PUNISHMENT. 



the punifhment of crimes ; and the authority of making 

 penal laws can only relide with the legiflator, who reprcfents 

 the whole fociety, united by the fecial compadl. No ma- 

 eillrate, therefore, as he is one of the foeiety, can, with 

 juftice, inflift on any other member of the fame fociety, 

 pwiifhment that is not ordained by the laws, nor increafe 

 the uunifhment already determined by the laws. To the 

 fovereign reprefenting the fociety itfelf, who makes general 

 laws to bind the members, it does not belong to judge, whe- 

 ther any individual has violated the focial compaft, or in- 

 curred the conftquent puniftment. In this cafe, there are 

 two parties, ■ ne reprefented by the fovereign, who infills 

 upon the violation of the contraft, and the other is the per- 

 fon accufed, who denies it. It is neceflary then, that there 

 fhould be a third perfon to decide this conteft ; that is to 

 fay, a judge or magiftrate, from whofe determination there 

 fhould be no appeal. Judges, in criminal cafes, fays Bec- 

 caria, have no right to interpret the penal laws, becaufe they 

 are not l;gif]ators. The lawful interpreter is the fovereign, 

 that is, the reprefentative of fociety, and not the judge, 

 whofe office is only to examine, if a man have, or have not 

 committed an aft ion contrary to the laws. Many evils arife 

 from the erring inftability of arbitrary interpretation. 



The lawfulnefs of punifhing criminals, who are charge- 

 able with offences againft the laws of fociety, that are only 

 " mala prohibita" and not "mala in fe," is founded upon 

 this principle, that the law by which they fuffer was made 

 by tlieir own confent ; it is a part of the original contraft 

 into which they entered, when firft they engaged in fociety ; 

 it was calculated for, and has long contributed to, their 

 own fecuritv. This right, conferred by univerfal confent, 

 crives to the ftate exactly the fame power, and no more, over 

 all its members, as each individual member had naturally over 

 himfelf or others. Hence fome have doubted how far a 

 human legiflature ought to inflift capital punifhments for 

 pofitive offences ; — offences againll the municipal law only, 

 not againft the law of nature ; fmce no individual has, na- 

 turally, a power of inflifting death upon himielf or others 

 for aftions in themfelves indifferent. 



With regard to offences " mala in fe," capital punifhments 

 are in fome inftances inflifted by the immediate command of 

 God himfelf to all mankind, as in the cafe of murder, by the 

 precept delivered to Noah, their common ancellor and repre- 

 fentative (Gen. ix. 6.), " whofo fheddeth man's blood, by 

 man fhall his blood be fhed." In other inftances they are in- 

 flifted after the example of the Creator, in his poiltive code 

 of laws for the regulation of the Jewifti republic ; as in the 

 cafe of the crime againft nature. But they are fometimes 

 inflifted without fuch exprefs warrant or example, at the will 

 and difcretion of the human legiflature, as for forgery, for 

 theft, and fometimes for offences of a lighter kind. None of 

 thefe crimes are offences againft natural, but only againft 

 focial, rights. The praftice of inflifting capital punifhments, 

 for offences of human inttitution, is thus juftified by that 

 great and good man, fir Matthew Hale (i Hal.. P. C. 13.) 

