the  crime  consists. 
 What  thief,  or  (with  all  reverence,  be  it  spoken,  for 
 those  persons  of  distinction,  who  are  guilty  of  the 
 crime  I  am  about  to  mention,  for  they  cannot  justly 
 blame  me  for  naming  them  with  such  company,)  what 
 smuggler,  or  defrauder  of  the  revenue,  whether  of  ex- 
 cise, customs,  or  by  whatever  other  name  it  be  known, 
 would  allow  himself  to  be  deterred  from  fraudulent 
 practices,  by  the  punishment  of  being,  without  the 
 least  loss  of  reputation,  merely  subjected  to  make  res- 
 titution to  twice  the  amount  of  his  fraud  ?  "  Ten 
 "  times,  or  perhaps  a  hundred  times,"  thinks  he  with 
 
380      Restitution  for  Theft — how  to  be  regulated, 
 
 himself,  "  shall  I  secure  my  profit,  ere  I  be  once  de- 
 "  tected."  So  that  he  has  a  strong  temptation  to 
 embark  in  a  lottery,  in  which,  making  every  unfavour- 
 able exception,  he  may  be  sure  of  this — that,  on  an 
 average,  he  shall  not  have  a  blank  but  once,  perhaps, 
 in  a  hundred  risks,  and  then  only  lose,  at  most,  but 
 twice  the  price  of  his  ticket.  Should  any  person  be 
 inclined  to  project  a  lottery  on  this  principle,  I  would 
 ensure  him  of  patrons ;  and  promise,  that  no  other 
 attempt  of  the  same  kind  would  ever  succeed,  as 
 long  as  his  lasted.  It  is  manifest,  therefore,  that  if 
 the  punishment  of  theft  be  a  pecuniary  one,  it  must, 
 where  the  crime  has  been  fully  committed,  be  not  a 
 two-fold,  but  a  manifold,  restitution  ;  and  always,  in 
 exact  proportion  to  the  number  of  times,  and  to  the 
 same  amount  which  the  thief  might  hope  to  steal,  un- 
 discovered and  unpunished ;  and,  of  course,  where 
 thieves  have,  as  the  common  proverb  says,  such  great 
 rights,  as  with  us,  because  people  dare  not  venture  to 
 impeach  them,  it  should  be,  not  four  ox  five  fold,  as 
 under  the  Mosaic  law,  nor  yet  seven  fold,  as  in  Solo- 
 mon's time,  (Art.  CCLXXXIV.  CCLXXXV.)  but, 
 at  least,  ten  fold,  and  even  more,  if  it  is  meant  to  be 
 of  any  avail.  It  must,  in  short,  deprive  the  thief  of 
 more  property,  than  the  amount,  with  interest  in- 
 cluded, of  all  that  he  could  probably  gain  by  all  his 
 thefts  that  remained  undetected. 
 
 §  6.  Of  Capital  Punishments. 
 
 If,  however,  moderately-severe  punishments  prove 
 insufficient,  and  we  are  not  disposed  tamely  to  submit 
 
Capital  Punishments  sometimes  necessary,  §c.    381 
 
 to  the  injuries  that  may  be  offered  us  ;  that  is,  to  lay 
 our  account  with  either  a  box  on  the  ear,  or  a  bloody 
 nose,  as  to  any  rascal  may  seem  good  ;  to  lose  all 
 security  both  at  home  and  abroad  ;  and  to  leave  our 
 property,  our  wives  and  daughters,  a  prey  to  every 
 one  that  chuses  to  attack  them  ;  we  must  have  imme- 
 diate recourse  to  severer  checks ;  in  other  words,  we 
 must,  even  to  crimes  that  do  not  endanger  life,  annex 
 a  capital  punishment ;  just  as  is  so  often  done  in  the 
 case  of  theft,  and  particularly  where  it  is  committed 
 by  servants  j  only  that  the  legislative  power  ought  al- 
 ways to  consider,  whether  this  increase  of  severity 
 may  not  degenerate  into  an  impunity  ;  as  may  per- 
 haps be  said  to  be  the  case,  in  regard  to  the  very 
 crime  now  mentioned. 
 
 Now  this  is  the  very  point,  in  relation  to  which,  I 
 expect  most  objection  to  be  made  to  my  doctrine. — 
 "  Is  there,"  I  shall  be  asked,  "  the  smallest  propor- 
 '*  tion  betwixt  a  few  dollars  or  ducats,  and  a  man's 
 "  life  ?  Do  we  ourselves  value  our  lives  so  cheap  ?  Is 
 "  it  not  barbarous  to  hang  a  person  for  stealing  from  a 
 "  rich  man,  what  he  hardly  perceives — a  mere  nothing 
 "  compared  to  the  rest  of  his  property,  and  by  the  loss 
 "  of  which  he  will  be  no  poorer  than  you  are  made,  by 
 *'  the  pen,  wherewith  you  write,  becoming  bad  or  use- 
 u  less,  and  your  being  obliged  to  mend  it,  or  even  to  take 
 "  another  ?  Is  it  not,  generally  speaking,  preposterous 
 "  to  make  use  of  a  very  great  evil,  in  preventing  a 
 **  very  small  one  ?"  My  readers  already  know,  from 
 the  tenor  of  Art.  CCLXXXII.,  that,  for  reasons  very 
 different  from  these,  I  am  quite  against  punishing 
 theft  capitally,  and  would  be  glad,  if  it  were  possible, 
 
382  An  Objection  answered. 
 
 that  a  punishment  more  proportioned  to  the  motive  of 
 the  crime,  could  be  adopted.  At  present,  however, 
 I  speak  of  the  question  in  general ;  and,  in  the  cha- 
 racter of  an  objector,  resuming  the  interrogatory  style, 
 I  ask,  "  Should  we,  to  prevent  a  very  trifling  crime, 
 "  have  recourse  to  a  very  great  punishment ;  one,  per- 
 "  haps,  a  hundred  times  greater  ?  Should  we  employ 
 "  the  punishment  of  death  to  deter  from  crimes  that 
 "  do  not  affect  life  ?  Is  not  this  a  foolish  multipli- 
 "  cation  of  evil."  The  capital  punishment  of  theft, 
 I  have  selected  by  way  of  example,  for  this  reason, 
 that  it  is  looked  upon  by  so  many  people  as  the  weak 
 side  of  this  argument,  and  that  on  which  it  ought  to 
 be  attacked  ;  and  impartiality  requires,  that  we  do 
 not  mask  this  vulnerable  point,  but  present  it  fairly  to 
 every  one's  observation. — Now,  my  opinion  is,  that 
 we  may,  and,  in  many  cases,  we  must,  do  what  is  here 
 objected  to  ;  that  capital  punishments  may  and  should 
 be  annexed  to  many  crimes  that  do  not  endanger  life, 
 and  that  the  evils  of  punishment  should,  in  general, 
 exceed  the  injuries  for  which  they  are  inflicted. 
 
 This  cannot  possibly  be  called  unjust  by  the  man 
 who  "will  but  reflect  on  the  situation  of  the  human 
 race,  in  the  state  of  nature.  If  I  be  in  that  state,  I 
 am  not  obliged  to  let  myself  be  injured.  I  may  not 
 only  defend  myself  when  assaulted ;  but,  to  deter  others 
 (or  whatever  else  you  chuse  to  call  it,  for  the  name 
 makes  no  difference),  I  may  avenge  myself,  or  punish 
 the  person  who  injures  me.  And  should  the  mildest 
 avengement  not  prove  sufficient  for  this  end  ;  should 
 a  man  have  given  me  a  malicious  blow,  and  it  availed 
 me  nought  to  have  repaid  it  with  the  like,  but  he  pro- 
 
Another  Example,  respect.  Defence  of  Property.  383 
 
 ceeded  immediately  to  give  me  another  ;  no  one,  I 
 should  think,  could  blame  me,  if  I  now  (but  here  I 
 must  be  the  stronger  of  the  two,  and,  for  that  reason, 
 I  mentioned  a  malicious  blow,)  repaid  him  with  a 
 hundred  for  one,  that  I  might  be  safe  in  future.  And 
 were  even  that  insufficient  for  my  security,  I  do  not 
 know  who  could  find  fault  with  me,  though  I  said, 
 Whoever  gives  me  the  first  stroke,  I  will  beat  him  dead  ; 
 and  though  I  was  as  good  as  my  word.  This,  how- 
 ever, would  be  a  very  cold-blooded  procedure  ;  nor  are 
 we  so  calculating  in  a  state  of  nature ;  for  the  desire 
 of  revenge  implanted  in  us  by  nature,  (that  right 
 which  nature  has  taught  all  animals,  and  which  even 
 the  best-trained  dog  cannot  help  feeling,  when  any 
 man  beats  him  but  his  master,  or  suspiciously  ap- 
 proaches his  plate  ;)  this  passion,  I  say,  generally  re- 
 quires, and  indeed  glories  in  retaliating  any  injury, 
 to  a  much  greater  extent  than  we  have  suffered. 
 
 But  to  give  another  example  from  the  state  of  na- 
 ture.— Were  a  person  attempting  to  lay  hold  of  any 
 part  of  my  property, — a  man,  perhaps,  who  had  no- 
 thing that  I  could  take  from  him  in  my  turn  ;  would 
 I  do  wrong  to  say  to  him,  /  am  determined  to  keep  my 
 own;  and  if  you  attempt  to  take  it,  I  will  give  you  a 
 beating  that  you  shall  feel  for  a  week;  or,  if  this  did 
 not  avail  me,  and  he  replied,  /  must,  then,  doubtless, 
 put  up  with  that,  if  you  catch  me ;  but  a  backfall  of 
 blows  will  not  taste  hafso  sour  to  me,  as  your  property 
 will  taste  sxceet ;  were  I  to  tell  him  in  plain  terms,  If 
 you  do  take  it,  I  shall  certainly  put  you  to  death  ?  In 
 the  state  of  nature,  however,  people  are  really  not  so 
 reremonious,  but  proceed  to  act  without  any  such 
 
384     Case  of  Highway  Robbery,  or  Housebreaking, 
 
 preambles  ;  nor  is  there  any  injustice  in  doing  so  ;  for 
 every  man  may,  from  what  he  is  conscious  would  be 
 his  own  conduct,  very  readily  infer  what  he  has  to  ex- 
 pect from  his  neighbours. 
 
 In  like  manner,  where  we  happen  to  be  in  circum- 
 stances approximating  to  the  state  of  nature,  on  the 
 highway,  for  instance  ;  or  when  our  houses  are  broken 
 into  by  night,   without  our  having  it  in  our  power  to 
 call  a  magistrate  to  our  aid ;  we  do  not  deem  ourselves 
 bound  to  abandon  our  property  to  robbers,  because 
 we  cannot  preserve  it  without  the  loss  of  their  lives, 
 in  shooting  the  first  of  them  who  approaches,  dead ; 
 but  we  expose  it  and  even  our  own  lives  to  danger,  and 
 we  must  do  so  ;  for  were  it  the  fashion  to  act  other- 
 wise, and  were  it  accounted  morally  wrong  to  shoot 
 the  first  of  a  band  of  robbers  who  came   up  to  us, 
 through  the  head,  and  thus  to  deter  the  rest  from  at- 
 tacking us,  no  part  of  our  property  would  be  secure 
 against  those  who  should  think  fit  to  take  it  by  force, 
 either  in  the  highway  or  in  our  houses. 
 
 Again  ;  nations  live  in  a  state  of  nature  with  re- 
 spect to  each  other,  and  for  any  wrongs  they  may  re- 
 ceive, exact  manifold  restitution.  If  their  ambassa- 
 dors are  insulted,  as  were  those  of  Rome,  for  example, 
 by  the  Tarentines,  they  do  not  wait  for  an  opportu- 
 nity of  repaying  the  insult  in  kind ;  but  they  retaliate 
 by  declaring  war,  and  perhaps,  if  they  happen  to  be 
 successful,  by  destroying  the  state  that  has  offended 
 them.  As  the  Roman  ambassador  said  at  Tarentum, 
 they  wash  out,  with  blood,  the  spot  from  the  garment 
 which  decency  forbids  to  name  \  nor  are  they  censured 
 for  so  doing  j  for  the  nation  who  should  act  otherwise, 
 
National  Insults — Jenkins's  Ears.  385 
 
 would  soon  sink  into  contempt,  would  be  always  re- 
 ceiving grosser  and  grosser  affronts,  and  if  it  continued 
 to  bear  them  with  patience,  would,  at  last,  be  deemed 
 a  fair  prey,  and  forced  to  submit  to  a  foreign  yoke. 
 A  nation,  therefore,  cannot  be  secure,  unless  it  avenge 
 insults  in  such  an  exemplary  manner,  as  that  its  neigh- 
 bours shall  not  retain  any  inclination  to  repeat  them. 
 Nor  is  it  merely  in  the  case  of  an  insult  offered  to  an 
 ambassador,  that  a  powerful  nation  deems  itself  justi- 
 fied in  a  war  of  vengeance,  but  even  where  any  act  of 
 barbarity  happens  to  be  perpetrated  against  any  of  its 
 citizens,  and  satisfaction  is  refused.  The  Romans  have 
 hitherto  never  been  condemned  for  doing  what  Cicero 
 mentions  in  his  oration,  pro  Lege  Manilla,  c.  4. ;  Ma- 
 jores  vestri  sa?pet  mercatoribus  ac  naviculatoribus  inju- 
 riosius  tractatis,  bella  gesserunt.-—lLven  in  our  own 
 times,  we  have  the  celebrated  example  of  Jenkins's 
 ears  ;  only  that  here  there  may  be  some  ground  for 
 doubting,  whether  he  had  really  been  so  innocent  as 
 the  merchants,  who  clamoured  for  a  war,  and  who 
 probably  had  been  smuggling  on  the  coasts  of  Spanish 
 America,  thought  fit  to  maintain. 
 
 If,  then,  we  may,  in  a  state  of  nature,  act  thus  to- 
 wards the  man  who  is  not  under  subjection  to,  but 
 entirely  on  a  footing  of  equality  with  us,  and  who  is, 
 moreover,  a  stranger,  and  has  come  under  no  com- 
 pact to  submit  to  any  punishment  from  us  ;  where- 
 fore should  a  state  have  less  right  of  inflicting  punish- 
 ment on  individual  transgressors?  As  we  unite  together 
 in  civil  society,  in  order  to  obtain  more  security  and 
 protection,  than  we  could  give  ourselves  as  individuals; 
 it  is  not  conceivable,  that,  in  order  to  deter  the  wicked 
 
 VOL.  iv.  b  b 
 
386        Application  of  the  preceding  argument. 
 
 from  outrages,  that  is,  in  other  words,  to  maintain  the 
 public  security  and  protection,  society  should  not  have 
 it  in  its  power  to  do,  what  was  previously  the  right  of 
 every  individual.     At  our  very  entrance  into  the  so- 
 cial state,  in  the  view  of  more  perfect  security,  we 
 renounce,  as  individuals,  all  right  of  self-avengement, 
 or,  to  use  a  milder  expression,  and  more  suited  to  that 
 state,  all  right  to  punish  those  who  injure  us;  and 
 consequently,  society  concentrates  in  itself,  all  the 
 rights  of  those  individuals  who  compose  it,  and  who 
 have  united,  in  order  to  deter  from  outrages,  by  the 
 infliction  of  judicial  punishments.     Add  to  this,  that 
 the  state  makes  those  punishments  previously  known 
 by  its  laws ;  which,  in  a  state  of  nature,  is  seldom  done 
 with  any  such  solemnity  :  for  in  that  state,  men  think 
 it  honourable  to  threaten  little,  and  perform  much  ;  so 
 that  here  every  man  may  chuse  which  alternative  he 
 pleases ;  and  either  abstain  from  injuries,  which  no 
 one,  and  least  of  all,  one  enjoying  the  protection  of  a 
 state,  is  obliged  to  submit  to ;  or  else  lay  his  account 
 with  being  punished  for  them. — Besides,  those  laws 
 have  the  essence  and  the  efficacy  of  a  compact,  among 
 all  who  accept  the  protection  of  the  state  ;  and  every 
 one  knows  that  the  government,  whether  monarchial 
 or  democratical ;  or,  in  other  words,  the  power  which 
 promises  protection,  has  established  them,  together  with 
 the  punishments  annexed  to  them,  and  will  insist  on 
 their  being  obeyed.     Hence  every  person  who  lives 
 under  any  government,  not  as  its  enemy,  but  desirous 
 of  its  protection  ; — who  would  wish  to  complain  to 
 the  magistrate,  when  any  one  purloins  his  property, 
 injures  his  person  without  cause,  or  lays  snares  for 
 
Consequence  of  the  Limitation  of  Punishment.  337 
 
 his  life  ;— who  would  think  it  wrong,  were  he,  un- 
 der these  circumstances,  to  have  justice  and  secu- 
 rity refused  him  ; — in  a  word,  who  does  not  chuse 
 to  be  regarded  as  an  outlaw,  and  has  explicitly  and 
 publicly  declared  his  wishes  to  that  effect ; — every 
 such  person  has,  without  a  formal  oath  of  allegiance, 
 merely  by  his  claim  of  justice  and  protection,  virtually 
 accepted  the  terms  of  the  compact ;  and  whether  he 
 be  a  native  and  a  citizen,  or  only  a  traveller  desiring 
 the  protection  of  the  laws,  a  Turk,  for  instance,  in 
 Hanover,  or  a  Hanoverian  in  Turkey,  makes  no  dif- 
 ference. And  has  he  then  any  just  reason  to  com- 
 plain that,  after  such  a  compact,  the  state  should  do, 
 what,  without  any  such  thing,  every  individual  had  it 
 in  his  power  to  have  done  of  himself  ? 
 
 Let  us  now  only  consider,  if  there  were  no  right  of 
 inflicting  severe  punishments,  what  would  be  the  con- 
 sequence, and  whether  we  should  chuse  to  put  up  with 
 it.  If  punishments,  which,  in  point  of  physical  evil, 
 inflict  like  for  like,  do  not  deter  delinquents,  and  if 
 yet  they  cannot  be  augmented,  we  must,  of  necessity, 
 submit  to  all  manner  of  injuries.  Now,  let  every  one 
 ask  himself,  whether  he  has  any  inclination  to  be  in 
 such  a  predicament?  If  the  endurance  of  such  misery 
 be  all  that  he  has  got  by  living  in  civil  society,  will  he 
 not  have  reason,  under  these  circumstances  of  oppres- 
 sion, to  wish  himself  once  more  in  a  state  of  nature  ? 
 If  on  the  man,  who  has  given  him,  or  his,  a  box  on  the 
 ear,  no  other  punishment  can  be  inflicted,  than  that 
 of  receiving  another  in  return,  on  a  hide,  perhaps,  so 
 callous,  as  not  to  let  him  feel  it ;  will  he — let  us  put 
 ourselves  in  his  place,  and  say — will  he  be  satisfied 
 
 Bb2 
 
388  Exemplified  in  Assaults,  Thefts,  Window-breaking, 
 
 with  being  obliged  to  submit  to  unceasing  repetitions 
 of  the  same  treatment,  though  they  were  to  be  all 
 judicially  retaliated  ?  If  so,  I  heartily  congratulate 
 him  ;  but  such  would  be  the  case  with  very  few  ;  for 
 most  men,  if  the  state  did  not  protect  them,  would 
 resume  their  natural  rights,  and  meditate  vengeance 
 by  bloodshed  and  murder.  It  is  precisely  the  same 
 with  respect  to  other  injuries,  that  do  not  immediately 
 affect  life,  such,  for  instance,  as  theft,  or  the  wanton 
 outrage  of  window-breaking,  to  which  some  people 
 have  such  an  insuperable  propensity.  Were  it  evident, 
 that  the  usual  moderate  punishments  did  not  suffice 
 to  check  these  offences,  and  did  the  people,  who  were 
 in  the  habit  of  committing  them,  plainly  give  us  to 
 understand,  that  they  would  not  leave  them  off,  but 
 rather  bear  their  punishments ;  and  durst  these  pun- 
 ishments not  be  augmented,  so  as  to  prove  a  counter- 
 poise to  the  crimes,  we  should  be  subjected  to  the 
 hardship  of  having  our  windows  broken,  as  often  as 
 any  rascal  chose  to  risk  the  consequence,  or  of  having 
 our  property  stolen,  whenever  the  hope  of  escaping 
 detection,  ninety-nine  times  out  of  a  hundred,  prompt- 
 ed him  to  make  the  attempt :  in  other  words,  we 
 should  be  tributary  to  every  man  who  chose  to  steal, 
 and  we  would  have  nothing  that  we  could  call  our 
 own  property. — Great  nations  have  been  averse  from 
 giving  their  kings  aright  to  impose  taxes  at  their  plea- 
 sure ;  and  in  the  preceding  century,  the  people  of 
 England  defended  their  ancient  constitutional  right 
 in  this  respect,  first  with  their  swords,  for  which  they 
 could  not  be  blamed ;  and  then  with  the  axe,  by  tak- 
 ing off  their  king's  head  j   which  was  not  quite  so 
 
The  Greatest  Punishments  not  Excessive,  xvhen,  §c.  389 
 
 becoming,  considering  that  botli  parties  were  on  a 
 footing.  But  should  we,  then,  concede  to  a  thief  a 
 right,  which  many  nations  have  refused  to  the  so- 
 vereign, though  he  employs  the  money  taken  from  the 
 subjects  for  the  public  defence  ?  If  so,  then  must  we 
 all  become  the  wretched  slaves  of  the  most  worthless 
 and  contemptible  part  of  mankind. 
 
 Perhaps  the  doctrine  which  I  am  now  defending, 
 would  never  have  been  at  all  called  in  question, 
 if  people  had  not  secretly,  and  without  adverting 
 to  the  consequences,  presupposed,  that  the  end  of 
 punishment  should  be,  to  make  the  delinquent  suffer  evil 
 in  exact  proportion  to  his  crime.  This,  however,  we 
 ought  not  to  admit ;  for  its  true  end  is,  Determent  from 
 crimes.  The  very  least  evil,  that  serves  to  answer  this 
 purpose,  ought  always  to  be  chosen  ;  but  unless  we  are 
 disposed  to  become  slaves,  and,  as  such,  patiently  to 
 submit  to  all  manner  of  injuries,  we  ought  not  to 
 think  even  the  greatest  punishment  immoderate,  in 
 cases  where  inferior  ones  prove  of  no  avail. — "  The 
 "  Greatest !  Is  not  that  saying  too  much  ?"  Whoever 
 thinks  so,  I  submit  the  following  case  to  his  serious 
 consideration.  I  ask  him,  Is  he  bound,  when  travel- 
 ling on  the  highway,  where  he  cannot  have  the  pro- 
 tection of  the  magistrate,  to  let  himself  be  plundered 
 of  his  property,  when  he  cannot  frighten  away  the 
 robbers  who  attack  him,  with  his  horse-whip,  or 
 defend  himself  otherwise  than  by  shooting  one  of 
 them  dead  with  his  pistol  ?  To  this  question,  if  it  be 
 answered,  "  Yes,  he  is  bound  to  do  so,  and  he  ought 
 not  to  shoot  him ;"  then  need  no  man  think  of  tra- 
 velling with   property  about  him  ;    for  whatever  we 
 
 jb  b  3 
 
S90      Expediency  of  Impunity  in  certain  cases. 
 
 take  with  us  on  a  journey  belongs  to  the  first  robber 
 we  meet ;  and  if  we  are  prudent  enough  to  carry 
 nothing  with  us,  then  he  may  come  perhaps  to  reward 
 us  for  our  prudence,  as  the  English  footpads  are  some- 
 times said  to  do,  with  a  hearty  beating. — If,  on  the 
 other  hand,  I  can  use  a  pistol  in  defence  of  my  pro- 
 perty, it  is  quite  evident,  if  we  believe  our  religion, 
 that,  on  the  robber,  who  plunders  me  of  a  little  money, 
 I  can  inflict  an  infinite  and  eternal  punishment :  for 
 in  the  state  wherein  he  is,  he  certainly  dies  miserable, 
 if  my  pistol-bullet  hits  him  ;  and  that,  not  only  accord- 
 ing to  the  doctrine  of  Christianity,  but  probably  to 
 that  of  natural  religion  also. 
 
 §  7.  Of  the  Expediency  of  Impunity  in  certain  cases. 
 
 Where  moderate  punishments  prove  ineffectual  to 
 deter  from  any  particular  crime,  or,  in  other  words, 
 from  violation  of  the  law,  and  we  are  doubtful  of  the 
 propriety  of  inflicting  severer  ones,  it  were  better  to 
 repeal  the  law  altogether,  and  not  to  punish  the  ac- 
 tion hitherto  prohibited  any  more ;  for  if  we  do,  and 
 with  little  or  no  good  effect,  the  punishment  is  only  a 
 useless  waste  of  evil.  It  is  but  making  two  evils  of 
 one,  and  not  one  whit  more  rational,  than  if  we  were 
 to  impose  a  fine,  or  a  corporal  punishment,  on  the 
 man,  who  could  not  get  rid  of  a  quartan  ague.  In 
 fact,  we  generally  proceed  on  this  principle,  in  not 
 annexing  punishments  to  certain  sorts  of  vices,  detri- 
 mental though  they  may  be  to  the  public,  when  we 
 see  that  they  would  have  too  little  effect.  Thus,  on 
 idleness,  which  is  highly  prejudicial  to  the  community, 
 
Exemplified  in  Idleness,  Self-pollution,  Uncliasiiiy.  391 
 
 we  do  not  find  punishments  inflicted  by  any  legislators, 
 but  those  barbarous  novices  in  legislation,  who  made 
 laws  for  petty  states,  in  the  very  earliest  times.  Were 
 any  one  to  make  any  such  attempt  now,  he  would  be 
 looked  upon  as  a  blockhead,  or  a  tyrant ;  for  without 
 infringement  on  liberty,  and  a  system  of  perpetual  in- 
 formation, the  punishment  could  be  so  seldom  exe- 
 cuted, that  it  would  be  of  no  avail.  In  like  manner, 
 although  self-pollution  be  a  vice  extremely  detrimen- 
 tal to  individuals,  and  to  the  public  likewise,  if  thou- 
 sands, by  the  practice  of  it,  become  enervated,  impo- 
 tent, and  miserable ;  and  although,  therefore,  its  ex- 
 tirpation, if  it  were  possible,  would  be  highly  desir- 
 able ;  yet  the  infliction  of  any  judicial  punishment 
 upon  it,  would,  for  the  same  reason,  be  a  vain  attempts 
 because  it  could  be  too  seldom  enforced,  and  of  course 
 would  prove  no  determent ;  while,  at  the  same  time, 
 it  would  give  a  dangerous  publicity  to  an  infamous 
 habit ;  so  that  we  must  regard  it  as  equally  beyond 
 the  reach  of  a  civil  punishment  with  idleness,  although 
 it  may  be  made  the  object  of  paternal  discipline  at 
 home,  and  of  chastisement  during  the  period  of  edu- 
 cation. So,  likewise,  where  there  is  any  thing  like 
 legislative  policy,  and  a  gracious  sovereign  can  forego 
 a  little  revenue,  it  has  become  usual  not  to  inflict 
 punishment  on  female  unchastity,  but  to  abrogate  the 
 yet-remaining  usages  of  ancient  times,  with  respect  to 
 ecclesiastical  penance ;  because  punishment  here  is 
 quite  useless,  there  being  really  no  greater  evil  that 
 can  happen  to  a  young  woman,  than  what  she  must 
 reflect  on,  as  the  natural  consequence  of  her  fault — I 
 mean,  the  disgrace  of  having  a  child,  and  losing  all 
 
 b  b  4 
 
392  Child-Murder,  Suicide,  Duelling,  §c. 
 
 hope  of  a  respectable  marriage,  perhaps  of  any  mar- 
 riage at  all ;  in  other  words,  having,  for  onr  transitory 
 sensual  gratification,  forgone  all  the  pleasure  and 
 comfort  of  her  future  life ;  not  to  mention,  that  the 
 fear  of  punishment  here  has  often  the  dreadful  effect 
 of  occasioning  the  still  greater  crime  of  child-murder. 
 — The  useless  punishment  of  suicide,  and  the  fruitless 
 prohibitions  of  duelling,  concerning  which  I  have  spo- 
 ken in  Art.  CXXXV.  and  CCLXXII.,  furnish  other 
 examples  to  the  same  purpose.  If  the  crime  hurts 
 only  the  individual  who  commits  it,  and  affects  the 
 public  only  in  so  far  as  the  harm  of  many  individuals 
 constitutes  a  public  calamity,  we  may  abolish  its 
 punishment  when  it  becomes  useless ;  and  that  is 
 eventually  the  same  as  abrogating  the  law,  or,  if  it 
 remain,  for  honour's  sake,  on  the  statute-book,  leaving 
 it  a  mere  empty  sound  ;  for  that  law,  whose  punish- 
 ment cannot  be  executed,  is  as  good  as  no  law.  But 
 where  offences  committed  against  others  are  in  question, 
 this  will  not  answer,  because  they  would  thus  become 
 slaves,  and,  as  we  may  say,  at  the  mercy  of  every  one 
 who  might  chuse  to  molest  them ;  and  as  it  is  by  no 
 means  with  any  such  views,  that  a  man  becomes  a 
 member  of  civil  society,  he  will,  unless  formed  by 
 nature  for  a  slave,  and  worthy  of  being  distinguished 
 by  the  vulgar  German  epithet  applied  to  such  people, 
 but  which  I  do  not  chuse  here  to  transcribe,  in  all 
 probability  contrive  at  last  to  do  himself  justice,  if 
 the  state  afford  him  no  protection  by  its  laws. 
 
Effect  of  hanging  One  Thief,  393 
 
 §  8.  Estimation  of  the  Effects  of  Punishments. 
 
 "  But  do  not  your  principles  (§  6.)  imply  the  employ- 
 "  ment  of  a  greater  evil  for  the  prevention  of  a  lesser  V* 
 — I  should  not  think  so ;  or,  to  speak  more  properly, 
 they  certainly  do  not ;  for  punishment  ought  not  only 
 to  deter  from  the  individual  crime  already  committed, 
 and  which  has  not  been  prevented,  but  also  from  num- 
 berless more  crimes,  which  would  certainly  be  com- 
 mitted, if  there  were  no  punishment.     The  hanging 
 of  one  thief  ought  to  prevent,  I  know  not  how  many 
 thefts,  and  it  actually  does  so.     To  abide  by  this  very 
 example,  which  appears  to  many  people  a  piece  of 
 great  cruelty,  let  us  only  consider,  were  theft  permit- 
 ted, or  had  no  adequate  punishment  affixed  to  it,  what 
 a  misfortune  it  would  prove  to  mankind.     It  would, 
 in  the  first  place,  occasion  perpetual  instances  of  seif- 
 avengement,    under  the  name  of  self-defence ;    and 
 what  is  an  evil  inseparable  from  that  practice,  as  it 
 institutes  no  inquiry,  the  innocent  would  often  be  its 
 victims  ;  not  to  mention,  that  the  property  of  another 
 would  suffer,  by  its  owner  being  supposed  a  thief; 
 and  that  theft  would  be  retaliated  upon  theft,  till  rob- 
 bery and  murder  were  perpetrated  in  the  most  public 
 manner. — In  the  second  place,  it  would  produce  a  dis- 
 gust at  the  labours  of  agriculture,  as  there  could  be  no 
 hope  of  reaping  the  fruits  of  them  ;  at  the  acquire- 
 ment of  property,  which  cannot  be  always  in  our  view 
 by  day,  and  under  our  pillow  by  night ;  and  at  making 
 any  store  of  provision  for  future  exigencies,  because 
 it  might  be  only  working  for  a  thief:  and  the  conse- 
 
394  Proper  Rule  of  Estimation  here. 
 
 quence  of  this,  on  the  first  failure  of  a  crop,  would  be 
 not  merely  scarcity,  but  famine,  as  in  ancient  times, 
 and  the  absolute  starvation  of  whole  nations,  with  all 
 those  infectious  disorders  that  famine  brings  in  its 
 train.  Now  this  is  a  much  greater  amount  of  evil, 
 than  if  we  were  to  hang  thieves  by  hundreds  ;  which, 
 however,  is  at  least  ten  times  beyond  the  usual  pro- 
 portion ;  and  the  thief,  who  knows  that  the  sentence 
 of  hanging  will  be  pronounced  against  him,  though  he 
 have  ever  so  much  property  within  his  reach,  will 
 be  deterred  from  the  commission  of  a  great  many 
 thefts.  If  we  are  fairly  to  compare  the  greatness  of 
 the  punishment  with  the  evil  of  the  crime,  we  must 
 take  into  account,  on  the  one  hand,  the  sum  of  all  the 
 crimes  that  would  be  committed,  if  there  were  no 
 such  punishment,  together  with  all  their  consequences; 
 and,  on  the  other,  the  amount  of  evil  included  in  all 
 the  punishments  that  are  actually  inflicted.  If  the 
 latter  sum  be  the  greater,  then,  no  doubt,  a  lesser 
 amount  of  evil  has  been  unceconomically  purchased, 
 at  the  expense  of  a  greater ;  but  this  is  not  a  case  that 
 will  ever  be  likely  to  occur0 
 
 §  9.  Punishments  should  be  proportionable  to  the  Temp- 
 tations of  committing  Crimes. 
 
 If  the  punishment  ought  to  be  a  counterpoise  to 
 the  temptation  to  the  crime,  it  must  always  be  the 
 more  severe,  the  stronger  the  motives  are  found  to 
 be*  that  impel  to  the  commission  of  the  crime.  This 
 is  as  clear,  as  that,  where,  in  one  scale  of  a  balance,  a 
 hundred-weight  of  any  article  is  laid,  I  must,  to  raise 
 
Punishments  must  be  proportioned  to  Temptation.  395 
 
 it,  put  more  weight  into  the  opposite  scale,  than  if 
 there  were  only  an  ounce.     The  legislator,  or  rather 
 the  law-projector,  (and  a  most  eloquent  fraternity  law- 
 projectors  are,)  who  should  act  on  a  different  prin- 
 ciple, and  suppose,  for  example,  that  because  the  en- 
 ticements to  adultery  are  so  strong,  its  punishment 
 ought  to  be  very  slight,  would  be  acting  much  about 
 as  wisely  as  the  man  who,  in  the  scale  of  a  small  gold 
 balance,  should  put  a  hundred-weight,  and  in  that  of 
 the  huge  beam,  placed  in  the  Hotel  de  Ville  of  a  com- 
 mercial town,  for  weighing  tons  and  cargoes,  a  few 
 drams ;  in  order  to  weigh  ducats  on  the  former,  and 
 ship-loads  on  the  latter.     If  this  be  not  true,  then,  no 
 doubt,  where  we  had  to  give  laws  to  a  cold-blooded 
 people,  among  whom  the  males  are,  in  youth,  what, 
 with  us,  they  are  only  in  extreme  old  age,  the  punish- 
 ment of  adultery  might  be  very  trifling ;  no  more,  per. 
 haps,  than  a  slight  fine,  and  yet  be  sufficiently  effec- 
 tual ;  but  if,  on  the  contrary,  we  actually  find  the 
 propensity  to  this  crime  far  more  violent  and  ungo- 
 vernable, it  must  either  be  counteracted  by  something 
 more  terrific,  or  else  it  must  be  quite  overlooked.    Only 
 the  latter  alternative,  not  to  speak  of  its  moral  effects, 
 would,  among  a  people  whose  passions  were  at  all 
 keen,  be  dangerous,  from  the  jealousy  of  husbands ; 
 and  we  might  come  to  witness  scenes  such  as  Virgil 
 describes,  in  the  third  book  of  the  Georgics,  at  ver.220 ; 
 and  as  we  usually  see  in  April  and  May,  on  the  first 
 driving  out  of  the  cattle.     The  man  who  rides  through 
 a  field  of  corn,  incurs  a  penalty,  if  the  owner  catch 
 him  in  the  fact,  (for  the  latter's  right  ceases,  if  the 
 man  has  once  got  out,)  and  must  deliver  up  his  hal 
 
396        The  Gradation  of  Punishments  limited, 
 
 by  way  of  pledge  that  he  will  make  good  the  damage  ; 
 and  this  is  a  punishment  that  keeps  the  fields  pretty 
 safe,  because  there  can  seldom  be  any  great  tempta- 
 tion to  ride  through  the  corn.  But  were  I,  in  the 
 case  of  catching  a  man  in  bed  with  my  wife,  to  seize 
 his  hat,  or  any  other  part  of  his  dress,  and  keep  it  un- 
 til he  redeemed  it  by  paying  a  couple  of  guldens ; 
 such  a  punishment  would  be  the  most  ridiculous  one 
 that  could  be  devised.  If  we  wish  to  secure  nuptial 
 fidelity,  adultery  must  be  punished,  not  indeed  with 
 death,  for  the  reasons  I  have  assigned  in  Art.  CCXL. ; 
 but  with  very  severe  penalties.  A  legislator  among 
 the  North  American  Indians,  might,  however,  safely 
 relax  a  little  in  the  rigour  of  his  punishments,  because 
 the  concupiscible  passions  of  these  people  are  by 
 no  means  so  violent  as  ours  arc.  This  I  know,  not 
 merely  from  books  of  travels,  but  from  the  information 
 of  Mr.  Franklin,  a  man  whose  testimony  may  be  fully 
 relied  on. 
 
