But if there be a case in which, neither palpably to common sense, nor by any construction, it can be shown that the natural right of life is forfeited-is it possible that any opinion of the expediency of the severest punishment can justify the use of the punishment of death? It seems very difficult to conceive.

The first great class of penalties upon which this question must be asked-in our own country-are those which regard the invasion of property, where there is no personal aggression. It is plain, that in these cases of fraud and theft, there is nothing whatever of the character of offence which separates a man from his community. He violates a law; but no man will say that that is simply a forfeiture of all right. He violates a right which is of great magnitude and importance, and on which the prosperity of the state is founded. But will any man say that he has therefore waged war with the prosperity of the state? There may be difficulty in marking the point where aggression, on the one side, breaks up to the man the laws of social life, and on the other, has ceased to do so; but the numerous cases in which wealth lies open to invasion, without any injury of personal aggression, cannot be so construed. For the injury done to me, who suffer most, is not such that I can desire the man's death. The spirit of revenge, the fiercest spirit that ever entered into law, does not ask it. Yet, upon that act, for which the sufferer dare not, before God or man, ask death, the legislator himself imagines to inflict it-making his cooler deliberation of expediency more remorseless than revenge!

Here, it may be at least an evidence that life is not for feited, when he whose passions are most inflamed would never have dreamed it to be so. The case indeed appears perfectly clear-that here, life is taken which is not forfeited. To those who believe that, without this self-forfeiture, there can be no such penalty justified as death, the argument is ended. To those who look upon expediency as constituting a necessity, it remains to show that the punishment is expedient. But the experience that has been had of it does not show this.

To us the great question is, whether the protection of property, separate from all other considerations, can justify

the punishment of death? In most of the aggressions upon property which have, by the common laws of nations, been punished by death, there has been other aggression upon the peace and security of the society, which gave to the crime its more atrocious character. But in a country in which property is so separated from the person that it can be violated alone, the question comes, whether it is lawful, for that violation, to take away life?

Property can be invaded by counterfeiting a signature. Does the necessity of protecting it give a right to take away life, in order to deter from that invasion? The only answer that can be made in the affirmative, must at least bear the qualification, "if there is no other method of preventing it, and this is effectual." What, then, if it can be said that this is the only method that has been tried, and that this is not effectual?

case,

But it may be doubted whether, in the utmost extremity of the it can be justified. For, to what extent is the law bound to interfere for the protection of property? If I lock up my purse in my house, the law will protect it, though I leave my house empty; but if I leave my purse on the highway, the law will not protect it. In one case I do not make the risk it exists in the nature of things. In the other case, I make it. When commercial houses have arranged, that the check of a holder of money shall command it, without any other authority or evidence of his intention—if that puts the money at risk, they have put it for themselves; for there is nothing in the nature of property constraining such a risk. It is an arrangement of convenience; and if the law did not protect that arrangement by any penalty, it cannot be doubted for a moment that the holders of property would devise more decisive means of ascertaining their intention. They would be able to avoid the insecurity, but not the inconvenience. It is their convenience, then, and not the property, that is now protected by the penalty of death.

Another invasion of property, of a similar kind, is that which is effected by counterfeiting the promissory engagements of particular commercial houses, which have the currency of money with the public. The fraud is on the public. This case is of much greater importance, because no

means which could be taken by those who are liable to suffer from it are sufficient to protect them; the only sufficient means being out of their power. But it is possible that the houses who derive their profit from issuing such engagements, whose interest it is to put this money into circulation, might find the means of protecting the public from fraud. And if there were no protection afforded by the law, it is unquestionable that they would long ago have found the means of imparting some more indisputable character to their money; because the perilous uncertainty of this circulation to the public would otherwise have stopped its currency. But the ready penalty of death was at hand; and the law did as much as lay in it to render so much pains unnecessary.

