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Guizot has nearly expressed our views of the proper character of penal laws, in the following passages. "L'Eglise ne faisait pas un code, comme les nôtres, pour n'y définir que les actions à la fois moralement coupables et socialement dangereuses, et ne les punir que sous la condition qu' elles porteraient ce double caractère; elle dressait un catalogue de toutes les actions moralement conpables, et, sous le nom de péchés, elle les punissait toutes," etc. Again, in showing the superiority of the laws of the Visigoths in Spain, drawn up under the influence of Christianity, to those of the other barbarian nations, he says: "Ailleurs c'est le dommage presque seul qui semble constituer le crime, et la peine est cherchée dans cette réparation matérielle qui résulte de la composition. Ici le crime est ramené à son élément moral et véritable, l'intention. Les diverses nuances de criminalité, l'homicide absolument involontarie, l'homicide par inadvertence, l'homicide provoqué, l'homicide avec ou sans préméditation, sont distingués et définis à peu près aussi bien que dans nos codes, et les peines varient dans une proportion assez équitable." So it seems the scientific codes of Europe agree with our common law in regarding the intention, the moral element, as fundamental in the idea of crime.
We protest, therefore, with equal earnestness against that theory of the rights of civil government, in reference to jurisprudence, which resolves it into a sort of human theocracy, grasping the prerogatives of the omniscient Judge, and trenching upon the retributions of eternity; and against that other theory which assigns to civil government a theoretical as well as practical omnipotence, founded upon a mere utilitarian expediency, and uncontrolled either by divine authority or the unchangeable principles of natural justice. And this we say, although we should be quite ready to rest the whole argument for capital
the old adage: you are not hung for stealing a horse, but that horses may not be stolen,) but to wage open hostility with it," (p. 63).
We close this long note by recommending all quotation-mongers to digest the following: "I have seldom felt greater indignation than at finding, in a large manufactory, a six penny pamphlet containing a selection of inflammatory paragraphs from the prose-writings of Milton, without a hint given of the time, occasion, state of government, etc. under which they were written; not a hint that the freedom which we now enjoy exceeds all that Milton dared hope for, or deemed practicable; and that his political creed sternly excluded the populace, and indeed the majority of the population, from all pretentions to political power," (p. 65).
The Italics in the above quotations are, in many cases, our own.
1 De la Civilisation en Europe. Leçons 5me. et 6me.
The Argument from the Social Compact.
punishment on the simple ground of expediency-which we think is the proper position of the question, if its opponents would fully and unequivocally yield the point of right and fairly meet us on that practical ground. A conditional right is all that we claim for it; that is to say, we deny that it can be shown to be wrong irrespective of its expediency. The abolitionists commonly assert or imply that society absolutely has no right to inflict it.
They deny, in the first place, that any such right can be derived to society from the individual right of self-defence, through the so-called social compact. Whether the theory of such a compact be well founded or not, we neither affirm nor deny. But we observe, that the abolitionists should not so readily take for granted that the right of self-defence, of which individuals have thus divested themselves, and with which they have clothed civil society, is after all just the same right in kind and degree, which each individual still retains as a member of constituted society and a subject of civil government; in other words, that the portion of right surrendered is the identical portion which has not been surrendered; that the individual right was originally no broader and no other than it still continues to be. Such was not the view of the originators, and most approved expounders of this theory. Blackstone, whose authority is so often quoted by the abolitionists, says: "It is clear that the right of punishing crimes against the law of nature, as murder and the like, is in a state of nature vested in every individual." It is plain from the connection, he means "the right of punishing" such crimes with death. Is it said that the precepts of the Gospel are against such a right? We answer; one thing at a time, gentlemen. We are now reasoning from the theory of the social compact; and our only sources of evidence are the light of reason, and the natural instincts and laws of the human mind. The precepts of the Gospel are addressed, not to men in a state of nature, not to society as such, but to individuals as living under constituted government. We conceive it to be one of the gravest errors of our modern" philanthropists," that the rights and duties of society and of the civil magistrate are no more, and no other, than the rights and duties of each individual as defined and limited in the Gospel.
In the second place, the right is denied because, it is said, individuals have not the right to take their own lives, and therefore they cannot convey such a right to society. This reasoning would
be very good, if, when they enter into the social compact, these gentlemen mean to commit murder; otherwise it is quite impertinent. Men are not supposed to invest society with this right in order to expose their lives, but in order to protect them. The object of inflicting capital punishment is to save lives by preventing assassinations; and the question is, have men a right to expose their lives to a less risk in order to secure them from a greater? When the small pox was committing its fearful ravages, before the use of vaccination was discovered, multitudes were inoculated with it because they could have it artificially at much less risk than in the natural way. It was found that about one in a hundred of those who were inoculated died, while perhaps ten of the hundred would probably have died of the disease in the natural way, had they not been thus protected. Now, had these hundred persons a right to have themselves inoculated, when it was morally certain that one of their number would lose his life by it? And had the physician a right thus to communicate the disease to a hundred persons when he knew that he should thus be instrumental in killing one of them? Men risk their lives in a thousand ways every day by sea and by land for no greater object than to secure their comfort or increase their wealth; shall they not be allowed to risk life in order to save life itself?