 " When offences grow enorm.ous, frequent, and dangerous 

 to a kingdom or ftate, deftruftive or highly pernicious to 

 civil focieties, and to the great infecurity and danger of the 

 kingdom or its inhabitants, fevere punifhinent and even 

 death itfelf is neceflary to be annexed to laws in many cafes 

 by the prudence of lawgivers." ' It is, therefore, as judge 

 Blackftone obferves, the enormity, or dangerous tendency 

 of the crime, that alone can warrant any earthly legiflature 

 in putting liim to death that commits it. It is not its fre- 

 quency only, or the ilifficuhy of otherwife preventing it, 

 that will cxcufc our attempting to prevent it by a wanton 

 rffuiion of human blood. For, though the end of punifh- 



ment is to deter men from offending, it can never follow from 

 this circumftance, that it is lawful to deter them at any rate 

 and by any means ; fince there may be unlawful methods of 

 enforcing obedience even to the jufteft laws. Every humane 

 legiflator, as the learned judge remarks, will be therefore 

 extremely cautious of eftablifliing laws that inflift the penalty 

 of death, efpecially for flight offences, or fuch as are merely 

 pofitive. Nor will it avail to allege that no lighter penalty 

 will be effeftual, becaufe experience has not taught us that 

 capital punifhments are morct'ffcftual. Was the vaft terri- 

 tory of all the Ruffias, it may be afked, worfe regulated 

 under ihe emprefs Elizabeth, than under her more fanguinary 

 predecefiors ? Or has it been iince, under Catharine II., lels. 

 civilized, lefs focial, and lefs fecure ? And yet we are afl'ured, 

 that neither of thefe illuitrious princelFes have, throughout 

 their whole adminiftratioii, inflifted the penalty of death ; 

 and the latter, upon full perfuafiou of its being ufelefs, and 

 even pernicious, iffued orders for abolifhing it entirely through- 

 out her extenilve dominions. But if capital punifliments, 

 fays Blackftone, were proved by experience to be a fure and 

 effeftual remedy, that would not prove the neceflity (upon 

 which the juftice and propriety depend) of inflifting them 

 upon all occafions, when other expedients fail. This reafon- 

 ing would, as we may juftly apprehend, extend much too 

 far. Where the evil to be prevented is not adequate to the 

 violence of the preventive, a fovereign that thinks ferioufly 

 can never reconcile laws that inflift death to the diftates of 

 confcience and humanity. To fhed the blood of our fellow- 

 creature, fays the learned and humane judge, is a matter that 

 requires the great' ft deliberation, and the fulleft conviftion 

 of our own authority ; for life is the immediate gift of God 

 to man ; which neither he can refign, nor can it be taken 

 from him, iinlefs by the command or permiflion of him who 

 gave it ; either exprefsly revealed or collefted from the laws 

 of nature or fociety by cleai" and indifputable demonftra- 

 tion. Blackftone, however, would not be underftood to 

 deny the right of the legiflature in any country to enforce 

 its own laws by the death of the tranfgreffor, though fome 

 perfons of abilities have doubted v.. To this clafs of perfons 

 we may refer the ingenious writer already cited. The ufelefs 

 profulion of punifliments, which has never made man better, 

 has induced Beccaria to enquire, whether the punifhment 

 of death be really juft or ufeful in a well-governed ftate ? 

 What right, he aflcs, have men to cut the throats of their 

 fellow-creatures ? Certainly not that on which the fovereignt v 

 and laws are founded. The laws are only the fum of the 

 fniallell portions of the private liberty of each individual, and 

 reprefent the general will, which is the aggregate of that of 

 each individual. Did any one ever give to others the right 

 of taking away his life ? Is it poffible, that in the fmalleft 

 portions of the liberty of each, facriflced to the good of the 

 public, can be contained the greateft of all good, life ? If 

 It were fo, how fliall it be reconciled to the maxim which 

 • tells us, that a man has no right to kill himfelf ? Which he 

 certainly muft have, if he could give it away to another. 

 The punifhment of death is not authorized by any right ; 

 for no fuch right cxifts. The death of a citizen cannot be 

 neceffary, but in one cafe ; when, though deprived of his 

 liberty, he has fuch power and conneftions as may endanger 

 the fecurity of the nation ; when his exiftence may produce 

 a dangerous revolution in the eftablifhed form of government. 

 But even in this cafe, it can only be neceflary when a nation 

 is on the verge of recovering or lofing its liberty ; or in 

 times of abfolute anarchy, when the diforders themfelves 

 hold the place of laws. 



If the experience of all ages be not fufficient to prove, 

 that the punifhment of death has never prevented determined 



men 



