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Shall miss the Patriarch; at his cottage door
Who numbers worlds, and writes their names in light,
ON THE PUNISHMENT OF DEATH.
PUNISHMENT in human government may be referred originally to two sources: the vengeance of offended Power; and the satisfaction of Justice—that is, retribution measured to transgression. Either of these feelings suggests the idea of punishment, and satisfies the minds of those who impose it. To these is soon added the use to which punishment may be employed, for deterring others from the same crime. The progress of moral civilisation adds a fourth purpose-that of moral restoration to the criminal. The illustration of these Four Principles would go through the whole history of Penal Legislation.
The character of those feelings which have given origin to punishment among men, must explain the sanguinary and ferocious character it has borne. For either of them provokes strong passion in the hearts of rude men. Offended power and indignant justice crush the offender. In those early states of mankind in which laws and government have their origin, there is nothing for men to refer to, when occasions arise, but the sentiments they find in their own hearts, whencesoever they are produced; and when any of those great violations occur which call for severer chastisement, the passionate feeling with which they consider the acted offence gives birth to the law.
If we were to look into the history of human institutions to understand how it has happened that those corporeal inflictions which seem to us so terrible-mutilations, torments, death with all possible aggravations—have entered into the scheme of government, we should have to examine the effect among men in the pristine states of life, of crimes perpetrated before their eyes, which provoke vehement indignation. When the punishment is once allowed, its continuance is accounted
for, because the minds of men frame themselves to the existing institutions, and the policy of a barbarous people remains to more enlightened ages.
In thus referring the origin of Punishment to passionate sentiments, we at once explain its excess. Because it is the property of such passionate feelings to justify to themselves their own acts. Offended justice and offended power have this in common, that they never question the extremity of their resentment. It will be clear to those who inquire into such conditions of society, that, constituted as the life of man there is, turbulent and ungoverned, their spirit of understanding dark, and everything new and indeterminate amongst them, they could refer to nothing else but in the individual case to the sentiment of the occasion; that those impetuous dictates of feeling to which they did refer performed a most important service; for that, unless they had acted fearlessly and vehemently under such impulses, there would have been a total relinquishment of all government among them—the worst state into which any society can fall. Therefore, when that state of society is come in which men deliberate with reflective humanity, and, strong in the knowledge and experience of ages, upon their own legislation, they have to separate entirely the history of Punishment, as it may exist among them, from the consideration of its principles. For in one they see the natural resources of uninstructed men; but what they seek for themselves in the other, is the highest wisdom of possible human government.
This spirit of reflecting humanity in legislation we scarcely find, except in Christian Europe; and there not till its latest ages. The diffusion of these humane sentiments has gradually abolished many modes of torturing punishment, and has taken from the punishment of Death very generally the enormities with which it used to be accompanied. But the softenings of justice are generally to be ascribed rather to the natural influence of a milder spirit, which revolted from shocking inflictions, than to much study of legislators to conform their general laws to the wisest principles. The fearful appendages
-the hideous ostentations of the punishments, have dropped away; but the reconstruction of their codes upon the wisdom which the age possesses, is a work yet to be done for most of them, yet to be begun. It seems as if great progress
indeed, both intellectual and moral, were required to enable men to detach themselves in idea from the system to which their minds have been moulded; and to reform it according to the measure of their understanding and feeling.
When this change in the spirit of the age begins, and they consider not what the laws are, but what are the principles and the rights of punishment-when they throw off all their habitual impressions, and ask for a perfect ground, or reason, for everything they dare enact-the first startling question that comes upon their thought, is, whether men have the right to put men to death? A question involving such ideas of injury and responsibility, that it takes place of all other questions on the subject, and all theories of punishment are framed with a reference to its solution. At the time when such inquiry begins, it is found that a great change has taken place in the prevalent views of punishment; and that, in place of those conceptions of direct and retributive judgment, which prevailed in the origin of laws, the common idea that now holds a place in the public opinion is the notion of its practical utility—not its justice, but its expediency. The effect upon society of deterring from the commission of crimes-the efficacy of punishment by example-will be found to have its chief place in common thought upon the subject; and it may possibly be found that there is a common disposition to rest punishment altogether upon that ground.
The consideration, therefore, of the expediency of punishment, may perhaps rationally be brought as the first to the question of the right of capital punishment; and it may be asked, is it possible that any degree of expediency, any danger to be repelled from society, can authorise to take away life? The answer of natural feeling is here direct and simple; that, unless the life is forfeited, there can be no right to take it away. And we are thus thrown at once upon the intrinsic difficulty of the subject—the forfeiture of the right of life. If there be any cases in which it is certain that men are commanded by the highest authority under which they live to take away life, upon those cases there can be no deliberation. But if that be doubtful—and we are left upon our human understanding of rights to examine the question-the difficulty is great; for to what law can we refer, but to the common law of human nature-declared by Feeling, Reason, and Conscience?
The simplest case in which we acknowledge the right to destroy life, is that of resistance against the assault upon life. A man attempting the life of a man, a nation invading a nation with arms, always appears to us to give an unquestionable right to put to death, because in these cases the aggressor breaks up the natural bond of human society; he outlaws himself; he takes his blood upon his own head. He, in fact, gives the right over his life, not to him merely whom he attacks, but to him who passes by. He then appears certainly to have forfeited his right of life.
Our conception, therefore, is not of an absolute right of life. We conceive and admit its forfeiture. Now, can we state on what ground we conceive a right of life? Only upon this— that we are members of one family. Every individual human being has, in our eyes, the same right at our hands, by the community of our nature. But he who attempts life has dissolved for himself this community of nature; he has annulled it, and can derive no right from it. It seems, therefore, a natural reasoning, that he who has violated life has forfeited his own, and made them innocent who destroy it.
Let us take another step. The delinquency of an individual against the society to which he belongs, in those acts which are against the existence of the whole body, seems to be of the same nature; to abrogate his fellowship with them; to put him on the footing of an ordinary enemy; and to justify his death-as theirs, provided the society to which he belongs be lawfully constituted; and thus the forfeiture of life, or punishment of death, may seem to have a justification in the highest treasons.
Let us take another step. It seems reasonable to suppose, that the laws, which have been always extremely sanguinary against pirates and banded robbers, have proceeded upon such a ground-upon the assumption that they had themselves dissolved their fellowship with men, and separated themselves to be the enemies of human society. Therefore the question was not, whether they had in particular cases destroyed life, but their occupation of itself was held justly to condemn them.
These are some of the plainest cases of the apparent forfeiture of the right of life. It is possible there may be some in which, by construction, it may be conceived to be forfeited.