In the third place, some of the abolitionists seem to admit that society may have a natural right to inflict capital punishment. But it is only a seeming-an ostentation of logical liberality; for in the next breath they call it "legalized murder," and, throughout, proceed upon the tacit assumption that it is absolutely wrong. They will say that "society must be sustained at all hazards ;" but this they say only on condition that you will admit capital punishment to be unnecessary to that end. They will allow, for example, that society has a right of self-defence, as society, analogous to the right which individuals retain, as individuals; so that if it be immediately and palpably necessary to its very existence to take the life of the murderer, it has the right to take it. "We maintain," say they, "the right of society to impose any restraint or punishment essential to its existence. We see not where [whence] it is to derive the right to imprison, especially for life, if it have not also the right to take life." This really sounds at first as though it were admitting, or rather maintaining, something. But immediately afterwards we are told, by ringing a change upon the trite dogma of Blackstone, which has become the funda
1 North American Review, Vol. LXII. pp. 44 and 48.
Blackstone's Opinion discussed.
mental article in the abolitionists' creed, that, "To take life .... is a fearful use of power, not to be justified by anything less than the express word of God, [and therein we are then assured there is no justification,] and the absolute necessities of human society;" that, "To take life for life must be essential to the very life of society." Now, is it not plain, that, on this strict method of interpretation, the doctrine which had just been so formally announced contains just nothing at all? It asserts and denies; it gives and takes, in the same breath. Are imprisonment and all legal penalties to be placed upon the same ground? This seems to be clearly implied. But if no legal penalty is justifiable which is not absolutely and demonstrably essential, not to the well-being, but to the very existence, the immediate self-preservation of society; and if, as we are told, such a necessity is not to be inferred from our "associations and fears;" if we are to wait until it is absolutely demonstrated from actual experience and palpable facts; it is easy to see whither this course of reasoning is leading us. For aught which appears in the shape of any such demonstration, society might exist, no man can say how long, if all administration of criminal jurisprudence were utterly abolished. There are doubtless, as we are often significantly told, other and more powerful influences and agencies to operate upon the good order of society than penal laws. There are moral influences, spiritual influences, the natural conscience, the love of happiness, some will add, the press and voluntary associations. On this doctrine, then, thus interpreted, if, as they maintain, the burden of proof must be thrown upon the law, we are bound to try the experiment and continue it until the absolute necessity required can be demonstrated to exist. The experiment might occasion great expense, great discomfort, great disorders; it might cost the sacrifice of a vast deal of social happiness and a multitude of useful lives. All this would prove nothing at all, so long as society could exist; for, so long, the prevention of such evils could not be shown to be absolutely essential to its existence. The exception, which even Beccaria makes, for cases of sedition or rebellion, would not be tenable on democratic principles.1
The Hon. Robert Rantoul, Jr., in one of his late letters on the Death Penalty, quotes from Montesquieu, as "an axiom which no one in the nineteenth century will be hardy enough to gainsay," the following sentence: (which is also cited by Beccaria;) "Tout châtiment dont la nécessité n'est pas absolue devient tyrannique." But if this "axiom " is to be taken, as Mr. R. seems to urge and leave it, without any limitation whatever; then we not only make bold
If, from such reasonings as are above referred to, the abolitionists would avoid the conclusion that imprisonment and all penalties ought to be abolished, they must maintain, that the right of inflicting the punishment of death, is to be put upon a different ground from that on which the right of inflicting other and inferior punishments is placed. And this they sometimes openly do. They say or assume that this is altogether a peculiar case. Probabilities may answer elsewhere, but demonstrations are required here. Now we demand on what ground of natural right this distinction is made? Here is a point in the argument of vital consequence to the cause of the abolitionists; a point, too, in regard to which the burden of proof clearly falls upon them. We call special attention to this; and we ask again, if those who assume this distinction have shown, or can show, on the ground of natural right, any sufficient reason for it? Do they appeal to the spontaneous instincts of men in a state of nature? These, as far as we can judge, are totally and unequivocally against them. Do they ap peal to the teachings of the Gospel? This is not a proper source of proof on a question of natural right; and if it were, we should still answer, that we know of no distinction made in the Gospel between the right of inflicting capital punishment and any other punishment; say, imprisonment for life, or for any term of years. Do they appeal to the peculiar sacredness and value of human life and the consequent incomparable severity of the punishment of death? They can say nothing, (which shall not amount to a petitio principii,) tending to show the peculiar severity of capital punishment (for murder), without at the same time enhancing, pari passu, the peculiar enormity of the crime for which it is inflicted, and the unapproachable value and sacredness of the interest which it is designed to protect. Do they appeal to the theory of the social compact? That theory must be itself established, before they can prove or disprove anything from it; and, being admitted, we have seen that, according to the interpretation of its founders and apostles, it decides against them rather than for them. We fully admit and maintain that the severer the punishment, the greater should be the caution exercised in its inflic
in "the nineteenth century" to gainsay it; but we declare it a palpable absurdity on any theory short of that which demands the abolition of all "châtiment." If, however, Montesquieu meant, as he probably did, using his words in a loose and popular sense, that all punishment which is not necessary to the highest good of society, i. e. that all wanton punishment, all punishment which is not in some way useful, expedient, becomes tyrannical; then we heartily subscribe to the "axiom,” and the abolitionists are welcome to its full benefit.