 The  gradation  of  punishments,  according  to  the 
 scale  of  temptation,  may  go  on,  until  at  length  the  im- 
 pulse to  the  crime  becomes  so  strong,  that,  instead  of 
 punishing  it,  we  must  let  the  temptation  be  yielded 
 to,  because  we  cannot  but  account  any  farther  increase 
 of  punishment  too  cruel.  An  example  illustrative  of 
 this  case,  we  have  in  the  criminal  code  of  Charles  V. 
 which  inflicts  no  punishment  on  the  thief  who  has 
 stolen  from  absolute  hunger.  Nothing  can  be  more 
 rational  than  this  clemency.  No  doubt,  a  hungry  man 
 lias  no  right  to  take  away  my  property ;  and  I  hare  a 
 right  to  defend  it  against  him,  because  I  may  be  hun- 
 gry myself,  or  too  many  hungry  people  may  make 
 
Exemplified  in  the  case  of  Theft  from  Hunger.  397 
 
 demands  upon  me.  This,  however,  is  not  a  common 
 case.  It  is  but  very  rarely  that  a  man  must  steal  from 
 absolute  hunger,  and  which  he  had  it  not  in  his  power 
 to  appease,  even  if  he  had  chosen  to  work ;  and  there- 
 fore, if  there  is  to  be  any  punishment  at  all,  in  order 
 to  restrain  the  cravings  of  extreme  hunger,  it  must  be 
 a  terrible  one,  certainly  nothing  less  than  a  capital  one  ; 
 and  even  that  will  hardly  be  sufficient ;  for  who  would 
 not  rather  be  hanged,  than  die  of  hunger,  if  it  must 
 be  death  at  last.  Here  then,  it  is  better  to  put  up 
 with  the  very  rare  wrong  of  having  our  property  pur- 
 loined by  a  man  oppressed  witli  hunger,  than  to  resort 
 to  the  gallows  and  the  wheel,  in  order  to  prevent  such 
 a  trifling  evil.  And  yet  if,  during  an  extreme  famine, 
 after  a  continued  failure  of  crops,  or  in  a  besieged 
 city,  no  individual  has  so  much  provision  remaining, 
 as  that  he  can  let  it  be  stolen,  without  being  himself  in 
 danger  of  starving ;  in  other  words,  if  the  evil  be  no 
 longer  trifling,  but  intolerable  ;  or  if,  again,  in  order 
 that  the  lives  of  all  may  be  preserved,  the  bread  must 
 be  dealt  out  sparingly,  and  by  weight,  the  clemency  of 
 Charles  V.  can  no  longer  have  place  ;  but  a  more 
 rigorous  law  will  be  requisite  for  the  occasion,  and 
 it  must  certainly  denounce  punishments  of  extreme 
 severity  against  theft,  because  gentle  ones  would  be 
 of  no  avail  against  hunger. 
 
 The  stronger  the  motives  of  abstaining  from  any 
 crime  are,  which  the  man  to  whom  we  give  laws,  may 
 previously  have  had,  and  really  felt,  so  much  the  less 
 may  be  its  punishment  j  and  the  less,  I  do  not  say, 
 he  individually,  but  the  people  to  which  he  belongs, 
 feel  these  motives,  so  much  the  severer  must  it  be 
 
39S  Punishments  moderate,  where  Religion,  §c.  prevail* 
 
 made.  This,  again,  is  just  as  evident  as  that,  when  I 
 mean  to  weigh  a  hundred-weight  of  goods,  and  there 
 are  already  eighty  pounds  weight  in  the  opposite  scale, 
 I  have  not  to  add  so  much  more,  as  if  there  were  no 
 wTeight  in  it  at  all.  If,  then,  we  propose  to  restrain  a 
 people,  among  whom  religion,  honour,  or  education, 
 have  considerable  influence,  from  certain  crimes,  mo- 
 derate punishments  will  be  sufficient  to  counteract 
 any  trifling  preponderance  of  temptation,  that  may 
 exist  among  them.  Among  a  people,  on  the  other 
 hand,  wTho  have  neither  education,  honour,  nor  reli- 
 gion, punishments,  to  produce  any  effect,  must  of 
 necessity  be  more  severe ;  and  whenever  I  figure  to 
 myself  a  period,  when  religion  shall  decline  among  us, 
 I  reflect,  at  the  same  time,  with  horror,  on  the  severe 
 punishments  which  it  will  then  be  necessary  to  de- 
 vise, and  which,  after  all,  will  very  often  prove  more 
 ineffectual  than  the  moderate  ones  of  the  present  day. 
 For,  in  place  of  the  weight  that  religion  then  no 
 longer  lays  in  the  good  scale,  must  be  substituted  the 
 constant  employment  of  rackers  and  executioners. — • 
 But  may  God  avert  the  approach  of  such  unhappy 
 times,  which  too  many  among  us  are  now  labouring 
 to  hasten  ! — In  like  manner,  when  certain  vices,  such, 
 for  instance,  as  sodomy,  are  abhorred,  and  regarded 
 with  contempt,  slight  punishments  may  scare  them 
 from  approaching  our  land ;  but  severer  ones  become 
 necessary  in  order  to  expel  them,  if  they  have  once 
 got  a  footing,  and  are  become  fashionable.  (Art. 
 CCLVIII.)  No  doubt,  in  the  eyes  of  morality,  that 
 man  is  by  much  the  more  guilty  and  abominable,  who 
 sins,  while  he  feels  so  many  motives  that  should  re- 
 
Certainty  of  Punishment  mitigates  its  Severity.    399 
 
 strain  him  from  sin  ;  and  God,  the  searcher  of  hearts, 
 may  on  that  account  punish  him  with  the  greater 
 severity  ;  but  of  this  I  do  not  now  speak,  nor  yet,  in- 
 deed, of  individuals  at  all;  but  of  nations,  that  have 
 the  advantages  of  religion,  a  sense  of  honour,  and 
 good  education,  and  all  these  still  operating  effectually 
 on  the  majority ;  and  here,  I  say,  that  moderate  pu- 
 nishments may  be  sufficient  to  lessen  the  number  of 
 crimes.  Nor  do  I  enquire,  whether,  in  the  case  of  the 
 particular  offender  whom  we  have  at  present  in  our 
 view,  a  bad  education,  or  ignorance  of  religion,  may 
 not  be  a  reason  for  the  mitigation  of  his  punishment. 
 He,  at  all  events,  deserves  compassion  :  but  I  am  now 
 speaking  of  the  character  of  whole  nations. 
 
 §    10.    Effects  of  the   Certainty   of  Punishment — The 
 Right  of  Pardon. 
 
 I  have  already  observed,  that  the  more  certain  a 
 punishment  is,  so  much  the  more  will  it  operate  in 
 terrorem  ;  and  the  more  uncertain,  the  less.  If  a 
 man  may  hope  to  steal  or  to  defraud  a  hundred  times, 
 before  he  be  once  punished,  although  his  punishment 
 were  ten-fold  restitution,  he  could  still  entertain  the 
 prospect  of  gaining  ten  times  that  amount,  in  the 
 course  of  a  hundred  thefts  or  frauds.  Now,  a  punish- 
 ment becomes  more  uncertain,  in  other  words,  less 
 effectual  for  determent,  either  by  the  hope  that  may 
 be  indulged  of  a  pardon,  or  by  the  greater  difficulty 
 there  is  in  the  discovery  of  the  crime,  or  again,  by  the 
 facility  wherewith  the  delinquent  may  escape  by  flight, 
 or  otherwise ;  and  according  to  the  degree  in  which 
 
400  The  Exercise  of  the  Right  of  Pardon. 
 
 these  circumstances  hold,  its  severity  must  be  aug- 
 mented ;  while  the  certainty  of  its  infliction  will,  on 
 the  other  hand,  effectually  compensate  for  its  greater 
 lenity. — Concerning  the  bad  effects  of  too  frequent 
 and  easy  pardons,  and  that  they  are  really  acts  of 
 cruelty,  I  have  already  stated  my  opinion.  A  right 
 of  pardon  should  exist  somewhere,  and  it  may  be 
 exercised  for  weighty  reasons  ;  but  still  this  should  be 
 done  with  very  great  prudence,  and  exactly  as  a  phy- 
 sician does,  when,  in  extraordinary  cases,  he  prescribes 
 a  strong  poison  as  a  medicine.  If  pardons  are  fre- 
 quent, punishments  must  be  augmented,  in  the  same 
 proportion  in  which  they  lose  their  influence,  by  the 
 probability  of  their  remission  ;  and  certainly  there 
 can  be  no  real  clemency,  where,  in  order  to  pardon 
 some  delinquents,  others  must  be  punished  with  addi- 
 tional severity.  Pardons  likewise  occasion  a  very 
 great  inequality  in  the  law,  which  borders  on  despot- 
 ism ;  and,  on  the  unhappy  culprit,  whose  lot  it  proves 
 to  be  a  victim  to  the  law,  this  inequality  is  the  more 
 cruel  on  this  account,  that  the  pardons  already  grant- 
 ed, woe  the  very  means  of  weakening  in  him  the 
 influence  of  the  motives,  which  served  to  restrain  him 
 from  the  crime.  The  prince,  therefore,  who  would 
 be  as  wise  as  he  wishes  to  be  gracious,  must  exercise 
 the  greatest  possible  discretion  in  the  granting  of  par- 
 dons, and  make  them  so  rare,  that  no  man,  and  least 
 of  all  the  man  of  rank,  or  the  favourite,  who  has  in- 
 jured his  inferior,  shall,  with  any  confidence,  expect 
 them.  A  punishment  inflicted  on  a  person  of  distinc- 
 tion and  respectability,  makes  an  infinitely  greater 
 impression,  than  on  one  of  the  common  people,  or 
 
Danger  of  pardoning  Criminals  of  Distinction.   401 
 
 whom  nobody  knows.  The  sovereign,  therefore,  who 
 would  not  merit  the  character  of  a  reprieving  despot, 
 but  would  wish  to  manage  punishments  prudently  and 
 (Economically,  ought  not  to  be  very  ready  to  extend 
 his  mercy  to  a  delinquent  of  rank,  unless  most  peculiar 
 circumstances  imperiously  require  him  to  do  so.  To 
 one  of  the  common  people,  he  might,  with  much  more 
 propriety,  grant  a  reprieve  occasionally,  out  of  mere 
 compassion;  because  it  would  do  no  harm. — Upon 
 the  whole,  a  country  looks  more  like  a  land  of  despot- 
 ism than  of  freedom,  where  criminals  of  distinction 
 are  often  pardoned,  and  all  others  so  much  the  more 
 frequently  punished ;  and  this  it  is  which  gives  birth 
 to  those  wanton  outrages  and  oppressions,  which  the 
 great  so  shamefully  practise  upon  their  inferiors,  and 
 which  lead,  in  the  end,  to  the  downfall  of  states. 
 
 §  11.  Punishments  should  be  proportioned  to  the  facility 
 of  the  Discovery  of  Crimes,  and  the  Danger  of  Escape. 
 
 That  milder  punishments  are  sufficient,  where 
 crimes  are  easily  discovered,  and  can  hardly  be  at  all 
 concealed,  has  already  been  remarked,  under  Arts. 
 CCLXXXII.  and  CCLXXXV.,  in  reference  to  the 
 Mosaic  jurisprudence  ;  and  I  shall  now  make  some 
 applications  of  the  remark  to  our  own  laws.  The 
 common  proverb,  Thieves  have  great  rights,  expresses 
 the  state  of  the  case  with  us  most  accurately.  There 
 must  be  very  strong  proofs  exhibited,  before  we  can 
 make  a  man  a  thief;  and  the  very  charge,  if  we  are 
 not  able  to  substantiate  it,  may  be  followed  by  a  seri- 
 ous action  for  defamation  ;  to  stop  which,  we  may  be 
 
 VOL.  IV.  C   C 
 
402     Crimes  easily  discovered,  to  be  punished  mildhj. 
 
 very  glad  to  pay  to  a  real,  though  unconvicted,  thief, 
 a  considerable   sum  of  money,  by  way  of  damages ; 
 and  even  if  we  should,  in  terms  of  our  law,  get  free 
 of  this  by  an  oath,  still  we  may  incur  more  expense 
 and  vexation,  than  the  article  stolen  was  worth.     Now, 
 according  to  our  national  character,  (which,  by  the 
 way,  I  should  not  wish  ever  to  be  different  from  what  it 
 really  is,)  the  law,   in  this  point,  cannot  be  altered : 
 for  theft  is  too  great  a  reproach,  and  the  mere  accusa- 
 tion of  it  leaves  too  great  a  stain  behind  it,  (such,  in- 
 deed, as  tons  of  gold  cannot  compensate  to  a  man 
 who  values  his  character,)  unless  the  accuser  can  be 
 severely  disgraced  in  his  turn.     As  long,  however,  as 
 our  thieves  retain  those  great  rights,  which  proceed 
 from  the  noble  spirit  of  our  laws,  their  punishment, 
 when  convicted,  must  be  the  more  severe.     On  the 
 other  hand,  the  man  who  legislates  for  a  people,  who 
 have  less  sense  of  honour,  or  among  whom  theft  is  not 
 regarded  as  so  disgraceful,  but,  as  among  certain  pre- 
 datory tribes,    rather   as  creditable  ;    and  where,  of 
 course,  if  I,  bonajide,  believed  a  man  to  be  a  thief,  I 
 could  accuse  him  of  theft,  without  fear  of  a  process  of 
 defamation — may  satisfy  himself  with  punishments  of, 
 less  severity.     Let  us,  in  illustration  of  this  point,  take 
 the  following  example :    The  practice  of  defrauding 
 the  revenue,  in  matters  of  excise  or  customs,  is,  in  a 
 moral  view,  a  theft  committed  on  the  public  at  large, 
 and,  in  a  political  view,  a  very  formidable  evil,  be- 
 cause the  sum  necessary  to  meet  the  public  expendi- 
 ture must  be  raised  ;  and,  of  course,  if  smuggling  pre- 
 vail extensively,  the  taxes  may  require  to  be  so  much 
 augmented,  as  that  manufactures,  agriculture,  and  at 
 
Coining  of  Bad  Money,  §r.  400 
 
 last  the  country  itself,  may  sink  under  their  weight. 
 Unfortunately,  however,  these  fraudulent  practices, 
 according  to  our  national  ideas,  are  not  disgraceful : 
 so  far  from  it,  indeed,  that  even  people  of  rank  are 
 not  ashamed  of  them.  The  smuggler,  therefore,  has 
 not  such  great  rights  as  his  brother,  the  thief;  and 
 the  consequence  is,  that  smuggling  is  not,  like  theft, 
 punished  by  the  delinquent  being  adjudged  to  work  on 
 the  fortifications,  to  be  beheaded,  or  to  be  hanged,  but 
 by  the  payment  of  a  fine,  forfeiture  of  the  goods,  &c. 
 &c. ;  and  were  these  penalties  only  rigidly  and  inex- 
 orably exacted,  particularly  from  the  servants  of  the 
 sovereign,  without  respect  of  persons,  they  would  still 
 be  capable  of  producing  some  good  effect. — The  coin- 
 ing of  bad  money,  without  a  right  of  coinage,  and  the 
 debasement  of  the  coin  (I  say  not,  by  a  sovereign 
 state,  for  then  a   different  law  operates  #,  but)   by 
 
 c  c  2 
 
 *  A  sovereign  state  coins  money,  strictly  speaking,  for  itself,  and 
 therefore  makes  a  pactum  with  itself,  to  give  and  take  a  certain  value 
 of  metal  at  a  higher  rate  than  its  intrinsic  worth  ;  and  this  practice 
 is  as  ancient  as  the  second  Panic  war.  If  it  does  this  under  similar 
 circumstances  to  those  in  which  the  Romans  (hen  were,  and  where 
 the  community  seems  threatened  with  immediate  destruction,  the 
 procedure  does  not  merit  censure,  unless  we,  at  the  same  lime,  con- 
 demn (and  this  has  not  hitherto  been  usual)  the  conduct  of  the  Ro- 
 mans, which  our  teachers  of  jurisprudence  commonly  approve.  Whe- 
 ther foreigners  may  think  fit  to  take  its  money  at  the  full  value,  rests 
 with  themselves ;  but  it  is  under  just  as  little  obligation  to  abide, 
 for  their  sakes,  by  the  ancient  standard,  as  the  English  are,  for  curs, 
 to  make  their  gold  and  silver  coins,  according  to  the  proportion  which 
 is  settled  bv  the  laws  of  the  empire,  or  the  price  which  bullion  bears 
 ^menj  goldsmiths,  smellers,  and  merchants.     If  it  circulates  its  <h- 
 
40*        Severe  Punishments  on  Illegal  Coining. 
 
 cr 
 
 any  subject  of  a  great  state,  who  enjoys  the  privilege 
 of  coinage  ;  are  two  crimes  pretty  much  on  a  par,  in 
 point  of  the  loss  they  occasion  to  the  public  ;  and  the 
 motive  of  both  is  the  same,  viz.  a  desire  of  gain.     But 
 the  former  is  difficult  to  detect,  and  on  that  account, 
 the  severest  capital  punishments  should  be  denounced 
 against  it,  in  order  to  deter  from  all  such  attempts. 
 The  detection,  on  the  other  hand,  of  debasement  in 
 the  money  issued  by  individuals,  enjoying  the  privi- 
 lege of  coinage,  is  very  easy,  and  will  always  be  very 
 speedy,  were  it  only  by  the  operations  of  smelters  and 
 Jews.     Here,  therefore,  the  punishment  may  be  very 
 slight,  or  rather,  there  need  be  almost  no  punishment 
 at  all ;  but  only  reparation  of  the  loss  occasioned  to 
 the  people  by  the  fraud  ;  and  hence,  by  our  law,  the 
 coiner  is  obliged  to  take  back  all  his  base  money,  and 
 to  give  them,  instead  of  it,  the  legal  value,  which  they 
 ought  to  have  received.     This  should  prove  a  sufficient 
 determent  from  this  offence,  not  to  mention  the  de- 
 molition of  his  mint,  and  the  forfeiture  of  his  privi- 
 lege.    And  if  this  punishment  did  not  stand  in  our 
 law-books  only  ;  were  it  actually  and  rigidly  executed, 
 no  privileged  coiner  in  Germany  would  ever  think  of 
 such  a  thing  as  issuing  base  money  under  his  stamp, 
 because  the  loss  would  far  exceed  the  profit.     For  he 
 wTould  lose  all  the  expense  of  minting,  and  the  re- 
 based  money  in  an  enemy's  country  at  the  full  value,  this  is,  in  fact, 
 imposing  a  tribute  on  the  vanquished.     On  the  other  hand,  if  in  any 
 other  circumstances  than  those  of  the  second  Punic  war,  a  state  coins 
 alloyed  money,  it  is  not  a  Roman  procedure ;   but  still,  with  respect 
 to  foreigners,  it  is  not  culpable ;  for  they  may  refuse  to  take  it,  and 
 indewd  they  generally  do  sis 
 
Punishments  severe,  where  Escape  is  easy.      405 
 
 melting  of  the  base  money,  in  order  to  extract  the  pure 
 silver,  would  also  occasion  him  a  considerable  expense, 
 and  the  more  artful  the  mixture  were,  so  much  the 
 greater.  He  would,  moreover,  run  the  risk  of  hav- 
 ing his  coin  imitated  by  the  makers  of  bad  money, 
 in  order  to  share  his  profits,  and  thus  of  being  obliged 
 also  to  exchange  their  pieces,  which  were  not  distin- 
 guishable from  his  own. 
 
 Where  criminals  can  easily  make  their  escape,  either 
 because  the  frontiers  are  hard  by,  and  the  neighbours 
 do  not  deliver  them  up,  or  because  the  whole  body  of 
 them  consists  of  vagabonds,  or  because  they  have  no- 
 thing to  lose,  it  becomes  necessary  to  make  punish- 
 ments more  severe,  than  where,  being  possessed  of 
 riches  and  property,  they  are  not  so  likely  to  with- 
 draw themselves  by  flight  from  the  reach  of  the  law ; 
 and  hence  it  is,  that,  among  a  poor  people,  most  of 
 whom  can  with  truth  say,  in  the  language  of  the  phi- 
 losopher, Omnia  mea  mecum  porto,  we  find  punishments 
 generally  severe.  Most  of  my  readers  have  no  doubt 
 studied  at  universities  ;  and,  if  they  have  been  atten- 
 tive observers,  they  must  have  remarked,  that  at  those 
 universities  where  the  majority  of  the  students  consists 
 of  young  men  of  fortune,  very  slight  punishments, 
 such  even  as  appear  ridiculous  when  coolly  considered, 
 have  a  great  effect,  when  inflicted  impartially ;  and, 
 on  the  other  hand,  that  at  those  to  which  a  great 
 number  of  poor  students  resort,  who  have  nothing  to 
 lose,  and  laugh  at  relegation,  and  who,  even  though 
 they  had. money  to  pay  its  penalty,  would  rather  pre- 
 fer keeping  it  to  supply  their  expenses  in  other  places ; 
 there,  even  the  severest  punishments  are  insufficient, 
 
 c  c  3 
 
406  Torturous  Punishments  inexpedient. 
 
 to  prevent  the  enormous  follies  and  excesses  of  the 
 students ;  in  which  their  poorer  comrades,  being  per- 
 haps bribed  to  engage,  often  find  their  account,  or  to 
 which  they  are  impelled  by  their  own  passion  or  Quix- 
 otism. 
 
 §  12.  Of  the  Expediency  of  Torturous  Punishments. 
 
 That  we  should  always  chuse  the  least  possible 
 punishments  that  will  suffice  for  the  prevention  of 
 crimes,  has  been  already  remarked,  and  indeed  follows 
 as  a  corollary  from  this  great  proposition,  that  we 
 ought  not  to  increase  the  evil  that  is  in  the  world,  but 
 let  it  remain  as  little  as  we  possibly  can.  But  then, 
 the  question  comes  to  be,  "  If  even  capital  punish- 
 *'  ments,  and  these  too,  painful  ones,  should  prove  in- 
 "  sufficient  to  deter  certain  descriptions  of  people  from 
 "  crimes,  ought  we  not  to  resort  to  others  still  more 
 "  painful,  and  even  torturous  ?"  This  is  not  advisable, 
 because  experience  shews,  that  too  cruel  punishments 
 are  by  no  means  more  terrific  than  certain  more  mo- 
 derate ones,  and  have,  besides,  this  bad  effect,  that 
 they  render  a  people  hardened  and  unfeeling.  That, 
 in  capital  punishments,  there  should  be  a  gradation 
 from  the  easier  to  the  more  painful,  I  do  not  account 
 improper,  but  rather  hold  it  to  be  necessary,  because 
 there  can  be  no  other  means  devised,  of  restraining 
 murderers  and  robbers  from  needlessly  torturing  those 
 whom  they  intend  to  murder.  Nothing  will  more  ef- 
 fectually check  the  barbarities  of  such  miscreants,  or 
 move  them  to  dispatch  their  victims  with  as  little  pain 
 us  possible,  than  the  certainty  of  having  the  law  of 
 
Torturous  Punishments  inexpedient.  407 
 
 retaliation  enforced  upon  themselves  with  the  utmost 
 rigour,  or,  at  any  rate,  suffering  a  capital  punishment 
 of  increased  severity.  But  to  re-introduce  the  hor- 
 rible punishments  of  some  foreign  nations,  or  those  that 
 were  used  by  the  barbarians  of  ancient  times,  such  as 
 the  Roman  punishment  of  empaling,  or  the  still  more 
 dreadful  one  of  crucifixion,  under  which  a  criminal 
 might  be  dying  by  inches  for  several  days,  amidst  the 
 agonies  of  intolerable  thirst  and  pain,  would  not  serve 
 to  lessen  crimes,  and  but  only  to  harden  the  feelings 
 of  the  people.  My  opinion  is  just  the  same,  with  re- 
 spect to  tortures,  where  they  are  only  used  as  an  addi- 
 tional punishment  to  the  person  who  has  confessed 
 his  guilt.  They  are  indeed  sufficiently  objectionable, 
 when  only  employed  as  an  expedient  for  extorting 
 confession  ;  but  where  they  are  used  as  a  means  to  no 
 end,  and  are  only  a  form  of  process,  and  an  addition 
 to  the  main  punishment,    (God  be   thanked  this  is 
 
 not  the  case  in  "Germany)  they  are but  let 
 
 any  nation  that  thus  employs  them,  fill  up  this  blank, 
 and  say  what  they  are  j  indeed  one  nation  is  now  say- 
 ing so  plainly  enough.  The  man  who  murders  a  icing, 
 is  no  doubt  guilty  of  a  more  heinous  crime  than  any 
 other  murderer.  The  very  attempt  to  do  so  is  a  more 
 formidable  evil  to  the  public,  than  many  an  actual 
 murder  would  be,  because  it  so  naturally  converts  a 
 king  into  a  tyrant,  who  entertains  suspicions  of  all 
 around  him,  and,  of  course,  may,  to  secure  his  own 
 life,  deprive  even  innocent  people  of  theirs.  To  this 
 crime  too,  where  the  people  are,  whether  justly,  or 
 unjustly,  discontented,  or  where  mistaken  ideas  of 
 religion  come  into  play,  there  is  sometimes  a  combi- 
 
 C  c  4< 
 
408  French  punishment  of  actual,  fy  intended  Regicide. 
 
 nation  of  motives,  which  sets  many  hands,  daggers,  and 
 poisoned  cups  in  motion.  I  am,  therefore,  far  from 
 denying,  that  here  a  great  counterpoise  of  suffering 
 may  be  requisite,  or  that  the  mere  attempting  of  this 
 crime  should  be  punished  with  a  more  painful  death, 
 than  any  other  actual  murder.  At  the  same  time,  the 
 word  regicide  sounds  somewhat  strangely  in  my  ears, 
 while  the  king  yet  lives ;  and,  to  secure  the  lives  of 
 kings,  I  could  wish,  that  the  man  who  has  meant  not 
 just  to  kill  a  king,  but  only  to  wound  him  with  a  view 
 to  his  amendment,  should,  if  it  is  not  thought  proper 
 to  grant  him  the  wrell  merited  benejicium  of  a  person 
 wrong  in  the  head,  be  punished,  at  any  rate,  not  as 
 an  actual  regicide,  but  with  somewhat  less  severity. 
 If,  however,  in  the  case  even  of  actual  regicide,  and 
 still  more,  of  what  is  but  figuratively  so  called,  the 
 the  punishment  shall,  as  by  the  French  law,  extend  to 
 the  most  artificial  and  exquisite  tortures,  it  will  only  be 
 a  waste  of  evil,  without  the  least  use.  If  the  man 
 who  murders,  or  means  to  murder,  the  king,  be  de- 
 ranged, all  the  tortures  endured  by  Ravaillac  and  Da- 
 miens  will  not  deter  other  madmen  from  the  same 
 crime,  one  whit  more  than  a  milder  capital  punish- 
 ment. No  doubt,  we  have  a  right  to  put  madmen 
 out  of  the  way,  if  they  become  dangerous,  but  not  to 
 punish  them.  They  are  like  the  mad -dog  who  should 
 bite  a  king.  He  would  be  shot  to  prevent  him  from 
 biting  other  people,  but  not  put  to  the  torture  as  a 
 punishment. — But  again,  should  mistaken  ideas  of  re- 
 ligion, or  abominable  superstition,  be  the  motive  that 
 prompts  to  regicide,  and  so  strongly,  that  the  usual  ca- 
 pital punishment,  or  even  breaking  on  the  wheel,  proves 
 
Tortures  in  'vain  applied  to  Enthusiasts.        409 
 
 insufficient  to  deter  from  it ;  of  what  avail,  in  that 
 case,  can  punishments  still  more  cruel  be  ?  We  may, 
 if  we  please,  superfluously  resort  to  the  rack,  to  extort 
 the  confession  of  the  crime,  which  has  been  already 
 confessed,  and   at  the  place  of  execution,  we  may 
 make  a  display  of  the  most  ingenious  tortures,  that 
 were  ever  contrived  :  but  they  will,  at  best,  be  but 
 trifles,   compared  either  to  that  eternal   damnation, 
 which  such  an  enthusiast  dreads  will  be  his  portion,  if 
 he  neglects  to  perpetrate  that  regicide  which  he  deems 
 to  be  his  sacred  duty ;  or  to  that  everlasting  and  un- 
 speakable bliss,  always  augmented  in  a  geometrical 
 proportion  to  the  increase  of  his  tortures,  which  he 
 anticipates  as  his  reward,  and  which  his  enthusiasm 
 makes  him  even  already  feel.     Where  tortures,  there- 
 fore, are  applied  to  enthusiasts,  they  form  no  counter- 
 poise to  this  crime  ;  and  serve  no  other  end,  than  to 
 make  them  appear  both  to  themselves  and  others,  in 
 the  light  of  martyrs  ;  from  whose  blood  new  martyrs 
 usually  spring.     Indeed,  the  very  exhibition  of  exqui- 
 site tortures  in  the  view  of  the  public,  directly  tends 
 to  excite  an  enthusiasm  in  their  minds,  which  mildness 
 and  mercy  in  the  infliction  of  punishment  would  never 
 inflame   in  the  smallest  degree.     At  least,  notwith- 
 standing the  extreme  severity  of  the  French  punish- 
 ments, the  kings  of  France,  devoted  to  them  as  their 
 people  are,  are  in  somewhat  greater  danger  of  Ravail- 
 lacs  and  Damienses,  than  the  kings  of  Britain,  in  which 
 torture  is  unknown  ;  and  where,  though  the  people 
 speak  witli  great  freedom  against  kings,  and  have  in 
 realitv   strong  nv.d  resolute  arms,   vet  we  never  find 
 
410        Contrast  between  France  and  Britain. 
 
 them  using  them  in  this  manner  against  the  sovereign; 
 neither  zealous  Protestants,  against  James  the  Second  ; 
 nor  yet  zealous  Catholics,  against  his  Protestant  suc- 
 cessors.    Nay,  even  when  Charles  the  First  was,  after 
 a  mock  trial,  condemned  to  the  block  ;  notwithstand- 
 ing the  hatred  entertained  against  him,  and  the  frantic 
 enthusiasm  of  the  nation  at  the  time,  there  could  no 
 one  be  found,  who,  amidst  all  the  security  with  which 
 the   deed  might  have  been  done,  would   venture   to 
 strike   off  his  head  without  a  mask.     The  contrast 
 here  is  singularly  striking,  and  shews  the  uselessness 
 of  extreme  severity  in   punishments.     In  Germany, 
 where  the  punishments  of  RavaiHac  and  Damiens  ap- 
 pear to  us  in  the  light  of  foreign  rarities,  we  have,  it 
 is  true,  heard  of  attempts  against  the  life  of  sovereigns, 
 but  they  were  not  successful. — Besides,  what  sympa- 
 thy with  the  sufferer  do  not  such  punishments  excite  ? 
 How  much  do  they  lessen  the  hatred,  which  is  enter- 
 tained against  a  regicide  ?  How  much  secret  indiffer- 
 ence may  they  not  leave  behind  them,  which  but  few 
 express  ?  And  how  highly  would  not  that  monarch  be 
 esteemed,  not  merely  for  his  clemency,  but  also  for 
 his   fortitude,   and  becoming  unconcern  for  his  life, 
 who  should  exert  the  whole  force  of  his  authority, 
 were  it  even  in  opposition  to  the  laws,  to  mitigate  the 
 punishment  of  an  unsuccessful  attempt  of  this  nature? 
 — Once  more,  What  a  cure  would  it  be  for  enthusiasm, 
 if  an  enthusiast,  in  consequence  of  being  pardoned, 
 gradually  came  to  himself,  learnt  to  feel,  became  wise, 
 and  manifested  unextorted  remorse.     In  the  case  of 
 common  crimes,  which  do  not  proceed  from  enthu- 
 
Punishments  should  affect  the  prompting  Passion,  $c.  411 
 
 siasm,  the  remorse  of  one  delinquent  is  of  no  avail  to 
 the  determent  of  another  ;  but  every  disease  requires, 
 and  can  only  be  cured  by,  its  own  peculiar  specifics. 
 
 §13.  Punishments  should  he  levelled  at  the  Prompting 
 Passion  of  Delinquents. 
 
 It  would  be  one  of  the  greatest  achievements  of  le- 
 gislative policy,  to  hit  upon  that  very  punishment, 
 which,  according  to  the  passion  that  prompted  him  to 
 the  crime,  should  be  most  sensibly  felt  by  the  delin- 
 quent ;  for  could  we  but  light  on  the  place  where  his 
 feelings  are  most  acute,  we  should,  writh  far  less  ex- 
 pence  of  evil,  do  far  more  good,  than  we  can  do  by 
 resorting  to  much  severer  punishments  of  a  different 
 kind.  The  man  who  should  devise  a  plan  for  punish- 
 ing the  duellist,  who  is  prompted  to  murder  merely 
 by  a  mistaken  point  of  honour,  in  such  a  way  as  to 
 make  him  infamous  in  the  eyes  of  the  world,  would 
 resolve  a  problem  of  legislative  policy,  for  which  prize 
 questions  have  been  proposed  in  vain,  and  in  regard 
 to  which  the  well  meant  severity  of  Louis  the  Four- 
 teenth had,  from  a  mere  mistake  in  the  choice  of 
 punishments,  almost  no  other  effect,  than  to  shew  the 
 world  the  great  weakness  of  a  law  that  opposes  £ 
 point  of  honour.  I  have  already  spoken  on  this  sub- 
 ject in  Art.  CXXXV.,  and  I  do  not  here,  in  this 
 Essay,  wish  needlessly  to  copy  myself,  but  only  some- 
 times to  make,  as  it  were,  little  drawers,  into  which  my 
 scattered  remarks  may  be  collected.  And  to  this  same 
 drawer,  which  I  am  now  filling,  belongs  also  what  has 
 been  said  in  Art,  CCLXXXII.,  on  punishing  thefts 
 
412    Exemplified  in  Bankruptcy — a  French  story, 
 
 differently,  according  to  their  motives ;  and  another 
 still  stronger  example  is  furnished  for  it  by  Art. 
 CCLXXIL,  in  the  case  of  the  murderer,  who  lias  it 
 in  view  to  get  rid  of  a  weary  life,  by  the  hand  of  the 
 magistrate,  after  time  has  been  allowed  him  to  repent. 
 For  the  rich  voluptuary,  who  has  become  bankrupt 
 from  his  own  extravagance,  imprisonment  with  slen- 
 der fare,  would  be  a  very  sensible,  and  quite  a  suitable 
 infliction  ;  particularly  if  his  former  friends,  who  had 
 assisted  him  in  devouring  the  property  of  others,  were 
 not  permitted  to  send  him  any  better  meat  or  drink, 
 to  mitigate  his  punishment ;  but  how  obvious  is  it, 
 that,  if  this  same  punishment  were,  during  a  famine  or 
 a  siege,  denounced  against  theft,  it  would  only  entice 
 us  to  it.  We  should  then  be  very  apt  to  reason  with 
 ourselves,  as  is  related  of  a  meritorious,  but  neglected 
 French  officer.  He  came  to  the  minister,  and  thus 
 addressed  him,  "  My  Lord !  What  would  you  do  to 
 "  the  man,  who  should  call  you  a  scoundrel  to  your 
 "  face  V  "  What  would  I  do  ?"  replied  the  minister, 
 "  I  would  send  him  to  the  Bastile,  to  live  on  bread 
 "  and  water." — "  Very  well,"  replied  the  officer,  "  I 
 "  say  so  to  your  face  ;  keep  your  word,  for  I  have  no 
 "  bread." — It  is  said,  he  received  a  pension  for  his 
 freedom.  The  story  may  be  true  or  fictitious,  but  it 
 serves  strikingly  to  illustrate  how  unsuitably  a  punish- 
 ment may  be  applied. 
 
 To  discover  and  avoid  the  grosser  errors  which  are 
 committed  against  this  rule,  will,  to  a  prudent  legisla- 
 tor, be  no  very  difficult  matter  ;  but  to  pass  that  point, 
 and  to  apply  the  plan  systematically,  and  in  perfection, 
 would  seem  to  be  beyond  the  ken  of  a  human  legisla- 
 
Difficulty  of  the  Universal  Application  of  this  Rule.  413 
 
 tor,  and  to  belong  to  that  omniscient  God  alone,  who 
 knows  the  secret  springs  of  human  actions.  The  very 
 same  crime  may  have  very  different  sources.  Sup- 
 pose then,  that  a  philosopher  discovered  them  all 
 theoretically,  and,  according  to  its  several  springs, 
 fixed  its  several  punishments,  in  the  most  perfect  and 
 suitable  manner ;  and  that  he  likewise  surmounted  a 
 difficulty,  which  we  have  been  accustomed  to  regard 
 as  insuperable  ;  I  mean,  that  of  reducing  evils  of  dif- 
 ferent kinds,  such  as  bodily  pain,  disgrace,  and  the 
 langour  of  imprisonment,  to  one  scale,  and  comparing 
 them  in  such  a  manner,  as  that  they  could  be  equa- 
 lized in  quantity,  and  so  that  we  should  never  do  a 
 criminal  any  injustice,  in  substituting  one  of  these 
 punishments  for  another  ;  ( — two  very  great  demands, 
 by  the  bye,  which  no  true  philosopher  will  ever  under- 
 take to  satisfy ; — )  still  a  judge  would  not  be  able  to 
 apply  the  law  to  particular  cases ;  because  the  true 
 motive  of  the  crime  is  often  so  deeply  hid,  in  the  most 
 secret  recesses  of  the  heart,  that  man  cannot  search  it 
 out.  No  doubt,  a  judge  might  not  unfrequently  guess 
 and  conjecture  it ;  (and  perhaps  too,  guess  wrong ;) 
 but  we  would  not  just  approve  of  altering  a  punish- 
 ment, on  the  conjectures  or  opinion  of  a  judge,  or  by 
 what  his  penetration  might  discern  by  looking  the 
 culprit  in  the  face  ;  for  then  the  judge  would  be  a 
 despot,  and  have  it  in  his  power,  according  as  he 
 wished  well  or  ill  to  him,  to  chuse  the  punishment 
 that  might  least  or  most  annoy  him.  So  far  are  we 
 from  approving  of  a  judge  framing  his  decision  by 
 the  aspect  of  the  culprit,  that  we  paint  justice  with 
 her  eyes  tied  up  -,  and  we  affix  no  good  meaning  to 
 
414  Passion  and  Prejudice  in  Judges  to  be  avoided. 
 
 respect  of  persons,  because  we  are  apt  to  fear,  that  if  a 
 judge's  glance  were  under  no  controul,  he  might  see 
 with  the  eye  of  passion ;  and,  therefore,  in  cases  of 
 great  crimes,  the  accused  usually  has  the  privilege  of 
 appeal,  by  sending  the  minutes  of  his  trial  to  judges, 
 who  do  not  so  much  as  know  him.  In  very  small 
 states,  such  as  we  find  in  the  infancy  of  nations, 
 which  rather  resemble  one  large  family,  and  where 
 the  judge  chosen  from  his  well-known  integrity, 
 is  invested  with  a  sort  of  paternal  despotism,  it 
 might,  no  doubt,  be  possible  to  punish  many  crimes, 
 according  to  the  passion  that  led  to  them ;  just  as 
 parents  employ  this  expedient  to  excellent  purpose  in 
 the  education  of  their  children,  and  so  are  often  able, 
 with  the  aid  of  one  little  ludicrous  piece  of  discipline, 
 to  produce  the  happiest  effects  :  but  whenever  the  na- 
 tion becomes  great,  and  the  people  lose  their  primi- 
 tive simplicity  and  honesty,  the  application  of  the 
 expedient  proves  more  and  more  difficult,  and  the 
 power,  which  must  be  left  to  judges,  too  dangerous. 
 
 §  14.  Legislators  shotdd  attend  to  the  Motives,  from 
 which  Crimes  are  most  commonly  committed. 
 
 All  that  legislative  policy  can  then  do,  is  to  observe, 
 from  what  motive  crimes  are  most  commonly  com- 
 mitted by  the  people  in  general,  and  then  to  counter- 
 act them  by  the  most  suitable  punishment  that  can  be 
 devised,  without  any  regard  to  the  cases  of  particular 
 criminals,  who  may  have  been  actuated  by  other  mo- 
 tives. In  this  way,  it  will  sometimes  have  the  luck  to 
 devise  a  punishment,  most  happily  adapted  to  a  pur- 
 
Legislators  should  be  regulated  by  common  motives.  415 
 
 ticular  crime :  only  such  discoveries  will  always  be 
 special  and  insulated,  and  incapable  of  being  combined 
 into  a  system  of  punishments  of  equal  efficacy.  An 
 example  of  a  punishment  of  this  kind,  we  have  in  the 
 English  law,  which  deprives  any  chairman,  hackney 
 coachman,  or  waterman,  at  London,  who  takes  more 
 than  the  regulated  fare,  of  the  use  of  his  chair,  coach, 
 or  boat,  for  a  year.  As  these  vehicles  are  all  numbered, 
 any  such  imposition  is  certain  to  be  discovered ;  and 
 as  nothing  but  avarice  can  be  its  motive,  the  punish- 
 ment in  question  is  its  strongest  possible  check,  infi- 
 nitely stronger  than  any  forfeiture,  though  it  extended 
 to  a  hundred  or  a  thousand  times  the  amount  over- 
 charged. The  consequence  is,  that,  rough  as  these 
 chairmen,  coachmen,  and  watermen  are,  and  though 
 their  numbers  amount  to  many  thousands,  we  very 
 seldom  hear  of  any  one  of  them  attempting  to  impose 
 on  his  employers  ;  and  the  person  who  does  not  know 
 how  much  any  fare  should  be,  may  very  safely  hold 
 out  a  handful  of  money,  and  desire  them  to  take  what 
 is  their  due.  Were  the  gallows  the  punishment  of 
 imposition  here,  it  would  be  far  less  effectual ;  for  with 
 that  punishment  an  Englishman  does  not  associate  the 
 idea  of  such  disgrace,  as  we  Germans  do  ;  on  the  con- 
 trary, many  would  seem  to  look  upon  the  gallows,  as 
 a  very  genteel  sort  of  a  machine  j  as  the  ladder  de- 
 scribed in  Swift's  Tale  of  a  Tub,  on  which  one  may 
 make  a  harangue,  and  give  the  people  an  opportuni- 
 ty of  admiring  his  courage.  Besides,  those  gentry 
 would  pay  a  better  compliment  to  the  good  hearts  of 
 their  countrymen,  than  to  suppose,  that  any  one 
 could  be  capable  of  swearing  them  to  the  gallows  for 
 
416  Conditional  Dispens.  of Quakers  from  Swearing, 
 
 a  sixpence  ;  and  whoever  did  so,  would  not,  either  in 
 the  streets  or  the  river,  be  very  secure  from  their  re- 
 venge.— Still  more  powerful  has  the  measure  proved, 
 which  was  devised  by  the  English  legislature,  to  coun- 
 teract judicial  lies,  when  the  resolution  to  dispense 
 with  Quakers  taking  oaths,  as  a  matter  with  them  con- 
 trary to  conscience,  was  passed  with  this  express 
 proviso,  that,  on  the  very  first  instance  of  a  Quaker 
 being  convicted  of  affirming  a  falsehood  before  a  court, 
 the  privilege  should  cease  for  ever  ;  and  Quakers  be 
 obliged  to  swear  like  other  Englishmen.  During  the 
 whole  period  that  has  elapsed  since,  no  Quaker  has 
 been  found  guilty  of  giving  a  false  testimony  ;  and  to 
 account  for  this,  we  need  not  resort  to  the  operation 
 of  the  Spirit ;  it  is  quite  a  natural  event ;  for,  as  the 
 Quakers  are  very  much  beholden  to  this  indulgence, 
 and,  indeed,  without  it,  could  not  subsist  in  England, 
 or,  at  any  rate,  have  their  property  secured,  so  they 
 take  care,  in  educating  their  youth,  to  impress  them 
 with  such  a  horror  of  judicial  lies,  that  a  man  of  this 
 persuasion  will  tremble  at  the  idea  of  perjury,  a  hun- 
 dred times  more  than  any  other  person  ;  and,  be- 
 sides, every  Quaker  is  here  the  watchman  of  his 
 neighbour,  and  will  naturally  take  every  possible 
 method,  if  he  has  the  least  suspicion  of  his  veracity, 
 to  hinder  him  from  uttering  a  falsehood,  which  would 
 so  deeply  affect  the  interests  of  the  whole  body, 
 and  yet  would  most  justly  deserve  to  be  punished. 
 Add  to  this,  that  the  man  who  should  occasion  them 
 such  a  misfortune,  (or,  as  they  would  term  it,  such  a 
 suffering,)  would  have  reason  to  apprehend  such  a 
 direful  vengeance,  and  such  an  awakening  of  the  old 
 
Punishments  should  be  suited  to  Rank  <$•  Station.  417 
 
 man  within  them,  from  the  numerous  and  powerful 
 society  of  Friends,  that  it  would  be  more  advisable 
 for  him,  if  he  meant  to  lie  judicially,  rather  to  re- 
 nounce Quakerism,  and  commit  a  perjury,  and  subject 
 himself,  in  the  event  of  detection,  to  the  far  less  for- 
 midable punishment  of  that  crime  ;  which,  in  Eng- 
 land, is  only  transportation  to  America. 
 
 §  15.    Expediency  of  regulating  Punishments  by  the 
 Rank  and  Station  of  Delinquents. 
 
 Farther,  it  may  be  expedient  to  establish  a  diver- 
 sity of  punishments,  in  reference  to  rank  and  station, 
 and  to  the  influence  of  its  example,  if  we  wish  them  to 
 attain  their  end,  and  to  put  any  crime  out  of  fashion. 
 In  illustration  of  this  point,  I  can  give  no  stronger 
 example  than  that,  already  mentioned  more  than  once, 
 of  practising  frauds  with  regard  to  the  taxes  which 
 are  legally  *  imposed,  in  order  to  meet  the  necessary 
 expenses  of  the  state,  by  whatever  name  they  be  cal- 
 led, (and  the  names  of  none  of  them  sound  very  sweet- 
 ly,) whether  customs,  excke,fvum,  &c. ;  and  to  which 
 there  must  always  be  additions,  or  new  ones  made, 
 the  more  those  already  established  are  evaded'.  The 
 burden  of  such  frauds  lies  heavy  on  many  a  country  ; 
 partly,  because,  in  order  to  prevent  them,  it  must  em- 
 
 vol.  iv.  d  d 
 
 *  I  must  request  that  this  word  be  not  considered  as  superfluous. 
 If  a  prince  has  no  right  to  impose  taxes,  without  the  concurrence  of 
 his  states,  and  yet  does  impose  them,  his  subjects  are  guilty  of  no 
 fraud  in  not  paying  such  illicit  exactions,  nor  do  they  merit  any 
 punishment. 
 
418       Ultimate  Effects  of  evading  Legal  Imposts, 
 
 ploy  so  many  officers,  that  their  salaries,  including 
 perquisites,  are  often  almost  equal  to  the  amount  of 
 the  taxes ;  and  partly,  because  these  taxes,  in  order 
 to  produce  the  requisite  sums,  must  continually  be 
 increased  and  multiplied,  until  the  honest  tradesman, 
 and  the  possessor  of  landed  property,  (Uliomme  a 
 quarante  Ecus,)  who  can  never  evade  them,  sink  un- 
 der their  weight ;  and  with  them,  the  manufactures, 
 industry,  and  agriculture  of  the  country  ;  particularly, 
 when  in  place  of  the  milder  sort  of  imposts,  such  as 
 excise  duties,  which  are  paid  imperceptibly,  and  but 
 occasionally,  it  becomes  necessary,  from  the  facility 
 and  extent  of  frauds,  to  have  recourse  to  more  op- 
 pressive exactions,  such  as  a  yearly  or  monthly  poll- 
 tax  ;  or  again,  when,  to  prevent  smuggling,  severe 
 and  odious  regulations  are  adopted,  which  lead  the 
 people  to  be  less  partial  to  their  native  land,  and  make 
 foreign  traders,  and  even  travellers,  shun  a  country 
 where  they  would,  without  any  fault  of  their  own,  be 
 exposed  to  such  vexatious  proceedings.  I  have  al- 
 ready observed,  that  the  punishments  of  confiscation, 
 or  manifold  restitution,  would  not  here  be  altogether 
 without  effect :  they  would  be  of  more  use,  at  any 
 rate,  than  similar  punishments,  affecting  only  pro- 
 perty, are,  in  preventing  theft ;  but  from  the  great 
 secrecy  with  which  the  crime  can  be  carried  on,  they 
 are  not  sufficiently  efficacious,  to  prevent  the  public  at 
 large  from  severely  feeling  the  terrible  consequences 
 of  frauds,  unless  the  two  strong  principles  of  honour 
 and  conscience  interfere  to  support  the  law  and  its 
 punishments,  and  at  the  same  time  have  an  influence 
 on  early  education.     I  have  once  already  remarked^ 
 
Revenue  Frauds  should  be  regarded  as  Thefts.  419 
 
 that  where  honour,  education,  and  religion,  come  to 
 their  aid,  slight  punishments,  by  adding  but  a  little 
 weight  to  the  good  scale,  produce  great  effects.  In  the 
 present  case,  however,  the  misfortune  is,  that  in  Ger- 
 many, and  perhaps  in  other  countries  also,  these  prin- 
 ciples are  not  very  powerful ;  and  therefore,  though 
 punishments  may  have  some  effect,  it  is  not  sufficient 
 to  support  the  sinking  interests  of  the  public  and  the 
 labouring  classes,  amidst  the  daily  increase  of  fraudu- 
 lent practices ;  more  especially  when  this  awkward 
 circumstance  is  taken  into  account,  that  the  public, 
 from  not  perceiving  that  fraud  is  here  real  theft,  and 
 repugnant  both  to  honour  and  religion,  have  too  much 
 sympathy  with  those  who  are  punished,  and  lament 
 the  fate  of  the  merchant,  who  is  reduced  to  beggary 
 by  the  confiscation  of  contraband  goods,  though  they 
 do  not  at  all  pity  the  thief  who  is  condemned  to  be 
 hanged  for  a  single  theft,  incomparably  less  detrimen- 
 tal to  their  interests. 
 
 5  16.  Of  the  Influence  of  Religion  in  checking  Frauds. 
 
 But  how  then  are  honour,  education,  and  con- 
 science, to  be  here  brought  to  the  support  of  sinking 
 laws,  and  an  oppressed  people,  that  punishments, 
 along  with  them,  may  only  have  to  put  a  moderate 
 weight  into  the  good  scale,  which,  however,  will  be 
 sufficient,  if  they  have  laid  in  their  full  quantum  be- 
 fore ?  Unquestionably  this  would  be  a  very  easy  mat- 
 ter, if  the  doctrine  of  Matth.  xxii.  21.  Rom.  xiii.  1, — 
 7.  1  Pet.  ii.  13, — 17.  and  many  other  passages  of  the 
 Bible,  were  intelligibly  and  distinctly  explained  from 
 
 d  d  2 
 
442i>     Dr.  Less's  Sermon  on  Revenue  Frauds,  fyc. 
 
 the  pulpit,  and  in  the  instructions  given  to  children  "f 
 and  if  it  were  expressly  declared,  (what  is  indeed  the 
 real  truth,)  that  such  frauds  are  thefts  in  the  eyes  of 
 God  and  morality,  and  that  the  man  who  wittingly 
 and  deliberately  commits  them,  can  neither  repent, 
 nor  die  happy,  but  must  be  eternally  damned,  if  he 
 still  retain  what  he  has  withheld  or  purloined  ;  that  is, 
 if  he  do  not  make  restitution  for  it,  and  that  not  to 
 the  poor,  but  to  the  person  to  whom  it  belongs.  This 
 was  the  doctrine  which  I  myself  believed  from  my 
 youth  ;  although  I  never  heard  it  preached,  but,  on  the 
 contrary,  when  I  happened  myself  to  broach  it,  con- 
 troverted, very  gravely  controverted,  not  only  by 
 pious  laymen,  but  even  by  clergymen  themselves ; 
 until  the  year  1767,  when  Dr.  Less,  in  a  sermon,  On 
 the  invariable  duty  of  Christians  not  to  possess  what  is 
 not  justly  their  own,  which  was  afterwards  printed, 
 maintained  it,  to  the  great  offence  and  scandal  of  the 
 hearers.  Almost  all  thought  it  quite  a  new  doctrine. 
 Many  were  astonished  at  the  impertinence  of  such  a 
 sermon  ;  and  that  very  afternoon,  on  some  people  ex- 
 pressing their  astonishment  to  me,  that  he  should  have 
 gone  such  lengths  as  he  did,  I  was  obliged  to  tell 
 them,  that  it  was  the  very  same  doctrine  which  I  my- 
 self usually  delivered  in  my  lectures  on  morals  ;  and 
 we  soon  learnt  from  the  Excise-Office,  that  many  ano- 
 nymous acts  of  restitution  had  taken  place,  in  conse- 
 quence of  this  sermon.  This  doctrine,  therefore, 
 otight,  both  in  catechising  and  preaching,  to  be  han- 
 dled in  such  a  manner,  that  the  merchant,  the  citizen, 
 the  peasant,  and  even  the  child,  may  learn  to  under- 
 stand it  5  and  who  that  understands  it,  will  ever  cease 
 
Clergymen  often  Defrauders  of  the  Revenue.     421 
 
 to  believe  it  ?     But  is  this  done  ?  I  have  just  said,  that 
 I  never  heard  but  a  single  sermon  on  the  subject,  in 
 this  style  ;  and  therefore,  to  think  the  best  of  it,  it  must 
 be  but  rare.     Our  sermons  on  the  23d  Sunday  after 
 Trinity,  and  on  the  afternoon  of  the  Sunday  Jubilate, 
 if  they  touch  at  all  on  the  duties  that  we  owe  to  the 
 state  and  the  magistrate,  have  commonly  something  of 
 an  obscure  aspect ;  or  rather,  passing  entirely  by  this 
 subject,  though  it  be  only  once  a  year  pressed  upon 
 their  notice,  our  preachers  prefer,  on  these  occasions, 
 to  treat  of  the  rectitude  of  God's  ways,  or  of  the  duty 
 of  giving  to  God  what  is  God's,  or  of  hypocrisy,  or 
 of  the  grand  question  of  self-examination,  viz.   Whose 
 is  the  image  and  superscription  ?  God's,  or  the  Devil* s  '? 
 exactly  as  an  Anabaptist,  in  Charles  the  Fifth's  time, 
 must  have  done,   when  he  had  to  preach   upon  an 
 awkward  gospel  and  epistle.     For  this,  no  doubt,  the 
 ignorance  and  incapacity  of  the  teachers  of  religion  is 
 partly  to  blame  ;  as  some  of  them  really  do  not  so 
 much  as  know  for  what  expenses  the  revenues  of  the 
 state  are  needed,  and  fancy  princes  to  be  immensely 
 rich  ;  while  others  again,  who  have  some  feeling,  are 
 perhaps  not  very  fond  of  preaching  against  themselves ; 
 because  thus  to  deliver  one's  self,  while  yet  in  the 
 body,  to  Satan,  from  the  very  pulpit,  is  rather  hard. 
 But  what  is  a  still  worse  circumstance,  the  citizen 
 and  the  peasant  often  both  know,  that  the  clergyman 
 himself  defrauds  the  revenue  ;  nay,  they  are  perhaps 
 in  this  matter,  confidants  and  accomplices  of  their 
 father  confessor,  who  is  so  scrupulously  conscientious 
 on  other  points.     They  thus  believe  that  it  is  allow- 
 able ;  and  so,  as  far  as  either  they  themselves,  or  the 
 
 d  d  3 
 
422  Influence  of  the  Principle  of  Honour. 
 
 children  whom  they  bring  up,  and  whom  they  initiate 
 in  this  matter,  are  concerned,  religion  throws  no 
 weight  whatever  into  the  good  scale  :  for  they  enter- 
 tain, not  perhaps  on  other  points,  but  certainly  here, 
 the  very  doctrine  of  the  Anabaptists,  which  the  Pro- 
 testants, in  1.530,  disavowed  in  the  confession  of  Augs- 
 burg, in  order  to  obtain  toleration  in  the  Roman  em- 
 pire.—So  much  for  the  influence  of  religion. 
 
 5  17°  Of  the  influence  of  Honour  in  repressing  Frauds. 
 
 Now  for  that  of  the  principle  of  honour. — Certainly 
 frauds  ought,  by  their  nature,  to  be  disgraceful,  as 
 well  as  thefts.  Even  the  man  who  but  cheats  at  play, 
 is  an  object  of  contempt.  The  defrauder  of  the  reve- 
 nue is  a  thief  upon  the  public,  and  indeed  on  every 
 part  of  the  public, — on  us  all ;  because,  in  proportion 
 to  the  amount  of  his  defraudations  we  must  all  pay 
 the  more ;  and  therefore,  we  have  a  right  to  say  to 
 him,  You  have  defrauded  me  ;  and  the  honest  peasant, 
 to  his  smuggling  neighbour,  /  would  not  drink  out  of 
 the  same  mug  with  you.  Were  this  but  the  case,  how 
 fortunate  should  we  be  ?  For  the  few,  who  might  still 
 not  be  sufficiently  alive  to  the  feelings  of  shame  and 
 conscience,  the  laws  would  no  doubt  require  to  put  a 
 little  weight  of  punishment  into  the  scale,  but  it  would 
 be  only  a  little ;  for  the  ideas  of  honour  and  shame 
 would  augment  it.  We  should  then  see  the  states  of 
 the  country,  instead  of  imposing  new  taxes,  abolishing 
 old  ones,  because  the  revenue  would  be  greater  than 
 were  needed  for  the  expenditure  ;  or  the  old  war-debts 
 would  be  paid,  and  thus  industry  and  trade  flourish. 
 
Counteracted  by  perverse  Ideas  of  Fraud.       423 
 
 But  this  is  not  the  case.  For  people,  in  general,  are 
 so  far  from  looking  upon  such  fraudulent  practices  as 
 shameful,  that  they  actually  (which  is  a  horrible  piece 
 of  education)  avow  them  to  their  children,  avail  them- 
 selves of  their  assistance,  and  employ  them  as  their 
 accomplices.  They  speak  of  them  in  company  with 
 the  utmost  freedom,  and  never  once  think,  that  in  the 
 estimation  of  all  good  society,  it  must  lower  their 
 characters.  The  reason  of  their  boldness  is,  that  they 
 know,  that  persons  of  the  highest  rank  are  as  guilty  as 
 themselves ;  even  the  very  officers  of  government, 
 more,  perhaps,  than  any  other  set  of  people,  except 
 the  merchants  ;  and  that,  because  the  Comptroller  dare 
 not  venture  to  be  severe  -upon  them,  and  would  be 
 badly  received,  if  he  entertained  any  old-fashioned 
 notions  concerning  his  oath  of  office. 
 
 If  we  wish  to  make  frauds  rare,  by  the  help  of 
 punishments,  the  object  and  aim  of  these  punishments 
 should  be,  to  deter  clergymen,  and  the  servants  of 
 government,  from  countenancing  them,  by  their  ex- 
 ample, or,  what  it  rather  is,  by  stripping  fraud  of  its 
 turpitude  and  its  criminal  appearance,  and  clothing  it 
 in  the  garb  of  a  matter  of  perfect  indifference,  and 
 quite  allowable.  }\rere*they  therefore,  with  this  view, 
 more  severely  punished  than  others,  they  could  the 
 less  justly  complain,  because  their  criminality  is  so 
 much  blacker,  and  at  the  same  time  more  mischievous; 
 but  it  would  be  expedient  to  have  recourse,  in  every 
 case,  to  a  punishment  of  such  a  nature,  as  that  it 
 should  be  considered  as  only  a  reasonable  consequence 
 of  the  crime,  and  therefore  could  not  be  looked  upon 
 as  severe  by  any  body.     What,  for  instance,  if  the 
 
 D  d  4 
 
424       Proposed  Punishment  of  Clergymen,  &;c. 
 
 clerical  defrauder  were  summoned  before  the  Consist- 
 ory, and  asked,  how  he  had  come  to  engage  in  such 
 fraudulent  practices  ;  whether  he  had  sinned,  contrary 
 to  his  conscience,  or  whether  only  erroneously,  and  as 
 deeming  them  lawful  in  the  sight  of  God  ?  If  the 
 former  were  the  case,  he  should  be  obliged  to  beg  par- 
 don publicly  of  his  congregation  for  the  gross  scandal 
 he  had  given  them,  and  to  testify  his  remorse  for  hav- 
 ing committed  so  great  a  sin,  contrary  to  his  better 
 knowledge,  and  the  conviction  of  his  conscience. — 
 This  would  be  quite  just;  for  the  scandal  is  really 
 greater,  than  if  he  had  debauched  his  maid,  who,  in 
 some  places,  would  have  to  do  penance  publicly  in 
 church  ;  for  no  peasant  would  thence  infer,  that  such 
 a  thing  was  lawful. — Were  his  excuse,  again,  to  be, 
 that  he  did  not  believe  there  was  any  injustice  in  de- 
 frauding the  revenue,  the  humiliation  just  mentioned, 
 ought  by  all  means  to  be  spared  him ;  but  then,  as  he 
 could  not  reasonably  expect  to  be  any  longer  allowed 
 to  be  a  clergyman,  in  a  church  whose  doctrine,  in  so 
 essential  a  point,  he  did  not  hold,  he  ought  therefore 
 to  be  deprived  of  his  office ;  without,  however,  suffer- 
 ing any  farther  disgrace.  This,  no  one  can  think 
 severe,  who  admits,  that  a  church  ought  to  have  any 
 degree  of  religious  liberty,  and  who  does  not  make  it 
 the  mere  estate  of  its  clergy.  The  man  who  wishes  to 
 be  a  clergyman,  must  hold  the  doctrine  of  the  church 
 into  which  he  enters  ;  or  if  he  does  not,  he  should  go 
 into  some  other  church,  whose  creed  coincides  with 
 his  own  ;  for  it  would  be  a  horrible  constraint  upon 
 religion,  were  a  church  obliged  to  retain  and  support, 
 and  let  the  children  of  its  members  be  taught  by,  a 
 
Clergymen  should  adhere  to  their  Church.       425 
 
 clergyman  who  dkl  not  receive  its  religious  system, 
 whether  true  or  false ;  and,  indeed,  the  person  who 
 should  desire  any  such  thing,  or  let  himself  be  paid 
 as  a  teacher  by  a  church,  whose  doctrines  he  did  not 
 acknowledge,  would  be  a  traitor  and  a  scoundrel  of 
 the  first  magnitude.  Now,  of  our  Protestant  religion,  at 
 any  rate,  the  Scripture  doctrine  of  the  duties  owing  to 
 the  magistrate,  forms  a  very  essential  part ;  and  it  is 
 under  the  assurance  thereof,  that  it  is  received  in  Ger- 
 many ;  and,  in  general,  this  is,  in  point  of  importance 
 to  the  state  that  affords  protection  to  a  church,  a  far 
 more  essential  part  of  its  creed,  than  many  of  the 
 great  articles  of  faith  ;  for  to  a  sect,  that  entertained 
 erroneous  notions  respecting  the  Trinity,  the  state 
 might  grant  protection,  nay,  what  is  more,  might  grant 
 its  members  equal  rights  with  other  citizens,  without 
 going  to  destruction  ;  but  not  so  tc  a  sect,  of  whose 
 tenets  it  were  one,  that  no  obligation  lay  upon  the 
 citizens  to  pay  legal  imposts  honestly.  The  dismis- 
 sion, therefore,  of  a  clergyman,  in  the  circumstances 
 now  under  consideration,  would  not  be  a  punishment, 
 but  only  the  natural  consequence  of  his  maintaining 
 opinions,  different  from  those  of  our  symbolical  books. 
 And  if  we  suppose,  that  two  such  examples  were 
 made,  and  made  sufficiently  know7n,  there  would  be 
 no  more  instances  of  clergymen  defrauding  the  reve- 
 nue ;  many,  no  longer  reproached  by  their  consciences 
 on  that  score,  would  then  boldly  preach  and  teach  the 
 duties  owing  to  the  magistrate  j  and  from  that  mo- 
 ment, religion  would  become  a  support  to  the  state, 
 nnd  to  its  laws. 
 
 Nor  could  the  servants   of  government,  who  are 
 
42 6  Punishment  of  Revenue  Frauds. 
 
 still  more  directly  and  closely  bound  and  sworn  to 
 uphold  the  interests  of  the  state,  and  who  are  com- 
 monly paid  from  the  produce  of  the  taxes,  consider 
 it  as  at  all  unreasonable,  that  the  sovereign  should 
 once  for  all  address  them,  in  such  terms  as  these ;  "  I 
 "  retain  you  in  my  service,  on  this  condition,  that 
 "  you  be  faithful,  and  not  concerned  in  any  fraudulent 
 "  transactions.  If  you  act  unfaithfully  in  the  manage- 
 "  ment  of  my  demesnes,  or  my  treasury,  I  reserve  to 
 '*  myself  a  right  to  dispense  with  your  services,  but  I 
 "  have,  at  the  same  time,  a  right  to  forgive  you  ;  only 
 "  beware  of  committing  any  fraud  in  the  payment  of 
 "  those  taxes,  which  are  imposed  on  my  subjects :  for 
 "  on  this  point,  I  denude  myself  of  all  right  of  par- 
 "  don,  and  will,  on  no  account,  retain  in  my  service, 
 "  any  person,  how  useful  soever,  concerning  whom  I 
 "  hear,  that  he  has  cheated  the  country  and  my  sub- 
 "  jects,  by  a  fraud  on  the  revenue,  of  which  they  must 
 "  make  up  the  deficiency  ;  and  has,  by  so  doing, 
 "  set  a  pernicious  example  to  his  fellow  citizens." 
 Were  a  declaration  to  this  effect  to  be  made,  and 
 acted  upon  in  two  or  three  instances,  I  suppose  a 
 fourth  instance  would  not  occur  in  many  years.  The 
 higher  the  rank  of  the  person  were,  to  whom  the  so- 
 vereign here  kept  his  word,  and  more  especially,  if  he 
 happened  to  be  a  peculiarly  useful  and  able  servant,  so 
 much  the  more  efficacious  would  his  punishment  be ; 
 and  every  friend  of  the  country  might  wish,  that  two 
 grandees  might  be  detected  in  revenue  frauds,  rather 
 than  one  petty  officer.  No  doubt,  it  is  obvious,  that 
 this  measure  would  not  answer  universally.  It  would 
 not  answer,  where  the  sovereign  himself  were  depen- 
 
Tlie  Secondary  Objects  of  Punishment.        427 
 
 dent  on  his  servants,  or  where  there  were  a  want  of 
 able  men  to  fill  public  situations.  But  then  its  appli- 
 cation would  be  just  so  much  the  easier,  where  greater 
 numbers  were  pressing  for  employments  than  were 
 wanted  ;  there  it  could  not  fail  to  be  highly  efficaci- 
 ous, unless  morals  were  in  a  state  of  the  grossest  corrup- 
 tion. Whenever  the  people  of  rank  ceased  to  defraud 
 the  revenue,  the  practice  would  become  disgraceful ; 
 and  thus,  not,  properly  speaking,  by  punishment,  but 
 by  the  very  reasonable  measure  of  dismissing  from 
 their  employments,  both  in  church  and  state,  those 
 servants  who  behaved  unsuitably  to  their  offices,  the 
 influence  of  the  two  powerful  principles  of  religion 
 and  honour,  and  of  a  third  that  depends  upon  both, 
 I  mean  that  of  education,  would  be  re-established 
 among  the  people  :  and  here  we  should  really  have  an 
 instance  of  a  punishment,  which,  at  the  same  time, 
 effected  amendment. 
 
 «-ss 
 
 PART  II. 
 
 OF    SECONDARY    ENDS    OF   PUNISHMENT. 
 
 So  much  for  the  essential  and  primary  end  of  pun- 
 ishments. I  now  proceed  to  the  consideration  of  cer- 
 tain collateral  objects,  which  are  sometimes  aimed  at 
 in  inflicting  them,  and  have  thus  an  influence  on  their 
 magnitude  and  nature,  or  their  quantity  and  quality. 
 These  objects  are  three;  (1.)  the  extirpation  or  remo- 
 val of  dangerous  delinquents  ;  (2.)  the  avengementof 
 
428        "Extirpation,  or  Removal  of  Delinquents. 
 
 the  injured  ;  and,  (3.)  the  moral  amendment  of  the 
 punished.  The  last  of  these  is,  doubtless,  the  most 
 desirable  of  the  three,  and  its  very  name  sounds  softer 
 and  better  than  the  others :  but  I  postpone  its  consi- 
 deration to  the  last  place  ;  partly,  because  others, 
 who  have  chosen  to  write  on  this  subject,  have  said 
 so  much  in  its  favour,  that  little  is  left  for  me  to  add  ; 
 and  partly,  because  we  must  previously  know  some- 
 thing of  the  nature  of  extirpation,  as  an  end  of  punish- 
 ment, unless  we  wish  to  run  the  risk  of  introducing 
 amendment,  as  an  end  of  it,  in  a  wrong  place. 
 
 I.  Of  the  Extirpation  or  Removal  of  Delinquents — 
 and  the  Means  thereof. 
 
 I.  First,  then,  concerning  the  extirpation,  or  remo- 
 val of  dangerous  delinquents. — The  latter  of  these  is 
 only  a  milder,  and  more  artificial  substitute  for  the 
 former.  In  a  state  of  nature,  if  we  cannot  be  secure, 
 we  only  think  of  killing  our  disturber ;  but,  in  pro- 
 cess of  time,  we  devise  means  of  removing  him  to 
 such  a  distance,  that  he  can  never  annoy  us  any  more ; 
 and  of  this  plan  civil  society  usually  avails  itself,  as  a 
 milder  measure,  in  cases  where  the  individual  could 
 only  have  resorted  to  the  harsher  expedient  just  men- 
 tioned, and  in  so  doing  would  not  have  acted  un- 
 justly. Should  I  make  use  of  the  term  extirpation,  in 
 a  more  general  sense,  to  denote  both,  the  reader  will, 
 perhaps,  be  the  more  inclined  to  excuse  me,  because 
 I  have  been  accustomed  to  do  so  in  the  course  of  the 
 preceding  work. 
 
