led to a comparison of the crime under confideration with other crimes which injure fociety.

They who are of opinion, that Punishments are to be referred to commutative justice, seem to imagine, that Punishment is due to offenders in the nature of a contract. The judicious Author of the Hiftorical Law Tracts has accurately traced the confequences arifing from this principle of confidering Punishment as a debt, and has fhewn how this notion made room for compofitions, which, by degrees, took away the right of private revenge.

Nothing more, however, can be meant by faying, that Punishment is due to him who has offended, than that the magistrate has a right by law to inflict Punishment on an offender; for he to whom any thing is due, or the creditor, has a right to demand the thing due from the debtor; but it would be abfurd to say, that the criminal hath a right to demand Punishment from the magistrate.

If we confult the evident and natural ope rations of the mind, we shall find, that we cannot confider in what degree the public good is injured or endangered, unless we at the fame time confider the degree of the crime in queftion, in a comparative view, with regard to offences of a fimilar kind, As for inftance, if a riot is the kind of offence under contemplation, the mind of the legislator is unavoidably led, by a train of ideas, to compare it with the greater or leffer fpecies of offence.

As the mind naturally rifes in its com parative view, if it compares this offence with rebellion, it perceives, that the latter tends more immediately and directly to the prejudice and danger of the public good, than the former. Again, as the mind lowers the fcale of comparison, and com pares a riot with a private affault, it perceives, that the former hath a more immediate and direct tendency to injure the public than the latter, and confequently concludes, that a riot is an intermediate offence, which ought not to be punished

fo

fo grievously as an act of rebellion, and yet more severely than a private affault. So that the legiflator does not confider the crime by itself, but examines it with reference to other offences, and regulates his Punishments according to distributive juftice,

Montefquieu, likewife, feems to declare in favour of distributive juftice; as is evident from the contents of the 4th chapter of the 12th book of his L'Efprit des Loix, and also in the 16th chapter of the 6th book, where he fays, "It is effential to obferve a certain "harmony among Punishments, because it "is effential to prevent a greater Crime ra"ther than a lefs."

It remains now to confider the different Ends of Punishment.

Il eft effentiel que les peines aient de l'harmonie entr' elles; parce qu'il eft effentiel que l'on evite plu têt un grand crime, qu'un moindre.

SECT.

SECT. III.

Of the different Ends of Punish

MA

ment.

ANY have confidered the Ends of Punishment only under a twofold divifion; that is, with refpect to the amendment of the delinquent, and the example of others: to which fome have very properly added a third, which is, retribution to the injured.

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The circumftance of example, which fo often infifted upon, does not seem to have fo much weight as is often afcribed to it; for delinquents are frequently hardy enough to perpetrate the moft atrocious Crimes, even when malefactors are, for the fame offences, expiring before their eyes, with all the dreadful circumftances of agony and infamy. Men whofe de praved difpofitions lead them 'to the perpetration of capital offences, are flightly, if at all, affected by the fufferings or punishments

nifhments of others. The violence of their inordinate and vicious appetites over-rules all confiderations of danger to themselves, and effaces all impreffions made on them by the deplorable fate of other offenders. Their imagination prefents nothing to them but the advantages they expect to reap from their fuccessful villany on one hand, and the delufive hopes of concealment or impu nity on the other,

If ever the dread of punishment, or the terror of example, comes across their thought, fuch reflections are foon obliterated by the more flattering profpects which strike their fenfes, and corrupt their judgment. The End of Punishment, there→ fore, with regard to example, appears to be of lefs confideration than is generally imagined.

Grotius divides the different Ends of Punishment into three diftinct species of utility: the first, regarding the offender; the fecond, refpecting the party injured; the third, concerning every one indifcriminately: