Those, indeed, who cite the law of nature as an authority for punishments of any sort, seem to have a wrong notion of the law itself; for it is a moral, not a penal law,-and is intended for the guidance of individuals, not for the government of society. Except so far as society may be injured by its infraction, it does not rest with man to enforce obedience to it; and, even in those cases where interference may be justifiable, we must go to some other source than the law of nature for a warrant to punish. Blackstone, indeed,* infers from the case of Cain, that, even at that early period, the right of taking away life for murder was admitted, because the unhappy wretch who had slain his brother, and was trembling in his Maker's presence at the awful sentence which had just been pronounced upon him, in the agony of terror expressed his apprehensions, "that whoever should find him would slay him."+ It can, however, hardly be imagined, that, prior to the murder of Abel, the contemplation of so atrocious a crime had entered into the minds of men; or that such a question, as the right of inflicting the punishment of death, had ever been agitated. In any point of view, the fears of an individual cannot prove that the violence which he apprehends would be justifiable, and even the fears themselves may be without foundation. Besides, the ground of Cain's apprehension was, not that he had been guilty of murder, but that he had, by the sentence of the Almighty, been banished from human society. Knowing that he was become a public object of the divine displeasure, he apprehended that his fellow-creatures would cut him off from the face of the earth, as a wretch under the curse of heaven: but that the Deity did not approve such a proceeding, is manifest from his setting a mark upon Cain, lest any finding him should kill him.‡ The punishment of death, in cases of murder at least, is sometimes defended on the ground of that first law of nature, -self-preservation. Thus, it is said, we have a right to take life in our own defence, and that society has the same right as an individual. But it is only in cases of absolute necessity that we have a right to kill even in self-defence, and the necessity of the punishment of death remains to be shown. It should also be observed, that an individual defending himself from the attack of an assassin, and society, after a murder has been perpetrated, are in very different situations. The one cannot prevent his own destruction, without taking the life of the aggressor; the other can prevent the crime from being repeated, by merely depriving him of his liberty. The condition of the criminal, also, when engaged in the perpetration Ibid. iv. 14, 15. * 4 Bl. Com. 7, 8. + Gen. iv. 14. It of his crime, and in custody afterwards, is very different. may be justifiable to kill him, while in a state of actual hostility, and to prevent an evil otherwise inevitable; but by no means when disarmed and helpless, and when the mischief which he has done can neither be avoided, nor remedied, nor even diminished, by doing so. We have a right to restrain, but not to destroy. We have also a right to kill in selfdefence, or to prevent an atrocious crime, but not to revenge it; nor is it indeed justifiable to take life in any case, except when there is a total absence of all other means of defence or prevention. In no respect, therefore, does the law of nature justify the punishment of death: on the contrary, that very law of nature -self-preservation,-which is sometimes relied on as an authority, has a manifest tendency the other way. Nothing would contribute more effectually to the prevention of murder, and personal violence in general, than the universal impression on the minds of men from their earliest years, that the person of man was sacred, that on no consideration whatsoever were his limbs to be mutilated, still less his life destroyed. The infliction of such punishments as torture, mutilation, and death, has the effect of degrading human nature itself, and making those who hear of such things, still more those who witness them, have less respect for that, which they see the law itself treat with so little. The general principle of capital punishments, and its peculiar propriety in the case of murder, has frequently been considered as fully supported by the authority of Scripture. There being many offences, for which the Author of Life himself once ordained the punishment of death to be inflicted, it has been inferred, that there is nothing in it inherently wrong. When inflicted in obedience to such a command, that may be admitted; but no further: and, in order to prove the right of punishing with death in the present day, some authority ought to be shewn which continues still in force. Now, it is not pretended that this is the case with the law of Moses, its moral precepts only excepted, all the rest being either expressly abrogated by Christ, or having necessarily ceased on the establishment of his new dispensation. But it is supposed by some, that, though the Jewish code does not impose the obligation of a law, it furnishes the authority of an example. The incorrectness, however, of this notion must be evident, when it is remembered, that such offences as sabbath-breaking, witchcraft, blasphemy, false prophecy, idolatry, eating blood, and other offences, not in themselves more heinous than these, were by that law punishable with death. But it is conceived, that such an example cannot be considered a sufficient justification for punishing such offences with equal severity now. Yet if the law of Moses, on the ground of its divine origin, be sufficient to authorize the punishment of death in one case, it would equally do so in all, as the whole of it is alike divine; and, therefore, as the example is not sufficient in every case, it cannot, merely as an example, and without reference to other considerations, be so in any. But, independently of the law of Moses, there is another part of Scripture to which reference is usually made as an authority for putting murderers to death, namely, Gen. ix. 6. "Whoso sheddeth man's blood, by man shall his blood be shed." This passage, however, has, by some writers on capital punishments,* been interpreted in a prophetic sense, or rather as a general declaration of what will take place in the ordinary course of Providence. In this point of view, it would merely import, that they who shed the blood of their fellow-creatures shall come to violent ends themselves, as a judgment for their wickedness. The common construction of this passage involves great practical difficulty; for, if all who shed