Unfortunate is the necessity of having to legislate for such courts,but where the necessity exists,the legislator should only allow them to ordain the penalties for the smallest offences;if the state for which he is legislating be of this character,he must take most matters into his own hands and speak distinctly.But when a state has good courts,and the judges are well trained and scrupulously tested,the determination of the penalties or punishments which shall be inflicted on the guilty may fairly and with advantage be left to them.And we are not to be blamed for not legislating concerning all that large class of matters which judges far worse educated than ours would be able to determine,assigning to each offence what is due both to the perpetrator and to the sufferer.We believe those for whom we are legislating to be best able to judge,and therefore to them the greater part may be left.At the same time,as I have often said,we should exhibit to the judges,as we have done,the outline and form of the punishments to be inflicted,and then they will not transgress the just rule.That was an excellent practice,which we observed before,and which now that we are resuming the work of legislation,may with advantage be repeated by us.
Let the enactment about wounding be in the following terms:-If anyone has a purpose and intention to slay another who is not his enemy,and whom the law does not permit him to slay,and he wounds him,but is unable to kill him,he who had the intent and has wounded him is not to be pitied-he deserves no consideration,but should be regarded as a murderer and be tried for murder.Still having respect to the fortune which has in a manner favoured him,and to the providence which in pity to him and to the wounded man saved the one from a fatal blow,and the other from an accursed fate and calamity-as a thank-offering to this deity,and in order not to oppose his will-in such a case the law will remit the punishment of death,and only compel the offender to emigrate to a neighbouring city for the rest of his life,where he shall remain in the enjoyment of all his possessions.But if he have injured the wounded man,he shall make such compensation for the injury as the court deciding the cause shall assess,and the same judges shall decide who would have decided if the man had died of his wounds.And if a child intentionally wound his parents,or a servant his master,death shall be the penalty.And if a brother ora sister intentionally wound a brother or a sister,and is found guilty,death shall be the penalty.And if a husband wound a wife,or a wife a husband,with intent to kill,let him or her undergo perpetual exile;if they have sons or daughters who are still young,the guardians shall take care of their property,and have charge of the children as orphans.If their sons are grown up,they shall be under no obligation to support the exiled parent,but they shall possess the property themselves.And if he who meets with such a misfortune has no children,the kindred of the exiled man to the degree of sons of cousins,both on the male and female side,shall meet together,and after taking counsel with the guardians of the and the priests,shall appoint a 5040th citizen to be the heir of the house,considering and reasoning that no house of all the 5040belongs to the inhabitant or to the whole family,but is the public and private property of the state.Now the state should seek to have its houses as holy and happy as possible.And if any one of the houses be unfortunate,and stained with impiety,and the owner leave no posterity,but dies unmarried,or married and childless,having suffered death as the penalty of murder or some other crime committed against the Gods or against his fellow-citizens,of which death is the penalty distinctly laid down in the law;or if any of the citizens be in perpetual exile,and also childless,that house shall first of all be purified and undergo expiation according to law;and then let the kinsmen of the house,as we were just now saying,and the guardians of the law,meet and consider what family there is in the state which is of the highest repute for virtue and also for good fortune,in which there are a number of sons;from that family let them take one and introduce him to the father and forefathers of the dead man as their son,and,for the sake of the omen,let him be called so,that he may be the continuer of their family,the keeper of their hearth,and the minister of their sacred rites with better fortune than his father had;and when they have made this supplication,they shall make him heir according to law,and the offending person they shall leave nameless and childless and portionless when calamities such as these overtake him.
Now the boundaries of some things do not touch one another,but there is a borderland which comes in between,preventing them from touching.And we were saying that actions done from passion are of this nature,and come in between the voluntary and involuntary.If a person be convicted of having inflicted wounds in a passion,in the first place he shall pay twice the amount of the injury,if the wound be curable,or,if incurable,four times the amount of the injury;or if the wound be curable,and at the same time cause great and notable disgrace to the wounded person,he shall pay fourfold.And whenever any one in wounding another injures not only the sufferer,but also the city,and makes him incapable of defending his country against the enemy,he,besides the other penalties,shall pay a penalty for the loss which the state has incurred.And the penalty shall be,that in addition to his own times of service,he shall serve on behalf of the disabled person,and shall take his place in war;or,if he refuse,he shall be liable to be convicted by law of refusal to serve.The compensation for the injury,whether to be twofold or threefold or fourfold,shall be fixed by the judges who convict him.