 The  person,  then,  against  whom  I  cannot  be  secure, 
 
Our  Right  to  Security  in  a  State  of  Nature,  §c.     42$ 
 
 I  should,  in  a  state  of  nature,  have  it  in  my  power  to 
 put  to  death.  I  am  not  bound  to  submit  to  injuries, 
 nor  yet  to  live  continually  in  a  state  of  well-founded 
 alarm  ;  but  have  a  right  to  procure  security  to  myself; 
 and,  the  person,  in  whose  neighbourhood  I  cannot 
 obtain  it,  I  may  lawfully  drive  away  or  destroy.  He 
 lias  himself  only  to  blame,  for  imposing  upon  me  the 
 necessity  of  thus  using  my  right ;  and  I  act  in  a  man- 
 ner morally  good,  if  I  chuse  the  mildest  measure  that 
 renders  my  object  attainable.  Now,  this  right,  which 
 every  individual  thus  enjoyed,  7nillions  certainly  do  not 
 lose,  merely  by  uniting  for  their  common  security  in 
 civil  society ;  they  rather  bring  all  their  individual 
 rights  along  with  them,  and  resign  them,  united,  unto 
 the  state.  And  by  the  state,  they  are  commonly  exer- 
 cised with  a  much  greater  degree  of  lenity,  than  they 
 could  be  in  a  state  of  nature,  or  than  they  can  yet  be, 
 when  we  have  occasion  to  travel  through  a  dangerous 
 forest,  and  when  suspicious  persons,  notwithstanding 
 all  our  warnings,  approach  us  so  closely,  that  we  are 
 not  secure  from  their  attempts*  This  lenity  proceeds 
 from  the  power  of  the  state  being  far  superior  to  that 
 of  delinquents,  and  from  its  having  more  means  of 
 security  against  their  outrages  :  but  it  does  not,  by 
 this  lenient  exercise  of  it,  at  all  forfeit  the  right, 
 which  so  many  thousand  individuals  brought  into  it, 
 and  resigned  into  its  hands. 
 
 It  is  chiefly  with  respect  to  incendiaries,  and  bands 
 of  thieves,  that  this  object  of  punishment  is  attended 
 to  among  us.  If  people  of  these  descriptions  remain 
 in  the  country,  we  cannot  be  in  security  ;  they  con- 
 
430  Extirpation,  to  *wkom  applicable, 
 
 tinue  their  trade,  even  though  they  be  punished  ;  and 
 what  is  still  worse,  they  train  up  their  children  to  the 
 very  same  profession  j  and  thus,  and  by  recruiting 
 their  forces  from  the  worthless  and  unfortunate  part 
 of  the  community,  they  will  always  continue  to  sub- 
 sist. Punishments,  how  exemplary  soever,  unless 
 they  at  the  same  time  clear  the  country  of  such  dan- 
 gerous people,  will  never  be  sufficient  for  its  security. 
 But  it  is  not  to  them  alone,  but  to  many  other  descrip- 
 tions of  malefactors,  such  as  the  instigators  of  rebel- 
 lions, and  to  the  incorrigible  propagators  of  unnatural 
 vices,  (Art.  CCLIX.)  that  the  punishment  of  extirpa- 
 tion may  become  necessary. 
 
 Hence  arises  the  disagreeable  necessity  of  inflicting 
 capital  punishments  upon  many  crimes,  which  wTe 
 would,  if  possible,  gladly  repress  by  gentler  means, 
 in  order  to  save  lives.  I  am  firmly  convinced,  and  I 
 have  already  observed  in  Art.  CCLXXXIL,  that 
 death  is  not  the  most  suitable  punishment  for  theft, 
 and  that  to  many  thieves  a  milder  punishment  wTould 
 be  far  more  terrific  ;  nay,  that  capital  punishment  may 
 often  serve  to  make  murderers  of  thieves,  who  would 
 otherwise  spare  the  lives  of  those  whom  they  rob.  To 
 this  part  of  our  criminal  law,  therefore,  I  am  not  par- 
 tial, but  esteem  the  Mosaic  jurisprudence  here  far 
 preferable ;  only  I  do  not  see  how  we  could  here,  in 
 Germany,  dispense  with  capital  punishments,  and  I 
 consider  some  complaints  that  are  made  concerning 
 them  as  unjust. 
 
 Society,  however,  ought  to  be  secured  against  the 
 attempts  of  those   malefactors,   to  whom    we  may 
 
Seven  different  species  of  Extirpation.         431 
 
 justly  give  credit  for  the  inclination  of  continuing  their 
 outrages  ;  and  the  means  for  this  purpose  are  the  fol- 
 lowing : 
 
 1.  The  punishment  of  death. 
 
 2.  Transportation  to  desert  islands. — (This,  how- 
 ever, would,  in  many  cases,  be  a  harder  punishment 
 than  even  death ;  and,  therefore,  its  use,  as  a  species 
 of  clemency,  does  not  properly  fall  under  our  consi- 
 deration.) 
 
 3.  Transportation  to  a  distant  colony,  which  is  to 
 be  cultivated  and  improved. 
 
 4.  Banishment  from  the  country. 
 
 5.  Perpetual  imprisonment. 
 
 6.  Selling  delinquents  into  slavery,  where  they  will 
 be  sufficiently  confined,  and  prevented  from  doing  mis- 
 chief; or,  in  lieu  of  this, 
 
 7.  Condemning  them  to  labour  at  the  fortifications, 
 and  other  public  works. 
 
 All  these  we  may,  if  we  chuse,  comprehend  under 
 the  term  extirpation.  It  is  evident  that,  where  the 
 other  expedients  are  impracticable,  wre  must,  where 
 public  security  requires  it,  have  recourse  to  death:  and 
 this  is  frequently  the  case  in  Germany,  but  in  some 
 parts  of  it  more  so  than  others.  There  are  states, 
 which  have  it  in  their  power  to  employ  the  milder 
 punishments,  and  thus  to  be  mercifully  and  economi- 
 cally sparing  of  human  life  :  but  what  is  possible  with 
 them,  will  not  answer  with  others  ;  and  this,  again,  is 
 agreeable  to  the  principle,  which  I  laid  down  in  the 
 beginning  of  the  preceding  work  j  that  all  countries 
 cannot  have  the  same  laws,  either  civil  or  criminal ; 
 but  that  these  must  differ  according  to  the  local  or 
 
432      Use  of  Slavery  impracticable  in  Germany, 
 
 accidental  circumstances  there  specified  ;  those  which, 
 are  in  one  place  good,  being,  in  another,  improper,  and 
 perhaps  ruinous.  Let  us  now,  therefore,  make  the 
 different  means  of  extirpation  here  pass  muster,  with 
 the  exception  of  the  second,  which  has  already  been 
 disposed  of;  and,  in  so  doing,  sometimes  apply  them 
 to  Germany,  and  sometimes  to  other  countries. 
 
 1.  Slavery. 
 
 It  may  be  hoped,  then,  that  we  shall  not  wish  for 
 the  re-introduction  of  slavery  here  in  Germany,  con- 
 sidering the  great  pains  that  have  been  taken,  in  those 
 countries  on  the  north  east,  which  were  gained  from 
 the  Vandals,  to  effect  its  abolition  ;  which,  if  I  mis- 
 take not,  has  taken  place  throughout  all  Prussia.     For 
 as  to  the  slavery  which  still  subsists  in  some  parts  of 
 Germany,  as  Bohemia  and  Mecklenburgh,  it  is  not  of 
 such  a  rigorous  sort,  as  to  permit  the  sale  of  a  male- 
 factor into  a  foreign  land,  in  order  to  get  rid  of  his 
 future  outrages.     The  nobleman  (for,  in  those  coun- 
 tries,  the  nobles  still  have  slaves)  would  really   no 
 more  bid  for  a  thief,  that  should  be  exposed  to  sale, 
 than  the  vintner  would  engage  a  drunkard,  who  was 
 in  his  debt,  for  a  wine-cooper,  in  order  to  pay  himself 
 by  his  work.     But  were  this  not  the  case,  and  were 
 any  benevolent   opposer   of  capital   punishments   to 
 imagine,  that  it  were  far  better  for  Germany,  that  the 
 ancient  Roman  slavery,  or  the  still  more  cruel  slavery 
 of  the  Negroes  in  the  American  colonies,  should  pre- 
 vail in  all  its  horrors,  he  would  soon  find,  that  a  very- 
 awkward  circumstance  would  render  his  plan  quite 
 
Punishment  of  Slavery  inexpedient  in  Germany,  435 
 
 fruitless  :  for  Germany  is  divided  into  such  a  number 
 of  states,  many  of  them  quite  impotent,  that  there 
 could,  in  many  places,  be  no  security  whatever  to 
 property,  by  punishing  delinquents  with  slavery.  In 
 the  smaller  principalities,  counties,  and  imperial  cities, 
 bands  of  robbers  would  liberate  them  per  force,  in 
 order  to  strengthen  their  numbers,  and  we  should  have 
 a  revival  of  those  scenes,  which  have  not  been  witnes- 
 sed now  for  many  centuries.  In  our  land,  therefore, 
 slavery  will  not  answer  as  a  punishment.  Nor  will  any 
 man,  out  of  clemency,  be  likely  to  propose  the  sale  of 
 criminals  into  Turkey  or  Barbary,  for  slaves ;  for  this 
 would  not  only  be  to  drive  them  into  a  renunciation  of 
 their  religion,  and  perhaps  too,  into  unnatural  vices  ; 
 but  it  would,  besides,  in  a  political  point  of  view,  be 
 any  thing  but  expedient,  to  add  to  the  strength  of  the 
 Turks,  or  of  the  piratical  states,  which  are  already 
 much  more  troublesome  to  our  commerce,  than  to  that 
 of  England  and  Holland,  by  sending  them  such  good 
 hands,  as  German  robbers  would  prove ;  more  espe- 
 cially, as  they  might,  if  deserters  or  disbanded  soldiers, 
 understand  something  of  the  operations  of  war.  With 
 this  plan,  therefore,  I  need,  methinks,  give  myself  no 
 farther  trouble. 
 
 2.  Banishment. 
 
 Banishment  from  the  country  is  a  common  enough 
 punishment ;  but  so  much  has  been  long  ago  said 
 against  it,  and  its  mischievous  consequences  are  so 
 well  known  from  experience,  that  we  ought  rather  to 
 think  of  its  total  abolition.     Not  merely  the  specula- 
 
 vol.  iv.  E  e 
 
434  Banishment  a  "worse  than  fruitless  Punishment. 
 
 tive  theorists,  but  even  the  practical  lawyers,  who  sat 
 as  judges  in  our  high  courts,  during  the  preceding 
 century,  expressed  their  disapprobation  of  this  punish- 
 ment, and  considered  it  as  the  worst  part  of  our  cri- 
 minal jurisprudence.  It  is  in  fact  nothing  more  than 
 an  exchange  of  pestilential  commodities,  between  con- 
 tiguous nations.  We  give  our  neighbour  our  robbers, 
 thieves,  gypsies,  and  vagabonds ;  and  he  gives  us  his 
 in  return  :  and  what  better  is  either  for  this  ?  Besides, 
 are  our  neighbours  obliged  to  receive  our  exiles  ?  Cer- 
 tainly not.  This  punishment  has  likewise,  in  most  in- 
 stances, the  bad  effect  of  deteriorating,  to  the  utmost, 
 the  moral  character  of  the  sufferer,  that  was  previous- 
 ly, perhaps,  but  a  little  corrupted  ;  for  the  exiled  thief, 
 in  a  country  where  there  is  a  well-regulated  police, 
 will  neither  get  lodging  nor  employment ;  nor  will  he 
 indeed  be  suffered  to  be  at  large,  if  it  is  once  known 
 what  he  is  ;  so  that  he  will  be  under  the  necessity  of 
 lurking  in  the  forests,  and  seeking  society  there  ;  and 
 thus,  from  having  been  guilty  of  a  single  theft,  he  will 
 first  live  by  stealing,  and  then  commence  robber.  In 
 a  word,  frequent  banishments  look  just  like  recruiting 
 the  forces  of  banditti ;  or,  if  there  are  none  such,  a 
 nursery  for  rearing  them. — Richard  the  First  of  Eng- 
 land, made  a  strange  law  during  his  crusade.  If  a 
 person  was  convicted  of  theft,  he  had  his  head  first 
 cropt  bare,  and  then  besmeared  with  melted  pitch, 
 •and  besiuck  with  feathers;  (just  such  a  punishment 
 as  what  the  Americans  call  feathering,  and  have  in- 
 flicted, or  threatened  to  inflict,  on  the  custom-house 
 officers  ;)  and  in  this  plight  he  was  set  on  shore  at 
 the  first  land  they  touched  at.    Now  this  punishment, 
 
Perpetual  Imprisonment  cruel  and  expensive.    43^ 
 
 which  we  may  denominate  Jleet-banishmcnt,  was  not 
 one  hair-breadth  less  severe  than  death ;  because  -a 
 thief,  thus  marked,  could  not  but  naturally  expect, 
 that  the  people  on  whose  coast  he  was  landed,  would 
 deprive  him  of  life  ;  and  where  it  happened  not  to  be 
 an  enemy's  country,  it  was  an  act  of  gross  injustice. 
 Nay,  to  make  even  an  enemy  a  present  of  the  thieves 
 which  the  crusaders  did  not  chuse  to  keep  themselves, 
 was  much  the  same  as  if  the  plague  had  broke  out  in 
 their  fleet,  and  they  had,  in  order  to  purify  it,  put  all 
 the  infected  on  shore  on  his  coast. 
 
 2.  Imprisonment,  and  Private  Labour. 
 
 Perpetual  Imprisonment,  in  which  the  prisoner  is 
 locked  up,  and  without  work,  also  appears  to  me  to 
 be  worse  than  death ;  and  had  I  forfeited  my  life,  I 
 certainly  should  not  thank  my  sovereign  for  his  mercy, 
 in  commuting  my  punishment  into  perpetual  confine- 
 ment. Here,  however,  others  may  think  differently, 
 and  look  upon  death  as  the  greatest  of  all  evils  ;  and 
 they  are  welcome  to  keep  their  opinion.  But,  in  my 
 mind,  this  expedient  is,  besides,  too  expensive,  when 
 thieves  are  numerous,  and  there  are,  as  at  present  in 
 Germany,  bands  of  them,  containing  some  hundred 
 individuals  ;  partly,  the  relics  of  the  late  war,  and 
 disbanded  light  troops.  For,  whence  is  a  state  to 
 draw  the  sums  necessary  for  securing  and  maintaining 
 them  ?  I  do  not  here  so  much  as  think  of  the  small 
 principalities,  which  are  often  deeply  in  debt,  and  in 
 which,  the  impracticability  of  the  measure  is  obvious 
 to  every  one  j  but  I  shall  instance  a  considerable  ter- 
 
 «  e  e  2 
 
4r56         Workhouses  for  Criminals  inexpedient. 
 
 ritory,  in  which  too  there  is  plenty  of  money,  viz, 
 Hanover.  Whence  could  the  king  of  Britain,  as 
 elector  of  Hanover,  without  heavily  burdening  his 
 subjects,  raise  money  sufficient  to  keep  some  hundreds 
 of  such  banditti  in  secure  confinement  and  mainte- 
 nance for  life  ;  most  of  them  too,  foreigners,  to  whom 
 we  are  certainly  under  no  obligation  to  give  bread  as 
 long  as  they  live,  just  because  they  steal  from  us  ? 
 The  very  securing  them  would  require  the  building 
 of  larger,  stronger,  and  healthier  prisons,  because  we 
 have  none  of  sufficient  extent ;  not  to  mention  a  cou- 
 ple of  regiments,  to  prevent  the  bands  of  robbers  from 
 setting  their  companions  at  liberty,  to  strengthen  their 
 own  force.  So  far  are  we  from  having  money  for 
 such  purposes,  that,  although  our  military  establish- 
 ment has  been  reduced,  new  taxes  must  be  granted 
 by  the  states,  in  order  to  extinguish  the  debts  con- 
 tracted in  the  preceding  war. 
 
 "  Well ;  but  work  should  be  given  to  the  prisoners : 
 "  work-houses,  and  houses  of  correction,  should  be 
 "  established,  in  which,  they  may  not  only  earn  their 
 *'  maintenance,  but  perhaps  even  yield  a  profit  to  the 
 "  country."  Certainly  this  were  highly  desirable ; 
 and  in  many  places  it  is  practised  with  advantage  on 
 a  small  scale  5  but  there  is  one  unlucky  circumstance, 
 that  in  most  countries  the  secret  has  not  yet  been  dis- 
 covered, of  establishing  work-houses,  not  for  the  poor, 
 (for  there  the  difficulty  is  less,)  but  for  large  bodies  of 
 thieves  and  malefactors,  on  such  a  plan  as  to  make 
 them  support  themselves.  They  generally  require  a 
 considerable  supply  either  from  the  founder,  or  from 
 the  court  that  sends  prisoners  to  fill  them.     Here,  it 
 
Mismanagement,  Ignorance,  §c.  Reasons  of  this.  437 
 
 is  true,  I  am  of  opinion,  that  errors  in  ceconomy,  and 
 ignorance  of  the  business,  are  often  the  causes  of  this 
 defect ;    particularly  where  the  annual  grants  are  so 
 large  as  we  find  them  for  some  of  these  institutions ;  but 
 until  we  have  more  knowledge  on  the  subject,  it  must 
 be  impossible  to  establish  a  sufficient  number  of  work- 
 houses for  all  the  thieves  and  blackguards  that  come 
 from  other  countries  "upon  us ;  and  particularly  at  the 
 end  of  a  war,  which  has  caused  a  great  corruption  of 
 morals,  and  when  those  troops,  for  whose  services  the 
 belligerent  state  has  no  longer  occasion,  are  disbanded, 
 and  must  seek  another  trade.     The  smaller  the  state 
 is,  (and  we  have,  in  Germany,  a  considerable  number 
 of  petty  principalities,   counties,   and  free  lordships, 
 not  much  larger  than  the  ancient  kingdoms  of  Greece) 
 the  greater  is  the  difficulty  here  ;  for  the  very  expense 
 of  one  single  well-kept  workhouse  often  exceeds  the 
 means  of  the  sovereign,  even  though  he  be  not  in 
 debt.     There  is  this  farther  circumstance  to  be  con- 
 sidered ;  that  if  I  establish  a  workhouse,  I  must  have 
 a  vent  for  the  work,  and  know  where  I  am  to  find 
 purchasers.     This  vent  may  perhaps  be  found  to  a 
 certain  extent;  but  if  the  number  of  prisoners  happen 
 to  increase,  there  is  a  want  of  purchasers,  and  a  loss 
 on  the  articles  manufactured:  for  it  is  here  exactly, 
 as  with  the  manufactures  of  free  people,  which  be- 
 come ruinous,  when  carried  on  to  too  great  an  extent. 
 Now  we  commonly  observe,  that  the  offenders  of  a  less 
 criminal  class,  who  are  adjudged  to  suffer  this  punish- 
 ment, are  sufficiently  numerous  to  fill  the  workhouses 
 to  the  point  which  ceconomy  limits  ;  nay,  that  they 
 cannot  all  find  accommodation  in  ihem.     In  this  case, 
 
 E  e  3 
 
438    Employment  of  Criminals  in  Public  Works, 
 
 there  remains  no  room  for  banditti  of  a  worse  descrip- 
 tion. The  consideration  of  the  most  suspicious  cir- 
 cumstance of  all,  I  mean,  the  keeping  of  hundreds  of 
 criminals  of  certain  kinds  all  together,  I  reserve,  till 
 I  have  finished  my  observations  relative  to  the  punish- 
 ment of  labouring  on  fortifications  and  other  publie 
 works,  to  which  I  now  proceed. 
 
 4.  Opera*  Publiccc. 
 
 "With  regard  then  to  employment  in  such  operw 
 publico? ;  undoubtedly  it  is  a  means  of  punishing  many 
 delinquents ;  and  while  it  secures  the  public  against 
 their  outrages,  it  at  the  same  time  spares  their  lives. 
 In  a  country  in  which  there  are  a  great  number  of 
 fortresses,  such,  for  instance,  as  France,  many  wicked 
 hands  may  be  thus  usefully  employed.  But  what  if 
 the  prince  has  no  fortresses,  or  so  few,  that,  in  order 
 to  keep  them  up,  he  has  not  occasion  for  so  many 
 Lands,  as  there  are  dangerous  offenders  to  find  em- 
 ployment for  ?  In  the  reparation  of  the  roads,  which, 
 in  Germany,  is  certainly  very  necessary,  and  would 
 be  of  great  consequence  to  the  improvement  and 
 prosperity  of  the  country,  thieves  and  robbers  could 
 not  well  be  employed  ;  for  we  have  not  just  prisons  at 
 every  way-side,  wherein  to  confine  them,  to  prevent 
 their  escape  by  night ;  and  were  we,  for  want  of  these, 
 and  from  philanthropy,  to  quarter  them  upon  the 
 peasantry,  it  would  be  necessary,  even  by  day,  to  have 
 abody  both  of  infantry  and  light  cavalry,  to  overawe 
 a  few  hundreds  of  such  road-makers,  lest  they  should 
 set  one  another  at  liberty,  or  be  so,  by  other  banditti 
 belonging  to  the  fraternity. 
 
Promiscuous  Confinement  of  Delinquents,  fyc.    439 
 
 But  we  have  yet,  as  hinted  a  little  ago,  to  notice 
 that  most  serious  objection,  affecting  imprisonment, 
 workhouses,  and  public  works  ;  which  is,  that  when, 
 besides  a  moderate  number  of  those  less  criminal 
 delinquents,  who  are  usually  adjudged  to  these  punish- 
 ments, a  greater  number  of  robbers,  incendiaries,  and 
 other  hardened  miscreants,  are,  as  is  generally  the  case, 
 kept  and  worked  along  with  them,  they  soon  make  their 
 fellow  prisoners  as  bad  as  themselves.  This  contagi- 
 ous corruption  of  morals  is  a  very  lamentable  consider- 
 ation, and  I  have  reserved  it  to  the  last,  as  a  perfect 
 answer  to  the  benevolent  system  of  amending  punish- 
 ments ;  for  its  effects  are  scarcely  to  be  prevented,  if 
 such  profligate  wretches  are  brought  into  the  houses 
 of  industry.  But  besides  this,  what  if  they  were  to 
 set  themselves,  together  with  their  corrupted  compa- 
 nions, at  liberty,  and  to  break  into  other  prisons,  in 
 order  to  strengthen  their  forces  ?  Or  what  if  even 
 the  yet  wandering  bands  of  robbers,  having  re-united 
 their  forces,  were  to  make  an  unlooked-for  attempt 
 to  liberate  their  captive  brethren,  and  to  succeed  in 
 it  ?  We  should  then  see  very  unhappy  times  indeed, 
 for  the  banditti  being  more  powerful  than  many  of 
 the  weaker  princes,  would  command  forage,  and  a 
 sure  maintenance,  and  levy  contributions  within  their 
 dominions,  and  thence,  in  parties,  carry  their  outrages 
 into  the  adjoining  territories  of  the  stronger  ;  robbing, 
 burning,  house-breaking,  &c.  In  the  North  of  Ger- 
 many, indeed,  where  more  troops  are  kept,  the  fear  of 
 such  an  outbreaking  would  not  be  so  great ;  yet  I 
 know  not  what  might  have  been  the  consequence,  even 
 in  Hanover,  if  all  the  thieves  and  robbers  that  have 
 
 J"  £  4 
 
440        Their  Liberation  difficult  in  Prussia,  fyc. 
 
 been  punished  or  expelled  since  the  year  1762,  had 
 been  locked  up  in  work-houses,  or  employed  on  the 
 fortifications  ;  whether  banditti  from  the  neighbouring 
 countries  might  not  have  unexpectedly  liberated  them, 
 and,  thus  strengthened,  have,  besides  lessening  our 
 own  security,  become  a  nuisance  to  the  smaller  states. 
 We  should,  at  any  rate,  have  been  under  the  neces- 
 sity of  sending  forth  troops  against  them,  and  that  not 
 merely  to  scour  the  forests,  or  seize  them  in  taverns, 
 but  actually  to  carry  on  a  sort  of  petty  warfare  with 
 them. — But  then,  in  the  numerous  little  states  of 
 Southern  Germany,  where  there  are  but  few  troops, 
 what  might  not  have  been  the  consequence,  if  capital 
 punishments  had  not  rid  the  empire  of  such  miscreants, 
 and  they  had  been  confined  in  prisons,  from  which 
 their  brother-banditti  could  have  so  easily  set  them  at 
 liberty  ?  The  case  is  very  different  in  the  two  power- 
 ful states  of  Eastern  Germany,  each  of  which,  even 
 in  time  of  peace,  has  an  army  on  foot,  of  more  than 
 200,000  men.  There  it  is  possible  to  spare  many 
 lives  ;  to  employ  delinquents  with  safety  on  the  forti- 
 fications ;  or  to  confine  them  in  houses  of  industry: 
 for  no  bands  of  robbers,  from  the  empire,  would  go 
 to  Berlin  or  Magdeburg,  in  order  to  liberate  them. 
 The  smaller  states  might  likewise  secure  their  safety, 
 and  certainly  would  not  purchase  it  too  dear,  by 
 throwing  themselves  at  once  into  the  protection  of 
 these  greater  powers,  as  they  would  at  last  be  obliged 
 to  do,  were  those  banditti  to  get  the  upper  hand  of 
 them. 
 
Transportation  to  distant  Colonies — America,  §c.  441 
 
 5.  'Transportation. 
 
 I  have  still  to  take  notice  of  transportation  to  dis- 
 tant countries,  which  it  is  intended  to  colonise  or  cul- 
 tivate. Any  state,  possessed  of  such  territories,  may 
 employ  them  to  excellent  purpose,  as  a  means  of  les- 
 sening the  number  of  capital  punishments  ;  and  it 
 will  do  so,  if  its  government  is  wise.  Thus  England 
 has  long  been  in  the  way  of  transporting,  to  Ame- 
 rica, ship-loads  of  delinquents,  even  such  as  had  for- 
 feited their  lives  to  the  common  laws  of  the  land,  but 
 whose  punishments  were  mitigated  by  the  king.  Only 
 the  American  colonists  have  now,  for  some  time  past, 
 strongly  deprecated  the  continuance  of  this' practice  ; 
 and,  with  some  degree  of  reason,  compared  it  to  the 
 tyrannical  assumption  of  a  right  of  making  a  necessary 
 of  a  neighbour's  court-yard.  Russia,  in  like  manner, 
 employs  for  this  purpose  the  country  of  Siberia,  which 
 is  extremely  fruitful,  and  rich  in  all  the  bounties  of 
 nature,  and  whose  only  want  is  inhabitants.  This 
 country  is  a  prison  of  infinite  extent,  but  so  perfectly 
 secure  for  those  whom  the  government  wishes  to  send 
 to  a  distance,  that  Peter  the  Great,  in  1709,  trans- 
 ported thither  the  prisoners  taken  from  the  Swedish 
 army,  which  had  been  the  terror  of  Russia,  and  of 
 other  countries  besides.  It  has  likewise  been  found 
 eminently  useful,  as  a  place  of  punishment  for  state- 
 criminals,  and  whom  it  would  otherwise  have  been 
 necessary  to  put  to  death,  for  the  security  of  the  state. 
 Since  the  reign  of  the  empress  Elizabeth,  there  is  no 
 country  in  which  capital  punishments  have  been  so 
 
 \ 
 
442  Siberia  useful  to  Russia,  as  a  place  of  Punishment. 
 
 rare  as  in  Russia  ;  and,  in  fact,  there  is  no  country,  in 
 which,  for  political  reasons,  it  is  so  necessary  to  be 
 sparing  of  men's  lives  with  the  strictest  possible  ceco- 
 norny ;  as  Sussmilch  has  demonstrated  in  part  ii.  p. 
 201,  202.  of  his  Gottlkhe  Qrdnung. 
 
 Here,  therefore,  Russia  may,  and  must  have  other 
 laws  than  are  possible  in  Germany,  and  can,  with 
 more  safety  than  any  other  state,  spare  the  lives  of 
 criminals  even  by  thousands,  in  order  to  employ  them 
 advantageously.  On  this  point,  I  would  have  expres- 
 sed myself  still  more  strongly,  if  it  had  not  been 
 stated  in  the  newspapers,  that  Siberian  prisoners  had 
 joined  in  the  late  rebellion  of  Pugatscheff,  and  thus 
 strengthened  his  forces.  Whether  this  be  true  or  not, 
 cannot,  at  this  distance,  yet  be  ascertained;  but  if  it 
 be,  it  would  form  a  suspicious  phenomenon,  and  have 
 the  effect  of  making  the  court  of  Petersburg  resort  to 
 this  expedient  in  a  more  limited  way  in  future,  and 
 under  new  legislative  provisions.  It  would  even  have 
 an  influence  on  the  code  of  laws  which  the  Empress  is 
 engaged  in  framing,  and  for  which  she  has  herself 
 thrown  out  some  excellent  ideas. — But  then,  xve  Ger- 
 mans have  not  a  Siberia,  for  which,  however,  we  may 
 be  very  thankful ;  nor  need  we  regret,  perhaps,  the 
 want  of  an  America ;  (although,  indeed,  if  we  had 
 had  one,  we  certainly  should  not  have  transported 
 our  thieves  and  banditti  to  it  since  1762  ;)  for  if  the 
 colonies  had  at  present  among  them  so  many  people 
 who  had  been  soldiers,  subalterns,  and  officers  of  light 
 troops,  their  opposition  to  the  mother  country,  which 
 they  have  already  loaded  with  a  debt  of  70  millions, 
 would  be  very  formidable.-^— Where  a  state,  then,  can- 
 
The  Avengcment  of  the  Injured.  413 
 
 not  have  recourse  to  life-sparing  punishments,  -for  the 
 security  of  the  people,  it  has  just  as  good  a  right  to 
 resort  to  capital  ones,  as  the  inhabitants  of  a  maritime 
 town  have,  to  fire  at,  and  to  sink  a  ship,  and  espe- 
 cially a  strange  ship,  infected  with  the  plague,  that 
 attempts  to  approach  their  shore,  and  will  not  sheer 
 off;  particularly  if  they  have  no  quarantine-institution. 
 In  this  case,  it  is  true,  the  law  of  self-defence,  severe 
 though  it  be,  does  not  operate  against  malefactors, 
 and  therefore  there  is  the  more  reason  to  regret  the 
 necessity  of  having  recourse  to  it  j  but  then,  our  own 
 lives  are  dearer  to  us  than  other  people's. 
 
 II.  Avengement  of  the  Injured, 
 
 II.  The  avengement  of  the  injured  is  the  second  col- 
 lateral object  which  sometimes  influences  the  deter- 
 mination of  punishments,  and  of  which  I  have  spoken 
 in  different  parts  of  the  preceding  work  ;  as,  for  in- 
 stance, in  Art.  CCXCII.  My  opinions  on  this  point 
 are  perhaps  different  from  those  of  many  readers,  and 
 even  lawyers,  who  maintain,  that  the  object  of  a,  pa?na 
 jmblica  is  not  by  any  means  to  give  a  satisfaction  to 
 the  injured  party ;  but  they  will  have  the  goodness  to 
 consider  what  I  now  offer  in  defence  of  them. 
 
 The  universal  experience  of  mankind  in  all  nations, 
 and  at  every  period  of  life,  from  earliest  infancy,  to 
 extreme  old  age,  demonstrates,  that  nature  has  im- 
 planted within  us  a  pretty  strong  propensity  to  re- 
 venge, when  we  find  ourselves  designedly  injured,  and 
 particularly  if  the  injury  be  an  insult.  This  propen- 
 sity is  so  lively,  that  we  are  apt  to  feel  a  great  degree 
 
444  Motives  to,  mid  Preventives  of,  Violent  Revenge. 
 
 of  dissatisfaction  if  we  cannot  gratify  it,  and  that, 
 even  in  spite  of  an  education  which  habituates  us, 
 from  our  childhood,  to  bear  wrongs  without  avenging 
 them.  Nay,  its  non-gratification,  if  prevented,  will 
 sometimes  induce  such  a  state  of  disquietude,  as  to 
 have  a  manifest  influence  on  our  bodily  frame,  and  to 
 break  our  sleep  ;  and,  in  many  instances,  all  the  argu- 
 ments of  philosophy  and  religion  are  only  able  to  sub- 
 due this  passion,  but  not  to  extirpate  it.  Indeed  its 
 impulse  is  almost  irresistible..  Yet  there  are,  at  the 
 same  time,  some  other  natural  propensities,  which 
 serve  so  to  moderate  its  effects,  as  that  all  the  mis- 
 chief does  not  proceed  from  it,  which  might  at  first  be 
 apprehended ;  and  where  these  interpose  their  influ- 
 ence, the  violence  of  revenge,  in  general,  completely 
 disappears.  Among  these  may  be  enumerated  pride, 
 contempt  of  an  enemy,  magnanimity,  generosity,  good- 
 heartedness,  the  pleasure  we  feel  in  our  intercourse 
 with  the  injurious  party,  and  compassion ;  but  the 
 operations  of  these  gentle  affections,  which  are  very 
 important  in  the  eyes  of  the  moralist,  it  does  not  fall 
 within  my  present  plan  to  illustrate. 
 
 Dangerous,  however,  as  the  passion  of  revenge  is, 
 when  not  under  the  controul  of  reason,  it  seems  never- 
 theless to  be  a  wise  and  necessary  gift  of  nature  to 
 man  -,  for  we  should,  without  it,  be  continually  ex- 
 posed to  injuries  from  wanton  malice,  or  from  selfish- 
 ness. Reason,  to  be  sure,  would  still  prescribe  it  as  a 
 rule,  Avenge  yourself,  in  order  to  deter  others  from  in- 
 sulting you  ;  but  then  her  decision  is  too  slow  :  for  the 
 injurious  person  has  perhaps  already  made  his  escape, 
 pr  otherwise  secured  himself  from  our  revenge;  and 
 
Revenge  keeps  us  in  mutual  awe,  $c.  443 
 
 besides,  this  cold-blooded  faculty  would  be  too  consi- 
 derate, to  have  to  combat  timidity,  and  it  would  find 
 the  hands  too  often  slack  and  reluctant.  The  natural 
 impulse,  however,  compensates  for  all  these  defects  ; 
 and  reason  has  no  need  to  exhort  us  to  revenge,  but 
 only  to  regulate  that  passion,  and  keep  it  within  the 
 bounds  of  moderation.  The  rapidity  also  with  which 
 revenge  goes  to  work,  has  the  advantage  of  being  a 
 much  more  powerful  determent  to  the  attempts  of  the 
 injurious,  than  the  tedious  procedure  which  would  re- 
 sult from  the  mere  cool  and  rational  consideration  of 
 the  propriety  or  impropriety  of  digesting  a  slap  in  the 
 face,  or  any  such  insult ;  for  the  more  quickly  that 
 the  punishment  follows  the  crime,  the  stronger  is  the 
 impression  which  it  makes  ;  and  by  the  laws  of  associ- 
 ation, if  the  offerer  of  any  such  insult  conceives  an 
 inclination  to  repeat  it,  a  repetition  of  the  chastise- 
 ment which  he  has  already  received,  will  occur  to  him 
 in  the  very  act,  as  its  sure  and  immediate  consequence. 
 Every  man  who  has  a  mind  to  injure  his  neighbour, 
 reads  even  in  his  own  heart,  that  man  is  vindictive ; 
 and  this  lessens  his  desire  of  inflicting  injuries,  be- 
 cause he  must  at  any  rate  be  afraid  lest  his  neighbour, 
 though  ever  so  good  a  Christian,  might,  in  this  parti- 
 cular instance,  be  hurried  away  to  obey  the  dictates  of 
 his  natural  passion. 
 