The protection of such a circulation by the penalty of death, seems to have followed from the protection of the coin of the realm by the same penalty. At least, if this did not lead to it in law, it may be believed that nothing less than some habitual acquaintance with the protection of a currency by death could have disposed the country so readily to acquiesce in it. But the protection of the coin by this penalty is in itself a very extraordinary part of policy; and it is derived, not from any opinion of the sanctity of property, but from the majesty of the King, against which this crime is an aggression, and therefore punishable as treason. The law was never enacted in obedience to the common sentiments of the

nation; but it was one of the acts of offended greatness,—an act of the state; and the penalty was the same, if the coin were good. If it were now for the first time to be deliberated in a civilised and Christian country, in what manner the King's coin, the engagements of banks, and the deposits of individuals, should be guarded from invasion by counterfeiture, who is there that would first stand up, and propose that the security should consist in the penalty of death? It is not supposable that, in such a state, these laws should take origin. Who is there whose own mind would suggest to him the wish, that the man who had passed on him ten counterfeit guineas or notes, or had forged his check for fifty pounds, should perish for it on the gallows? We have a punishment which no legislator would dare to advise for the crime, and no sufferer by it to desire.

The first idea that presses on our mind is, that property

must be protected. The whole establishment of the country seems so interwoven with it, that we look with dread on its insecurity; and its security seems to us a first law of necessity. There is a feeling, that by this crime-Forgery-property may be reached to such an extent,-it seems so easy, so small an act to work such great consequences, that we can think of nothing sufficient but the most dreadful protection. It is but a few years since the persuasion was common, that forgery was a crime which never had been, and never could be, pardoned!

The same idea of the facility of crime, the strong temptation to it, from the unprotected nature of the property, led the country to acquiesce in the same punishment for real invasion of exposed property; and if there were no other means of protection, and this were such, it is not probable the holders of property would ever consent to remit the law. But now they feel it to be cruel,—because they see it to be ineffectual; and men will not enforce, for the sake of compensation, a penalty exceeding by infinite degrees the measure of their grievance.

But property which stands under conventional securities seems to differ in essential respects from that which subsists and is secured in nature. He that removes a landmark-he that takes my money-that steals my plate, my cattle-cuts away the very substance I hold. But he that passes upon me a false guinea, or a forged note, or obtains from me, by a forged order, the money I hold of another, deceives me, and gets my property with my own consent. This act is fraud, and not robbery. Now, if we would understand how widely these two crimes stand apart, we may observe, that one of great magnitude, and which is never punished with death, stands between them-the breach of trust. The moral offence may be here far greater, and also the danger to property; yet the just sense of men has saved this crime from this punishment. The difference between robbery and fraud seems to consist essentially in this, that in the one the owner has no consent-in the other he has; and therefore it is presumed that, in fact, his own imprudence has made his insecurity. Further, in one there is open and defying war against the establishment of society. There is a wilful arrogating to himself of the disposal of property. The hand that violates

property chooses to live by its own law against society; and it has therefore cast itself out from the brotherhood of men. But the man who lives by fraud puts himself still within the pale of society.

But we have a deeper feeling yet; for we conceive a sanctity in property-an inviolable sacred right. It is like the right in life and limb-in marriage, or in blood. The man brings it with him from the hand of God-it is indefeasible except by his own act; and therefore the moment we perceive his own act in effecting his loss of it, we lose the idea of the violation of the right. He who robs braves this right; he who defrauds acknowledges it. Upon such impressions, men in ruder ages may have acted to extremity, and yet justly; but we dare not act upon them now, for the moment we have begun to question them, and find that they have their impulse in imagination, we know that we are in danger of being deluded, and therefore desire to act on calm reason alone. That tells us that the right of life is not necessarily forfeited by the violation of the right of property.

But let us go now to the question of expediency.

Now, if the punishment of death is to be argued upon its expediency, the first question will be, upon what does the power of such punishment rest? Upon Fear. It takes this as the highest punishment, and rests its efficacy on the fact, that the fear of men will be in proportion-that their actions will be most controlled by the strongest fear. But it is altogether contrary to experience to say, that the fear of death has the strongest control over the actions of men. On the contrary, we know that the human heart is full of passions stronger than this fear; and that so far from its being possi ble to rest the security of states upon the fear of death in the breasts of its members, their only imaginable security is the power which is in those breasts to triumph over it.

It is necessary to know, therefore, what it is that gives to death its real efficacious fear; and what, in a less degree of the same nature, to other bodily inflictions. We must not hesitate to say, that what lifts men above the fear of death, is-in addition to natural courage-the sense of honoursympathy with their fellow-men-the necessities of some great cause in which they are engaged constituting a plain duty-and last of all, the habitual presence of death steeling