But what is the mode and measure of punishment which public justice takes as its principle and standard? It is just the principle of equality, by which the pointer of the scale of justice is made to incline no more to the one side than the other.It may be rendered by saying that the undeserved evil which any one commits on another is to be regarded as perpetrated on himself.Hence it may be said: "If you slander another, you slander yourself; if you steal from another, you steal from yourself; if you strike another, you strike yourself; if you kill another, you kill yourself." This is the right of retaliation (jus talionis); and, properly understood, it is the only principle which in regulating a public court, as distinguished from mere private judgement, can definitely assign both the quality and the quantity of a just penalty.All other standards are wavering and uncertain; and on account of other considerations involved in them, they contain no principle conformable to the sentence of pure and strict justice.It may appear, however, that difference of social status would not admit the application of the principle of retaliation, which is that of "like with like." But although the application may not in all cases be possible according to the letter, yet as regards the effect it may always be attained in practice, by due regard being given to the disposition and sentiment of the parties in the higher social sphere.Thus a pecuniary penalty on account of a verbal injury may have no direct proportion to the injustice of slander; for one who is wealthy may be able to indulge himself in this offence for his own gratification.Yet the attack committed on the honour of the party aggrieved may have its equivalent in the pain inflicted upon the pride of the aggressor, especially if he is condemned by the judgement of the court, not only to retract and apologize, but to submit to some meaner ordeal, as kissing the hand of the injured person.In like manner, if a man of the highest rank has violently assaulted an innocent citizen of the lower orders, he may be condemned not only to apologize but to undergo a solitary and painful imprisonment, whereby, in addition to the discomfort endured, the vanity of the offender would be painfully affected, and the very shame of his position would constitute an adequate retaliation after the principle of "like with like." But how then would we render the statement: "If you steal from another, you steal from yourself?" In this way, that whoever steals anything makes the property of all insecure; he therefore robs himself of all security in property, according to the right of retaliation.Such a one has nothing, and can acquire nothing, but he has the will to live; and this is only possible by others supporting him.But as the state should not do this gratuitously, he must for this purpose yield his powers to the state to be used in penal labour; and thus he falls for a time, or it may be for life, into a condition of slavery.But whoever has committed murder, must die.There is, in this case, no juridical substitute or surrogate, that can be given or taken for the satisfaction of justice.There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal.
His death, however, must be kept free from all maltreatment that would make the humanity suffering in his person loathsome or abominable.
Even if a civil society resolved to dissolve itself with the consent of all its members- as might be supposed in the case of a people inhabiting an island resolving to separate and scatter themselves throughout the whole world- the last murderer lying in the prison ought to be executed before the resolution was carried out.This ought to be done in order that every one may realize the desert of his deeds, and that blood-guiltiness may not remain upon the people; for otherwise they might all be regarded as participators in the murder as a public violation of justice.
