If the law of retaliation were admissible in all cases, it would very much abridge the labours of the legislators. It would make short work of the business of laying out a plan of punishment:—a word would supply the place of a volume.
Before we say anything as to the advantage of the rule, it will be proper to state with precision what is meant by it. The idea given of it in Blackstone's Commentaries, seems to be a correct one;—it is that rule which prescribes, in the way of punishment, the doing to a delinquent the same hurt he has done (one might perhaps add, or attempted to do) to another. If the injury were done to the person, the delinquent should be punished in his person: if to property, in his property: if to the reputation, in his reputation. This is the general scheme; but this, however, in itself, is not quite enough. To make the punishment come incontestibly under the law of retaliation, the identity between the subject of the offence and that of the punishment should be still more specific and determinate. If, for example, the injury were to a man s house, for instance, by the destruction of his house, then the delinquent should have his house destroyed: if to his reputation, by causing him to lose a certain rank, then the delinquent should be made to lose the same rank: if to the eyes, then the criminal should be made to lose his eyes: if to his lip, then to lose his lip: and in short, the more specific and particular the resemblance between the subject of the offence and of the punishment, the more strictly and incontestibly it would appear to come under the rule. It is when the person is the subject of the injury, that the resemblance is capable of being rendered the most minute; for it is in this case that by means of the strict identity of the part affected, “the hurt” is capable of being rendered the most accurately the “same”. An eye for an eye, and a tooth for a tooth, are the familiar instances that are put of the law of retaliation, In this case, too, the identity may be pushed still further, by affecting the same part in the same manner; the sameness of the hurt depending on the identity of the one circumstance as well as of the other. Thus, if the injury consisted in the burning out of an eye, the punishment will be more strictly the same, if it be effected by burning rather than cutting out the eye of the delinquent.
The great merit of the law of retaliation is its simplicity. If it were capable of universal adoption, the whole penal code would be contained in one law:—“Let every offender suffer an evil similar to that which he has inflicted.”
No other imaginable plan can for its extent find so easy an entrance into the apprehension, or sit so easy on the memory. The rule is at once so short and so expressive, that he who has once heard it, is not likely to forget it, or ever to think of a crime, but he must think also of its punishment. The stronger the temptation to commit an offence, the more likely is its punishment to be an object of dread. Thus the defence is erected on the side of danger.
One advantage that cannot be denied to this mode of punishment is its popularity, requiring little expense of thought, it will generally be found to possess the judgment of the multitude in its favour. Should they in any instance be disposed to quarrel with it, they will still be ready enough probably to own it to be consonant to justice: but that justice, they will say, is rigid justice, or to vary the jargon, justice in the abstract. All this while, with these phrases on their lips, they would perhaps prefer a milder punishment, as being more consonant to mercy, and, upon the whole, more conducive to the general happiness: as if justice, and especially penal justice, were something distinct from, and adverse to, that happiness. When, however, it happens not to give disgust by its severity, nothing can be more popular than this mode of punishment. This may be seen in the case of murder, with respect to which the attachment to this mode of punishment is warm and general. Blood (as the phrase is) will have blood. Unless a murderer be punished with death, the multitude of speculators can seldom bring themselves to think that the rules of justice are pursued.
The law of retaliation is, however, liable to a variety of objections, one of which, so far as it applies, is conclusive against its adoption. In a great variety of cases it is physically inapplicable. Without descending far into detail, a few instances may suffice as examples. In the first place, it can never be applied when the offence is merely of a public nature, the characteristic quality of such offences being, that no assignable individual is hurt by them. If a man has been guilty of high treason, or has engaged in criminal correspondence with an enemy, or has, from cowardice, abandoned the defence of a post entrusted to him; how would it be possible to make him suffer an evil similar to that of which he has been the cause.
It is equally inapplicable to offences of the semi-public class—to offences which affect a certain district, or particular class of the community The mischief of these offences often consists in alarm and danger, which do not affect one individual alone, and therefore do not present any opportunity for the exercise of retaliation
With respect to self-regarding offences; consisting of acts which offend against morality, the application of this law would be absurd. The individual has chosen to perform the act, to do the same thing to him would not be to punish him.
In offences against reputation, consisting, for instance, in the propagation of false reports affecting the character, it would be useless as a punishment to direct a similar false report to be propagated affecting the character of the delinquent. The like evil would not result from the circulation of what was acknowledged to be false.
In offences against property, the punishment of retaliation would at all times be defective in point of exemplarily and efficacy, and, in many cases, altogether inapplicable; those who are most apt to injure others in this respect, being, by their poverty, unable to suffer in a similar manner
For a similar reason it cannot be constantly applied to offences affecting the civil condition of individuals, to say nothing of the reasons that might render it ineligible if it were possible to be applied.
These exceptions reduce its possible field of action to a very small extent, the only classes of offences to which it will be found applicable, with any degree of constancy, are those that affect the person, and even here must be assumed what scarcely ever exists, a perfect identity of circumstances. Even in this very limited class of cases, it would be found to err on the side of excessive severity. Its radical defect is, its inflexibility. The law ought so to apportion the punishment as to meet the several circumstances of aggravation or extenuation that may be found in the offence: retaliation is altogether incompatible with any such apportionment.
The class of people among whom this mode of punishment is most likely to be popular, are those of a vindictive character. Mahomet found it established among the Arabians, and has adopted it in the Koran, with a degree of approbation, that marks the extent of his talent for legislation. “O you who have a heart, you will find in the law of retaliation, and in the fear that accompanies it, universal security.”—(Vol. I, ch. ii, On the Law.) Either from weakness or ignorance, he encouraged the prevailing vice which he ought to have checked.