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The Right and Duty of Civil Society.
tion; and, if you please, in the ascertainment of the authority on which it is inflicted. Consequently the infliction of infinite punishment would require absolute certainty, perfect demonstration of authority. And we presume that whenever it is inflicted, it will be inflicted on such authority. But here is no question of infinities. Here is a practical distinction of degrees; for most of the abolitionists themselves insist that there are many things more terrible to men than death; many things sufficiently desirable to banish the fear of it. We therefore throw the burden of proof for their distinction on the other side.
The authority of Blackstone is cited, in a passage to which we have already alluded, and which has become a sort of symbolum fidei for all the impugners of capital punishment, to show that nothing short of demonstration is required in this case. But, in the first place, if such strong expressions were extorted from Blackstone by the unparalleled rigor of the English law as it existed in his time, when, as he says, "among the variety of actions which men are liable to commit, no less than a hundred and sixty had been declared, by act of parliament, punishable with instant death;" and if they were used (as is the fact) with exclusive reference to the punishment of death for merely positive offences, infringements of the rights of property, is it fair, is it quite honest, to adduce them, with the authority of Blackstone's name, as applicable in their full force to the right of inflicting that punishment for murder? In the second place, if the authority of his name must be appealed to, let that authority be taken entire, and not in detached fragments; let him be allowed to interpret his own words. We suppose it will not be denied that he maintained the right of society to inflict the punishment of death for murder; and we have seen what sort of "demonstrations" he considered sufficient in the case.
For ourselves, we enter into no theories about the origin of society. Society is older than any theory. It is not a creature of theory, but of nature and necessity. We appeal to the laws of man's social and moral being, and to the exigences of his earthly existence. Wherever civil society exists, it is one of its inherent rights, and wherever civil government exists, it is one of its paramount duties, to administer justice so far as the conservation of the general well-being may require—so far, at least, as to defend and protect the lives of its citizens. A civil society which has not this right, and a civil government which cannot or will not perform this duty, fail of one of the essential objects for which civil society
and civil government were instituted among mankind. If it be asked, whence society derives this right? we answer, from its very nature; just as the individual derives the right of self-defence from his nature. The two rights are analogous in their origin, although the one is not derived from the other.1
The civil government, therefore, is authorized and required to inflict the just penalty of death upon the murderer, whenever that penalty is necessary, in the common and practical sense of the word, for the protection of the lives of others, for the safety and defence of the community in general; that is to say, whenever it is strictly expedient. Our present positions are, therefore: 1st, that the punishment of death for murder is just; and 2d, that, being just, civil government has a right to inflict it, whenever it is expedient.
In defence of these positions we appeal to the common consent and consciousness of mankind, and to a deep and indestructible instinct of the human heart; a consent of consciousness impressed upon the pages of all history, both sacred and profane; exhibited, with a few trifling and partial exceptions, in the legislation and practice of all nations, ancient and modern, barbarous and civilized, pagan and Jewish, classical and Christian; a universal instinct, which began to utter itself in the conscience-stricken exclamations of the terrified Cain, and which has reverberated in the soul of every murderer from that day to this; which has been confirmed by the consenting voice of the poets, philosophers, and
"Livingston concedes, and we think wisely, that governments have an undoubted right to inflict capital punishment provided it can be proved necessary to the preservation of public and private peace. Beccaria, it is well known, distinguishes the right of governments, which he defines to be the sum of the smallest portions of the private liberty of each citizen (una somma di minime porzioni della privata libertà di ciascuno), from the power which grows out of the supreme law of the safety of the people (la suprema legge della salvezza del popolo). Now, this distinction, as its author understood it, however unsound, is a perfectly innocent one, because, although he denies the right of a State to inflict death as a punishment, yet he grants the existence of the power, wherever its exercise can be proved useful and necessary, and therefore leaves the argument just where it would have been without the distinction. But his disciples, by losing sight of the true grounds of the distinction, have strangely misapplied it, in maintaining that capital punishment ought to be abolished for the mere reason that the right to kill cannot, as they say, have been among the rights surrendered in the social compact. The only intelligible and defensible notion of political right is that a State has a right to do whatever, on the whole, the best interest of the community requires."-North American Review, Vol. XVII, p. 265.
The Consent of Mankind.
sages of all time, and which, as we believe, finds a response more or less distinct in every unsophisticated human heart.
We do not say that all this consent of nations, and this voice of humanity proves, demonstrates, our assumptions. We plead no prescriptions of fact against the dictates of reason. No;-time sanctions no abuse, sanctifies no sin. All mankind may have erred. But surely it becomes the individual mind to be modest, when it calls in question the voice of the race-modest, we should say, even in urging its supposed demonstrations. And surely it hardly becomes the individual to arraign the race publicly at his bar, demanding of it to prove itself to be right, and threatening it, in case of its failure so to do, with summary condemnation; and that without deigning, on his part, to offer any reasons to prove it to be in the wrong.
We say that this almost universal consent of mankind makes out a prima facie case; that mankind are not bound to prove themselves in the right, but the dissentient is bound to prove them in the wrong, if he asserts it. This is the true position of the question. The assailants of capital punishment have generally felt it to be so; and they have undertaken to prove that it is absolutely wrong for society to inflict the penalty of death upon the murderer; that, in so doing, it but solemnly imitates and publicly authorizes the very crime which it professes to punish!
