he distance of a refined from a rude
jurisprudence. The modern administrator of justice has confessedly one
of the hardest tasks before him when he undertakes to discriminate
between the degrees of criminality which belong to offences falling
within the same technical description. It is always easy to say that a
man is guilty of manslaughter, larceny, or bigamy, but it is often
most difficult to pronounce what extent of moral guilt he has
incurred, and consequently what measure of punishment he has deserved.
There is hardly any perplexity in casuistry, or in the analysis of
motive, which we may not be called upon to confront, if we attempt to
settle such a point with precision; and accordingly the law of our day
shows an increasing tendency to abstain as much as possible from
laying down positive rules on the subject. In France, the jury is left
to decide whether the offence which it finds committed has been
attended by extenuating circumstances; in England, a nearly unbounded
latitude in the selection of punishments is now allowed to the judge;
while all States have in reserve an ultimate remedy for the
miscarriages of law in the Prerogative of Pardon, universally lodged
with the Chief Magistrate. It is curious to observe how little the men
of primitive times were troubled with these scruples, how completely
they were persuaded that the impulses of the injured person were the
proper measure of the vengeance he was entitled to exact, and how
literally they imitated the probable rise and fall of his passions in
fixing their scale of punishment. I wish it could be said that their
method of legislation is quite extinct. There are, however, several
modern systems of law which, in cases of graver wrong, admit the fact
of the wrong-doer having been taken in the act to be pleaded in
justification of inordinate punishment inflicted on him by the
sufferer--an indulgence which, though superficially regarded it may
seem intelligible, is based, as it seems to me, on a very low
morality.

Nothing, I have said, can be simpler than the considerations which
ultimately led ancient societies to the formation of a true criminal
jurisprudence. The State conceived itself to be wronged, and the
Popular Assembly struck straight at the offender with the same
movement which accompanied its legislative action. It is further true
of the ancient world--though not precisely of the modern, as I shall
have occasion to point out--that the earliest cr