CAPITAL PUNISHMENT. 



39 



tluit lie consents to the right of all nations to punish 

 him for it. The true and rational ground on which 

 the right rests, is not the consent of the offender, but 

 the right of every society to protect its own peace, 

 and interests, and property, and institutions, and the 

 utter want of any right, in other persons, to disturb, 

 or destroy, or subtract them. The right flows, not 

 from consent, but from the legitimate institution of 

 society. If men have a right to form a society for 

 mutual benefit and security, they have a right to pun- 

 ish other persons who would overthrow it. There 

 are many cases where a state authorizes life to be ta- 

 ken away, the lawfulness of which is not doubted. 

 No reasonable man doubts the right of a nation, in a 

 just war, especially of self-defence, to repel force by 

 force, and to take away the lives of its enemies. And 

 this right is not confined to repelling present force, 

 but it extends to precautionary measures, which are 

 necessary for the ultimate safety of the nation. In 

 such a war, a nation may justly insist upon the sacri- 

 fice of the lives of its own citizens, however innocent, 

 for the purpose of insuring its own safety. Accord- 

 ingly, we find that all nations enroll militia and em- 

 ploy troops for war, and require them to hazard their 

 lives for the preservation of the state. In these cases/ 

 life is freely sacrificed by the nation ; and the laws 

 enacted for such purposes are deemed just exercises 

 of power. If so, why may not life be taken away 

 by way of punishment, if the safety of society requires 

 it ? If a nation may authorize, in war, the destruc- 

 tion of thousands, why may it not authorize the des- 

 truction of a single life, if self-preservation require 

 it ? The mistake, however, is in supposing that life 

 cannot be taken away without the consent of the 

 party. If the foregoing reasoning be correct, such 

 consent is neither supposed nor necessary. In truth, 

 the supposition of an original compact between all 

 the persons who are subject to the regulations of a 

 society, by their own free consent, as the necessary 

 and proper basis on which all the rights of such so- 

 ciety depend, is, at best, a gratuitous supposition ; 

 and it sometimes leads to very incorrect results. It 

 may be added, that the Scriptures most clearly re- 

 cognize and justify the infliction of capital punish- 

 ments in certain cases. 



2. As to the expediency of capital punishment. 

 This opens a wide field for discussion. Some able 

 men, who do not doubt the right, do still deny the 

 expediency of inflicting it. It may be admitted, that 

 a wise legislature ought to be slow in affixing such a 

 punishment to any but very enormous and dangerous 

 crimes. The frequency of a crime is not, of itself, a 

 sufficient reason for resorting to such a punishment. 

 It should be a crime of great atrocity and danger to 

 society, and which cannot otherwise be effectually 

 guarded against. In affixing punishments to any of- 

 fence, we should consider what are the objects and 

 ends of punishment. It is clear that capital punish- 

 ment can have no effect to reform the offender him- 

 self. It may have, and ordinarily does have, the ef- 

 fect to deter others from committing a like offence ; 

 but, still, human experience shows that even tliis pun- 

 ishment, when inflicted for small offences, which are 

 easily perpetrated, and to which there is great temp- 

 tation, does not always operate as an effectual terror. 

 Men sometimes are hardened by the frequent specta- 

 cles of capital punishments, and grow indifferent to 

 them. Familiarity deprives them of their horror. 

 The bloodiest codes are not those which have most 

 effectually suppressed offences. Besides, public opi- 

 nion has great weight in producing the acquittal or 

 condemnation of offenders. If a punishment be 

 grossly disproportionate to the offence, if it shock hu- 

 man feelings, there arises, insensibly, a sympathy for 

 the victim, and a desire to screen him from punish 



ment ; so that, as far as certainty of punislunent ope- 

 rates to deter from crimes, the object of the legisla- 

 ture is often thus defeated. It may be added, that a 

 reasonable doubt may fairly be entertained, whether 

 any society can lawfully exercise the power of pun- 

 ishing, beyond what the just exigencies of that so- 

 ciety require. On the other hand, a total abolition 

 of capital punishments would, in some cases at least, 

 expose society to the chances ofdeep and vital injuries. 

 A man who lias committed murder deliberately, lias 

 proved himself unfit for society, and regardless of all 

 the duties which belong to it. In his case, the lex ta- 

 lionis can hardly be deemed unjust. The safety of so- 

 ciety is most effectually guarded by cutting liim off from 

 the power of doing further mischief. If his life be not 

 taken away, the only other means left are, confine- 

 ment for life, or transportation and exile for life. 

 Neither of these is a perfect security against the com- 

 mission of other crimes, and may not always be with- 

 in the power of a nation without great inconvenience 

 and great expense to itself. It is true that the latter 

 punishments leave open the cliance of reform to the 

 offender, which is, indeed, but too often a mere delu- 

 sion ; but, on the other hand, they greatly diminish 

 the influence of another salutary principle, the deter- 

 ring of others from committing like crimes. It seems 

 to us, therefore, that it is difficult to maintain the pro- 

 position that capital punishments are, at all times and 

 under all considerations, inexpedient. It may rather 

 be affirmed that, in some cases, they are absolutely 

 indispensable to the safety and good order of society. 

 We should incline to say that, as a general rule, every 

 nation, in its legislation on this subject, must be go- 

 verned very much by the manners, customs, liabits of 

 thinking, and state of opinion, among the people upon 

 whom it is to operate. In a rude and barbarous state 

 of society, summary and almost vindictive punish- 

 ments seem more necessary than in a highly polished 

 and civilized state of society. 



3. As to the crimes to which capital punishments 

 may most properly be limited. From what has 

 been already said, this must depend upon the parti- 

 cular circumstances of every age and nation ; and 

 much must be left to the exercise of a sound discre- 

 tion on the part of the legislature. As a general 

 rule, humanity forbids such punishments to be ap- 

 plied to any but crimes of very great enormity, and 

 danger to individuals or the state. If any crimes 

 can be effectually suppressed by moderate means, 

 these ought, certainly, to be first resorted to. The 

 experience, however, of most nations, if we may 

 judge from the nature and extent of their criminal 

 legislation, seems to disprove the opinion so often 

 indulged by philanthropists, that moderate punish- 

 ments are sufficient to suppress crimes, and that 

 capital punishments are rarely necessary. The codes 

 of most civilized nations abound with capital punish- 

 ments. That of Great Britain, a nation in which the 

 public legislation has a deep infusion of popular 

 opinion, is thought to be uncommonly sanguinary. 

 Blackstone, in his Commentaries (vol. iv. 18), ad- 

 mits that, in liis time, not less than one hundred ana 

 sijcty crimes were, by the English law, punishable 

 with death. In the code of the United States of 

 America, only nine crimes are so punishable, viz., 

 treason, murder, arson, rape, robbery of the mail, 

 fraudulent casting away ships, rescue of criminals 

 capitally convicted during execution, and piracy, one 

 species of which is the African slave-trade. In the 

 codes of the several states of the Union, still fewer 

 crimes are generally punishable with death. It re- 

 mains yet to be proved, whether the general mildness 

 of the American penal code affords any greater securi- 

 ty against crimes than exists in other nations. Hither, 

 to, the temptations to commit them have been less 