 By  the  jus  nature?,  properly  so  called,  and  in  so  far 
 as  it  is  to  be  discriminated  from  the  law  of  morality, 
 we  have  all,  while  in  the  state  of  nature,  a  perfect. 
 right  to  follow  the  impulse  of  revenge  ;  only  its  limits 
 are  doubtful,  as  is  the  extent  to  which  we  ought  to 
 carry  it.     To  the  question,  How  far  may  the  avenge? 
 
44-6     How  Jar  Revenge  may  lawfully  be  carried. 
 
 merit  exceed  the  offence,  and  in  what  multiplicate  ratio 
 may  it  be  repaid?  some  indeed  will  answer,  In  infini- 
 tum. But  that  morality,  of  which  it  is  a  principle  to 
 endeavour  to  promote  happiness  to  the  utmost  pos- 
 sible extent,  certainly  limits  its  operation  very  materi- 
 ally, and  says  in  effect,  Chuse  the  very  least  retaliation 
 that  will  suffice  to  answer  the  end,  for  which  nature  has 
 implanted  the  desire  of  revenge  within  you,  viz.  to  secure 
 yo  u  against  future  injuries.  Carry  your  revenge  against 
 your  neighbour  no  farther  than  you  would  think  it  just, 
 that  your  neighbour  shoidd  carry  his  against  you.  Oil 
 these  rules,  it  will  not  be  expected  that  I  should  here 
 expatiate  farther  than  to  remark,  that  the  exercise  of 
 revenge,  as  limited  by  them,  is  actually  permitted  by 
 the  laws  of  morality  >  the  province  of  which,  is  not  to 
 extirpate,  but  to  regulate,  our  passions.  And  even 
 the  Christian  religion,  where  it  dissuades  us  from  self- 
 avenge  ment,  tells  us,  that  we  ought  not  to  interfere 
 with  God,  in  his  judicial  office  ;  that  vengeance  is 
 his  ;  and  that,  if  the  person  who  has  injured  us,  does 
 not  repent  and  amend,  he  will  exercise  his  vengeance 
 upon  him,  either  in  this  world,  or  in  that  which  is  to 
 come. 
 
 Now  tins  passion,  and  this  nature,  we  all,  whether 
 savage,  or  civilized,  or  refined,  or  believers,  or  profli- 
 gates, or  virtuous,  or  regenerated,,  or  saints,  bring 
 along  with  us  into  civil  society ;  only  we  must,  on 
 our  very  entrance  into  that  state,  totally  divest  our- 
 selves of  our  natural  light  of  self-avengement.  But 
 wiiat  then  is  more  reasonable,  than  that  society  should, 
 at  least  in  cases  of  serious  and  intolerable  injuries, 
 give  us  an  equivalent  for  what  we  thus  renounce  ;  in 
 
In  Social  Life,  Avengement  belongs  to  the  State.  447 
 
 other  words,  take  upon  itself  the  duty  of  avenging 
 our  wrongs  ?  Is  it  indeed  probable  that  any  man 
 would  ever  enter  into  civil  society,  without  making 
 this  stipulation,  or  at  any  rate  expecting  to  find  it  set- 
 tled as  a  pactum  taciturn  ?  Supposing,  however,  that 
 the  state  did  not  act  thus,  but  held  this  language, 
 You  ought  not  to  be  avenged,  or  to  have  any  desire  of 
 revenge :  your  xchole  nature  should  be  regenerated ; — - 
 still  we  would  feel  that  we  are  not  yet  regenerated, 
 and  then  avenge  ourselves.  Whether  we  should  thus 
 be  good  Christians,  is  a  different  question,  with  which 
 I  have  here  nothing  to  do.  I  am  taking  the  world  as 
 it  is,  and  as  it  has  never  yet  seen  any  state  composed 
 of  none  but  downright  good  Christians,  or  rigid  ob- 
 servers of  the  purest  morality.  Should  any  sue!' 
 state  hereafter  appear,  this  Essay  of  mine  would  be 
 totally  inapplicable  to  it ;  for  it  would  have  no  occa- 
 sion at  all  for  any  punishments,  but  only  for  mere 
 precepts. — Nor  do  I  wish,  from  one  single  passage  of 
 the  Sermon  on  the  Mount,  which  is  balanced  by  so 
 many  others  in  the  Bible,  and  even  by  Christ's  own 
 example,  and  of  which  I  really  believe  we  ought  not 
 to  understand  it  literally, — to  make  it  part  of  a  good 
 Christian's  duty,  if  he  receives  a  stroke  on  the  right 
 cheek,  to  hold  up  the  left  for  a  second,  and  not  to 
 have  any  desire  of  revenge,  even  that  which  may  be 
 judicially  exercised;  because  it  appears  to  me  very 
 strange,  that  we  should  from  one  obscure  passage,  ex- 
 plain a  hundred  clear  ones,  otherwise  than  according 
 to  their  grammatical  import.  But  even  allowing  that 
 this  were  the  duty  of  Christians,  and  that  there  were 
 a  state,  of  which  all  the  members  were  true  Chris- 
 
448     Natzmer's  Reply  to  the  late  King  of  Prussia* 
 
 tians  ;  still  the  reply  here  occurs  to  me,  which  Gene" 
 ral  Field-Marshal  Von  Natzmer,  a  very  brave  man, 
 and  a  very  strict  Christian,  gave  to  the  late  king  of 
 Prussia,  when  he  asked  him,  in  a  company,  how  he 
 would  act,  if  any  one  should  call  him  out. — "  I  can- 
 "  not,"  said  he,  "  say  for  certain  beforehand.  Were 
 "  the  Christian  at  home,  he  certainly  would  not  go  ; 
 "  but  if  the  challenger  only  found  Natzmer  at  home, 
 
 "  he  might  then but  I  shall  not  say  what  would  be 
 
 "  the  consequence." — This  man  was  really  so  well 
 known,  from  the  battles  he  had  fought,  and  for  his 
 personal  valour,  that  no  one  ever  had  the  boldness  to 
 put  him  to  the  proof,  because  it  was  looked  upon  as 
 very  possible  that  Natzmer  might  be  at  home.  Many 
 others,  however,  not  quite  so  good  Christians,  would 
 do,  and  in  a  far  more  reprehensible  way,  what  he  in- 
 sinuated, if  the  state  did  not  think  of  procuring  them 
 satisfaction  ? — But  why  am  I  here  wasting  so  many 
 words  about  a  Platonic  republic,  such  as  never  yet 
 existed,  and  never  wili  ?  If  the  members  of  the  state 
 be  not  slaves,  but  free  people,  and  the  state  finds  them 
 no  satisfaction  for  their  wrongs,  (by  which  I  mean, 
 not  merely  apologies  and  pardons,  but  positive  avenge- 
 ments,)  the  infallible  consequence  will  be,  that  self- 
 avengement  will  again  begin  to  operate  anew — that 
 formidable  evil,  which  so  often  lights  upon  the  inno- 
 cent; which  is  always  the  just  object  of  suspicion; 
 and  which  aggravates  an  evil  a  thousand-fold  :  first, 
 by  the  injured  party  seeking  ten-fold  vengeance,  and 
 then  by  the  first  aggressor  seeking  ten-fold  vengeance 
 again  ;  and  thus  causing  a  perpetual  succession  of 
 alternate  injuries  for  a  long  series  of  years.     If,  there- 
 
In  "what  cases  Revenge  is  to  be  regulated  by  Laws.  449 
 
 fore,  the  legislator  wishes  to  prevent  such  a  dreadful 
 crisis,  he  must  remember,  that  it  is  not  to  patient 
 sheep,  or  to  worms  made  to  be  trod  upon,  that  he  is 
 giving  laws,  but  to  men. 
 
 We  do  not  feel  the  emotions  of  revenge  in  the  case 
 of  all  sorts  of  injuries  alike.     When  any  thing  has  been 
 stolen  from  us,  we  scarcely  feel  any  desire  of  revenge  ; 
 all  we  look  for  is  restitution  and  future  security;  unless, 
 indeed,  the  article  purloined  was  very  necessary,  or 
 we  had  put  a  pretium  qffectioms  upon  it,  or  the  thief 
 had  abused  our  confidence.     In  these  cases  we   are 
 more  ill-natured.     But  where  our  desire  of  revenge  is 
 not,  in  general,  very  keen,  the  legislator  has  no  occa- 
 sion to  regulate  his  procedure  by  it ;  for  he  is  not  to 
 be  the  executioner  of  every  sentence  which  the  in- 
 jured party  may  wish  to  inflict ;  and  the  man  who  is 
 so  extremely  vindictive,  as  to  refuse,  in  such  a  case  as 
 this,  to  sacrifice  the  privilege  of  the  state  of  nature,  to 
 those  great  advantages  of  protection  and  security  which 
 he  enjoys  in  civil  society,  may  even  leave  it ; — it  will 
 lose  nothing  by  his  departure.     In  every  case,  how- 
 ever, where  the  emotions  of  revenge  are,  not  merely 
 in  particular  individuals,  but  in  the  bulk  of  mankind, 
 so  strong,  that  self-avengement  would  become  a  com- 
 mon  evil,  unless  the  law  afforded  satisfaction  for  wrongs, 
 they  must  be  made  the  objects  of  legislative  provisions. 
 Thus,  by  the  murder  of  our  nearest  and  dearest  rela- 
 tions, our  revenge  is  roused  in  all  its  extent ;  which  is 
 really  a  most  wise  provision  of  nature,  for  the  security 
 of  human  life  :  and  hence  arises  the  practice  of  blood- 
 avengement,  together  with  those  ideas  of  honour  and 
 hhame,  which  we  find  connected  with  it  in  the  very 
 vol,  tv,  t£ 
 
4-50       The  desire  of  Revenge  often  irresistible. 
 
 earliest  ages,  in  so  many  different  climates,  and  among 
 so  many  nations  not  at  all  related  to  each  other,  and 
 who  could  not  possibly  have  borrowed  their  manners 
 from  each  other  j  for  it  subsists  among  the  Caribs  and 
 North  American  Indians,  as  well  as  among  the  Arabs 
 and  Hebrews. 
 
 Even  among  civilized  nations,  who  have  long  re- 
 nounced the  right  of  self-avengement,  and  look  upon 
 it  as  disgraceful  to  put  a  malefactor  to  death,  the  bro- 
 ther, or  father,  or  son,  of  a  murdered  person,  feels,  in 
 the  first  ebullitions  of  grief,  a  desire  to  avenge  his 
 blood  with  his  own  hand  -r  and  that  hand  proves,  in 
 such  a  case,  a  very  fit  instrument  of  vengeance.     I 
 had  once  an  opportunity  of  attentively  observing  the 
 conduct  of  a  brother  in  such  a  situation  as  this.     One 
 of  our  citizens  here  at  Gottingen  had  been  shot  by  an 
 arch-villain,  previously  well  known  as  a  country  thief- 
 On  hearing  this,  curiosity  carried  me  into  the  house 
 where  the  murdered  person  lay  ;  and  I  found  his  bro- 
 ther, a  strong,  resolute-looking  man,  sitting  by  his 
 corpse,  and  only  expressing  his  regret,  that  he  had  not 
 been  at  hand,  and  that  the  perpetrator  was  already  in 
 prison ;  for  if  he  had  not,  he  would  not  have  let  him  live, 
 had  he  but  got  hold  of  him.     I  observed  to  him,  that 
 the  murderer  was  not  worthy  to  die  by  his  hand,  but 
 by  the  hand  of  a  very  different  person :  and  this  ob- 
 servation he  understood  and  felt ;  but  I  saw  in  his 
 behaviour  at  the  time,-— what  I  had  before  only  form- 
 ed an  idea  of  in  my  own  mind, — an  instance  of  the 
 vindictive  emotions  which  we  feel  on  beholding  the 
 blood  of  our  relations  :  and  which  are,  no  doubt,  still 
 stronger  and  more  irresistible,  where  the  murdered 
 
Murder  of  a  Peasant  expiated  by  a  fine  in  Poland.  451 
 
 person,  instead  of  a  brother,  is  a  father  or  a  son. 
 Now,  if  we  figure  to  ourselves  a  nation  of  free  and 
 brave  men,  whose  laws  do  not  punish  murder  in  such 
 a  way,  as  to  give  satisfaction  to  injured  relations,  but 
 too  slightly,  as  in  Poland,  where  a  nobleman  can,  by 
 the  mere  fine  of,  if  I  mistake  not,  a  hundred  guldens, 
 expiate  the  murder  of  any  of  his  subjects,  what  will  be 
 the  consequence  ?  In  process  of  time  it  will,  in  all  pro- 
 bability, either  be  the  complete  re-establishment  of  the 
 ancient  Goel,  described  in  Art.  CXXXI, — CXXXIV., 
 with  all  his  rights ;  or  else  an  exchange  of  blood- 
 avengement  for  duels,  in  which  one  of  the  parties 
 must  fall,  and  which  will  never  cease,  till  a  kinsman 
 of  the  murdered  has  killed  the  murderer;  but  first  of 
 all,  it  will  be  this ;  that  the  injured  father,  son,  or 
 brother,  as  they  can  obtain  no  legal  avengement,  will 
 take  the  first  opportunity  of  killing  the  murderer  ; 
 for  which  they  will,  of  course,  get  off  with  the  same 
 easy  punishment  which  he  did :  for  it  would  be  ab- 
 surd to  punish  the  persons,  who  only  continue  and 
 repeat  the  aggression,  more  severely  than  him  who 
 first  began  it.  Were,  however,  a  barbarous  legislator 
 to  act  thus,  and  to  inflict  a  capital  punishment  on  the 
 retaliation  of  a  murder,  while  on  the  murder  itself  he 
 inflicted  but  the  punishment  of  a  fine,  every  person 
 thus  aggrieved,  who  had  any  spirit,  and  had  not  too 
 deep  a  stake  in  the  country,  would,  rather  than  stay 
 in  a  country,  where  only  the  first  aggressor  had  such 
 an  absurd  privilege,  resolve  to  embrace  the  first  op- 
 portunity of  taking  effectual  revenge  at  his  own  hand, 
 and  then  to  make  his  escape.  In  Poland,  it  is  trues 
 these  effects  are  not  observed  to  take  place  >  but  the 
 
 f  f  2 
 
A-'yi  Murderers  should  never  be  pardoned. 
 
 reason  is,  that  the  subjects  of  the  noblesse  there  are 
 slaves,  and  obliged,  from  their  earliest  youth,  to  sub- 
 rait  to  sufferings  with  patience. 
 
 It  appears,  therefore,  that  death  should  be  the  re- 
 gular punishment  of  murder  ;  not  so  much,  however, 
 on  account  of  the  law  in  Gen.  ix.  6.  (which  does  not 
 concern  us,  and  which  only  allowed,  or  rather  enjoin- 
 ed, the  first  race  of  men,  while  yet  in  a  state  of  nature, 
 and  without  any  common  weal,  to  avenge  blood,  for 
 the  security  of  their  lives,)    as,  in  order  to  prevent 
 greater  misery,  and  blood-avengement  by  relations, 
 from  which  the  most  mischievous  consequences  may 
 ensue.    (Art.  CXXXIII.)    The  propriety,  likewise,  of 
 ever  granting  a  pardon  to  a  real  murderer  seems  to  be 
 very  doubtful ;  or,  at  any  rate,  it  ought  not  to  be  done, 
 without  the  most  urgent  reason.     A  right  of  pardon, 
 no  doubt,  there  must  be  somewhere  in  every  state  ; 
 and  it  is  always  better  in  the  hands  of  one  person, 
 than  of  the  people  at  large ;  (Art.  CCLXXV.)  :  but 
 the  sovereign  who  imprudently  exercises  it  in  the  case 
 of  murder,  from  mere  clemency  or  personal  favour, 
 acts  with  great  cruelty  towards  the  relations  of  the 
 murdered,  who  have  a  right  to  look  for  legal  avenge- 
 ment,  and  have,  in  that  view,  renounced  their  natu- 
 ral right  of  taking  revenge  at  their  own  hands.     For 
 it  has  somewhat  of  a  despotic  appearance,  that,  merely 
 because  a  murderer  happens  to  be  a  favourite  with 
 his  prince,  or  a  person  of  high  rank,  the  son  of  the 
 murdered  should  see  the  murderer  of  his  father  escap- 
 ing with  impunity,  or  but  slightly  punished  at  best ; 
 nor  can  he,  in  such  a  case,  but  look  upon  himself,  in 
 a  very  humiliating  light,  and  almost  as  if  he  were  a 
 
Why  George  II.  pardoned  Duellists.         453 
 
 Polish  peasant.  But  what  then,  if  he  should  venture 
 to  avenge  himself?  Ought  the  prince  to  grant  him  a 
 pardon  in  his  turn  ?  If  he  does  not,  what  becomes  of 
 that  equality  of  rights,  which  free  people,  even  those 
 of  the  lower  classes,  down  to  the  peasants,  whose 
 arms  defend  their  country,  are  entitled  to  claim  ?  In 
 the  case  of  any  popular  ferment,  one  single  injudici- 
 ous instance  of  a  reprieve  given  to  a  murderer,  may 
 endanger  the  safety  of  the  state,  and  prove  the  signal 
 for  a  general  rebellion. 
 
 That  this  doctrine  does  not  at  all  apply  to  cases, 
 where  no  one  is  aggrieved  by  a  murder,  or  where  the 
 surviving  relations  do  themselves  intercede  for  the 
 murderer,  is  obvious :  in  these  cases,  avengement  is 
 not  the  end  of  punishment,  but  only  the  determent  of 
 others.  The  case  is  the  very  same  when  a  man  falls 
 in  a  duel,  even  in  a  duel  where  it  was  previously 
 agreed,  that  one  of  the  parties  should  fall :  for  as  the 
 deceased  gave  his  own  consent  to  the  duel,  no  wrong 
 has  been  done  him,  and  the  survivors  will  not  think  of 
 revenging  his  death.  Sovereigns,  who  exercise  the 
 right  of  pardon  with  discretion,  actually  attend  to  this 
 distinction.  George  II.,  in  whose  history  it  appears 
 such  a  fine  trait,  that  he  would  not  pardon  Lord 
 Ferrers,  still  granted  pardons  to  those  who  committed 
 murder  in  duels;  and  with  the  more  justice,  because, 
 from  the  impotence  of  laws,  it  is  scarcely  possible  for 
 people  of  a  certain  class  to  avoid  duels  altogether ; 
 and  we  have  not  wounds  in  our  own  power.  The 
 nobleman  who  murders  another  in  a  duel,  may  always 
 be  pardoned,  as  long  as  we  have  no  effectual  punish- 
 
 f  f  3 
 
454  Injuries  should  be  viewed  by  Laws,  as  by  the  People. 
 
 ment  for  duelling,  but  not  so,  the  nobleman  who  mur- 
 ders a  peasant. 
 
 From  the  object  of  punishment  now  under  consider- 
 ation, flows  the  maxim  expressed  in  Art.  CCLX.  of 
 the  preceding  work  ;  that  the  law  should  view  those 
 injuries,  which  strongly  prompt  to  revenge,  particu- 
 larly if  they  be  of  the  nature  of  insults,  in  the  same 
 light,  in  which  they  appear  to  the  people.  If  it  does 
 not ;  and  among  us,  for  instance,  were  it  to  estimate 
 blows  and  lashes,  merely  by  their  physical  pain,  and 
 to  inflict  a  punishment  accordingly  ;  (which  in  many 
 other  countries,  where  no  idea  of  disgiaceis  attached 
 to  such  things,  would  be  quite  sufficient ;)  no  reason- 
 ble  man  would  ever  think  of  applying  to  a  court  for 
 redress,  but  would  always  take  revenge  at  his  own 
 hand.  Most  of  my  readers  have,  no  doubt,  been  at 
 universities,  and  are  acquainted  with  them.  Let 
 them  only,  then,  go  back  to  the  days  of  their  youth s 
 and  consider  what  the  consequences  would  have  been, 
 if  a  box  on  the  ear  had  only  been  punished  by  a  small 
 fine  ;  and  what  actually  followed  when  the  Pro-rector 
 did  not  enforce  the  established  severe  punishment. — ■ 
 What  but  endless  duels ;  for  which  the  laws,  or  the 
 judges  w7ere  alone  to  blame. — In  order  to  avoid  such 
 evils,  it  may  be  necessary,  by  reason  of  our  law  respect- 
 ing duels,  to  expel  the  authors  of  such  outrages  from  a 
 university  ;  but  where  the  point  of  honour  is  not  in- 
 sisted on  so  strictly  in  the  spirit  of  chivalry,  sharp 
 punishments  will  prove  sufficient  to  prevent  their  dan- 
 gerous consequences. 
 
 Among  us,  and  in  England,  the  punishment  of  rape 
 
Punishment  of  Rape  in  Germany  and  England.  455 
 
 is  death.  Indeed,  by  the  ancient  German  law,  this 
 crime  was  so  heinous,  that  the  cognizance  of  it  was 
 reserved  for  the  king.  In  a  physical  point  of  view, 
 however,  it  was  not,  in  the  times  when  that  law  was 
 made,  by  any  means  so  great  an  injury,  as  it  may  now 
 be '  for  the  Lues  venerea,  which  we  owe  to  America, 
 could  not  then  have  been  given  to  the  woman  ravish- 
 ed, but  at  most,  a  child.  But  by  a  people,  among 
 whom  female  virtue  is  valued,  and  where  a  woman's 
 comfort  and  happiness  through  life  depends  entirely 
 on  her  virginal  chastity,  because  no  man  has  any  de- 
 sire to  take  another's  leavings,  this  injury  must,  from 
 the  shame  which  is  attached  to  it,  be  deemed  so  enor- 
 mous, as  almost  to  exceed  death  itself:  and  in  this 
 view,  therefore,  ought  a  legislator  to  regard  it,  and  to 
 act  accordingly ;  at  least,  until  the  other  sex  alter 
 their  notions  of  honour,  and  men  become  more  con- 
 descending -, — a  period,  which  I  hope  my  native  coun- 
 try may  never  see. — Yet  geography  has  made  us  ac- 
 quainted with  nations,  whose  manners  are  totally 
 different ;  for,  in  some  countries  in  the  interior  parts 
 of  Asia,  the  people  are  so  courteous,  as  to  let  tra- 
 vellers sleep  with  their  daughters,  and  look  upon 
 this  as  but  a  piece  of  becoming  hospitality.  Some- 
 thing of  the  same  kind  takes  place  among  the  Indians 
 of  North  America  :  and  the  celebrated  William  Penn, 
 at  the  time  that  he  was  treating  with  them  for  the 
 purchase  of  Pennsylvania,  had  the  daughter  of  a  chief 
 hospitably  given  him  as  a  bed-fellow  ;  whom,  however, 
 it  is  said,  he  left  as  pure  as  he  found  her.  The  legis- 
 lator, then,  of  a  people  in  such  circumstances,  might, 
 or  rather  must,  iropose  but  a  slight  punishment  on  the 
 
 p  f  i'  * 
 
456    The  Danger  of  overstretching  Punishments. 
 
 crime  of  rape  :  for  a  severe  one  would  not  only  be 
 unnecessary,  as  a  satisfaction  to  the  aggrieved  damsel 
 herself;  but  it  would  be  unsuitable  to  the  great  end 
 of  punishment.  It  would  not  operate  at  all  in  terro- 
 re?n ;  for  among  such  a  people,  no  young  woman 
 would  ever  complain,  if  such  a  trilling  matter  were  to 
 cost  the  accused  his  life. 
 
 This  brings  me  again  to  the  maxim  stated  in  Art. 
 CCLX.,  when  treating  of  the  punishment  of  adultery  ; 
 namely,  that  if  we,  in  the  mere  view  of  deterring  from 
 any  crime,  impose  a  punishment  too  far  exceeding  the 
 utmost  desire  of  avengement,  which  is  usually  enter- 
 tained by  the  injured  party,  it  sometimes  comes  to  be 
 almost  equivalent  to  an  absolute  impunity  ;  because 
 nobody  will  complain.  Of  this  we  have  a  striking- 
 proof  in  the  case  of  the  capital  punishment,  which,  in 
 some  countries,  is  annexed  to  thefts  committed  by 
 servants,  and  which  is  often  rigorously  inflicted.  I 
 confess,  I  do  not  know  what  other  punishment  could 
 be  substituted  in  its  room  ;  for  houses  of  discipline  are 
 too  expensive,  and  banishment  has  commonly  no  other 
 effect,  than  the  total  corruption  of  the  morals  of  those 
 who  suffer  it ;  but  still  it  is  evident,  that  the  punish- 
 ment of  death  almost  gives  an  impunity  to  such  thefts  ; 
 and,  therefore,  has  a  very  opposite  effect  to  what  is 
 intended  ;  just  because  this  crime  does  not  excite  our 
 revenge,  and  we  have  sympathy  with  one  whom  we 
 know  so  well,  as  a  domestic.  I  knew  a  case,  which 
 happened  at  ZelU  where  a  servant,  having  stolen  a 
 sum  greater  than  would  have  hanged  him,  and  the 
 loss  of  which  extremely  incommoded  his  master,  con- 
 fessed his  guilt,  on  being  privately  convicted.     His 
 
Individuals  must  submit  to  the  Community.      457 
 
 master,  who  dismissed  him,  asked  no  farther  satisfac- 
 tion, than  an  acknowledgement,  under  his  hand,  that 
 he  owed  him  such  a  sum  ;  in  order  that  he  might  at  a 
 future  period  get  back  his  own  ;  and  he  gave  him  his 
 promise,  that  he  would  not  prosecute  him.  The  thief, 
 who  had  money  in  expectancy,  refused  to  give  such 
 an  acknowledgement ;  being  convinced  his  master 
 would  not  prosecute  him  at  any  rate,  because,  if  he 
 did  so,  he  could  not  possibly  save  him  from  the 
 hand  of  justice  and  the  gallows;  and  thus  the  gen- 
 tleman not  only  did  not  get  any  restitution,  but  not 
 so  much  as  even  the  promise  of  it. — This  evil  conse- 
 quence, however,  of  too  hard  a  punishment  proving 
 nothing  else  than  an  incitement  to  a  crime,  only  takes 
 place  where  there  must  be  a  complainer  ;  and  not  in 
 regard  to  such  crimes,  as  are  inquired  into  for  the 
 sake  of  justice,  and  without  any  complaint  on  the 
 part  of  the  aggrieved. 
 
 As  to  what  I  have  said  with  respect  to  the  necessity 
 of  the  law  viewing  those  injuries  that  provoke  revenge, 
 in  the  same  light  wherein  they  appear  to  the  people ; 
 I  think  it  must  be  evident,  from  the  language  I  have 
 used,  that  I  do  not  mean,  that  it  should  be  regulated 
 by  the  immoderately-vindictive  spirit  of  any  indivi- 
 dual. It  ought  to  follow  the  sense  of  the  nation  ;  at 
 any  rate,  till  it  be  able  to  effect  a  change  therein  for 
 the  better  ;  and  if  any  individual  should  happen  to  be 
 more  revengeful  than  others,  he  must  be  told,  that  the 
 laws  are  universal,  and  that  punishments  cannot  be 
 altered  according  to  the  caprice  of  individuals.  As 
 he  enjoys  public  protection,  he  must,  for  that  good, 
 forego  a  little  of  his  own  will,  and  be  satisfied  to  put 
 
458  The  Amendment  of  Delinquents, 
 
 up  with  that  revenge,  which  the  general  sense  of  the 
 nation  pronounces  to  be  sufficient.  For  his  name 
 cannot  stand  in  the  laws  in  this  manner ;  The  man  who 
 injures  Titius  shall  be  punished  tints ;  but  the  man  who 
 injures  Caius  shall  be  punished  with  greater  severity. 
 
 III.  The  Moral  Amendment  of  Delinquents. 
 
 The  moral  amendment  of  delinquents  is  the  no- 
 blest, most  benevolent,  and  at  the  same  time,  in  a 
 political  view,  the  most  desirable  secondary  object  of 
 punishments ;  but  still  it  is  nothing  more  than  a 
 secondary  object.  It  is  only  in  a  political  view  that  I 
 here  mean  to  consider  it ;  for  as  to  the  other  views 
 of  this  subject,  which  has  been  such  a  favourite  theme 
 for  the  last  ten  years,  they  have  been  so  fully  expa- 
 tiated upon  by  many  writers,  some  of  them  very  ex- 
 cellent ones,  that  nothing  has  been  left  for  me  to  add. 
 The  fate,  however,  which  generally  attends  favourite 
 doctrines,  has  attended  this  doctrine  also :  it  has  been 
 carried  too  far.  It  is  certainly  desirable,  highly  de- 
 sirable, and,  in  the  strictest  sense  of  the  term,  a  father- 
 ly wish,  that  a  punishment  should  always  amend  the 
 moral  character  of  the  sufferer  ;  but  instead  of  speak- 
 ing in  this  style,  some  have  made  the  amendment  of 
 delinquents  the  end  of  all  punishments.  In  Germany, 
 this  doctrine,  which  runs  counter  to  the  principles  of 
 every  system  of  human  jurisprudence  hitherto  framed, 
 has  not  found  so  much  patronage  among  lawyers, 
 (because  they  have  so  many  different  punishments 
 before  their  eyes,  which  have  no  such  object  in  view, 
 and  yet  are  necessary,)  as  among  a  certain  set  of  theo- 
 logians, of  a  new  way  of  thinking,  because  they  have 
 
Origin  and  Falsehood  of  this  Doctrine.        459 
 
 found  it  useful  in  combating  the  doctrine  of  the  eter- 
 nity of  hell-torments.  With  these  theologians,  how- 
 ever, I  have  here  nothing  to  do.  They  are,  indeed, 
 rather  too  irritable,  and  too  much  of  a  persecuting  spirit 
 for  me ;  much  more  so,  at  any  rate,  than  the  most 
 strictly  orthodox  divines  of  the  preceding  age ;  of 
 whose  persecuting  spirit,  however,  they  loudly  com- 
 plain ;  just  like  the  fat  Englishman,  who,  in  a  crowd, 
 within  a  small  apartment,  took  up  four  times  as  much 
 room  as  any  other  person,  and  yet  growled  horribly 
 on  account  of  the  people  squeezing  him  so  closely, 
 while  yet  every  one  of  them  required  such  a  wide 
 space  for  himself.  With  them,  therefore,  I  am  hap- 
 pily not  here  concerned,  nor  yet  with  their  opinions 
 concerning  hell-torments.  But  in  confutation  of  their 
 doctrine  repecting  amendment,  as  the  end  of  every 
 punishment,  I  have  some  remarks  to  offer,  as  follows  : 
 In  the  first  place,  then,  I  look  upon  it  as  false. — If 
 we  distinguish  between  chastisements  andpunishments, 
 the  difference,  in  my  opinion,  and  according  to  the 
 common  usage  of  the  terms,  consists  in  this  ;  that,  in 
 chastisements,  the  amendment  of  the  sufferer  is  the 
 essential  aim  ;  whereas,  in  punishments,  it  is  exam- 
 ple, and  the  determent  of  others;  and  hence  these 
 operate,  even  though  the  person  punished  should  not 
 be  made  better.  It  is  at  any  rate  evident,  that  capital 
 punishments  are  not  a  means  of  amending  delinquents, 
 (unless  we  think  fit  to  reckon  a  little  upon  their  pre- 
 vious conversion,  and  their  subsequent  amendment  in 
 another  world  !  But  what  if  they  will  not  be  con- 
 verted r)  and  yet  we  know  no  people  among  whom 
 they  are  not  used,     By  the  term  punishment t  there- 
 
460   Difference  between  Chastisement  §  Punishment. 
 
 fore,  all  mankind  understand  something  which  has  for 
 its  object,  not  properly  the  amendment  of  the  culprit 
 himself,  but  the  determent  of  others  from  the  imita- 
 tion of  his  example.  No  doubt,  some  people  deduce 
 from  this  very  definition,  an  objection  against  all 
 capital  punishments;  but  I  should  be  glad  to  see  how 
 a  company  of  these  merciful  gentlemen  would  behave, 
 if  they  were  riding,  well  armed  with  pistols,  through 
 a  forest,  and  a  band  of  robbers  approached  them  ; — 
 whether  they  would  not  cry  out,  Keep  off;  we  will  shoot 
 the  first  man  dead,  who  comes  near  us  ;  and  if,  notwith- 
 standing, any  of  the  band  had  the  courage  to  lay  hold 
 of  a  bridle,  whether  they  would  not,  from  the  impulse 
 of  self-preservation,  and  to  frighten  the  rest,  (in  other 
 words,  in  terrorem,  and  by  way  of  example,)  shoot  him 
 dead  upon  the  spot  ?  Yet  he  is  not  thereby  amended 
 m  his  morals  !  Why  then  do  they  not  rather  seize, 
 bind,  and  carry  him  home  behind  them  on  horseback  ; 
 and  there,  in  order  to  his  amendment,  consign  him  to 
 the  care  of  a  Christian  clergyman  to  instruct  him  in 
 his  catechism  ?  I  think  they  will  know  the  reason 
 themselves  ;  and  I  need  not  give  it.  What,  then,  is 
 right  for  them  to  do,  cannot  be  wrong  for  human 
 society  at  large  ;  I  mean,  to  inflict  what  are  punish- 
 ments, in  the  proper  sense  of  the  word,  without  any 
 view  to  the  amendment  of  the  sufferer. 
 
 Let  the  reader  now  suppose  himself  carried  back  to 
 an  absolute  state  of  nature,  and,  like  another  Robinson 
 Crusoe,  placed  in  a  desert  island,  only  that  he  has 
 with  him  a  wife  and  family,  among  whom  are  two  full- 
 grown  sons;  and  that  some  cattle  have  been  saved  from 
 the  wreck  of  the  ship,  and  got  on  shore*     Let  him  sup- 
 
Rights  of  Individuals  pass  to  Society.  461 
 
 pose  farther,  that,  after  some  years,  when  they  have 
 brought  a  little  land  into  cultivation,  a  set  of  canni- 
 bals, accidentally  passing  along,  should  burn  their 
 corn-fields,  carry  off  some  of  their  cattle,  and  seize 
 even  one  of  the  children,  and  roast  it ;  but  that  the 
 little  family,  by  the  advantage  of  fire-arms,  proved  at 
 last  the  stronger  party  ; — would  there  be  any  injustice, 
 after  previously  warning  the  savages  by  signs,  in  their 
 shooting  the  first  of  them  dead,  who  again  attempted 
 to  set  fire  to  the  corn,  and  signifying  to  the  rest,  that 
 they  might  all  expect  the  same  fate,  if  they  made  the 
 like  attempt ;  and,  if  this  did  not  avail,  shooting  the 
 rest  of  them  successively,  as  they  set  foot  on  shore  ; 
 and  finally,  that  the  family  might  not  have  their  secu- 
 rity interrupted  any  more,  sinking  their  canoes,  with 
 all  their  crews,  by  cannon-shot  fired  from  a  gun  that; 
 had  been  saved  from  the  wreck  ?  Our  Robinson  Cru- 
 soe wishes  to  be  secure,  and  has  a  right  to  be  so  ;  and 
 for  that  purpose,  he  may  certainly  employ  all  these 
 means  of  determent  and  destruction,  although  the 
 cannibals  are  not  one  whit  bettered  by  them.  And 
 how,  then,  comes  it  to  pass,  that  the  millions  who  live 
 in  civil  society,  have  lost  that  right  which  Robinson 
 Crusoe  enjoyed  in  his  desert  island  ? — Every  state 
 exercises  such  a  right,  even  in  war,  and  must  do  so, 
 else  it  will  become  the  prey  of  the  first  enemy  that 
 attacks  it.  To  unjust  conquerors,  or  even  to  an  Attila, 
 it  does  not  send  out  a  body  of  military  chaplains  to 
 preach  up  amendment ;  but  it  has  recourse  to  arms, 
 covers  the  field  of  battle  with  thousands  of  slain,  and 
 thus  deters  its  enemies  from  future  attempts  ;  that  is, 
 they  are  disheartened,  and  flee. 
 
