The equalization of punishment with crime is therefore only possible
by the cognition of the judge extending even to the penalty of
death, according to the right of retaliation. This is manifest from
the fact that it is only thus that a sentence can be pronounced over
all criminals proportionate to their internal wickedness; as may be
seen by considering the case when the punishment of death has to be
inflicted, not on account of a murder, but on account of a political
crime that can only be punished capitally. A hypothetical case,
founded on history, will illustrate this. In the last Scottish
rebellion there were various participators in it- such as Balmerino
and others- who believed that in taking part in the rebellion they
were only discharging their duty to the house of Stuart; but there
were also others who were animated only by private motives and
interests. Now, suppose that the judgement of the supreme court
regarding them had been this: that every one should have liberty to
choose between the punishment of death or penal servitude for life. In
view of such an alternative, I say that the man of honour would choose
death, and the knave would choose servitude. This would be the
effect of their human nature as it is; for the honourable man values
his honour more highly than even life itself, whereas a knave
regards a life, although covered with shame, as better in his eyes
than not to be.
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