thought was considered to get rid of the whole difficulty, and to
legitimate the infliction of punishment, in virtue of another received
maxim of justice, _volenti non fit injuria_; that is not unjust which is
done with the consent of the person who is supposed to be hurt by it. I
need hardly remark, that even if the consent were not a mere fiction,
this maxim is not superior in authority to the others which it is
brought in to supersede. It is, on the contrary, an instructive specimen
of the loose and irregular manner in which supposed principles of
justice grow up. This particular one evidently came into use as a help
to the coarse exigencies of courts of law, which are sometimes obliged
to be content with very uncertain presumptions, on account of the
greater evils which would often arise from any attempt on their part to
cut finer. But even courts of law are not able to adhere consistently to
the maxim, for they allow voluntary engagements to be set aside on the
ground of fraud, and sometimes on that of mere mistake or
misinformation.

Again, when the legitimacy of inflicting punishment is admitted, how
many conflicting conceptions of justice come to light in discussing the
proper apportionment of punishment to offences. No rule on this subject
recommends itself so strongly to the primitive and spontaneous sentiment
of justice, as the _lex talionis_, an eye for an eye and a tooth for a
tooth. Though this principle of the Jewish and of the Mahomedan law has
been generally abandoned in Europe as a practical maxim, there is, I
suspect, in most minds, a secret hankering after it; and when
retribution accidentally falls on an offender in that precise shape, the
general feeling of satisfaction evinced, bears witness how natural is
the sentiment to which this repayment in kind is acceptable. With many
the test of justice in penal infliction is that the punishment should be
proportioned to the offence; meaning that it should be exactly measured