462  All  good  Governments  keep  Amendment  in  view. 
 
 The  state,  or,  in  other  words,  that  greater  society 
 into  which  we  enter  for  mutual  security,  has  also  the 
 very  same  right  with  respect  to  individual  disturbers 
 of  that  security  ;  and  if  it  only  attended  to  the  main 
 design  for  which  this  union  is  established,  it  would, 
 in  punishing,  never  take  the  trouble  to  think  of  the 
 moral  amendment  of  the  punished.  But  it  exercises 
 this  right  with  great,  yea,  with  paternal  lenity,  and 
 studies  to  amend  delinquents  wherever  it  is  possible  ; 
 at  least  every  government  that  is  mild,  and  wisely 
 regulated,  does  so.     The  reasons  of  this  lenity  are, 
 
 1.  That  it  has  more  power,  and  can  thus  always 
 maintain  its  security  against  the  attempts  of  those  in- 
 dividuals, whose  amendment  it  is  endeavouring  to 
 promote.  Now  this  we  certainly  have  not  in  our 
 power  in  a  state  of  nature. 
 
 2.  That  it  regards  every  citizen  as  what  we  call  fein 
 Landeslcindj  a  child  of  the  land,  and,  as  such,  treats 
 him  with  paternal  regard,  as  long  as  it  answers  any 
 good  purpose. 
 
 3.  That  the  transgressor  of  the  laws,  may,  if  he 
 become  amended,  yet  prove  a  very  useful  citizen, 
 and  every  good  citizen  is  valuable  to  the  state. — It  is 
 obvious,  that  the  two  latter  reasons  only  apply  to  citi- 
 zens, and  not  to  foreign  robbers  or  vagabonds,  who 
 commit  crimes. 
 
 Now  where  the  state  acts  in  this  manner,  it  may  be 
 said,  in  the  stricter  sense  of  the  words,  that  it  does 
 not  properly  punish,  but  only  chastise,  and  take  upon 
 itself  the  paternal  duty  of  education.  And  happy  is 
 the  state,  and  praiseworthy  the  merciful  and  wise 
 legislator,  who  often  does  so ;  but  then  we  cannot  re* 
 
It  is,  however,  often  impracticable  and  dangerous.  463 
 
 quire  it  of  a  state,  that  it  shall  uniformly  make  use  of 
 chastisement,    and  never  of  punishment.      For  how 
 many  delinquents  are  there,  whom  it  is  not  possible 
 to  amend  ;  or  at  least,  to  amend  whom,  we  do  not 
 know  any  means  whatever  ?     To  think  of  amending  a 
 hardened  band  of  robbers,  who  were  at  the  same  time 
 incendiaries,  would  in   all  probability  be  a  vain  at- 
 tempt ;  and  so  would  it  also  be,  to  reform  the  wretch 
 who  has  become  hacknied  in  the  practice  of  unnatural 
 vices.     We  might,  to  be  sure,  shut  him  up  in  a  soli- 
 tary and  dismal  prison,  where  he  could  have  no  far- 
 ther opportunity  for  continuing  them  ;  but  then  this 
 would  not  be  an  amending  punishment.     Add  to  this, 
 the  risk,  with  which  a  multitude  of  villains,  whom  we 
 wish  to  amend,  are  kept ;  and  the  awkward  consider- 
 ation, that  the  system  of  amending  chastisements  re- 
 quires great  expense.   Now  the  state  has  a  vast  variety 
 of  expenditure  otherwise,  in  paying  judges,  support- 
 ing fortresses,  and  maintaining  armies,  &c.  &c. ;  nor 
 has  it  a  single  penny,  besides  what  the  citizens  give 
 it,  and  they  are  often  sufficiently  burdened  by  other 
 imposts.      Is  it  then  under  any   obligation  to  load 
 them  with  fresh  taxes,  in  order  that  villains  may  be 
 amended ;  that  murderers,  highwaymen,  and  incen- 
 diaries, may  (I  leave  an  empty  space  here, 
 
 which  every  one  may  fill  up  with  his  own  project  for 
 their  amendment ;  because  I  really  do  not  know  any 
 means  of  amending  the  more  profligate  among  them.) 
 ■ — In  general,  however,  it  is  not  easy  to  conceive, 
 wherefore  I,  merely  because  another  injures  me,  at- 
 tacking me,  for  instance,  on  the  highway,  or  burning 
 my  house  about  my  ears*  come  under  any  obligation 
 
464    The  Amending  System  limited  in  its  operation, 
 
 to  reform  his  morals,  particularly  where  great  expense 
 is  requisite  for  the  purpose.  What  we  can,  after  pay- 
 ing the  public  burdens,  contribute  to  the  purposes  of 
 beneficence,  belongs  injustice,  first  of  all,  to  the  poor 
 who  stand  in  need  of  our  aid ;  and  it  is  only  with  the 
 overplus,  for  which  we  find  no  occasion  in  administer- 
 ing to  their  necessities,  that  we  should  attempt  the 
 reformation  and  conversion  of  such  miscreants.' 
 
 But  I  have  not  yet  noticed  that  circumstance,  which 
 proves  the  greatest  obstacle  to  the  amending  system, 
 and  must  always  very  much  limit  its  operation.    Many 
 reforming  punishments,  indeed  some  of  the  most  effi- 
 cacious of  them,  are  of  such  a  nature,  that  though  a 
 father  may  employ  them  on  a  small  scale,  a  sovereign 
 never  can,  on  a  great.     Thus,  the  former  may  place 
 an  undutiful  son  among  soldiers,  where  a  severe  officer 
 shall  have  the  charge  of  him  ;  or,  what  is  still  better, 
 he  may,  for  punishment,  leave  the  son  who  has  enlisted 
 in  spite  of  him,  among  them,  and  let  him  live  on  hif 
 bare  pay,  without  any  farther  support ;  only  making 
 a  private  bargain  with  an  officer,  who,  for  a  gratuity, 
 becomes  his  guardian.      The  exact  regularity,  and 
 strict  obedience  maintained  in  a  regiment ;  the  ho- 
 nour of  the  military  profession  ;  the  constant  occupa- 
 tions given  to  the  soldier,  were  they  at  certain  times 
 only  to  consist  in  mounting  guard,  scouring  his  arms, 
 and  keeping  clean  his  regimentals ;  and  the  circum- 
 stance of  the  acute  punishment  of  whipping,  (which  is 
 now  almost  entirely  proscribed  in  civil  life,)    being 
 yet  inflictible  on  a  soldier,  without  affecting  his  ho- 
 nour ; — all  conspire  to  give  hope  of  that  youth  being 
 made  better  as  a  soldier,  who  might  otherwise  be 
 
Often  quite  unsuitable.  465 
 
 given  up  for  lost.     Were,  however,  the  sovereign,  or 
 the  legislator,  to  enjoin  this  means  of  reformation,  as 
 a  punishment  #,  he  would  thereby  deprive  the  military 
 profession  of  that  principle  of  honour,   which  alone 
 gives  it  its  efficacy.     In  this  way,  he  would  also  make 
 military  service  odious  and  contemptible  in  the  eyes  of 
 his  subjects  ;  and,  in  short,  be  guilty  of  the  very  same 
 error  which  those  parents  commit,  who  make  learning 
 a  punishment,  instead  of  teaching  their  children  to 
 consider   the  want   of  lessons,    and   exclusion  from 
 school  in  that  light.     Besides,  were  he  to  think  of 
 applying  this  reforming  punishment  to  thieves,   and 
 other  banditti,  how  would  his  subjects  fare,  who  should 
 be  obliged  to  quarter  soldiers  of  such  descriptions  ? 
 and  if  they  were  very  numerous,  what  would  become 
 of  the  public  security,  or  of  military  discipline  ?  In 
 fact,  the  gangs  of  banditti  chiefly  consist  of  disbanded 
 light  troops,  which,  when  a  war  is  ended,  it  is  not 
 judged  expedient  to  retain  in  service,  or  to  draft  into 
 other  regiments ;  because  their  characters  are  excep- 
 tionable.    Every  government  which  is  duly  conver- 
 
 VOL.  IV.  g  g 
 
 *•  If,  during  an  unsuccessful  war,  those  sentenced  to  imprison- 
 ment,  are  liberated,  on  condition  of  serving  as  soldiers,  this  is  not  tc 
 be  considered  as  a  punishment,  but  as  an  act  of  clemency  ;  and  its 
 design  is,  to  clear  the  country  of  them.  Something  of  this  kind  was 
 done,  during  the  war  with  the  Turks,  in  1739,  in  many  parts  of  Ger- 
 many, where  the  people  were  so  civil  to  the  Imperial  recruiting  offi- 
 cers, as  to  turn  their  prisoners  over  to  them  ;  not  sorry  to  be  freed  from 
 the  expense  of  their  maintenance.  Such  recruits,  however,  are  very 
 troublesome,  and,  if  numerous,  may  do  much  mischief;  nor  indeed 
 bad  the  Emperor  much  profit  by  them  on  that  occasion. 
 
466  The  best  amending  Punishments  the  most  dangerous. 
 
 sant  in  military  affairs,  will  endeavour  to  get  rid  of 
 snch  people,  as  soon  as  peace  takes  place,  and  will  be 
 glad  to  let  them  go  into  other  countries  ;  which  is  the 
 very  reverse  of  what  it  would  do,  if,  after  having  been 
 among  banditti,  and  had  access  to  their  instructions,  it 
 were  advisable  to  incorporate  such  people  with  the 
 permanent  troops.  But,  in  fact,  instead  of  becoming 
 reformed  themselves,  they  would  only  serve  to  ruin 
 the  character  of  the  whole  army. 
 
 Thus  far,  I  think,  all  my  readers  will  coincide  with 
 me  in  opinion.  I  have,  however,  as  yet  only  adverted 
 to  the  least  part  of  the  evil.  Are  we  then  anxious 
 that  the  sovereign  should  adopt  the  use  of  military 
 service,  as  a  part  of  the  reforming  system  of  punish- 
 ments ?  Let  us  consider  what  the  consequence  will  be, 
 to  those  who  commit  offences  that  merit  punishment, 
 and  yet  have  neither  inclination  nor  ability  for  mili- 
 tary service.  Shall  the  sovereign,  or,  to  speak  more 
 properly,  as  he  cannot  be  supposed  to  concern  himself 
 about  this  particular  case,  shall  the  judge,  who  may 
 possibly  be  disposed,  on  some  occasions,  to  gratify  a 
 recruiting  officer,  have  a  right  to  commute  our  legal 
 punishments  into  military  service,  under  the  pretext  of 
 reforming  such  offenders?  When  a  father  takes  this 
 method,  nobody  can  object  to  it.  But  shall  a  judge 
 or  a  prince  adopt  it  ?  They  cannot  know  any  thing 
 of  the  health  and  constitution  of  the  man  whom  they 
 adjudge  to  such  a  punishment,  or  whether  he  be  even 
 capable  of  bearing  the  fatigues  of  the  first  march. — 
 The  very  same  objection  applies  to  many  more  of  the 
 amending  punishments  ;  and  besides,  the  most  effica- 
 cious are  always  the  most  dangerous.     They  imply 
 
They  are  alt  promotive  of  Despotism.         467 
 
 and  require  the  exercise  of  a  despotic  power,  which  a 
 father  mat/  exercise  over  his  child,  without  being  apt 
 to  abuse  it,  but  which  no  one  would  approve  of  giving 
 to  sovereigns,  and  still  less  to  judges,  or  to  an  aristo- 
 cratic senate  of  nobles,  and  least  of  all  to  the  incon- 
 siderate and  passion-swayed  populace  under  a  demo- 
 cracy. Nor  can  they  be  defined  and  fixed  by  any 
 general  laws  :  for  what  may,  or  may  not,  produce 
 reformation,  must  be  regulated  by  the  personal  cir- 
 cumstances of  the  delinquent,  in  various  respects  ;  in 
 so  much,  that  many  amending  punishments  would 
 cease  to  be  such,  if  they  were  once  determined  by 
 express  laws,  and  their  object  known.  For  the  per- 
 son who  means  to  punish  upon  this  plan,  must  often 
 take  the  culprit  by  surprize  ;  and  not  allow  him  to 
 observe  what  his  drift  is ;  precisely  as  in  conducting 
 the  discipline  of  children. 
 
 The  high-flying  preachers  of  reforming  punish- 
 ments, therefore,  are,  in  fact,  preachers  of  despotism  ; 
 without  which  their  scheme  is  impracticable.  They 
 are  so,  I  believe,  without  knowing  it :  but  we  can  now 
 easily  account  for  the  strange  phenomenon,  that  the 
 most  zealous  advocates  of  this  doctrine  belong  to 
 countries,  whose  constitution  has  a  tendency  to  des- 
 potism ;  and  that  wre  hear  but  very  little  of  it  in 
 England.  It  would  seem,  as  if  they  founded  it,  in 
 some  degree,  on  those  despotic  principles,  which  have 
 been  current  among  them  from  their  youth  ;  and  left 
 a  discretionary  right  somexvhere,  of  altering  punish- 
 ments in  such  a  manner,  as  to  make  them  best  answer 
 their  benevolent  end  ; — a  right,  however,  which  a 
 person  unaccustomed  to  despotism,  would  not  wish  to 
 
 g  g  2 
 
468  One  Distinction  between  Subjects  and  Strangers* 
 
 see  in  the  hands  of  a  sovereign,  and  still  less  in  those 
 of  inferior  judges. 
 
 In  a  word,  so  many  difficulties  interfere,  to  prevent 
 punishments  from  effecting  reformation,  except  in  a 
 very  few  cases,  that  we  must  be  satisfied,  if  we  can 
 only  make  them  atlain  their  great  end  of  deterring 
 others  from  crimes. 
 
 PART  III. 
 
 MISCELLANEOUS  OBSERVATIONS. 
 
 &  On  the  Distinctions  to  be  made  between  Citizens  and 
 Strangers^  in  relation  to  Punishments. 
 
 In  applying  what  has  been  said  concerning  the  ends 
 of  punishments,  and  the  consequent  determination  of 
 their  kinds  and  magnitude,  we  must  make  more  than 
 one  distinction  between  subjects  and  strafigers.  By 
 the  latter,  I  here  understand,  not  those  foreigners, 
 who  have  settled  among  us,  and  committed  themselves 
 to  our  protection  ;  not  that  description  of  persons 
 called  strangers  in  the  Mosaic  law ;  but  those  who  are 
 altogether  strange  to  us  ;  such,  for  instance,  as  fo- 
 reign vagabonds,  thieves,  incendaries,  pirates,  and  other 
 miscreants,  who  have  either  voluntarily,  or  in  conse- 
 quence of  banishment  from  home,  come  into  our 
 country.  I  must  also  observe,  as  a  further  limitation, 
 that  in  Germany  that  person  cannot  be  regarded  as 
 a'  perfect  stranger,  who,  though  he  comes  from  the 
 dominions  of  a  different  prince,  is  still  a  German  -v 
 because  all  Germany  is  connected  together  as  one 
 iarge  state,  comprehending  numerous  smaller  ones  \ 
 all  consisting  of  one  and  the  same  people.     Of  the 
 
The  Banishment  of  Foreign  Delinquents  allowable.  469 
 
 following  remarks,  some,  but  not  all,  are  applicable 
 to  persons  of  this  description. 
 
 In  the  first  place,  then,  the  plan  of  moral 
 amendment,  as  an  end  of  punishment,  when  it  re- 
 quires expence,  or  is  attended  with  danger,  does  not 
 extend  to  strangers  ;  at  least  no  farther,  than  as  we 
 wish  well  to  every  man,  with  whom  we  have  in  other 
 respects  no  concern :  for  what  we  do  to  our  fellow 
 subjects,  who  have  hitherto  contributed  to  the  re- 
 venues of  the  state,  we  are  under  no  obligation  of 
 doing  to  other  people.  Suppose,  that  we  bordered  on 
 a  country,  where  theft  and  robbing  were  in  vogue  ; 
 on  a  certain  part  of  Germany,  for  instance,  in  which, 
 owing  to  the  fault  of  their  bad  education,  most  of  the 
 people  are  accustomed  to  stealing ;  it  certainly  would 
 not  be  incumbent  on  us  to  establish  houses  of  disci- 
 pline, for  the  ill-educated  subjects  of  another  country, 
 "which  contributes  nothing  to  our  public  expences ; 
 we  would  have  a  right  to  recur  to  a  punishment  of  a 
 different  kind :  and  still  more  so,  in  the  case  of  our 
 coasts  being  infested  by  foreign  pirates.  The  refor- 
 mation of  mankind  at  large,  we  cannot  undertake ; 
 we  shall  find  enough  to  do  in  that  way  with  those  of 
 our  own  countrymen,  to  whose  crimes  amending 
 punishments  are  applicable. 
 
 On  the  contrary,  we  are  more  frequently  actuated 
 by  the  desire  of  extirpating  foreign  delinquents,  and  so 
 delivering  the  country  from  a  very  grievous  evil. 
 And  much  as  there  is  to  be  said  against  banishment 
 in  other  cases,  no  one  would  censure  us  for  expelling 
 strangers,  who  have  not  committed  capital  crimes, 
 if  only  we  did  not  send  them  in  upon  our  innocent 
 
 g  g  3 
 
470  A  case  supposed. 
 
 neighbours,  who  live  in  terms  of  amity  with  us,  and 
 who  certainly  are  under  no  obligation  whatever  to  re- 
 ceive them.     It  would  be  best,  if  we  could  always  send 
 them  back  to  their  native  countries  ;  but  were  we  even 
 to  transport  them  by  ship-loads  to  a  strange  and  hostile 
 coast,  this  would  not  be  what  Richard  the  First  did  ; 
 for  the  thieves  whom  he  thus  treated  were  his  sub- 
 jects,   and  he   landed   them   not   merely  on  hostile 
 shores,  but  on  every  coast  indiscriminately,      This 
 principle  goes  so  far,  that  we  prohibit  all  such  stran- 
 gers, (among  whom  many  are  suspicious  people  and 
 blackguards,  such,  for  instance,  as  gipsies,)  whether 
 innocent  or  guilty,  from   coming  into  our  country, 
 under  severe  penalties ;  because  they  have  no  right 
 to  be  there,  and  we  have  a  right  to  place  ourselves  in 
 a  state  of  safety.     What  I  now  state,  is  nothing  more 
 than  the  law  that  is  actually  in  use.     We  may,  how- 
 ever, go  still  farther,  and  recur  to  that  more  severe 
 sort  of  extirpation,  death  ;  only  not  a  painful  or  igno- 
 minious death,  unless  when  the  nature  and  enormity 
 of  the  crime  authorise  it. 
 
 This  will  be  best  illustrated  by  supposing  the  case 
 of  a  ship  cruising  about  at  sea,  on  board  of  which  the 
 plague  has  broken  out.  If  the  crew  wish  to  land  on 
 their  own  shore,  it  were  certainly  very  cruel,  abso- 
 lutely to  deny  them  access  to  it,  and  leave  them  to 
 despair,  in  which  they  will  attempt  any  thing.  Nothing 
 could  excuse  such  cruelty,  except  the  total  want  of 
 the  means  of  keeping  them  under  such  restraints, 
 as  that  they  might  not  spread  the  disorder  through 
 the  country ;  but  indeed,  a  state  which  carries  on 
 maritime  commerce,  ought  always  to  have  lazarettos. 
 
Another  distinction  between  Strangers  and  Citizens.  47 1 
 
 and  places  for  performing  quarantine,  established 
 somewhere  on  its  shores.  Thus  driven  from  theii 
 native  coast,  were  the  crew  to  attempt  landing  on 
 any  other  shore,  where  would  be  the  obligation  upon 
 the  inhabitants,  to  permit  them  to  do  so  ?  or  if,  in 
 spite  of  all  warning,  they  persisted  in  the  attempt, 
 and  some  actually  came  on  shore,  would  not  the  law 
 of  self-defence  justify  the  people  in  shooting  them 
 dead,  and  even  in  sinking  the  ship,  if  they  had  a  bat- 
 tery, and  she  would  not  withdraw.  In  such  a  case, 
 the  crew  are  not  to  blame  ;  they  are  only  unfortunate, 
 und  much  to  be  pitied  ;  but  then  we  are  not  bound 
 to  cure  strangers  of  the  plague,  and  thus  to  expose 
 ourselves  to  the  danger  of  infection.  Now,  the  dis- 
 tinction, in  such  a  case,  in  regard  to  medical  amend- 
 ment, between  citizens  and  strangers,  holds  also  with 
 respect  to  moral  reformation ;  at  least,  I  should  be 
 glad  to  know,  wherefore,  and  by  what  law  of  the 
 spiritual  priesthood,  that  should  be  a  duty  in  the  one 
 case,  which  is  not  so  in  the  other. 
 
 There  is  yet  another  theoretical  and  real  distinc- 
 tion, between  strangers  and  citizens,  with  which, 
 although  in  the  present  refined  state  of  manners,  it 
 seldom  has  an  actual  influence  on  the  punishments  of 
 individuals,  we  must  nevertheless  be  acquainted,  if 
 we  wish  to  philosophise  upon  them.  It  is  this  ;  that 
 we  are  apt  to  carry  our  revenge  farther,  and  with 
 greater  violence,  against  strangers,  than  against  citi- 
 zens and  subjects.  Had  the  Portuguese,  or  the 
 French,  or  the  Spaniards,  done  such  things  as  are  at 
 present  going  on  in  the  American  colonies  ;  had  they 
 boarded  English  ships,  and  thrown  their  cargoes  into 
 
 c  g  4 
 
472  Case  of  America  and  England. 
 
 the  sea,  and  compelled  their  owners  to  set  them  on 
 fire,  if  they  wished  to  escape  being  put  to  death  ;  and, 
 after  wantonly  dipping  some  Englishmen  in  tar,  and 
 then  rolling  them  ampng  feathers,  sent  them  in  that 
 plight  home  to  England,  and  threatened  to  do  the 
 same  to  more ;  all  England  would  have  been  trans- 
 ported with  the  desire  of  revenge,  and  so  furious  to 
 rush  into  a  war  of  vengeance,  that  the  king,  however 
 reluctant  to  unsheath  the  sword,  would  have  been  com- 
 pelled to  yield  to  the  wish  of  the  nation,  in  order  to  pre- 
 vent internal  commotions  ;  and  I  should  be  glad  to  see 
 the  minister,  who,  in  such  a  case,  would  have  had  the 
 courage  to  declare  himself  hostile  to  a  war.  Whether 
 by  such  a  war,  the  innocent  would  not  be  punished  with 
 the  guilty;  whether  the  English  themselves  had  not,  in 
 this  instance,  been  somewhat  to  blame,  or  might  not, 
 at  least  have  arrogated  questionable  rights,  would,  by 
 no  means,  be  the  question.  George  the  Second  had 
 always  his  doubts  with  regard  to  Jenkins9  celebrated 
 ears,  and  thought  it  very  likely,  that  the  English  might 
 not,  on  that  occasion,  have  had  clean  hands  with  res- 
 pect to  the  Spaniards  ;  and  yet  he  was  then,  much 
 against  his  will,  compelled  to  declare  war  against 
 Spain;  as  he  was  in  1756,  in  like  manner,  against 
 France.  In  the  present  case,  however,  the  English 
 think  differently,  because  the  authors  of  the  above 
 outrages  are  their  fellow  subjects  ;  for  such  certainly 
 we  may  term  those,  who  demand  protection  from 
 England  as  her  duty,  and  for  whose  sake  alone  she 
 carried  on  the  late  war,  and  was  obliged  to  load  her- 
 self with  seventy  millions  of  debt.  That  the  majority 
 of  the  people  in  London,  together  with  the  opposition;, 
 
Strangers  now  as  mildly  dealt  with  as  Citizens.    473 
 
 are  in  favour  of  the  Americans,  I  do  not  here  take  into 
 account,  because  the  reasons  of  this  are  well  known  ; 
 but  the  bulk  of  the  people,  who  are  against  them,  and 
 insist  on  satisfaction  for  their  outrages,  together  with 
 their  recognizance  of  the  rights  of  Britain,  still  mani- 
 fest great  moderation  and  coolness.  And  why  ?  Just 
 because  they  are  their  fellow  subjects  ! 
 
 Farther ;  in  the  state  of  nature,  much  severer  pu- 
 nishments are  resorted  to,  in  terrorem,  than  those  or- 
 dained by  express  laws  usually  are.  In  the  case  of  a 
 citizen,  we  have  no  right  to  go  beyond  the  punish- 
 ment prescribed  by  law ;  for  the  law  is  here  the  com- 
 pact entered  into  betwixt  him  and  society,  as  to  the 
 quantum  of  punishment  which  the  latter  shall  be  entitled 
 to  inflict,  and  the  former  bound  to  suffer.  But  to  en- 
 tire strangers,  who  are  not  under  our  laws,  we  have  a 
 right  to  act,  as  enemies,  and  to  subject  them,  with  a 
 view  to  the  determent  of  others,  to  all  that  severity  of 
 punishment,  which  is  authorised  by  the  rigour  of  the 
 law  of  nature.  This  extreme  severity,  however,  we 
 do  not  now  exercise  towards  strangers,  but  really  con- 
 sider them  as  living  under  our  own  laws,  and  as  not 
 punishable  beyond  the  extent  therein  prescribed,  when 
 they  happen  to  commit  crimes  within  our  land.  This 
 is  merciful  and  noble ;  nor  would  we  ourselves  wish, 
 that  other  nations  should  proceed  against  us,  or  our 
 countrymen,  with  all  the  severity  which  the  law  of 
 nature  permits.  Such,  indeed,  were  not  the  senti- 
 ments and  conduct  of  ancient  nations  ;  but  the  ex- 
 tension of  commerce,  together  with  much  intercourse 
 by  travelling,  and  the  decreased  violence  of  patriot- 
 ism, have  added-much  to  the  mildness  of  men's  man- 
 
474  Infliction  of  Pwiishment,  whether  speedy  or  slow  ? 
 
 tiers,  and  made  the  whole  human  race  much  more 
 like  one  people  in  this  respect,  than  they  were  in  an- 
 cient  times. 
 
 II.  On  the  Comparative  Expediency  of  Summary  and 
 Deliberate  Infliction  of  Punishment. 
 
 I  must  now  take  notice  of  the  following  conflict 
 that  takes  place  between  wisdom  and  clemency  on 
 the  one  hand,  and  prudent  caution,  with  respect  to 
 the  danger  of  punishing  the  innocent,  on  the  other. — 
 Speedy  punishments  are  the  most  efficacious,  both  for 
 the  determent  of  others  from  the  like  crimes,  and  for 
 the  moral  amendment  of  delinquents.  They  involve, 
 at  the  same  time,  a  less  degree  of  evil ;  because  the 
 man  who  long  waits  for  his  punishment,  feels  it  pre- 
 viously, in  imagination,  a  hundred  times  repeated ; 
 and  if  it  be  a  painful  one,  when  the  time  of  suffering 
 it  at  length  comes,  his  whole  frame,  racked  by  its 
 long  anticipation,  is  prepared  to  feel  in  it  all  the  in- 
 tensity of  torture. — "  Why  not  then,"  it  will  be  said, 
 "  let  punishment,  in  all  cases,  follow  condemnation  as 
 "  quickly  as  possible." — Very  proper,  no  doubt ;  but 
 then  may  not  the  innocent  suffer  on  this  plan  ;  and 
 particularly  where  a  judge  happens  to  be  deficient  in 
 the  requisite  penetration,  or  to  decide  by  the  influence 
 of  passion  ?  And  if,  in  consequence  of  apparent  guilt, 
 a  man  has  had  his  natural  head  taken  off,  what  will  it 
 avail  him,  if  it  be  afterwards  found  that  he  was  inno- 
 cent, to  have  a  head  in  effigie  clapt  upon  his  shoul- 
 ders ?  Now,  by  slow  and  deliberate  procedure,  both 
 in  the  administration  of  justice,  and  in  the  execution 
 
Vindication  of  Capital  Punishments.  475 
 
 of  punishments,  this  great  evil  is  powerfully  guarded 
 against ;  nor  can  even  the  most  maliciously-inclined 
 judge  be  likely,  by  our  form  of  process,  to  punish  an  in- 
 nocent man,  at  least  without  the  greatest  risk  to  him- 
 self; and,  indeed,  that  any  innocent  man  should,  in  Ger- 
 many, lose  his  life,  is  next  to  impossible.     In  respect  to 
 the  point  in  question,  the  modern  world  is  thus  situated. 
 In  the  East,  speedypunishment  still  prevails:  in  Europe, 
 it  is  the  reverse.     The  ancient  infancy  of  nations  was 
 more  partial  to  summary  justice  ;  modern  times,  and, 
 as  it  were,  the  mature  age  of  nations,   to  deliberate 
 procedure :   and  thus  much  may  be  said  in  general, 
 that  the  more  patriarchal  the  government  is,  and  the 
 more  the  state  resembles  one  great  family,  and  such 
 as  one  honest  man  can  superintend,  as  a  father,  un- 
 likely to  do  injustice  to  any  of  his  children  ;  the  more 
 suitable  are  speedy  punishments  to  it :  whereas,  when 
 it  increases  to  an  extent,  wherein  such  a  style  of  super- 
 intendence is  impracticable,  the  more  dangerous  do 
 they  become  to  innocence.     And  here,  likewise,  there 
 is   a   distinction   between    capital    punishments    and 
 others.     In  the  case  of  the  latter,   some  satisfaction 
 may  be  made  to  a  person  who  has  been  found  to  have 
 suffered  unjustly;  nay,  the  harm  done  him  may  be 
 fully  repaired ;  but  in  the  case  of  capital  punishment, 
 this  is  impossible.     Calas  himself  still  remains  dead  ; 
 and  it  is  only  to  his  family  that  any  atonement  can 
 be  made  for  his  murdered  innocence. 
 
 III.  On  the  Abolition  of  Capital  Punishments. 
 
 In  these  later  times,  numerous  objections  have  been 
 made  against  capital  punishments  in  general  ;    and 
 
476  Abrogation  of  Capital  Punishments- — if  Clemency  ? 
 
 sovereigns  have  sometimes  hesitated  to  subscribe  war- 
 rants for  execution.  And  thus  far,  at  any  rate,  these 
 objections  and  doubts  are  just ;  that  we  ought  never 
 to  be  profuse  of  such  punishments,  but  rather  to  use 
 them,  exactly  as  physicians  do  strong  poisons,  with 
 the  greatest  possible  caution  and  reserve.  This  I 
 need  not  repeat ;  for  enough  has  been  said  about  it 
 by  others.  But,  after  all,  capital  punishments  can 
 never  be  entirely  proscribed.  If  the  security  of  Rus- 
 sia is  to  be  maintained  in  future,  Pugatscheff  must  not 
 be  suffered  to  live. — I  have  already  made  various  ob- 
 servations to  this  effect ;  but  the  following  remarks 
 yet  remain  to  be  offered. 
 
 A  great  deal  has  been  said  about  the  clemency  of 
 abrogating  capital  punishments,  and  substituting  others 
 in  their  room.  The  sovereign  who  has  abolished  them, 
 is  represented  as  truly  humane  and  gracious ;  and  a 
 sovereign,  possessed  of  unlimited  power,  might  there- 
 by be  impelled  entirely  to  prohibit  the  use  of  them. 
 But  would  this,  after  all,  be,  in  every  case,  real  cle- 
 mency ?  Might  not  the  change  of  capital  punishments 
 into  others,  sometimes  prove  cruelty, — the  very  ex- 
 treme of  cruelty  ?  Is  that  death,  which  we  have  all 
 one  day  to  expect,  and  which,  in  many  diseases,  and 
 to  the  soldier  in  the  field  of  battle,  approaches  so 
 nearly,  an  object  so  very  terrific  ?  Are  not  perpetual 
 imprisonment,  (which,  by  being  commonly  in  an  un- 
 wholesome place,  becomes  a  sort  of  torture,)  and  con- 
 demnation to  unwholesome  labours,  with  which,  be- 
 sides, infamy  is  connected,  really  worse  evils  than 
 death  ?  Who,  that  is  of  any  rank,  or  has  any  sense  of 
 honour,  will  not  rather  chuse  to  lose  his  head  at  once, 
 
Many  Funishments  worse  than  Death.         477 
 
 than  go  about  every  day  chained  to  a  wheel-barrow, 
 in  that  very  city,  where  the  eyes  of  thousands,  to 
 whom  he  is  known,  are  upon  him  ?  As  to  those  un- 
 wholesome kinds  of  labour,  to  which  criminals  are 
 subjected,  and  which  occasion  tedious  and  torturous 
 diseases ;  I  do  not  merely  allude  to  working  in  un- 
 wholesome mines,  but  what,  to  people  otherwise 
 brought  up,  and  perhaps  of  delicate  constitutions,  is 
 equally  irksome,  working  in  the  wet,  and  with  cold 
 feet ;  the  certain  effect  of  which  is,  the  total  ruin  of 
 health,  together  with  gout,  and  other  painful  diseases. 
 And  must  not  condemnation  to  the  gallies  be  worse 
 than  death  ?  Or  suppose,  that  a  man  had  his  choice 
 of  death,  on  the  one  hand,  and,  on  the  other,  of  the 
 Russian  punishment  of  the  knout,  together  with  exci- 
 sion of  his  tongue,  and  the  slitting  of  his  nose,  where- 
 by he  would,  during  his  whole  life,  be  rendered  miser- 
 able, as  an  object  of  hideous  disgust  to  himself,  and, 
 at  the  same  tim£,  branded  as  infamous  in  the  sight  of 
 others ;  which  of  the  two  would  he  be  likely  to  pre- 
 fer ?  No  doubt,  men  will  feel  and  appreciate  such 
 evils  very  differently.  The  poltroon  and  the  slave 
 will  regard  them  in  a  very  different  light  from  the 
 man  who  is  free,  who  can  look  death  in  the  face,  and 
 could  not  bear  the  thought  of  living  without  honour. 
 But  thus  much,  at  any  rate,  is  certain,  that,  to  some 
 people,  death  will  appear  a  much  less  formidable  ob- 
 ject than  such  punishments. 
 
 Hitherto  I  have  mentioned  only  common  punish- 
 ments: but  there  are  also  others  more  ingenious,  which, 
 without  the  infliction  of  any  pain,  may  become  much 
 more  severe  than  death  j  and  the  vindictive  despot,  who 
 
473  Inconsistency  of  abolishing  Capital  Punishments,  cjc. 
 
 has  a  right  knowledge  of  the  human  heart,  with  all  its 
 feelings,  and  all  the  nerves,  as  it  were,  of  the  human 
 soul,  will  not  punish  capitally,  but,  by  prolonging  the 
 agonies  of  his  victims,  make  them  feel  his  vengeance 
 in  the  most  acute  and  sensible  manner.  In  such 
 cases,  therefore,  I  would  not  be  disposed  to  use  the 
 term  clemency  ;  because  I  very  much  doubt,  whether 
 there  be  any  clemency  in  commuting  easy  capital 
 punishments,  into  such  corporal  ones  as  are  both  te- 
 dious and  ignominious. 
 
