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No. V.

May, 1846.





The controversy on capital punishment has of late been very much narrowed in its limits, partly by changes of law, and partly by the progress of public opinion ; and it may now be considered for all practical purposes as confined to a single case ; the chief exceptions being two or three crimes, for which it is inflicted with some degree of public sympathy when they are attended with circumstances of peculiar atrocity. But we may, for all practical purposes, regard it now as simply a question whether the punishment of death should be inflicted for the crime of murder. To that crime the advocates of capital punishment at once advert; to that crime the opponents of capital punishment look at once as the main topic with which they have to deal ; and upon that the exceptionists fall back, as being the single case on which they peculiarly rely, as that which should be taken out of the ordinary operation of the principle. It is to this case that I shall confine my attention in the present lecture, which has been occasioned by the number of murders which have occurred of late, and, at least for a time, the comparative frequency of the infliction of capital punishment.

The question is, whether the state, with all its powers, cannot achieve the purposes for which it is constituted without having recourse to this extreme infliction ; whether, with all the pomp of royalty, with legislative institutions in their continual discussions and universal supervision-with magistracy in its varied gradations, from solemn courts of justice down to those in which petty offences are disposed of in the most summary manner : whether, with all the array of army and police, with instruction provided in educational establishments, and all the diversities of punishment inflicted at home and abroad, from the dungeon to the penal colony; whether, in addition to all this extensive and magnificent apparatus, the loathsome image of the gibbet be absolutely essential in order to perfect the picture of civilization.

There are, indeed, those who consider the question as disposed of

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in a very brief way by the authority to which they appeal in the controversy. They say at once,

“ There is the word of God-'Whoso sheddeth man's blood, by man shall his blood be shed. There are the unrepealed moral laws, which were interwined in the civil constitution of the Jewish nation under the peculiar direction of the Deity. But the question is not so soon settled as this appeal may seem to imply. We live in an age not merely of Scripture quotation, but of Scripture interpretation. There are those who, if they cannot find the sentiments they want in Holy Writ, put them there out of their own minds, and then believe they read them legibly in the original. There are those who call up the spirit of the new dispensation to counteract that of the old, and oppose the one principle of the New Testament to the many capital punishments of the Old Testament. They refer to the great law of Christ, that we should do unto others that which we would that others should do unto us; and as no man would be hanged by others, they infer that no men should inflict such punishment on their fellow-creatures. There is a short way of evading any verbal declaration, which is as useless, on the one hand, to enforce principles, as on the other to counteract principles; admitted always in their literal interpretation, yet always giving way to the progress of intelligence and the development of the human mind. An able reasoner on this subject undertakes to dispose of the Scripture portion of the controversy, thus :—It is consistent with common sense that we should act in such and such a manner; Scripture is believed to say differently ; but Scripture divinely inspired cannot possibly contradict the dictates of common sense, and therefore must be otherwise interpreted.

Again, there are those who settle the question by resolving it into the power of society. “Might is right,” they say. But not all the metaphysics of Horne Tooke, the utilitarianism of Jeremy Bentham, or the philosophy of Carlyle, have been sufficient to give currency to this pithy maxim—so justificatory of whatever is—that might is right. There will always be a protest in the human mind against such a use or abuse of language. There will always be a distinction between the power that prevails for a time, and the power that prevails through all ages. There will always be a distinction between the power of one class of human beings over other classes, and the power which belongs to the enduring and unvarying laws of human nature. The former may for a time be might, the latter only and always can constitute the right. Besides, even on this principle the opponents of capital punishment have only to grow stronger, to deepen their convictions and increase their exertions; they have only to aug. ment their number and be constant in the application of their principles; and then their right grows into that might, which will be

allowed, even on the part of the objectors, to sanction the principle, and admit it into the region of legislative and practical application.

The sacredness of human life as a divine gift is sometimes urged ; but, I think, not wisely or conclusively; for if we carry out impartially and generally the principle that we should take not away

“The life we cannot give,

For all things have an equal right to live." we should soon come into collision with that great principle—that divine and universal principle, by which death is rendered subordinate to life, and has been so from the very first moment of living beings on this world of ours. We find them ever linked together. Death is the condition of existence. Death is the great law of nature, as much so as life. They are inextricably intertwined. The means of subsistence of any class of beings whatever is only provided by the destruction of others. The principle would not only forbid animal food for human use, but vegetable food also. Everything that grows is a world, probably, of uncounted myriads of beings, who perish when that on which they live is used for the purposes of human nourishment. We may not take the very drop of water-that is full of life; the air we breathe supports its unseen myriads. To retain this argument we must do like the vegetable-eating and water-drinking Brahmin when shown the hosts of living creatures which, in violation of his professed principles, be destroyed even in his simple fare; and who broke the microscope, which proved that his endeavour was vain, and revealed the fact that the destruction of life is the great minister to life. Not upon this principle, then, can capital punishments be denounced. It will not bear any weight of argument. It cannot availingly be made antagonistic to the principle of taking human life when required for the purposes of society. It exaggerates the value of life, according to that scale which nature has marked out for us. Nor can we connect with this the apprehension of futurity, which has, indeed, had a large influence in the discussion of this question, but which only lands us in the absurdity that the tribunal of a just and merciful God is a tribunal so severe and fearful, that we ought not to send thither those who are deemed culprits by our own crude judgment.

The right of society over the lives of its members cannot, I think, be satisfactorily disproved. Society exists for the protection of life, liberty, property, and the means of happiness. It exists by the sacrifice of a portion of these to give security to the rest; and as, for this purpose, it requires some sacrifice of property, liberty, and means of enjoyment, so, by parity of reasoning, there may be cases in which it requires the sacrifice of life also, for society gives that which renders life most valuable, which makes it life to live. The savage, in his precarious existence, has his footsteps tracked by fraud and violence. Not only is all that adorns and enriches life unknown to him, but his very existence is in the greatest peril. Population increases not in the tribes which have fallen into a savage state; it is in the order and harmony of society that life is most prolonged, and that the greatest amount of enjoyment is clustered around it. For this, society may reasonably ask in return the readiness of its members to devote life to its service. Milton lost his sight—that which constitutes so large a portion of life—in the cause of his country and of freedom. Such examples as those, not merely of men who have risked their lives in the battle-field, but have gone to certain destruction ; such as those of Leonidas in antiquity, and the Swiss hero of Morgarten in modern times, have commended themselves to the moral sense, and deserved the meed of praise which they have won from successive generations. If society has a right to the lives of its best members—if there is something good, true, beautiful, and honourable in the devotion to its service of existence so rich in thought, which may do so much by its prolongation for the progress of humanity--surely it must have a right also to the lives of its worst members, stained by crimes, if it should deem the sacrifice of those lives necessary to its own security and well-being.

The foundation principle-the ultimate principle of the right of society over the lives of its members, is that of the right of taking life in individual self-defence.

ce. Some persons consistently carry out their objections even to this extreme point: they profess that they would not by violence save themselves from destruction ; that they would not by a stunning blow repel the hand of the assassin, and take life to save their own lives. Nature is too strong for such a theory ; her power of impulse is far too mighty not to overcome theories of this kind in the moment of action, when men have no opportunity for carrying out speculations, and will not be bound by those which have not a deep and firm basis in the common principles of our human nature. Now this includes in society the right of resisting force by force ; a right to that one form of war in which alone it has any claim to be vindicated—that of repelling invasion ; and without this, all that the wisdom of man can achieve, all the good that human life can realise, all the blessedness, hopefulness, and progress, guaranteed by the noblest institutions, would be completely at the mercy of every little petty horde of banditti who should think it worth while to assail this beautiful fabric, and to lay it in ruins, for the gratification of their own sordid or violent passions.

The right of inflicting capital punishments, however, is one thing, and the wisdom or necessity of so doing is another and very different matter. It is not merely by the conviction of right that society

should try its actions, but by their tendency to good. Punishment should be judged by its likelihood to answer the great objects of punishment; and these seem, by the common consent of society, to have been resolved into three—the reformation of the offender, remuneration to the injured, and the prevention of future crime. Now, how does capital punishment operate in bringing about these objects? First, the reformation of the offender. Why, it cuts him off from all chance of reformation, brings him into collision with society in a most unequal warfare, where he is sure to be beaten down; and the very inequality tends to stimulate within him a sense of injustice or hardship, and rather raises his spirit in remonstrance and rebellion than softens, refines, corrects, and purifies it by the sense of good. Reformation! the only chance he has is of that most deceptive sort of change, that apparent transformation, which is sometimes vaunted in relation to criminals. The prospect of violent death, the endurance of the dungeon, which only shows by its dim light a glimpse of the apparatus of execution in perspective, is not a machinery of reformation to soften and improve. Whether it has ever acted so upon a single mind or character may be held very questionable ; but as a general tendency, it manifestly is invested with no character but that of destruction.

Remuneration to the wronged: has this been the result of punishment? It is seldom much considered in our laws or their administration. The injured are left to make the best of the circumstances into which they have been brought. The usual course of law is to inflict another injury on them. If they have suffered by theft, it puts them to more expense; if they have been injured in minds and characters, it subjects them to a harassing effort, or succession of efforts, in order to rectify the evil-a result which they rarely achieve. There have been systems of legislation and institutions in which the injured party was the first thought of: in modern times, and in our arrangements of punishment with reference to crime, they are the last thought of. But suppose the injured party is dead, as in the case of murder --that we disregard the simpler instances of the invasion of liberty or property, and at once advance to the paramount case in reference to murder. What can be the compensation to the murdered man? Compensation! Who can bring back the dead, or restore them to their places in connexion with hearts that loved them, and eyes that delighted to look upon them? Who can replace even the most forlorn individuals in the situation in which they were before the commission of such an offence? It is altogether beyond the power of humanity; and if there be a gratification in the feeling of retribution on the guilty head-if those connected by blood or friendship cherish emotions in their breasts of anger and revenge, having their foun

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