Historical Law-Tracts. Henry Home, Lord Kames
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the relations of the deceased and the murderer himself; and declaring, that these relations shall forfeit all their goods, if they prosecute with deadly feud the relations of the murderer. In Japan, to this day, it is the practice to involve children and relations in the punishment of capital crimes.† <14>
A tendency to excess, so destructive in the passion of resentment, is often in other passions the occasion of good. Joy, when excessive, as well as gratitude, are not confined to their proper objects, but expand themselves upon
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whatever is connected with these objects. In general, all our active passions, in their nascent state and when moderate, are accompanied with a sense of fitness and rectitude; but when excessive, they enflame the mind, and violently hurry it to action, without due distinction of objects.
And this leads to a reflection upon the irregular tendency of resentment here displayed. If it be the nature of all active passions, when immoderate, to expand themselves beyond their proper objects, which is remarkable in friendship, love, gratitude, and all the social passions, it ought not to be surprising, that resentment, hatred, envy, and other dissocial passions, should not be more regular. Among savages, this tendency may perhaps have a bad effect, by adding force to the malevolent passions: But in a civilized state, where dissocial passions are softened, if not subdued, this tendency is, upon the whole, extremely beneficial.
It is observed above, that revenge is a privilege bestowed by the law of Nature on those who suffer by a voluntary injury; and the correspondence hath also been observed betwixt this privilege and the sense of merited punishment, which <15> makes the criminal submit to the punishment he deserves. Thus by the law of Nature, the person injured acquires a right over the delinquent, to chastise and punish him in proportion to the injury; and the delinquent, sensible of the right, knows he ought to submit to it. Hence punishment is commonly said to be a sort of debt, which the criminal is bound to pay to the person he hath injured(3); and this way of speaking may safely be indulged as an analogical illustration, provided no consequence be drawn that the analogy will not justify. This caution is not unnecessary; for many writers, influenced by the foregoing semblance, reason about punishment unwarily, as if it were a debt in the strictest sense. By means of the same resemblance, a notion prevailed in the darker ages of the world, of a substitute in punishment, who undertakes the debt and suffers the punishment that another merits. Traces of this opinion are found in the religious ceremonies of the ancient Egyptians and other ancient nations. Among them the conceptions of a Deity were gross, and of morality no less so. We must not therefore be surprised at their notion of a transference
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of punishment, as of debt, from one person to another. They were imposed upon by the slight analogy above-mentioned; which reasoning taught <16> them not to correct, because reasoning at that time was in its infancy.7 The prevalence of this notion in the religious ceremonies of the ancient Egyptians, is vouched by Herodotus.* A bull is chosen pure white, for a sacrifice to their god Apis. The victim is brought to the altar, a fire kindled, wine poured out, and prayers pronounced. The bull is killed; and his head is thrown into the river, with the following execration: “May all the evils impending over those who perform this sacrifice, or over the Egyptians in general, be averted on this head.” Even in later times, when a Roman army was in hazard of a defeat, it was not uncommon for the general to devote himself to death, in order to obtain the victory.† Is not this practice founded upon the same notion? Let Lucan answer the question.
O utinam, coelique Deis, Erebique liberet
Hoc caput in cunctas damnatum exponere poenas!
Devotum hostiles Decium pressere catervae:
Me geminae figant acies, me barbara telis
Rheni turba petat: cunctis ego pervius hastis
Excipiam medius totius vulnera belli.
Hic redimat sanguis populos: hac caede luatur
Quicquid Romani meruerunt pendere mores.
L. 2. l. 306.8 <17>
And the following passage of Horace, seems to be founded on the same notion.
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At tu, nauta, vagae ne parce malignus arenae
Offibus et capiti inhumato
Particulam dare. Sic, quodcunque minabitur Eurus
Fluctibus Hesperiis, Venusinae
Plectantur sylvae, te sospite.
CARM. l. 1. ode 28.9
That one should undertake a debt for another, is a matter of consent, not repugnant to the rules of justice. But with respect to the administration of justice among men, no maxim has a more solid foundation or is more universal, than that punishment cannot be transferred from the guilty to the innocent. Punishment, considered as a gratification of the party offended, is purely personal; and, being inseparately connected with guilt, cannot admit of substitution. A man may consent, it is true, to suffer that pain which his friend the offender merits as a punishment; but the injured person is not satisfied with such transmutation of suffering: his resentment is not gratified but by retaliating upon the very person who did the injury. Yet, even in a matter obvious to reason, so liable are men to error when led astray by any bias, that to the foregoing notion concerning punishment, we may impute the most barbarous practice ever prevailed among savages, that of substituting human crea-<18>tures in punishment, and compelling them to undergo the most grievous torments, even death itself. I speak of human sacrifices, which are deservedly a lasting reproach upon mankind, being of all human institutions the most irrational, and the most subversive of humanity. To sacrifice a prisoner of war to an incensed deity, barbarous and inhuman as it is, may admit some excuse. But that a man should sacrifice his children as an atonement for his crimes, cannot be thought of without horror(4). Yet this savage impiety can rest upon no other foundation
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than the slight resemblance that punishment hath to a debt; which is a strong evidence of the influence of imagination upon our conduct. The vitious hath ever been solicitous to transfer upon others the punishment they themselves deserve; for nothing is so dear to a man as himself.
Wherewith shall I come before the Lord, and bow myself before the high God? <19> shall I come before him with burnt offerings, with calves of a year old? Will the Lord be pleased with thousands of rams, or with ten thousand rivers of oil? shall I give my first-born for my transgression, the fruit of my body for the sin of my soul?
But this is not an atonement in the sight of the Almighty.
He hath shewed thee, O man, what is good; and what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?*
I beg indulgence for a reflection that arises naturally from this branch of the subject; that the permitting vicarious punishment is subversive of humanity, and no less so of moral duty. Encourage a man to believe that without repentance or reformation of manners he can atone for his sins, and he will indulge in them for ever.10 Happy it is for mankind, that by the improvement of our rational faculties, the open profession of compounding for sin is banished from all civilized societies: And yet from the selfishness of human nature this doctrine continues privately to influence our conduct more than is willingly acknowledged, or even suspected. Many men give punctual attendance at public worship, to compound for hidden vices; many are openly charitable, to compound for private oppression; and many are willing to do God good service in <20> supporting his established
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church, to compound for aiming at power by a factious disturbance of the state. Such pernicious notions, proceeding from a wrong bias in our nature, cannot be eradicated after they have once got possession; nor be prevented, but by early culture, and by frequently inculcating the most important of all truths, That the Almighty admits of no composition for sin; and that his pardon is not to be obtained, without sincere repentance, and thorough reformation