the blood of man were to have their blood shed by man, then naval and military men, persons killing others in selfdefence, or by accident, and many others, would come within the letter of the law; and, as the executioners of criminals would be of course included, there could be no end to the slaughter, till the last shedder of blood was suffered to escape, or left the sole inhabitant of an unpeopled world. A construction leading to such results can hardly be correct. There are other passages of Scripture of which the form is very similar to that in question, and which have still never been considered as imperative, but merely declaratory. Thus, it is said in the Gospel by Matthew, "He that taketh up the sword shall perish by the sword;" and, in the Book of Revelation, "He that leadeth into captivity shall go into сарtivity." These passages are as imperative as that in Genesis, which can only be viewed in that light on the strength of the word "shall;" for, if it had been, "Whoso sheddeth man's blood, by man will his blood be shed," there could have been no pretence for saying it was a command. Yet if the word "shall" is sufficient to make a command, the other two passages quoted must have a similar construction; and, in that case, naval and military men, and persons killing others in self-defence, ought certainly to perish by the sword, as persons * Montagu's Collection of Opinions on the Punishment of Death,-Art. Enquiry upon Public Punishments; and Rev. William Turner's Essay on Crimes and Punishments. who take up the sword; and, as a writer on this point* has justly observed, the passage in Revelation would require, that every Guinea captain should be sold as a slave; for, as they lead into captivity, they ought to go into captivity. But, however just such a proceeding might be in itself, no one would consider such a passage a sufficient reason for its adoption. The foregoing considerations render it highly probable, that the declaration to Noah was not intended as a precept. Its meaning and construction are very doubtful; and, in a matter of such importance, the safest course is to refrain from acting on so questionable an authority. Admitting, indeed, for the sake of argument, that the passage is to be understood as a command, it no longer remains in force. The principle on which it is founded is that of the lex talionis, which afterwards shone so conspicuously in the code of Moses, but which the disciples of Christ are forbidden to act upon,† and which has been totally exploded by the best authorities, as an erroneous principle even of penal legislation. The punishment of death, therefore, is not justified by the law of revelation any more than by that of nature: it is, in fact, essentially inconsistent with both. But, supposing the right of taking away life to be ever so clear, we have still to inquire, whether it is expedient to exercise it. This question depends upon two others, first, whether the punishment of death is efficacious; and next, whether it is necessary,-that is, whether no other punishment would be equally efficacious: for it cannot be expedient to exercise such a right, if by so doing the intended purpose be not answered, nor if it can be equally well answered in any other way. Indeed, the right itself, so far as it depends upon a supposed necessity, can no longer be upheld where the punishment in question is found to be needless; for its infliction, in that case, would be mere wanton and gratuitous cruelty. These points, therefore, are of the utmost importance in the present inquiry; but, as every question of efficacy or necessity must have reference to some particular end, it will be proper just to state what the chief object is, that human punishments are designed to answer. Without discussing at length the conflicting views of various writers as to this part of the subject, on which some appear to have confounded man with his Maker, and others the means with the end, it may be sufficient to observe, that the * The Rev. William Turner, in bis Essay on Crimes and Punishments. Matt. v. 38, 39. 4 Bl. Com. 13, 14. most approved authors* have agreed in considering the proper end of punishment to be the prevention of crime. The chief means by which this is effected are, the reformation of criminals, the depriving them of the power of repeating their offences, and the deterring both of them and others by the force of example. Such, then, being the end to be attained, the question is, whether the punishment of death answers that end better than any other. Experience and reason will both shew, that it does not answer it even so well as others. History, both ancient and modern, supplies us with instances of wise and benevolent men setting examples of humane and enlightened policy to the rest of the world, by abolishing the punishment of death; and the most beneficial consequences have invariably followed such abolition. It The earliest account we meet with, of this sort, is in Diodorus Siculus, from whom we learn, that Sabaco, King of Egypt, changed capital punishments, with much success, into stated kinds of labour, an example which has been sanctioned by the recommendation of no less an authority than that of Grotius. + At Rome, too, for the space of about 250 years, it was not lawful to put a citizen to death for any crime. does not appear, that, during this happy period, crimes were either more frequent or more atrocious than they had previously been under the sanguinary laws of the twelve tables; but this is clear, that they were much less frequent and much less atrocious than after the punishment of death was again employed. Blackstone, indeed, goes so far as to hint, that the fall of the empire was in some measure owing to the revival of severe punishments. "The laws, (says he) of the Roman Kings, and the twelve tables of the decemviri, were full of cruel punishments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished: under the emperors, severe punishments were revived; and then the empire fell." The learned commentator could not mean, that the empire fell as the immediate consequence of the revival of severe punishments; but that such punishments, being calculated to deprave the public morals, were the means of introducing feelings and habits among the people, which, in the end, led indirectly to circumstances that contributed to the overthrow of the state. In modern times, we have the examples of Russia, Tuscany, and Austria, in which the punishment of death was abolished, * Montesquieu, Beccaria, Blackstone, Paley, Eden, Bentham, and many others. + Montagu's Collection, 301, in notis. 4 Bl. Com. 17. |