How do they prove this tremendous assertion? Not by appealing to the universal consciousness. That is against them. Not by urging their own private consciousness. That could prove but little. They usually scout at authority; which means, such authority as is against them; for you will find most of their essays half made up of the same quotations from the same authorities, rearranged according to the principles of permutations and combinations, and retailed over and over again, as if repetition would compensate for addition. It is not to be denied that they have a few great names on their side, of which they are careful, from time to time, to give us a list, but neither is it to be denied that authorities are a hundred to one against them. They do well, therefore, not to rest their appeal with human authority. Their chief appeal is to the sacred Scriptures and to the spirit of Christianity. Some make this appeal in a manly and honest way; some, as an argumentum ad hominem; and some in their favorite alliteration, "the Gallows and the Gospel!" We accept the appeal and meet the issue.
We are thus brought up fully and fairly to the Scripture argu
ment; and we shall be the last to shrink from any results to which it may conduct.
But in entering upon this argument we must have one thing distinctly premised and understood. We take the appeal to the Scriptures both of the Old and New Testaments. We hold that these two great portions of the word of God are not contrary to each other; though we freely assign the greatest weight to the latter, as possessing an interpretative character and containing the latest decisions. But the instructions of the different parts of Scripture must be interpreted in consistency with the divine truth and authority of each other; else the whole loses its authority together. To our minds it is a perfect absurdity to pretend to rest upon the authority of the New Testament while denying that of the Old. As well might a man sitting aloft upon the limb of a tree think to retain his position after severing that limb from the trunk. What is the New Testament, on the hypothesis that the divine authority of the Old Testament is denied? A book which contains on the very face of it its own refutation, as far as any claim to divine authority for itself is concerned; a mere collection of the writings of a number of deluded men, about another deluded man who really thought himself the Messiah divinely predicted and promised, when in fact no Messiah at all was ever divinely predicted or promised. We take the Bible and the whole Bible. We hold that the same " God, who at sundry times and in divers manners, spake in times past unto the fathers by the prophets, hath in these last days spoken unto us by his Son;" and that his voice, however he may, from time to time, have condescended to make it clearer for our apprehension, can never contradict itself. As to
There are some who seem to think that in adhering to the New Testament to the exclusion of the Old, they cease to be "Jewish," and become superlatively "Christian." Now we beg leave respectfully to ask how a" Christian” can deny the proper "Messiahship" of Jesus? and how he can believe that, without accepting the divine inspiration of the Old Testament? Men were first called Christians, not because they were very good men, but because they believed and maintained that Jesus was the Messiah. That a man may be a good and honest man without believing this dogma, and without being a Christian, we neither doubt nor deny; and, on the principle that " an honest man's the noblest work of God," he may think this appellation the more honorable of the two. We shall not dispute that it is. Only, let him who thinks so be content with it. Let us not be misunderstood, however; our Christian courtesy would forbid us to deny the name of Christian to any who may be desirous of assuming or of retaining it. We mean only to deny the exclusive, superlative claims which are sometimes put forth in certain quarters.
The Sermon on the Mount.
any distinctions which any may choose to draw between the different books of the Hebrew Scriptures, in respect to their inspiration; we presume the divine authority of the Pentateuch is as little likely to be disputed as that of any portion whatever of the Old Testament. With Esther and the Song of Songs our present question has nothing to do.
In arguing from the Scriptures against the right which we have undertaken to defend, some content themselves with merely saying, that" if the Gospel, by its whole tone, does not disprove the right of taking blood for blood, they despair of doing it by any extracts or reasoning of their own," and then throw the burden of proof upon the other side-(which they may reasonably hope is better able to furnish it?). This, to be sure, is a very cheap and summary method of reasoning. Few, probably, will consider it demonstration."
Others make specific allegations from the Gospel. These may chiefly be reduced, so far as we know, to the inferences they draw from the "Sermon on the Mount."
Now this "Sermon" is no new thing in the Christian world. It is not to be numbered among modern discoveries. It has been received and acknowledged by the church in all ages, and loved by all good men in it. But it has been received in connection with the rest of God's word contained in the Bible, and interpreted consistently therewith. No Christian nation, from the time a Christian nation first existed till now, ever understood this sermon as abolishing civil government, or depriving the magistrate of the right to administer justice for the defence and security of society. No sect of Christians ever so understood it; except perhaps a few obscure heretics in former times, and a portion of a small but very respectable Christian society in modern times. No doctor of the church, and, we think we may say, no critic of respectable learning and abilities, who has been held in general estimation or authority, whether in the church or out of it, and to whatever school he may have belonged, supernaturalist, or rationalist, mythic, mystic or infidel, has so understood it.'
1 We ought perhaps to except Bayle, who maintained that a society of Christians could not subsist, and alleged in proof the command-" if any man strike thee on the one cheek offer also the other," and similar evangelical injunctions. Such commands Bayle urged, not as annihilating civil governinent by their authority, but the Gospel itself by their absurdity. "Il est étonnant," says Montesquieu, "que ce grand homme n'ait pas su distinguer les ordres pour l'établissement du christianisme d'avec le christianisme, même, ni les préceptes de l'évangile d'avec ses conseils. Lorsque le Legislateur, au lieu de donner des loix, a 25
VOL. IV. No. 14.