Gibbs, Sir Thomas Plomer, Sir Arthur Pigott, and Sir Samuel Romilly will pause-will enquire-will reflect, before they lend the aid of their talents, and the sanction of their votes to a Bill liceat occidere. Tres filios lege indemnatorum occidit: reus est uxori maletractationis. Hic enim se dicit lege fecisse. Ac de matre quoque, est locus Sopatri, in Divis. Quæst. 'Eleivai kai μητράσιν ἀκρίτους ἀναιρεῖν τοὺς παῖδας. Licere etiam matribus liberos indemnatos occidere." In chapter twenty-two of his book de Solonis Vita, legibus, atque scriptis, Meursius himself opposes the authority of Dionysius Halicarnasseus to that of Sextus Empiricus. Dionysius in the second book of his Roman Antiquities tells us, that, according to the laws of Solon, Pittacus, and Charondas, the Greek fathers were "allowed to drive their children from their houses, and to disinherit them, (6 περαιτέρω Sé ovdév." His testimony is important, and we must observe that according to it, even these severities were granted by the laws to parents towards disobedient children only, “ τιμωρίας κατὰ τῶν παίδων, ἐὰν ἀπείθωσι τοις Tаrрáo, où ẞapeías."-Dionys. Hal. Rom. Antiq. lib. ii. edit. Sylburg. These cases are perfectly distinct from the custom of exposing children, and it must be observed, that Dionysius does not mention either the infanticide practised by the Athenians, or the law which permitted it. The passage in Sextus Empiricus is so obscure, that we cannot determine whether he meant to speak of Solon's law as authorising parents to expose new-born children, or to kill disobedient children of any age. He does not employ the usual word, ἐκτιθέναι, but φονεύειν, and therefore I suspect that he spoke of children punished, not children exposed by their parents, and even in this I believe him to have been mistaken. My chief view is to state what has been recorded of the Athenians. I am unwilling to suppose that the frequency of Infanticide among them so familiarised the human mind to it as to occasion the dearth of particular instances which I have noticed in Greek writers, and which is not found upon other customs, less important in our estimation. But the practice, I am sorry to say, prevailed in other Greek states; and, as it should seem, was not prohibited in them by the laws. The scene of action, as appears from the Prologus, and various passages in the Cistellaria of Plautus, was Sicyon. A merchant from Lemnos was the father of Silenium; he was not personally known to Phanostrata the mother, and in consequence of his sudden, secret, and illicit amour, he fled back from Sicyon to his own country. After the death of his first wife he returns to Sicyon, and, when he pays which may rest, I do not say, upon the prepossessions or the humour of any single man, but in part I do fear upon the vulgar, unequal, vindictive principle of demanding with too little discrimination, blood for blood. The political motives either of a superabundant population, or of incapacity in parents to provide for a large family of children, can have little or no place in the mind of an English legislator, because our population is not superabundant, because we have other resources, as in colonization, &c. if it were so, and because the personal incapacity of parents to support at least the existence of their children, is not without remedy from regulations which the laws have wisely and humanely established. But in the his addresses to Phanostrata, for the purpose of marrying her, "Et eam cognoscit esse, quam compresserat ;" she unreservedly tells him "ejus ex injuria Peperisse se gnatam, atque eam se servo illico Though the Roman laws encouraged by rewards the fathers of many children, the custom of exposing their new-born offspring seems to have been of great antiquity, and long continuance. It is alluded to by Juvenal, Sat. vi. v. 601, 2; and I have met with no express interdict against it, before the time of Valens. When Nero had killed his mother, his subjects, among other indignities, “ παιδίον ἐς τὴν ἀγορὰν ρίψαντες προσέδησαν αὐτῷ πινάκιον, λέγον, Οὐκ ἀναιροῦμαί σε, ἵνα μὴ τὴν μητέρα ἀποσ‐ pains. (Dio Cassius, lib. lxi. par. 16.) Reimar's Note on the foregoing passage runs thus: "Morem infantes exponendi, antiquitus usitatum, diserta lege primum sustulerunt Valens et Gratianus 1. 2. Cod. de infantibus exponendis lib. viii. tit. 52. vide Cl. Noodt in Jul. Paul. c. 6.". The Latin writers have recorded several instances, "Quo die Caligula defunctus est, partus conjugum expositi." (Sueton. in Vit. Cal. parag. 7.) "Caius Melissus ob discordiam parentum expositus." (Sueton. de illust. Grammatic. parag. 21.) Marcus Antonius Gnipho, who, probably, wrote the four books (Rhetoric. ad. C. Herennium) prefixed to Cicero's Works, and commonly ascribed to C. Cornificius, was, "in Gallia Natus, sed expositus." (Ibid. parag. 7.) moral sentiments of mankind that legislator might find some directions which it were unsafe for him entirely to disregard, if he would avoid that "weakness which a portion of superfluous pain is apt to introduce into the law, or if he sets a due value upon the efficacy which the law acquires, when the people are satisfied with it, and voluntarily lend their assistance in the execution of it."