And now let us say in what cases and under what circumstances themurderer is rightly free from guilt:-If a man catch a thief coming,into his house by night to steal, and he take and kill him, or if heslay a footpad in self-defence, he shall be guiltless. And any one whodoes violence to a free woman or a youth, shall be slain with impunityby the injured person, or by his or her father or brothers or sons. Ifa man find his wife suffering violence, he may kill the violator,and be guiltless in the eye of the law; or if a person kill another inwarding off death from his father or mother or children or brethren orwife who are doing no wrong, he shall assuredly be guiltless.
Thus much as to the nurture and education of the living soul of man,having which, he can, and without which, if he unfortunately bewithout them, he cannot live; and also concerning thepunishments:-which are to be inflicted for violent deaths, let thusmuch be enacted. Of the nurture and education of the body we havespoken before, and next in order we have to speak of deeds ofviolence, voluntary and involuntary, which men do to one another;these we will now distinguish, as far as we are able, according totheir nature and number, and determine what will be the suitablepenalties of each, and so assign to them their proper place in theseries of our enactments. The poorest legislator will have nodifficulty in determining that wounds and mutilations arising out ofwounds should follow next in order after deaths. Let wounds be dividedas homicides were divided-into those which are involuntary, andwhich are given in passion or from fear, and those inflictedvoluntarily and with premeditation. Concerning all this, we mustmake some such proclamation as the following:-Mankind must havelaws, and conform to them, or their life would be as bad as that ofthe most savage beast. And the reason of this is that no man"snature is able to know what is best for human society; or knowing,always able and willing to do what is best. In the first place,there is a difficulty in apprehending that the true art or politics isconcerned, not with private but with public good (for public goodbinds together states, but private only distracts them); and that boththe public and private good as well of individuals as of states isgreater when the state and not the individual is first considered.
In the second place, although a person knows in the abstract that thisis true, yet if he be possessed of absolute and irresponsible power,he will never remain firm in his principles or persist in regardingthe public good as primary in the state, and the private good assecondary. Human nature will be always drawing him into avarice andselfishness, avoiding pain and pursuing Pleasure without any reason,and will bring these to the front, obscuring the juster and better;and so working darkness in his soul will at last fill with evilsboth him and the whole city. For if a man were born so divinely giftedthat he could naturally apprehend the truth, he would have no needof laws to rule over him; for there is no law or order which isabove knowledge, nor can mind, without impiety, be deemed thesubject or slave of any man, but rather the lord of all. I speak ofmind, true and free, and in harmony with nature. But then there isno such mind anywhere, or at least not much; and therefore we mustchoose law and order, which are second best. These look at things asthey exist for the most part only, and are unable to survey thewhole of them. And therefore I have spoken as I have.
And now we will determine what penalty he ought to pay or suffer whohas hurt or wounded another. Any one may easily imagine thequestions which have to be asked in all such cases:-What did he wound,or whom, or how, or when? for there are innumerable particulars ofthis sort which greatly vary from one another. And to allow courtsof law to determine all these things, or not to determine any of them,is alike impossible. There is one particular which they must determinein all cases-the question of fact. And then, again, that thelegislator should not permit them to determine what punishment is tobe inflicted in any of these cases, but should himself decide about,of them, small or great, is next to impossible.
Cle. Then what is to be the inference?
Ath. The inference is, that some things should be left to courtsof law; others the legislator must decide for himself.
Cle. And what ought the legislator to decide, and what ought he toleave to courts of law?
Ath. I may reply, that in a state in which the courts are bad andmute, because the judges conceal their opinions and decide causesclandestinely; or what is worse, when they are disorderly and noisy,as in a theatre, clapping or hooting in turn this or that orator-I saythat then there is a very serious evil, which affects the whole state.
Unfortunate is the necessity of having to legislate for such courts,but where the necessity exists, the legislator should only allowthem to ordain the penalties for the smallest offences; if the statefor which he is legislating be of this character, he must take mostmatters into his own hands and speak distinctly. But when a statehas good courts, and the judges are well trained and scrupulouslytested, the determination of the penalties or punishments whichshall be inflicted on the guilty may fairly and with advantage be leftto them. And we are not to be blamed for not legislating concerningall that large class of matters which judges far worse educated thanours would be able to determine, assigning to each offence what is dueboth to the perpetrator and to the sufferer. We believe those for whomwe are legislating to be best able to judge, and therefore to them thegreater part may be left. At the same time, as I have often said, weshould exhibit to the judges, as we have done, the outline and form ofthe punishments to be inflicted, and then they will not transgress thejust rule. That was an excellent practice, which we observed before,and which now that we are resuming the work of legislation, may withadvantage be repeated by us.