 It  likewise  appears  to  me  very  strange,  that  a  sove- 
 reign should,  from  a  principle  of  clemency,  give  up 
 the  infliction  of  capital  punishments,  and  yet  carry 
 on,  without  the  least  remorse,  a  war  of  vengeance,  in 
 which  men  shall  lose  their  lives  by  thousands,  and 
 hundreds  of  thousands  ;  and  yet  in  such  wars  he  must 
 sometimes  embark,  if  he  wishes  to  maintain  the  secu- 
 rity of  his  subjects.  It  were,  therefore,  a  very  singu- 
 lar contrast,  that  the  very  same  sovereign  should,  in 
 the  one  case,  lavish  the  lives  of  his  best  subjects  by 
 thousands,  and  yet  think  himself  bound  to  be  as  spar- 
 ing of  the  blood  of  a  single  villain,  who  had  disturbed 
 the  peace  of  the  community,  and  whose  death  might 
 be  a  salutary  example  to  others,  as  if  it  were  some- 
 thing sacred.  Would  such  a  man  be  the  clement  and 
 gracious  sovereign,  whose  conduct  our  reformers  pro- 
 pose to  regulate  by  the  aid  of  philosophy  ? 
 
 "  But  are  capital  punishments,"  I  shall  perhaps  be 
 asked,  "  allowable  by  the  law  of  nature  ?" — Indeed  I 
 do  not  see,  why  they  should  not  be  thought  so  ?  For, 
 in  that  state,  who  would  have  the  least  hesitation 
 about  dispatching  the  person  who  attacked  him,  in 
 
They  are  agreeable  to  the  Law  of  Nature.      479 
 
 order  to  preserve  his  own  life  ?  In  doing  so,  he  would 
 be  acting  literally  in  obedience  to  the  ancient  defini- 
 tion, which  calls  self-preservation,  the  law  which  nature 
 hath  taught  to  every  creature ;  for  what  animal,  fur- 
 nished with  any  offensive  weapon,  has  not  a  natural 
 desire  to  kill  its  destroyer,  if  it  cannot  otherwise  be 
 secure  ?     This  very  law,  likewise,  we  ourselves  exer- 
 cise in  war  ;  nor  could  we  exist,  if  we  did  not.   Where 
 then  can  be  the  wrong  in  doing  to  individuals,  what, 
 when  done  to  thousands,  is  held  to  be  right?    In  fact, 
 the  question,    "  Is  it  lawful   to  put   malefactors  to 
 "  death  ?"  we  should  hardly  expect  to  hear  from  an 
 European  philosopher,  but  only  from  a  Siamese  Tala- 
 poin,  who  holds  the  precept,   Thou  shall  not  kill,  with- 
 out any  limitation  *  ;  and  yet,  by  so  doing,  gives  a 
 handle  for  the  infliction  of  capital  punishments  of  the 
 most  extreme  cruelty ;  only  that  they  are  pure  from 
 bloodshed. 
 
 To  what  I  have  now  said  respecting  the  law  of 
 nature,  there  is  this  to  be  added  respecting  civil  soci- 
 ety, that  every  member  thereof  gives  it  a  right  over 
 his  life,  the  exercise  of  which  is  defined  by  the  laws. 
 — "  But,"  say  the  opponents  of  capital  punishments, 
 "  can  any  man  give  to  others  any  such  right  ?  He 
 "  did  not  give  himself  life.  Can  he  then  himself  take 
 "  it  away,  or  voluntarily  let  others  do  so  ?  He  is  not 
 "lord  of  his  life." — I  should,  however,  think,  that  he 
 really  were  so,  in  so  far  as  that  he  might  warrantably 
 expose  it  at  any  time  to  a  lesser  danger,  in  order  to  be 
 
 *  See  the  Universal  History,  part  xxiv.  §  14.  These  people  think 
 it  unlawful  to  kill  vermin,  or  even  seeds,  to  which  they  ascribe  a 
 vital  principle. 
 
480   Resignation  of  Natural  Rights  to  Society,  8$c. 
 
 secure  against  a  greater.     We  are  obliged  to  do  this, 
 in  defending  ourselves  against  any  enemy ;  and  if  we 
 do  not,  but  run  away,  (were  it  only  from  a  large  dog 
 that  has  attacked  us,)  we  only  lavish  away  our  life, 
 and  become  suicides  from  mere  cowardice.     The  case 
 here  is  this :  In  order  that  we  may,  under  the  protec- 
 tion of  others,  be  secure  of  our  own  life,  which  would, 
 in  a  state  of  nature,  be  in  continual  danger,  and  has 
 no  other  defence  than  our  own  hand,  we  enter  into 
 civil  society,  and  give  it,  in  return,  a  right  to  take 
 our  life,  whenever  we  commit  any  offence  which  the 
 law  has  made  capital ;  for  of  such  offences  it  is  cer- 
 tainly in  our  own  power  to  keep  clear.     I  should 
 therefore  think,  that  this  were  a  very  advantageous 
 bargain  for  our  life  ;  for  it  is  only  subjecting  ourselves 
 to  one  single  danger,  and  one  too  w\ich  we  may  easily 
 avoid,  for  the  advantage  of  escaping  numerous  dangers, 
 which  would  daily  and  hourly  beset  us.     Besides,  we 
 here  only  give  to  society  a  right,  which  it  before  had ; 
 for  if  we  had  disturbed  its  peace,  it  might,  even  with- 
 out our  consent,  have  put  us  to  death  as  enemies,  who 
 did  not  belong  to  it.     If  we  had  no  right  over  our 
 own  lives,  and  if  we  could  give  to  others  no  such 
 right,   neither  could  we  defend  the  state,  nor  our- 
 selves, in  war. — Upon  the  whole,  every  man  who  en- 
 ters into  civil  society,  gives  up  many  natural  rights, 
 which  he  previously  enjoyed  ;  such,  for  instance,  as 
 that  liberty  and  independence  in  which  he  is  born  ;  in 
 order  thereby  to  gain  things  of  greater  value ;  and,  in 
 like  manner,  he  gives  up  to  society,  per  pactum,  rights 
 over  his  life,  when  he  either  ventures  it  in  defence  of 
 the  state,  or  forfeits  it  by  his  crimes.     And  between 
 
Gallows,  in  England,  too  little  ignominious.     481 
 
 the  right  of  locking  a  man  up  for  life,  or  whipping 
 him,  or  cutting  off  one  of  his  limbs,  and  taking  his 
 life  at  once,  there  is  no  farther  difference,  than  between 
 a  majus  and  a  minus  :  for  if  the  state  has  no  right  to 
 take  away  life,  I  cannot  see  how  it  should  have  the 
 other  rights  now  mentioned ;  and  if  so,  then  there 
 could  be  no  such  thing  as  punishment  at  all,  that  is, 
 in  other  words,  there  could  be  no  security. 
 
 IV.  On  Punishments  affecting  Honour. 
 
 Punishments  affecting  honour  may  be  united  with 
 those  that  are  capital ;  that  is,  criminals  may  be  con- 
 demned to  deaths,  which  are  accounted  ignominious. 
 A  certain  degree  of  ignominy  should,  indeed,  be  at- 
 tached to  every  capital  punishment,  if  it  be  meant 
 that  it  should  make  any  impression.  The  want  of 
 sufficient  ignominy,  or  rather,  perhaps,  an  idea  of  the 
 honour,  attending  it,  is  the  cause,  that  in  no  country 
 does  the  gallows  groan  under  the  weight  of  so  many 
 highwaymen,  as  in  England.  There,  no  doubt,  it 
 does  all  that  good  stout  wood  can  do  ;  hanging  so 
 many  people,  that  all  our  German  gallowses  put  to- 
 gether are  absolute  idlers  compared  to  it ;  but  still, 
 it  has  very  little  effect,  because  hanging  is  not  so  ig- 
 nominious as  with  us.  On  the  contrary,  the  people  of 
 England  would  seem  to  think  it  quite  an  honourable 
 death  ;  for  they  crowd  to  executions,  to  see  if  the  cri- 
 minal dies  with  courage,  and  if  he  does  so,  he  dies 
 with  more  renown  than  many  a  hero.  Perhaps  he 
 makes  a  speech  to  the  spectators,  which  is  always 
 very  acceptable  .;  and  used  indeed  to  be  (but,  I  believe, 
 
 vol.  TV.  ti  h 
 
432  Suicide  of  a  condemned  German. 
 
 this  has  now  ceased  to  be  the  case)  a  favourite  theme 
 for  school-exercises.  It  is,  besides,  always  stated  in 
 the  newspapers,  how  criminals  die ;  and  this  is,  at 
 any  rate,  as  much  praise,  as  when,  in  any  of  our  Ger- 
 man literary  journals,  it  is  said  of  a  candidate  for 
 academical  honours,  that  he  defended  his  thesis  on 
 every  occasion,  with  the  greatest  readiness,  and  with 
 universal  approbation  ;  because  nobody,  who  knows 
 any  thing  of  our  university  practices,  believes  that 
 there  is  a  word  of  truth  in  such  commendations.  The 
 reader  of  the  English  newspapers,  however,  does  be- 
 lieve such  reports  from  Cambridge  or  Oxford,  because 
 flattering  falsehoods  with  respect  to  those  promoted  to 
 degrees,  are  not  there  allowed  to  be  printed,  for  the 
 purpose  of  either  shewing  favour  to  graduates,  or  al- 
 luring others  to  aspire  after  similar  honours. 
 
 How  little  ignominy  attends  the  gallows  in  England, 
 is  strikingly  manifested,  by  the  remarks  made  on  the 
 conduct  of  a  German,  named  Stirft,  who  was  not  long 
 ago  condemned  to  be  hanged  at  London.  He  was 
 the  son  of  respectable  parents,  his  father  being  what 
 we  call  a  Metropolitan,  or  Superintendent  of  Police  ; 
 and  having,  merely  from  too  nice  a  sense  of  honour, 
 committed  a  murder,  for  which  he  was  sentenced  to 
 the  gallows,  he  dispatched  himself  in  prison  with 
 poison.  In  the  English  papers,  there  were  various 
 observations  on  this  strange  suicide  ;  and  it  was  re- 
 marked, that  he  must  have  suffered  much  more  by  the 
 poison,  than  he  could  have  expected  from  dying  on 
 the  gallows.  Now,  of  suicide,  in  other  cases,  there  are 
 daily  examples  in  England ;  but  the  supposed  folly  of 
 it,  in  this  instance,   excited  much  wonder.      They 
 
Suicide  of  a  condemned  German.  433 
 
 little  thought,  that  dying  on  the  gallows,  which,  in 
 Germany  is  very  sparingly  used,  and  almost  exclu- 
 sively, indeed,  for  the  punishment  of  theft,  could 
 appear  more  disgraceful  to  a  German,  than  to  an 
 Englishman  ;  or  that  a  German,  not  indeed  of  high, 
 but  of  plebeian  descent,  would  account  the  bringing 
 such  a  disgrace  upon  his  family  a  much  greater  evil 
 than  any  present  torture,  however  great.  Nor,  com- 
 mon as  suicide  in  England  is,  could  they  compre- 
 hend how  Stim  had  been  such  a  fool,  as  to  save  the 
 hangman's  trouble.  They  even  moralized  on  the 
 heinous  sin  he  had  committed  ;  just  as  if  it  were  not 
 one  and  the  same  thing,  whether  the  man  who  must 
 die,  lets  himself  be  hanged,  or,  like  Socrates,  drinks  a 
 cup  of  poison. — England,  however,  will  never  be  se- 
 cure against  highwaymen,  until  the  people  are  inocu- 
 lated with  Stim's  folly ;  and  learn  to  look  upon  the 
 gallows  as  highly  disgraceful. 
 
 How  useful  soever  punishments  affecting  honour 
 may  be,  when  annexed  to  capital  punishments,  their 
 utility  becomes  extremely  questionable,  when  the  per- 
 son on  whom  they  are  inflicted  continues  to  live  ;  and 
 they  ought,  therefore,  in  reason,  to  be  used  much 
 more  cautiously  and  sparingly  than  capital  punish- 
 ments. 
 
 They  are  very  severe,  and,  indeed,  to  a  person  who 
 has  a  regard  to  his  honour,  far  more  so  than  the  loss 
 of  life.  It  is  not  enough  to  say  of  them,  that  they 
 are  only  an  apparent  evil,  and  absolutely  nothing 
 more  than  the  loss  of  an  apparent  good.  But,  allow- 
 ing that  they  were,  an  apparent  evil  may  be  a  much 
 severer  punishment  than  a  real  one.     To  see  water 
 
 Hh2 
 
484  Inexpediency  of Ignominious  Punishments,  8$e. 
 
 before  one,  or  even  a  glass  of  wine,  is  certainly  i\v 
 evil,  unless  we  imagine  it  to  be  so  -,  but  to  shew  either 
 to  a  person  who  has  been  bit  by  a  mad  dog,  is  the 
 most  intolerable  torture  to  him  ;  and,  in  like  manner, 
 other  maniacs  may,  by  the  most  insignificant  trifle,  if 
 to  them  an  object  of  terror,  be  tortured  to  such  a  de- 
 gree, that  death  would  be  mercy  in  comparison.     But 
 the  case  is  also  precisely  the  same  with  people  not  at 
 all    deranged,   if  they  only   happen  to  be    strongly 
 under  the  influence  of  error  or  prejudice.     To  lock 
 up  a  person,  afraid  of  ghosts,  in  a  prison,  or  even  in 
 the  most  genteel,  and  elegantly  furnished  apartment, 
 which  were  said  to  be  haunted  with  a  ghost,  would 
 be  a  piece  of  horrible  cruelty,  and  might  bring  on 
 epilepsy  upon  him,  and  even  make  him  die  in  the  most 
 dreadful  agonies.     As  long,  however,  as  we  are  not 
 gods,   but  so  dependent  as  we  are  upon  our  fellow 
 men,  and  their  good  opinion,   honour  is  not  a  mere 
 semblance  of  good,  but  a  real  good  ;  and,  indeed,  so 
 great  a  good,  that,  by  many,  the  loss  of  it  is  deemed 
 a  much  greater  misfortune  than  the  loss  of  life.     A 
 great  proportion  of  mankind  really  regard  it  in  this 
 light :  and  to  a  duellist,  the  loss,  not  of  all  honour, 
 but  even  of  that  part  which  he  might  forfeit  in  a  cer- 
 tain circle,  is  a  consideration  that  far  outweighs  the 
 loss  of  life.     Those,  therefore,  who  wish  to  speak  the 
 praises  of  clemency,  should  exert  their  energies,  still 
 more  to  decry  ignominious  punishments  than  capital 
 ones,     Both  are  on  a  footing  thus  far,  that  by  every 
 infliction,  a  citizen  is  lost  to  the  state,  for  the  man 
 who  is  made  infamous  is  made  useless  ;   only  there  is 
 this  difference,  that  he  who  is  punished  capitally,  is 
 
Ignominious  Punishments  blunt  the  sense  of  Honour.  48o 
 
 no  longer  a  loss ;  while  the  other,  though  lost,  must 
 either  still  be  supported,  or  allowed  to  put  forth  his 
 hand,  and  find  support  where  he  best  can. 
 
 But  ignominious  punishments  have,  besides,  this 
 farther  suspicious  effect.  If  they  be  frequent,  and 
 consist  not  in  the  total  loss  of  honour,  nor  yet  in  the 
 forfeiture  of  a  certain  pre-eminence  and  rank,  but  in 
 what  is  a  sort  of  medium  between  both,  in  affronts  or 
 indignities,  they  render  a  people  abject,  and  regardless 
 of  honour.  This  has  been  exemplified  in  our  schools ; 
 in  which,  in  the  days  of  our  fathers,  there  were  many 
 kinds  of  disgraceful  punishments  :  for  the  whole  race 
 of  the  literati,  and  all  those  who  had  the  misfor- 
 tune to  get  a  school-education,  had  then  very  impro- 
 per ideas  respecting  honour;  and,  therefore,  great 
 pains  having  been  taken  to  prohibit  these  punish- 
 ments, they  are  at  length  utterly  banished  from  our 
 schools,  and  will  continue  so,  until  some  reformer, 
 who  knows  nothing  of  the  nature  of  the  human  heart, 
 shall  introduce  them  again.  To  be  subjected  to  pub- 
 lic insults,  and  obliged  to  submit  patiently  to  deii- 
 sion  to  one's  face,  without  being  allowed  to  retaliate 
 with  either  tongue  or  hands,  is  a  method  of  educa- 
 tion only  calculated  to  make  scoundrels  or  villains. 
 
 A  farther  effect  of  such  punishments  is,  that  they 
 render  the  people  too  cunning  ;  so  that  they  soon 
 learn  to  laugh  at  any  disgrace  which  is  short  of  total 
 infamy,  and  get  far  above  all  the  shame  which  a  sen- 
 tence of  the  law  can  bring  upon  them.  Honour  and 
 disgrace  do  not  depend,  properly  speaking,  on  the 
 Jaws,  but  on  the  opinions  of  mankind.    When  the  laws 
 
 h  h  3 
 
486  Ignominious  Punishments  are  apt  to  be  disregarded. 
 
 meddle  with  them  but  sparingly,  they  may,  indeed, 
 have  it  in  their  power  to  regulate  the  to?i,  and  to  de- 
 cide what  is  honour,  and  what  disgrace  ;  but  they 
 must  proceed  with  great  caution  ;  for  if  they  come 
 too  often  in  collision  with  the  opinions  of  mankind, 
 people  will  be  so  far  from  recognizing  their  decisions, 
 that  what  is  with  them  a  mark  of  disgrace,  will  abso- 
 lutely become  an  honourable  distinction.  Were  we 
 ever  to  prohibit  duelling,  under  the  penalty  of  the 
 duellist  being  obliged,  by  way  of  disgrace,  to  wear  a 
 rope  about  his  neck  as  long  as  he  lived,  many  would 
 fight  duels,  merely  to  gain  the  insignia  of  the  order ; 
 or  were  every  unmarried  man,  who  was  not  a  pure 
 bachelor,  to  be  obliged  to  wear  one  flower  in  his  hat, 
 and  the  person  who  had  seduced  a  pretty  girl,  two; 
 there  are,  perhaps,  very  few,  who  would  chuse  to  ap- 
 pear without  these  ornaments  ;  and  their  very  num- 
 ber would  be  deemed  a  recommendation,  to  every 
 one  that  wanted  a  wife.  The  law,  therefore,  must  not, 
 in  fixing  the  boundaries  of  honour  and  disgrace,  put 
 the  faith  of  the  citizens  to  such  dangerous  proofs.  I 
 have  in  my  possession  a  most  curious  collection  of 
 university-relegation-patents,  with  which  I  sometimes 
 amuse  myself.  I  believe  it  will  be  as  agreeable  to  the 
 university  which  issued  them,  that  I  do  not  name  it. 
 It  is,  however,  in  the  decisions  of  our  university- 
 courts,  that  we  generally  meet  with  the  strangest 
 specimens  of  legislation,  and  judicial  inflictions;  and 
 such  as  are  to  be  found  nowhere  else.  In  one  of  these 
 patents,  the  Professor  of  Eloquence  relates  the  crime 
 which  occasioned  the  expulsion,  in  the  following 
 terms  :    Cerevisia  madtdi  per  civiiatis  nostra?  plateas 
 
Example  of  a  sentence  ofcxpidsionfrom  a  university.  487 
 
 districtis  gladiis  obambulantes,  virum  militarem  eximics 
 auctoritatis,  forte  for 'tuna  obvium,  nulla  data  occasione, 
 nulla  injuria  prcecedente,  oppngnastis,  convicia  ac  con- 
 tumelias  eructando,    et  ad  armorum  certamen  insano 
 ausu  provocando.     Qui  si  minore  prudenlia  fuisset  in- 
 structus,  nee  vestrum  fur  or  em  sapienter  declinasset,  fa- 
 cile profecto  potuisset  contingere,  ut  illud  temporis  mo- 
 numentum,  quo  maxime  ccepistis  desipere,  et  vobisfunes- 
 turn,  et  nostro  Lycceo  evenisset  deplorandum.     Et  is  vero 
 ab  ideiscendi  studio  alienus,  laudabili  ratione  querimo- 
 niam  ad  nos  detulit,  ratus  hoc  pacto  se  servaturum  dig- 
 nitatem, vosque  subituros  dedecus ;  and  then  follows 
 the  sentence  of  expulsion  on   one   of  the  party,  in 
 these  words,    Unanimi  concilii  nostri  decreto  statutum 
 est,  ut  tanquam  confessus  et  convictus  in  perpetuum,  in- 
 f amice  macula   notatus,  relegaretur. — A  person,   thus 
 treated,  might  very  naturally  have  taken  it  into  his 
 head,  to  pin  up  this  deed  of  relegation  cum  infamia,  in 
 his  chamber,  or  to  exhibit  it  in  rei  testimonial ;  parti- 
 cularly if  the  word  cerevisia,  had  been  altered  into 
 vino,  that  nobody  might  suppose,  that  he  had  been  of 
 such  mean  descent,  that  no  officer,  who  had  any  re- 
 gard to  his  honour,  would  have  engaged  with  him. 
 Nothing  farther  was  wanting  to  have  rendered  the 
 said  officer,  in  other  places,  an  object  of  greater  inta- 
 my  than  the  person  expelled,  than  that  the  Senatus 
 Academicus,  while  they   celebrated  his  prudence  so 
 highly,  should  have  mentioned  his  name.     "Whether 
 this  point  was  so  settled  as  we  find  it,   by  classical 
 erudition,  or  out  of  the  author's  ill-will  to  the  officer,  I 
 cannot  tell  ;  but  benevolence  almost  prompts  me  to 
 believe,  that  the  latter  was  the  case. 
 
 H  h  4 
 
488         Ignominy  makes  the  Sufferer  a  Villam. 
 
 But  the  worst  of  all  the  effects  of  true  and  complete 
 infamy,  and  what  is  so  in  the  eyes  of  the  public,  is, 
 that  it  naturally  renders  the  man  who  has  suffered  it, 
 a  perfect  villain,  and  always  the  more   perfect,   the 
 nobier  his  rank  previously  was,  and  the  greater  regard 
 he  had  to  his  honour ;  unless  he  be  at  the  same  time 
 confined  for  life.     His  bread  he  cannot  earn  in  an 
 honest  manner,  because  no  man  who  knows  him,  (and 
 often  a  brand  makes  him  but  too  well  known,)  will 
 chuse  to  have  any  thing  to  do  with  him  ;  he  is,  there- 
 fore, compelled  to  have  recourse  to  dishonest  means 
 to  get  a  livelihood.     The  great  band  of  honour,  which 
 keeps  the  most  wicked  men,  and  such  even  as  have  no 
 religion,  dependent  upon  mankind  at  large,  is  thus 
 burst  for  ever ;    he  has  nothing  more  to  lose  ;    he 
 troubles  himself  no  longer  about  the  opinion  of  the 
 world ;  but  is  perfectly  independent,  and  does  what 
 he   pleases,    if  he  can  but  keep  his  person   secure. 
 And  from  that  universal  contempt  which  he  suffers, 
 there  must  soon  arise,  in  his  mind,  a  cordial  contempt 
 and  hatred  of  all  mankind;  excepting  only  of  those  who 
 are  in  the  same  situation  with  himself;  with  whom  he 
 will  naturally  associate,  and  join,  not  only  in  preying 
 upon  the  public  for  daily  bread,  but  in  all  the  cruel- 
 ties and  barbarities,  in  which  they  are  but  too  likely 
 to  be  concerned. 
 
 But,  least  of  all,  ought  punishments  affecting  honour 
 to  be  used,  where  it  may  be  seen  beforehand,  that 
 they  will  be  quite  useless ;  as,  for  instance,  in  the 
 case  of  those  crimes  to  which  the  public  lias  already 
 -attached  ideas  of  disgrace  ;  for  if  the  public  opinio)! 
 respecting  the  infamy  of  any  crime,  has  proved  insuf- 
 
Cases  where  Ignominious  Punishments  are  suitable.  489 
 
 Lt? 
 
 ficient  to  repress  it,  any  shame  which  the  laws  can 
 fasten  upon  it,  will  be  perfectly  fruitless  ;  because  the 
 person  who  commits  it,  has  previously  laid  his  account 
 with,  and  resolved  to  encounter,  the  ignominy  of  it. 
 For  the  very  same  reason,  the  subjecting  of  a  woman, 
 who  has  been  unchaste,  to  public  ecclesiastical  pen- 
 ance, or  any  other  such  disgrace,  is  extremely  repug- 
 nant to  legislative  policy,  and  in  other  respects  an 
 abominable  practice.  The  fear  of  shame  is,  besides, 
 apt  to  drive  the  unhappy  wretch  either  to  the  perpe- 
 tration of  child-murder,  or,  in  a  great  city,  such  as 
 London,  into  a  brothel,  where  she  is  soon  completely 
 corrupted,  and  becomes  a  pest  of  society.  She  is, 
 therefore,  rather  deserving  of  the  sympathy  and  forgive- 
 ness of  her  friends,  nor  ought  the  magistrate  to  know 
 any  thing  of  her  misfortune,  excepting,  in  so  far  as  it 
 may  be  expedient,  that  she  should  be  obliged  to  sub- 
 mit to  a  private  admonition  from  a  prudent  clergyman. 
 
 Nor  will  the  punishment  of  infamy  be  of  much  ef- 
 fect in  repressing  theft,  excepting  perhaps  in  the  case 
 of  that  species  of  it  which  is  committed,  from  a  false 
 principle  of  honour,  in  order  to  pay  gaming  debts. 
 Here  it  may  be  expedient,  that  it  should  still  be  re- 
 sorted to,  in  order  that  the  public  may  not  learn  to 
 regard  such  thefts  as  less  disgraceful  than  they  now  do. 
 
 In  no  cases,  on  the  other  hand,  do  punishments  af- 
 fecting honour  appear  to  be  so  suitable,  as  where  mis- 
 taken ideas  of  honour  are  the  motives  of  crimes ;  as, 
 for  instance,  in  the  case  of  child-murder,  and  of  that 
 species  of  theft  just  new  alluded  to,  viz.  the  laying 
 hold  of  money  intrusted  to  one's  care,  in  order  to 
 pay  gaming  debts  with  it,  &c.  &c.     Could  any  punish 
 
490      Dilemma  as  to  Ignominious  Punishments. 
 
 Lo' 
 
 ment  be  effectual  to  prevent  duelling,  it  would  be  the 
 loss  of  honour  ;  only  it  would  require  to  be  in  such  a 
 way,  as  that  it  should  hold  good  in  the  public  opinion  ; 
 but  how  that  is  to  be  managed,  as  long  as  a  duel  is 
 held  to  be  an  affair  of  honour,  and  the  declining  of  it 
 a  proof  of  cowardice,  is  that  great  problem  of  legisla- 
 tive policy  which  is  hitherto  unresolved  ;  and  as  long 
 as  that  continues  to  be  the  case,  it  will  not  be  so  much 
 punishment,  that  can  ever  prevent  duels,  as  a  certain 
 stratagem,  which  it  is  not  my  province  here  to  detail. 
 Legislators  are  therefore,  after  all,  placed  in  a  very 
 awkward  dilenvna,  with  respect  to  the  use  of  infamiz- 
 ing punishments ;    for,  on  the  one  hand,  where  the 
 public  already  holds  the  crime  to  be  infamous,  they 
 are  unnecessary,  because  the  offender  has  predeter- 
 mined to  submit  to  the  infamy ;  and  on  the  other, 
 where  the  public  holds  a  crime  to  be  honourable,  the 
 contradiction  of  the  laws  is  of  no  avail  j  for  in  saying 
 to  an  offender,  Thou  art  hifamouSy  they  rather  ennoble 
 him.     The  Bedouin  Arab  holds  nothing  in  so  much 
 respect  as  his  beard  ;  and  to  have  it  cut  off,  is  such  an 
 infamy,  as,  in  many  cases,  to  be  more  insupportable 
 than  the  punishment  of  death.     At  the  same  time,  he 
 looks  upon  highway  robbery  as  noble  and  honourable. 
 Were  then  any  conqueror,  who  had  brought  these 
 sons  of  freedom  into  subjection,  to  make  cutting  off 
 the  beard  the  punishment  of  robbery,  it  might  at  first, 
 no  doubt,  prove  very  terrific  ;  but  if  the  punishment 
 were  rigorously  inflicted,  and  a  couple  of  thousand 
 gallant  fellows  went  about  without  beards,  it  would 
 not  only  soon  cease  to  be  disgraceful,  but  actually  be- 
 come honourable,  not  to  have  a  beard  j  and  the  time 
 
On  the  Punishment  of  Blasphemy.  49i 
 
 would  then  come,  when  it  would  be  infamous  to  have 
 one.  The  point  in  question  lies  somewhere  in  the 
 middle  between  the  horns  of  this  dilemma  ;  but  it  has 
 not  yet  been  hit  upon. 
 
 V.  On  the  Punishment  of  Blasphemy . 
 
 I  had  still  a  great  many  remarks  to  make  concern- 
 ing imprisonment ;  which  ought  neither  to  be  un- 
 wholesome nor  tedious,  but,  for  that  reason,  while  it 
 lasts,  the  more  rigorous  and  solitary  ;  2.  Concerning 
 that  sort  of  exile,  which  renders  the  sufferer  neither 
 infamous  nor  destitute,  but  merely  rids  the  country  of 
 a  dangerous  citizen,  or,  in  other  words,  punishes  him, 
 as  was  done  in  ancient  Rome,  by  interdicting  him 
 from  access  to  his  beloved  native  land,  or  the  place  of 
 his  enjoyments  j  3.  Concerning  stripes,  which  were 
 so  commonly  used  in  ancient  times,  but  are  now  only 
 a  military  punishment,  and  not  held  to  affect  a  sol- 
 dier's honour  at  all.  But  this  Essay  has  already  ex- 
 tended to  too  great  a  length  ;  and  I  have  yet  to  add 
 some  remarks  in  illustration  of  Art.  CCLI.  concern- 
 ing the  punishment  of  blasphemy.  That  perpetual 
 imprisonment  and  exile  deprive  the  state  of  citizens, 
 just  as  effectually  as  capital  punishments,  (though 
 with  some  rare  exceptions,)  the  reader  will  remark 
 without  my  assistance. 
 
 With  regard  then  to  blasphemy ;  is  it  irrational, 
 barbarous,  and  superstitious,  that  any  punishment 
 should  be  inflicted  on  the  crimes  which  are  usually 
 comprehended  under  this  name  ?  Almost  all  nations 
 have  accounted  it  just ;  and  some  have  punished  such 
 
492      Blasphemy  justly  punishable —  Wherefore  t 
 
 crimes  with  extreme  severity.  At  present,  however, 
 the  objection,  that  blasphemy  injures  not  God,  he  being 
 infinitely  exalted  above  it,  is  trumpeted  abroad  with 
 loud  approbation.  It  does  not,  indeed,  appear  very 
 striking  to  me ;  and  those  who  make  it,  would  seem 
 to  have  conceived,  that  the  intention  of  punishing 
 blasphemy  were  to  procure  safety  to  God.  That, 
 however,  could  scarcely  have  been  the  unanimous  idea 
 of  so  many  nations,  and  these  too,  differing  so  widely 
 in  civilization,  climate,  and  religion.  For  most  peo- 
 ple, in  all  of  them,  would  probably  have  conceived, 
 that  if  God  wished  to  avenge  this  crime,  he  could 
 take  vengeance  at  his  pleasure,  and  would  not  want 
 the  aid  of  human  laws  for  that  purpose. 
 
 On  God's  account,  then,  punishments  for  blasphemies 
 are  certainly  not  necessary ;  but  perhaps  they  are  neces- 
 sary for  the  sake  of  our  neighbour,  who,  if  he  believes 
 in  a  God,  or  holds  his  religion,  whether  true  or  false,  to 
 be  true, — always  feels  himself  extremely  scandalized 
 by  them.  Nor  is  it  only  blasphemy  against  the  true 
 God  that  ought  to  be  punished  ;  but  even  that  against 
 false  gods,  supposed  saints,  and  fictitious  religion, 
 whenever  they  happen  to  be  the  gods,  saints,  and  re- 
 ligion of  the  people. 
 
 Putting  blasphemy  entirely  out  of  the  question  ; 
 Has  any  man  a  right  to  call  me,  to  my  face,  on  ac- 
 count of  my  opinions,  whether  true  or  false,  Or,  which 
 is  the  same  thing,  on  account  of  the  philosophy  which 
 I  adopt,  a  fool,  a  profligate,  a  villain  ?  He  may  be  of 
 a  different  opinion,  and  may,  if  I  chuse  to  hear  him, 
 give  his  reasons  with  great  animation  ;  in  which  case, 
 should  a  harsh  word  escape  him  in  the  keenness  of  ar- 
 
Ridicule  of  Religion  to  be  prohibited.  493 
 
 gument,  I  am  bound  to  overlook  it,  because  I  might 
 myself  be  guilty  of  the  same  fault ;  but  if,  without 
 having  this  apology,  he  should  tell  me  to  my  face, 
 The  philosophy  which  you  adopt,  is  nonsense ;  it  is 
 abominable  ;  it  is  imposture ;  and  its  author  is  a  villain 
 and  a  rogue ;  I  certainly  should  not  be  censurable  for 
 repaying  such  insolence  with  manual  chastisement,  if 
 the  magistrate  would  listen  to  no  complaint  on  ac- 
 count of  it.  And  if  the  man  had  treated  me  with 
 such  gross  rudeness,  in  the  presence  of  others,  of  my 
 children,  perhaps,  or  my  servants,  before  whom  I 
 should  thereby  have  appeared  in  a  contemptible  light, 
 his  offence  would  be  so  much  the  greater.  I  ought 
 to  have  it  in  my  power  to  complain  of  it :  and  though, 
 instead  of  doing  so,  I  were  to  give  him  a  drubbing,  I 
 certainly  should  have  the  excuse  of  what  is  called  a 
 Justus  dolor  to  plead. — Again,  the  offence  would  be 
 farther  aggravated,  and  my  right  to  nvenge  it  the  bet- 
 ter, if  he  had  addressed  me  in  such  insolent  language, 
 in  a  place  where  he  had  no  title  to  be  without  my 
 permission  j  for  example,  in  my  own  house. 
 
 Now  to  the  man  who,  from  his  heart,  believes  his 
 religion,  and  regards  it  as  the  way  to  eternal  bliss, 
 and  as  the  comfort  both  of  life  and  death  ;  and  who, 
 of  course,  wishes  to  educate  his  family  in  the  know- 
 ledge and  belief  of  it ; — nothing  can  be  more  offensive 
 than  to  hear  another  speaking  against  it,  and  employ- 
 ing, not  arguments,  (although  even  these  he  might 
 let  alone,  because  every  man  has  a  right  even  to  err, 
 without  our  forcibly  interfering  to  rid  him  of  his  er- 
 ror,) but  insolent  and  contemptuous  language,  and 
 blaspheming  its  God,  its  prophets,  saints,  and  sacred 
 
i94  No  difference  Whether  it  be  established  or  tolerated. 
 
 things.  Were  the  religion  in  question  only  toleratedy 
 still  the  state  is  bound  to  protect  every  person  who 
 believes  it,  from  such  outrages,  or  it  cannot  blame 
 him,  if  he  has  not  the  patience  to  bear  them.  But  if 
 it  be  the  established  national  religion,  and,  of  course, 
 the  person  not  believing  it  be  only  tolerated  by  the 
 state,  and,  though  he  enjoys  its  protection,  just  as  if 
 he  were  in  a  strange  house ;  such  an  outrage  is  ex- 
 cessively gross,  and  unless  we  conceive  the  people  to 
 be  so  tame  as  to  put  up  with  any  affront,  and,  of 
 course,  likely  to  play  but  a  very  despicable  part  on  the 
 stage  of  the  world,  the  state  has  only  to  chuse  be- 
 tween the  two  alternatives,  of  either  punishing  the 
 blasphemer  himself,  or  else  leaving  him  to  the  fury  of 
 the  people.  The  former  is  the  milder  plan,  and  there- 
 fore to  be  preferred,  because  the  people  are  apt  to 
 gratify  their  vengeance,  without  sufficient  enquiry; 
 and  of  course  it  may  light  upon  the  innocent. 
 
