states of Society; for it must depend, in a great measure, upon the Structure of Families, and the kind of the early intercourse of their members with each other, and with other Families. Hence, although the primary family relations must always have the same consequences, more remote relationships may be subjected to different Rules of intermarriage in different countries; and one Country or Age is no absolute Rule for another except only, that the long-continued past existence of a Rule, on this subject, is a very strong reason for retaining and observing the Rule; since the separation of the two classes of cases, so necessary to the purity of families, produces its effect by being familiar to men's minds.

1041. Some persons have sought a ground for the prohibition of marriages between near relatives in physiological reasons, and in the supposed degeneracy of the offspring when such a practice is continued. But if this result were far more certain than it is, we could not consistently make it a ground of legislation, except we were also prepared to prohibit unions which are far more certainly the cause of physiological evil; as for instance, when there is a great disparity of years; or hereditary disease, or insanity, on either side.

1042. A question of prohibited degrees of kindred, which has been much discussed, is this: Whether a man may marry his deceased wife's sister. On this we may observe, that though much argument on the subject has been drawn from the law of Moses, such argument is of no direct force; since, as we have said, one Nation is no Rule for another; and the habits of society, and the relations of families, on which the Rule ought to depend, were very different among the ancient Jews, and in our own country at present. So far as the Jewish law has been the basis of the Rule hitherto received, it has weight; since, as we have also said, an ex

As to the

isting Rule is entitled to great respect. grounds of decision belonging to our own state of Society, we have mainly to consider, whether, by marrying one sister, men in general are placed upon the footing of Fraternal Love with the other sisters; and whether it is requisite to the purity of this Fraternal Love (on both sides) that there should be no possibility of its being succeeded by the love which courtship implies. On these two questions, different opinions will be entertained by different persons. To the first, the manners generally prevalent in this country seem to direct us to return an affirmative Whether Fraternal, may, in the course of a life, alternate with Conjugal, Love, it is more difficult to say. In one order, at least, this appears not to be unusual; since it often happens that a person courts first one sister and then another: but this is before the conjugal relation is established: and perhaps tends rather to show that the fraternal condition ought to supersede all other affections.

answer.

1043. On both sides of this question, argu. ments may be drawn from the probable consequences. On the one hand, if the brother-in-law is never allowed to become the husband, the sister of the deceased wife may, without incurring reproach, live with him as a brother, and may thus give to the children a mother's care. On the other hand, if the brother-in-law may become the husband, both he and the children may often find, in such a union, a valuable consolation and resource, after the loss of the mother. But the purity which is the object of such Rules, is in danger of some tarnish from the contemplation of consequences; and we shall not attempt to decide the question.

CHAPTER XIV.

DUTIES OF THE STATE-ORDER.

Of Punishments.

1044. ALL Legislation in a State may be considered as resulting from the Duty of Order; for all Laws are means of Order. We have considered Laws, according to their purpose, as directed by Humanity, Justice, and the like; and we shall not attempt here to make a separate class of those which have Order more especially for their object. But we may consider, as particularly resulting from the Duty of Order, the Office of the State in giving reality to the Laws by Sanctions, that is, by Punishments (501). If transgressions of the Laws are not punished, the Laws are merely nominal; and, if such a course be continued, will soon be as if they did not exist. There must, then, be Punishments provided, to meet transgressions of the Laws; and we have to consider by what Principles this part of the business of the State is to be regulated.

1045. An object of Punishment is to prevent the classes of acts to which it is affixed; but this does not fully express the object; the object is to prevent such acts, as being wrong (558). And the Laws which affix Punishments to Crimes, prevent them (so far as they do prevent them) by making men look upon them as wrong; or at least by making each man regard them as something which the community deems wrong, and will punish because it so deems. And thus, Punishments, while they have it for their object to prevent certain kinds of acts, aim to obtain this object by making men look upon these acts as wrong. The Object of Punishment, even when it threatens most roughly, is not

merely to deter men, but to teach them; not merely to tell them that transgression of the Law is dangerous, but also that it is immoral. Punishment is, as we have already said (502), a means of the Moral Education of the Citizens. We will trace some of the applications of this view.

1046. In Laws respecting Wrongs, we see very evident traces of the moral teaching which the Lawgiver, consciously or unconsciously, has had in view. Thus, with regard to Wrongs against the Person, one of the most ancient and general Rules is the lex talionis, retaliation; a degree of suffering and harm inflicted upon the wrong-doer, equal to that which he had himself occasioned. Such was the Mosaic Rule (Exod. xxi.), Strife for strife, wound for wound, burning for burning, foot for foot, hand for hand, tooth for tooth, eye for eye, life for life: and still earlier (Gen. ix., 6), Whoso sheddeth man's blood, by man shall his blood be shed. Such an Ordinance, by making man feel that which he inflicts, plainly tends to teach him that all men are bound together as partakers of a common nature, and are required to act with a recollection of this community. Such is the mode in which children are still often taught, so as to have unfolded in them the feeling of humanity, both towards other children, and towards animals. And thus, in the earliest measure of punishment, we see a disposition to proportion it to the degree of guilt, as measured by the violence done to the common nature of all men.

1047. But it may be said, that the maxims of punishment admitted in later times deviate from this view, and are regulated by the principle that the object of punishment is simply the prevention of crime, and not the moral education of the people. And as examples of such maxims, may be adduced such as these that Crimes are to be punished with greater severity in proportion to the difficulty and

necessity of preventing them; or the facility of perpetrating them; or their being committed by combinations of men. These circumstances, it is said, do not increase the guilt; and yet, in the common judgment of Legislators, they have been made to increase the Punishment.

1048. But there is, in this judgment of Legistors, nothing at variance with the doctrine, that the purpose of Punishment is the Moral Education of the people; and that it ought to be regulated by this purpose. For such circumstances as we have mentioned, if they do not increase the guilt of the transgression, at least augment the need which men have of the lesson which the Law gives, and interpose difficulties in the way of making the lesson impressive. If stealing privately in a shop, or stealing from a bleaching-ground, or any other offence, can be committed with special facility; those who are placed in temptation require to be taught the criminal character of the act with special emphasis; which the Law can do only by annexing to it a severer punishment. And on the other hand, if the crime, though one of great moral depravity, be one which is easily provided against, the Law may express its condemnation by a lighter penalty than would otherwise be necessary. Thus a Breach of Confidence, though it must be looked upon as more guilty than a Fraud where no trust has been reposed, is visited with a smaller punishment. And this is quite consistent with the character of the Law as a moral teacher. The forbearance of the Law in punishing Breach of Trust, is a significant lesson to the Trustor; inculcating the circumspection, care, and precaution, with which he ought to select and control the depositary of his confidence. And accordingly, when the trust is unavoidable, the punishment is not limited by this double bearing of the lesson; as in the case of a theft committed by a servant in the shop or dwelling-house