or intruded into his household with criminal intentions, or inflicted some serious injury upon him, and who is likely to do similar injuries to others; just as it would be both his right and his duty to destroy a wild beast, under like circumstances.

16. In such a state of society to volunteer to revenge the injuries of those, who are unable to be their own avengers, is esteemed a beneficial and meritorious act; and hence, in the barbarous times of the Middle Ages, the origin of the idea of knightserrant, celebrated in the Romances, who were supposed to have gone about revenging the wrongs of the weak and innocent.* Traces of the same ideas are to be found in the Greek legends of Hercules and Theseus.

It was this very view of matters, which secured for the Regulators, who figured in the early colonial history of some of the American States, and which secures to the executors of Lynch Law, in the present day, a certain degree of public approbation. They are regarded as supplementary to the laws, as the avengers of crimes which the laws cannot, or do not, reach.

17. The practice of duelling sprang, as we have seen, out of this practice of private revenge, justified and made necessary by the defects of the laws. It owed its absurdity of giving the aggressor a chance

*The institution of knighthood, and the vows which the knights took — exhibiting a strange intermixture of feudal and mystical notions created some foundation in fact, for the fictions of the Ro

mances.

to add homicide to his previous injury, in which respect alone it differs from the practice of assassination, and in consequence of which absurdity alone it has been able to maintain itself so long among civilized and polite nations, to a notion derived from the mystical doctrine, that God, who directs all things, will certainly give the victory to that party who deserves it. This idea had, at one time, such a prevalence throughout Europe, that trials by combat and by ordeal became established expedients of the tribunals of justice. Several of the existing rules of duelling were originally rules of court.

Thus it appears that the mystics contributed largely to the introduction of duelling; a practice, which, in later times, they have exerted themselves in vain to put an end to. The gradual abandonment of the practice of duelling has been produced, not by the arguing or preaching of the mystics, but by the advancing humanity of the age, and the enlightened reasoning of forensic moralists.

18. In all those countries in which a tolerably complete triumph of law has been established, retaliatory homicide is no longer permitted. That which was useful until a better substitute had been provided, after the provision of that substitute, becomes pernicious. Still, all codes of forensic morals considering the effect of injuries received to diminish the ordinary force of the sentiment of benevolence, and even to give a preponderancy to the sentiment of malevolence, look upon provocation as diminishing, in a proportional extent, the moral guilt of homicide,

and even in some cases of extreme provocation, as purging it altogether.*

19. In several systems of forensic morals, the destruction of new-born infants by their parents, and especially the destruction of infants in the womb of the mother, is esteemed permissible; at least under certain circumstances. Mystical morality, proceeding upon the one inflexible idea above stated, condemns these acts as among the most criminal. Forensic morals have permitted them on the ground, that death to a new-born, and especially to an unborn infant, is in fact rather a pain to the parents than to the child; that such acts are never likely to be resorted to, except when essential to relieve parents from a burden which they have no means to support; and when the life of the child, if preserved, is almost certain to be a life of degradation and misery.

Much has been said about the cruelty of these acts; and the utter helplessness of infancy is well calculated to create a feeling of pity in its behalf. But is mere life such a boon? What shall be said of that benevolence which saves the life of the child only to make its existence a perpetual disgrace to its mother and itself? which punishes child-murder

* The English common law admits several distinctions upon this subject, such, for instance, as whether the fatal blow was struck, or not, with a deadly weapon, — which, though sufficiently well founded when they were originally adopted, at which time arms were universally worn, have no adaptation to the existing state of things. The consequence is, that the letter of the English law is constantly set aside, by a humane perjury on the part of jurors.

with one hand, and shuts up foundling asylums with the other?

Even with respect to children born in lawful wedlock, the Romans and the Chinese might be entitled to ask, whether to extinguish the life of an infant daughter before she is hardly conscious of existence, is, on the whole, any greater cruelty or crime, than to shut her up, full grown and full of desire, to pine away her life in a convent; or to gratify a selfish pride by educating her in a style which incapacitates her from earning her own livelihood, a style which you can leave her no adequate means to support, and which exposes, or may expose her, to a thousand miseries?

But that the act of infanticide is a violation of the primary impulses of benevolence, is sufficiently evident, even from the practices of those nations among which it has obtained. The custom is to expose the children; not to put them to death, but to leave them to perish. This practice, no doubt, is the more cruel of the two; and yet it originates in impulses of benevolence. The child that is exposed may possibly be rescued by somebody more able or more willing to support it than its natural protectors; and many Greek and Roman legends are founded upon incidents of that sort. Even if the child perishes, at least the unhappy parent escapes the misery of seeing its last agonies.

If the Roman father once lifted the new-born babe from the ground, and so acknowledged it to be his child, he could not afterwards expose it. Parental affection, if it be allowed but a moment to develope

itself, becomes so strong as to prove an overmatch for most other impulses; and for a father to hold his infant child in his arms, and not to feel the strong force of parental tenderness, would prove him, under ordinary circumstances, greatly deficient in benevolence. For obvious reasons, parental tenderness in a mother, is a still stronger sentiment than in a father; and nothing but the pressure of extreme want, or the horror of disgrace, will, under ordinary circumstances, induce a mother to consent to, or to take part in, the death of her infant child.*

20. Even with regard to those homicides which all systems of morals allow to be criminal, a great difference exists in different systems, as to the degree of criminality ascribed to them. In cultivated and refined societies, in which the supremacy of the law has long been established, and where children are trained from their infancy to keep their passions under control, a very different view is taken of this matter from that which prevails in savage and barbarous societies. As, in these latter societies, the average force of benevolence is less, and the average force of malevolence greater, the force of moral obligation is, in fact, different.

a

21. It is, also, to be considered, that, in the case of a man killed, the injury is by no means confined to the party murdered, a circumstance which tends greatly to add to the criminality of the act. It ex

* The punishment proper to be inflicted upon infanticide is discussed with much good sense and humanity by Bentham. Theory of Legislation, Vol. II. Part 1, ch. 12.