* Now there are offences against which our indignation bursts out instantaneously, and of which our sober reason seldom admits any palliation. But the pity which is often excited in cases of infanticide carries with it a strong presumption that, in our judgment and our feelings, we secretly recognize the force of that temptation which can overcome the instinct implanted by nature in the mind of a mother-a force so powerful, that when neither any of the social motives, nor the dread of detection and punishment, have been able to prevail over it, we often infer the absence of that " depraved disposition" which we justly impute to offenders, "when the mischief of an act is very great, and the temptation to it is very little."t In regard to the crime of which I am speaking, we have in this country many tutelary motives" as they are called by Mr. Bentham, all consistent, and all co-operating with those which arise from the sanction of the laws. In a state where the intercourse of individuals with each other is so near and so frequent, sympathy upon such an occasion is a very powerful, and united with other causes which I am going to mention, is not a very irregular motive. Usage and religion are among those tutelary motives to which Mr. Bentham would assign a place in "the catalogue of standing tutelary motives;" and religion more especially, when acting together with benevolence, will act in an uniform manner, and " oppose the commission of a crime on account of its mischievousness." When therefore sympathy, usage,and religion come in aid of natural affection,surely the legislator, when he fixes the quantity of punishment, may take into his calculation the force of the other tutelary motives just now enumerated, and consider well whether it be such as may warrant * Bentham, page 196. Ibid. p. 142. † Ibid. P. 146. him in subducting from his penalties any, even the smallest, portion of that rigour which in the absence of those motives it would be necessary, and therefore just for him to employ. "But the force of those other powers," we may be told, "is never determinate enough to be depended upon in cases where the force of the moral sanction has not been expressly introduced into and modified by the political. That force never can be introduced like political punishment into exact lots, nor meted out in number, quantity, and value. The legislator therefore is obliged to provide the full complement of punishment, as if he were sure of not receiving any assistance whatever from any of those quarters. If he does, so much the better. But lest he should not, it is necessary he should at all events make that provision which depends upon himself."* I admit the premises, that the force of those " powers cannot be meted out in number, quantity, and value," with such exactness as shall perfectly suit all conceivable cases. But I think the conclusion drawn from the premises rather too wide, when it is said that the legislator is obliged to provide the full complement of punishment as if he were sure of not receiving any assistance whatever from any of those quarters. "Truth," we are told, "is productive of utility, and observing truth is acting as things really are, and he who acts as things really are must gain his end, all disappointment proceeding from acting as things are not."+ Is it then true, that the tutelary motives which I have mentioned have severally or jointly a great or even a slight force in preventing infanticide? Is it not the duty of the legislature to examine what is the probable quantity of that force, and what upon the whole may be the probability of its operation? If the force be little, or the probability be little, then I should grant that the legislator is obliged to act as if he were sure of receiving no assistance from those quarters. But if the probability be great, as in this case I contend it is, and if the force also be great, the circumstance of irregularity is not of itself so strong as to render it necessary for him to depend wholly on that pro vision which is made by himself. True, however, it is, that in assigning the portion of punishment he is to look to the force of a temptation which overrules both the tutelary motives mentioned by me, and those which are furnished by the laws; and true it also is, that where all these motives are overcome, an offence will sometimes appear to have increased malignity. Still,' there often is not in the crime of infanticide such a malignity as indicates depravity of disposition; and therefore the legislator will be upon his guard against the introduction of such punishment as ought to be employed in restraining such depravity. The mischievousness of single acts is the same, whether the agent be, or be not, generally depraved in disposition. But the chance of frequency is lessened where that disposition does not exist, and I think that of such a circumstance a legislator ought never to lose sight. Keeping it in view, he will be induced by it, not indeed to abstain from punishment, but to assign such a measure of it as under all circumstances shall be necessary for the prevention of the crime-while he avoids such punishment as "is conclusively indicative of a habit, he will increase it in point of magnitude so far as it may fall short in a point of certainty and proximity; and even where in point of quality it is particularly well calculated to answer its intention, and cannot exist in less than a certain quantity, he will farther stretch it a little beyond that quantity which on other accounts would be strictly necessary."* My opinion, however, is, that for the crime of infanticide punishment for the first offence, especially if accompanied by circumstantial extenuations, may exist in a quantity less than death; and in the practice and regulations of foreign states, there is some encouragement for us, if not to make the experiment in our own, yet to be cautious, at least, in suffering the contrary experiment to be introduced in another country, where it has hitherto been unknown. The legislator, who undertakes to propose statutes, and especially such as are to affect the life of man, would do well to form those habits of observation, which may give him not, perhaps, the splendid name, but the solid knowledge of a philosopher, to |