 Nor  is  this  by  any  means  a  right,  which  I  only  claim 
 for  the  religion  which  I  hold  to  be  the  true  one  ;  but 
 I  am  also  bound  to  admit  it,  when  I  happen  to  be 
 among  a  people  from  whose  religion  I  dissent.  Were 
 I,  in  a  Catholic  country,  to  deride  their  saints,  or  in- 
 sult their  religion  by  my  behaviour,  were  it  only  by 
 rudely  and  designedly  putting  on  my  hat,  where  de- 
 cency would  have  suggested  the  taking  it  off;  or  were 
 I,  in  Turkey,  to  blaspheme  Mahomet,  or  in  a  heathen 
 city,  its  gods  ; — nothing  would  be  more  natural  than 
 for  the  people,  instead  of  suffering  it,  to  avenge  the 
 insult  in  their  usual  way,  that  is,  tumultously,  pas- 
 sionately, and  immoderately ;  or  else  the  state  would, 
 in  order  to  secure  me  from  the  effects  of  their  fury, 
 
AlJicisls  and  Infidels  ought  not  to  be  tolerated.    435 
 
 be  under  the  necessity  of  taking  my  punishment  upon 
 itself;  and  if  it  does  so,  it  does  a  favour  both  to  me 
 and  to  other  dissenters  from  the  established  religion, 
 because  it  secures  us  from  still  greater  evils. — Of  the 
 mischief  that  the  blasphemer,  and  still  more,  the  scof- 
 fer at  religion,  does  in  society,  if  he  succeed  in  mak- 
 ing religion  really  contemptible,  I  do  not  think  it 
 necessary  here  to  say  a  word. 
 
 To  the  complete  disowner  of  religion,  whether  he 
 disbelieve  in  a  God  altogether,  or  but  only  as  con- 
 cerning himself  in  human  affairs,  as  punishing  sin, 
 and  ruling  the  world ;  and  consequently,  to  the  blas- 
 phemer of  the  only  true  God  ;  the  state,  according  to 
 the  spirit  of  laws,  owes  no  toleration  whatever ;  be- 
 cause no  dependence  can  be  placed  on  any  such  per- 
 son, his  oath  being  a  mere  nonentity  ;  nor  is  he  to  be 
 trusted  farther  than  he  is  under  inspection.  Should 
 he  be  a  malicious  rascal,  punishments  would  be  insuf- 
 ficient to  secure  us  against  his  attacks,  because  the 
 man  who  has  no  dread  of  another  world,  can  hope  to 
 escape  punishment  by  suicide.  He  is,  therefore,  a 
 very  dangerous  member  of  society. — If,  again,  the 
 state  does  not  proceed  upon  this  principle;  if  it  to- 
 lerates the  atheist  and  the  infidel,  nay,  and  protects 
 him  too,  although  no  clependance  can  be  placed  on 
 his  doing  any  thing  in  return  for  the  defence  of  the 
 country,  because  he  can  give  himself  a  dispensation 
 from  all  oaths,  and  putting  arms  into  his  hands  might 
 be  hazardous  ;  still  such  a  man  must  suspect,  that  he 
 is,  as  I  before  expressed  it,  in  a  strange  house,  where- 
 in he  cannot  possibly  claim  equal  rights  with  others. 
 His  oath  cannot  so  much  as  be  valid  for  a  proof  in 
 
496  Ho*w  Blasphemy  should  be  punished. 
 
 any  judicial  process.  He  ought,  therefore,  to  behave 
 as  a  man  in  a  strange  house  will  naturally  do ;  with- 
 out insulting,  by  his  blasphemies,  the  people  who 
 lodge  and  protect  him,  and  yet  get  nothing  from  him 
 in  return;  or  else  he  cannot  think  it  unjust  that  he 
 should  be  punished,  if  he  does. 
 
 In  fact,  the  doctrine,  that  blasphemy  ought  not  to  be 
 punished,  appears  to  me  to  border  upon  the  persecu- 
 tion of  religion  ;  for  thus  the  infidel  would  have  a 
 right  to  blaspheme,  and  we  should  be  obliged  to  bear 
 it.  Nay,  even  scoffing  and  reviling  religion  is  like- 
 wise a  persecution  of  it,  and  one  that  is  felt  very  sen- 
 sibly by  its  friends  ;  for  if  I  am  obliged  to  let  another 
 person  insult  me  to  my  face,  I  must  consider  it  as  in- 
 flicting a  deep  wound  upon  my  honour. 
 
 As  to  the  manner  in  which  blasphemy  should  be 
 punished,  I  am  not  concerned  with  it.  Legislative 
 policy  will  find  one  punishment  more  suitable  in  one 
 place,  and  another  in  another.  But  capital  punish- 
 ments I  should  not  here  recommend,  because  they 
 make  the  blasphemer  of  too  much  consequence,  and 
 awaken  sympathy  for  his  fate.  Blasphemy  uttered 
 under  the  influence  of  intoxication,  it  were  better  to 
 leave  unpunished  altogether.  Perhaps  the  most  suit- 
 able and  natural  punishment  that  a  state  could  inflict 
 upon  the  blasphemer, — and  in  fact  it  would  not  be  a 
 small  one, — would  be,  to  consider  him  as  a  man  des- 
 titute of  religion,  and  whose  oath,  of  course,  could 
 not  be  regarded  as  an  oath. 
 
 Gottingcn,  1  Oth  April,  1775. 
 
SEGNERI  De  Pcenarum  quantitate  ORATIO, 
 
 [Vide  page  372) 
 
 :\'e  cnini  putetis,  numerorum,  magnitudinum,  at  que 
 momentorum  scientiam,  quam  ego  imprimis  profiteor, 
 extra  umbram  non  prodire  ;  (quamvis  id  quoque  mag- 
 num sit,  quod  mentem  philosophise  prueparat,  atque 
 artibus  aliis ;  plurimarumque  rerum  notiones  vel  sola 
 nobis  offert,  vel  aliunde  haustas  perficit  j)  ita  mathc- 
 mata  in  omnia,  qua?  cogflosci  ab  homine  possunt,  in- 
 fluunt,  ut  eorum  perpauca  sint,  quae  non,  si  capiantur 
 ab  homine  mathcmatum  prorsus  experte,  a  geometra, 
 si  animum  advertent,  non  multo  rectius  perspiciantur. 
 Patiamini,  auditores,  ut  id  loco  ex  jurisprudentia  uni- 
 versal! in  medium  adlaio  declarare  studeam,  eo,  in  quo 
 proportionem  adhibendam  esse  vix  quisquam  est,  qui 
 non  videat,  etsi,  qualis  ea  sit,  forte  non  omnibus  pates- 
 cat  :  non  quasi  magni  momenti  sint,  quse  per  trans- 
 ennam  fere  tantum  de  ea  re  cogitanti  succurrerurtt, 
 sed  quia  lege  jubeor  audientiam  a  Vobis  petere.  Co- 
 nabor,  ut,  si  non  satis  ornata  oratione  molest um  me 
 Vobis  esse  necesse  est,  prolixitate  tamen  molestus  non. 
 sim,  faxoque,  ne,  cum  attentionem  mihi  benevolam  a 
 Vobis  exoro,  occasionem  tsedii  Vobis  exhibendi  petiisse 
 videar.  De  quantitate  poenarum  agam,  quae  cuilibet 
 delicto  in  republica  constituendae  sint. 
 
 Quid  poena  quidve  praeminm  sit,  interrogate  philo- 
 sophi  in  diversa  fortasse  discedent,  ii  maxim  e,  qui 
 diverso  modo  de  libertate  humana,  deque  principio 
 actionum  nostrarum  sentiunt.  Nos  mathematicos  in  eo 
 quoque  imitemur,  quo  iili  pulcherrimos  in  philosophic 
 
 VOL.  IV,  i    I 
 
t&S  Segnen  De  Pcenarum 
 
 naturali  progressus  fecerunt,  interea,  dum  philosophic 
 de  elementis  corporum  formisque,  et  quae  ejus  gene- 
 ris sunt  alia,  bella  mmquam  fmienda  gerunt,  separe- 
 musque  a  qusestione  quidquid  abesse  potest,  neque  ad 
 earn  solvendam  aliquid  confert.  Nitamur  experientia, 
 quae  una,  ne  nubes  et  mania  in  ejusmodi  rebus  capte- 
 mus,  maxime  potest  impedire.  Ea  autem,  inter  prin- 
 eipia  actionum  humanarum,  instinctum  nobis  primum 
 offert,  homini  cum  brutis  communera,  quo  turn  etiam, 
 cum  rationc  per  aetatem  uti  nondum  potest,  vel  cum 
 ejus  usum  tantisper  seponit,  ad  ea  fertur,  sine  quibus 
 vita  constare,  vel  universum  genus  humanum,  conser- 
 vari  non  potest.  Accedit  deinde  ratio,  quae  prout  boni 
 malive  specie  aliquid  nobis  ofFert,  ut  illud  natura  ap- 
 petamus,  hoc  quantum  possumus  aversemur,  efficit, 
 Verum  bonum  malumve  non  in  se  spectamus,  si  modo 
 in  se  spectatum  aliquid  bonum  malumve  dici  potest, 
 verum  ad  nos  referimus,  illudque  bonum  habemus, 
 quod  pro  eo,  in  quo  quovis  tempore  constituti  sumus 
 statu,  nobis  jucundum  fore  judicamus,  si  potiri  liceat, 
 malum,  quod  triste.  Bonumque  adeo  saepe  dicimus, 
 quod  alias  inter  mala  retulimus ;  malum  habemus, 
 gencratim,  quod  nobis  bonum  putamus,  vel  bonum 
 huic  illive,  quod  nobis  malum  sit,  non  aliter,  quam 
 omnes  modo  magnam  modo  parvam  rem  dicimus,  prout 
 earn  cum  hac  et  ilia  re  alia  conferimus.  Est  praeterea 
 consuetudo,  cum  instinctu  cognata,  et  si  ratione  pier- 
 umque  ad  ea  agenda  permoti  fuerimus,  quae  repetita 
 consuet  udinem  fecerunt.  Sunt  afFectus,  iique  maxim- 
 am  partem  imaginibus  quibusdam  vel  excitantur,  vel 
 foventur,  quae,  quia  recurrunt,  utcunque  ab  iis  mentem 
 removere  tentemus,  quia  rem  non  uti  est  nobis  exhi- 
 bent,  sed  vel  immensum  auctam,  vel  multum  imminu- 
 
Quantiiatc  Oratio.  4i)V 
 
 tarn,  verbo,  aliam,  omnino,  quam  examine  solemus  de- 
 prehendere,  phantasia*,  solent  tribui.     Cumque  circa, 
 instinctum,  consuetudinem,  affectus,  rationis  aliquod 
 imperium  sit,  etsi  valde  restrictum:  in  morbis  et  per 
 furorem  interdum  ea  agimus,  quae  consilio  qui  regere 
 conaretur,  operam  perderet  planissime,  quia  scilicet  is, 
 qui  ita  agit,  vix  conscius  est,  eerte  reliquarum  reruni 
 omnium,  quae  ad  alia  eum  impellere  possent,  notiones 
 omnino  nullas  habere  videtur.     In  tristi  ergo  hoc  statu 
 constitutis  cum  imperari  omnino  nihil  possit,  eos,  qui 
 £ana  mente  utuntur,  ad  ea  quae  volumus  peragenda 
 movebimus,  si  effecerimus,   uti  bona  illis  videantur, 
 quae  illos  agere  volumus,  certe  minus  mala  illis,  quae 
 volumus  vitare,   retrahamusque  ab   his   malo  a'liquo, 
 quod  iis  inest,  quodque  cernere  ante  non  valebant,  ob- 
 jecto.     Id  autem  cum  rationibus,  persuadendo,  vin- 
 eendo    consuetudinem    consuetudine    contraria,    aut 
 phantasiam  alia  phantasia  turbando,  feliciter  sa?pe  fiat; 
 potest  ex  instituto  bonum,  natura  cum  re  quam  appeti 
 volumus  non  conjunctum,  cum  ea  conjungi,  vel  malum 
 addi  illi  quam  vitari  volumus.     Atque  bonum  ita  cum 
 actione  connexum  merces  est  vel  praemium,  malum 
 autem  id,  quod  omnes  pcenam  dicimus :  in  qua  recte 
 constituenda,  qui  leges  ferunt,  quique  cas  ad  causas 
 praesentes  adplicant,  quotidie  occupantur.     Longum 
 enim  est,  rationibus  persuadere,  vehementerque  impe- 
 ditum,  cum  erudire  ante  hominem  debeas,  quantum 
 sufficit  ad  argumentorum  vim  percipiendam.     Consue- 
 tudinem vincere,  aut  naturalem  inclinationem,  difficile, 
 utpote  ad  quod  quotidiana  exercitatione  continuato- 
 que  labore  opus  est.     Phantasiam  autem  cum  ne  illi 
 quidem  semper  corrigere  possint,  quibus  rum  singuli:, 
 
 i   i  'J 
 
500  Segneri  De  Pcenarum 
 
 res  est,  populi,  qui  ad  hanc  classem  refcrri  debent,  cr~ 
 rores,  tanto  mag  is  curatu  difficiles  erunt.  Praemia  in 
 erectas  mentes,  et  natura  vol  exercitatione  magni,  pul- 
 chri, honesti  adpetentes, fere  tantum  agunt ;  sola?  poense 
 ad  doctos  pariter  atque  indoctos,  perspicaces  et  hebe- 
 tes,  pertinent,  nee  facile  error  aliquis  tarn  gravis  est, 
 qui  earum  vim  prorsus  infringat. 
 
 Malum  autem,  quod  pro  poena  est,  cum  aliquando 
 sola  hominum   opinione   malum  sit,   plerumque  vere 
 malum  esse  convenit,  ut  illos  quoque,  qui  a  communi 
 sententia  hac  in  parte  recesserunt,  permoveat.     Atque 
 Id  primum  est,  quod  pcenarum  magnitudinem  aliqua 
 saltern  ex  parte  determinat.     Nihil  magis  conandum 
 est  illis,  qui  rempublicam  sive  constituunt,  sive  guber- 
 nant,  quam  ut  in  ea  mali  insit  quam  minimum.     Ergo 
 et  poena  in  universum  quam  minimum  ut  sit,  conan- 
 dum erit,  eaque  puniendi  ratio,  qua  sumrna  pcenarum 
 in  tota  civitate  omnium   maxime  imminuitur,  reliquis 
 praeferenda.     Neque  mala,  quae  in  sola  opinione  con- 
 sistunt,  penitus  seponenda  sunt,  quippe  quae,  etsi  rem- 
 publicam per  se  non  laedunt,  difficilius  tamen  saepe, 
 quam  vere  quae  mala  sunt,  a  civibus  feruntur,  neque 
 crudelitatis  maculam,  qua  vix  ulla  res  magistratibus 
 magis  vitanda  est,  illis  adspergunt.     Contra,  non  mi- 
 nor poena  cuilibet  delicto  constitua  esse  debet,  quam 
 quae  momenta,  fl  fieri  possit,  omnia,  quibus  ad  delictum 
 illud  impelli  solent,  vincat ;  si  non  omnia  possit,  vincat 
 certe  quam  plurima.    Praestat  enim  paucosparce  aliqua 
 in  re  delinquere,  quam  in  minima  delicta,  quas  cavere 
 humana  natura  vix  potest,  severissime  animadverti. 
 
 Hasc  aliqua  ex  parte  magnitudinem  pcenarum  defi- 
 nire  dixi:  scd  laxi  nimium  sunt  limites,  atque  magis 
 constringendi. 
 
Qucuititate  Oratio.  501 
 
 Vel  consilio  peccare  homines  vidimus,  vel  impetu. 
 Etsi  enim  maximam  partem  utroque  ad  male  facien- 
 dum impellantur,  licebit  tamen  bic  quoque  mente  dis- 
 tinguereea,  quae  in  ipsa  re  conjuncta  sunt.     Solo  con- 
 silio si  hominem  peccare  intelligas,  sitque  poena  cum 
 delicto  conjuncta  ita  certa,  ut  dubitare  nemo  possit,  si 
 peccaverit,  et  poena m  sequuturam :  nihil  facilius  est, 
 quam  hujus  magnitudinem  earn  assignare,  quse  ad  aver- 
 tendum  a  peccando  quemlicet  sufficit.     Solo  commodo 
 hoc  usu  movemur  per  maleficium  quresito.     Cum  eo 
 ergo  si   incommodum   conjungatur  commodo,  plane 
 sequale,  tolletur  commodum  illud,  planeque  evanescet. 
 Quod  ergo  ad  agendum  impellit,  jam  nihil  exit,  nihilo 
 autem,  non  magis  mens  quam  libra  nullo  pondere  aut 
 vi  movente  alia,   agitatur.     Et  si  quantumvis  parvo 
 majorem  feceris  pcenam  commodo  illo,  tanto  minus 
 verendum  erit,  tarn  amentem  fore  quemquam,  uti  rem 
 appetat,  quas  jam  mala  tota  est,  universo  maleficii  com- 
 modo per  pcenam  destructo,  et  hujus  aliquo  influo  su- 
 perfluo,  quod  ad  destruendum  illud  commodum  im- 
 pensum  non  est. 
 
 Verum  ne  hac  in  re  decipiantur  homines  coercendi, 
 conandum  est,  ut  poena  ea  sit,  quae  cum  commodo  per 
 actionem  queesito,  quam  prohibere  velis,  facile  com- 
 paretur,  quod  erit,  si  ex  eodem  quantorum  genere  de- 
 sumatur.  Id  enim  nisi  fiat,  et  aequalem  fieri  pcenam 
 ei,  quod  ex  delicto  quseritur,  commodo,  difficile  est ; 
 et  si  omnino  sequalis  fiat,  vel  eo  paulo  major,  non  om- 
 nes  tamen  rationem  inter  malum  pro  poena  exspec- 
 tandum,atque  commodum  quod  delinquentesqurerunt, 
 a  prioie  ipso  genere  diversum,  perspiciunt,  ob  eamque 
 rem  verendum  est,  ne  plurimi  commodum  malo  majus 
 
502  Segneri  De  Pcenariim 
 
 judicent,  quorum  neminem  poena  quantumvis  certa  a 
 peccando  retrahet.  Pone,  furem  certum  esse,  id  quod 
 furto  abstulit  ex  asse  fore  reddendum  ;  adeone  eum 
 amentem  potes  fingere,  utnihilo  minus  curam,  vigilias, 
 rcliquasque,  quae  furi  subeundae  sunt,  molestias  devo- 
 raturus  sit,  etsi  nulla  praeterea  furto  poena  foret  con- 
 stitute ?  Verum  relinque  illi  spolia  sua,  pcenam  autem 
 vel  carcerem  statue,  vel  verbera,  vel  exilium,  autaliud, 
 quod  facultates  non  imminuat ;  plurimos,  reperies,  qui 
 quaB  ita  capiunt  damna  lucro  minora  putent,  ut  et 
 multo  majora  sint,  augendoque  ita  pcenae  magnitudi- 
 nem  minus  efficies,  quam  etlecisses  poenis  minoribus, 
 sed  iis  cum  commodo  ex  furto  facilius  comparaudis. 
 Ac  nonne  quotidie  videmus,  cum  gloria  opinione, 
 vel  metu  dedecoris  ad  flagitia  homines  impelluntur, 
 exilii,  carceris,  quin  nee  mortis  metu  eos  continere 
 posse?  Constitute  ha2  pcenas  sunt  illis,  qui  injurias 
 gladiis  ulciscuntur,  salva  existimatione  ejus,  qui  ad- 
 versus  illas  leges  peccat,  manifestoque  illius  vituperio, 
 qui  legibus  morem  gerit.  Tantas  hae  tamque  graves 
 pcenae  malo  penitus  tollendo  pares  non  fuerunt.  Ve- 
 rum deme  privatis  his  pugnis  honesti  opinionem,  in 
 eosque,  qui  in  eas  descendunt,  dedecus  confer,  quod 
 jam  illos  manet,  qui  satis  sui  compotes  sunt,  satisque 
 periti  rerum  aestimatores  ut  iis  sese  subducere  audeant. 
 Vocabula,  quae  probri  causa  in  eas  jactantur,  qui  pro- 
 vocati  non  comparent,  in  eos  verti  mige,  qui  adeo  de- 
 mentes  sunt,  ut  compareant ;  una  hac  poena,  mali  vix 
 quidquam  habente,  quod  non  soli  opinioni  sit  tribu- 
 endum,  omnium  ejus  generis  certaminum  apud  te  ima- 
 ginem  evanescere  videbis.  Et  absunt  pugn.ge  istse, 
 abfueruntque  semper  ab  jis  gentibus*  ad  q.uas  parum 
 
Quantitate  Oratio.  503 
 
 certe  sana,  secundum  qua?  majores  nostri  de  eo  quod 
 in  his  rebus  honestum  et  turpe  est  judicarunt,  priuci- 
 pia  non  pervenere. 
 
 Verum  non  semper  ex  eo  genere  pcenas  repetere 
 licet,  in  quo  sunt  commoda  per  maleficia  quaesita,  sed 
 has  saepe  alterius  generis  esse,  res  ipsa  exigit.  Hoc 
 casu  cum  verendum  sir,  ne  poena  pra?  commodo  alio 
 vilipendatur,  augenda  poena  est,  quo  illi  quoque,  qui 
 minorem  quam  est  judicant,  commodo  tamen  illo  mi- 
 norem  existimare  non  facile  possunt.  Augenda?  quo- 
 que erunt,  si  consuetudine  vel  adfectu  homines  agi- 
 tentur.  Nam  quamvis,  quando  ejusdem  generis  est 
 poena  cum  commodo,  quod  per  delicta  quneritur,  ne 
 consuetudo  quidem  vel  adfectus  in  multos  homines 
 magnopere  agant ;  agunt  tamen  vehementer,  cum  in- 
 commodi  ex  poena  exspectandi  genus  a  genere  commo- 
 di  qua?siti  diversum  est,  efficiuntque  id  inprimis,  ut  in- 
 eommodum  ex  poena  multo  minus,  quam  est,  videatur. 
 
 Sed  raro  pcense  acleo  certas  sunt,  ut  eas  evitari  pror- 
 sus  non  posse  extra  dubitationem  sit.  Spes  latendi, 
 circumveniendi  per  astutiam,  vel  fallendi  testimonio 
 judicem,  aut  ejus  misericordiam  movendi,  non  semper 
 falsa,  multis  ad  peccandum  auctoramento  est,  eritque 
 semper  iis,  qui  non  casto  virtutis  studio,  sed  commodi 
 ratione  ducuntur,  aut  brutorum  instar  impetui  obedi- 
 unt.  Hie  cum  spes  impunitatis  ex  iis  sit,  quibus  ad 
 peccandum  homines  alliciuntur,  poena  pro  eadem  spe 
 augenda  erit. 
 
 Sed  spes  nco  vana  intclligenda  est,  cujus  nulla  esse 
 potest  mensura,  sed  rationalis,  quasque  probabilitate 
 nititur,  atque  in  eadem  cum  ilia  ratione  crcscit,  eadem- 
 que  et  ad  metum  transferenda  :  ut  semper  spes  alien- 
 
S04i  Segneri  De  Pcenarum 
 
 jus  rei  eonsequendae  sit  ad  metum  vel  ejus  quod  illi 
 oppositum  est,  vel  alterius  cujusdam  rei  nobis  adver- 
 sae,  ut  probabilitas  prioris  eventus  ad  probabilitatem 
 posterioris.  Manente  ergo  commodo,  quod  per  actio- 
 nem quaeritur,  atque  metu  pcenae ;  si  spes  impunitatis 
 duplo  major  fiat,  et  a  poena  exspectandum  incommo- 
 dum  in  duplum  augendum  erit :  si  spes  in  triplum 
 crescat,  et  incommodum  illud  erit  triplicandum :  sic 
 ut,  si  apud  certitudinem  incommodum  ex  poena  com- 
 modo huic  asquale  feceris,  sit  utique  spes  impunitatis 
 ad  metum  poena?  ut  quantitas  incommodi  ex  poena,  ad 
 magnitudinem  commodi  ex  actione,  quam  vitari  velis  : 
 sin  majorem  apud  certitudinem  poenam  commodo  fece- 
 ris, ratio  quoque  incommodi  ex  poena  ad  commodum 
 ex  delicto,  ratione.  spei  ad  metum,  major  sit.  Est 
 autem  posteriori  isto  potius  utendum,  ut  illi  quoque 
 a  peccato  avertantur,  qui  majorem,  quam  pro  probabi- 
 iitate  eventus,  spem  concipiunt.  Atque  ad  haec  res- 
 pexisse  iili  legislatores  videntur,  qui  furi  poenam  statu- 
 erunt  restitutionis  quadrupli.  Cum  enim  in  recte  con- 
 stituta  republica  vix  duplo  vel  triplo  probabilius  sit, 
 furtum  impune  futurum,  quam  poenam  cum  eo  a  lege 
 statutam,  conjunctum  iri,  dicta  poenae  quantitas  abun- 
 de  videtur  sufficere,  nisi  singulares  quaedam  condition- 
 es  alias  furto  jungantur. 
 
 Verum  incommodum,  quod  is  capit  qui  poenam  sus- 
 tinet,  cum  commodo  comparandum  esse  diximus,  quod 
 malericio  quaerit,  non  ipsam  pcenae  quantitatem.  Quod 
 sic  intelligimus.  Si  poena  mulcta  sit,  duplum  ejus  sum- 
 ma;,  quae  pro  mulcta  exigitur,  poena:  duplum  est,  trip- 
 lum sumtiiffi,  triplum  pcenae,  semperque  magnitudo 
 pcenaj  absoluta  in  eadem  cum  mulcta  ratione  crescit, 
 
Quantilate  Oratio.  505 
 
 Verum  cum  incommodo,  quad  is  capit,  qui  mulcterur, 
 aliter  omnino  comparatum  est.      Cum  enim  in  pro- 
 clivi  sit,  eandem  mulctam  diviti  minus  incommodam 
 esse  quam  pauperi,  si  de  vero  incommodo  agatur,  non 
 de  eo  quod  sola  avaritia  sentitur,  qua2  divites  magis 
 plerumque  obsidet  quam  pauperes ;    facile  patet,   si 
 duplum  mulctaa  alicujus  ab  aliquo  capias  secundum,, 
 utique  partem  exigi  ab  eo,  qui  priori  mulctatus  jam 
 pauperior  est  factus  ;  adeoque  incommodum,  quod  el 
 mulcta  dupla  capit,  majus  esseduplo  incommodi,  quod 
 ex  simpla  ceperat.     Sit  aliquis  centum  solidorum  do- 
 minus,  qui  in  annum  ci  victim)  debent  sufficere.     Si 
 decern   solidorum  jacturam  faciat,    aliquid  eum  sibi 
 subtrabere  necesse  est,  si  anno  finito  rationes  constarc 
 debeant,  sed  non  id,  in   quo  maxima  consistit  vita? 
 Gommoditas.     Si  alios  decern  amittat,  eo  quoque  care- 
 bit,  quod  aliquanto  plus  ad  suaviter  vivendum  faciat  5 
 si  decern  insuper  alios,  vix  tantum  restabit,  quo  fam- 
 em,  frigus  depellat,  vel  corpus  decenter  tegat :  sicque 
 majus  semper  ex  jactura  eadem  sentiet  incommodum, 
 quo  minus  habet  reliqui.     Eodem  modo  cum  carcere 
 comparatum  est,  si  dedecus  demas,  vix  aliquis  est  nos- 
 trum, quin  una  die  vel  altera  eodem  loco  se  concludi 
 facile  patiatur,  qui  saepe  totas  bebdomades  studioruna 
 gratia  voluntario  quasi  caiceri  nos  mancipamus.     Ve- 
 rum plures  bebdomades  usu  aeris  liberioris,  consuetu- 
 dine  amicorum,  pulcherrimo  rerum  natural ium  specta- 
 culo  carere  debere,  negotiorum  omnium  expertem,  id 
 vero  homini  ad  libertatem  nato  fere  intolerabile  erit ; 
 unde  sane  patet,  incommodum  in  carcere  magis  multo 
 quam  pro  tempore  crescere :  atque  vicissim  una  tan- 
 tum   hebdomade  a    mense  demta,   quern  lex   carceri 
 vol.  iv.  k  k 
 
306  Segneri  Be  Pcenarum 
 
 prarfinir,  incommodum  saspe  infra  dimidiam  tertiamve 
 aut  quartam  adeo  partem  imminui.  Non  facile  est, 
 haec  ad  mensuram  revocare,  cum  a  plurimis  rebus  vix 
 clare  simul  comprehendendis  pendeant.  Et  quantum- 
 vis  facile  foret,  mihi  jam  ad  id,  unde  digressus  sum, 
 est  revertendum,  ipsius  incommodi  aestimatione  pru- 
 denti  judici,  atque  ad  conditiones  rerum  attento,  per- 
 missa.  Ea  concessa,  magnitudinis  ipsius  poenas  deter- 
 minatio  nihil  exigit,  quam  ut  ratio  metus  poena?  ad 
 spem  impunitatis  determinetur,  quas  probabilitate  utri- 
 usque  eventus  ex  numero  casuum,  uti  solenne  est,  eli- 
 cita,  habetur. 
 
 Ita  agendum,  ubi  solum  consilium  est,  quod  homi- 
 nes ad  agendum  impellit.     Si  consuetudo  accedit,  ad- 
 fectus,  falsaque,  quae  tolli  subito  non  potest,  persuasio, 
 pro  qualibet  harum  rerum  poena?  augendae  sunt,  con- 
 andum  autem,  si  fieri  potest,  ut  ita  comparator  sint,  ut 
 adfectum  quoque  vel  persuasionem,  contrarii  persua- 
 sione  vel  adfectu  contrario  corrigant.     Sed  hac  qui- 
 dem  de  re  jam  aliqua  diximus.     Mensuras  autem  pce- 
 narum pro  magnitudine  adfectus,  aut  pro  vi  consuetu- 
 dinis,  tradere  plane  exactas,  inter  impossibilia  repo- 
 nendum  videtur,  exactis  proximas  dare,  admodum  dif- 
 ficile est.     Relinquendus  ergo  hie  quoque  locus  pru- 
 dential ejus  est,  qui  poenas  constituit,  qui,  si  ad  genium 
 attenderit  seculi  sui,  atque  ad  indolem  gentis,  multo- 
 rumque  annorum  experientiam  contulerit,  utique  vi- 
 debit,  quantum  priori  poena?  addendum  sit,  ut  consue- 
 tudo quoque,   adpetitus,    vel   falia   persuasio    eorum, 
 quibus  pra?est,  superentur.     Quin  et  cum  vehementer 
 interest  reipublica?,  actionem  aliquam   omitti,  ex  hac 
 quoque  causa  poena  augenda  erit :  yeruna  non  prsecise 
 
Quantitate  Oratio.  507 
 
 in  ratione  damni,  quod  respublica  capit,  si  fiat  id  quod 
 oraitti  velis,  qua  magnitudo  damni  neminem  impellit. 
 Sed  et  hoc  augmentum  sola  prudentia  legislatoris 
 determinari  fas  est. 
 
 Atque  ex  his  sequituY,  constituta  poena  nihil  magis  in 
 potestate  judicis  esse,  quo  pcenarum  numerum  in  uni- 
 versa  civitate  minuat,  quam  uti  curet,  ut  spes  impuni- 
 tatis,  apud  eos  quam  maxime  minuatur,qui  delinquunt. 
 Imminuta  enim  spe  ista,  manente  poena,  ratio  incom- 
 modi  ex  poena  exspectandi  ad  commodu.m  mala  ac- 
 tione  quaesitum,  quae  constans  est  ratione  spei  impuni- 
 tatis  ad  metum  poena?,  hac  spe,  ut  dixi,  imminuta, 
 necessario  fiet  major,  magisque  adeo  poena  ad  conti- 
 nendos  in  officio  homines  efficax.  Itnminuitur  autem. 
 impunitatis  spes,  si  magistratus  omni  studio  omnique 
 diligentia  caveat,  ne  quod  delictum  latere  possit,  adhi- 
 beatque  omnem  prudentiam,  ne  delictum  detectura 
 vel  per  advocatorum  cavillationes,  vel  mendacio  rei, 
 vel  testium  perfidia,  negetur,  si  coerceat  artificia  fori 
 intra  legitimos  terminos,  testibus,  qui  non  mentiri 
 modo,  verum  in  judicio  etiam  coram  magistratu  men- 
 tiri audent,  id  impune  esse  non  sinat,  pcenas  per  mi- 
 sericordiam  non  condonet,  vel  ultra  id  quod  aequum 
 est  minuat,  verbo,  omni  re  curet,  ut  si  ad  plenam  cer- 
 titudinem  pcenae  eventum  reducere  non  potest,  proba- 
 bilitatem  ejus  tantum  augeat,  ut  certitudini  sit  proxi- 
 ma.  Hoc  magistratus  officium  est,  hoc  sese  a  mare 
 civitatem,  cui  praeest,  imprimis  potest  dcmonstrare. 
 Si  indulget  criminibus,  si  benignitatis  opinionem  apud 
 unum  alterumve  capiat,  quod  uni  remittit  malum,  id 
 in  universam  non  modo  civitatem  cumulat,  verum 
 etiam  indulgentia  sua  efficit,   ut  augenda  sit  poenag 
 
 Kk2 
 
508  Segneri  De  Pcenarum,  $c, 
 
 quantitas,  siquidem  satis  in  ea  esse  velimus  ad  repri- 
 menda  peccata  efficicacise.  An  vero  is  benignus,  hu- 
 manus,  indulgens  dicendus  est,  qui  nrmm  cum  indem- 
 nem  dimittit,  id  scilicet  efficit,  ut  gravius  deinde  mule- 
 tandi  sint  ties  vel  decern  alii ;  an  ille  potius,  qui  unum 
 moderate  punit,  ne,  si  fieri  potest,  quisquam  deinde 
 alius,  qui  puniendus  sit,  occurrat  ?  Est  omnino  lenitas 
 base  prorsus  inepta,  eoque  raagis  damnanda,  si  delicta 
 ejus  sint  generis,  ut  non  solum  rei  publicas  obsint,  ve- 
 rum  et  illis,  qui  delinquunt,  maxime  si  damnum  ex 
 delicto  metuendum  ingens  sit  vel  prorsus  irreparabile, 
 ut  cum  non  de  facultatibus,  re  fluxili,  sed  de  sanitate 
 atque  vita  civis  agitur.  Ea  in  re  qui  mollis  est,  is 
 modo  non  amare  se  quibus  praeest  ostenditi  verum 
 etiam  adeo  eos  contemnere,  ut  propter  levem  imperi- 
 torum  existimationem,  aut  per  amorem  otii,  quod  iis 
 carissimum  est  casui  exponere  non  dubitet.  Ego  qui- 
 dem,  generosissima  nobilissimaque  pectora,  ita  sentio, 
 Jiulla  me  re  magis,  quanti  Vos  faciam,  quantopere  Vos 
 salvos  cupiam,  cuipiam  ostendere  posse,  quam  severa 
 legum  academicarum  custodia.  Quodque  ita  sentiam, 
 non  probabili  aliqua  ratione  indue tus  sum,  verum  de- 
 monstiatione,  non  quales  hodie  jactantur,  quibus  raro 
 illi  ipsi  adsentiuntur,  qui  demonstrant,  reliquorum  om- 
 nium nemo,  sed  quae  adsensum  plane  extorquent,  milr 
 1  Httque  prorsus  dubitatiotiem  relinqjiunt. 
 
 THE    END. 
 
 O.  Hhaimkbs  &  Co- 1 
 
 i'vinteris,  Aberde«.-n. 
 
DATE  DUE 
 
 j^WIWMit 
 
 -  — *. 
 
 CAYLORD 
 
 PRINTED  IN  U.S.A.