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Should any accuse us, therefore, of holding that the Mosaic code is still obligatory upon Christian nations, they will accuse us disingenuously and falsely. The Mosaic code is just as obligatory upon Christian nations as the laws of Solon, or Lycurgus, or the Twelve Tables; just as obligatory on us, in this country, as the Roman civil law, or the code Napoléon, and no more.
But this we contend for, nevertheless, that though, as a system of law, it is no longer in force; yet, having been divinely instituted, and never divinely annulled or condemned, it is not without great irreverence to be charged with barbarity, cruelty, folly or injustice;1 that the principles involved in it are still valuable and available precedents; and that, in particular, it furnishes conclusive proof from divine authority that the punishment of death for murder is just; and strongly corroborates the evidence, drawn from the nature and objects of society, in proof that its infliction by the civil government cannot be in itself wrong.2 If it be asked, whether Christian governments have a right to inflict the penalty of death in all the cases in which it was prescribed by the Mosaic code; we answer, yes, provided always, it can be shown that the light of nature is as clear in those cases as in that of murder, and that such a course is expedient. And it is only on condition of its expediency, nay, of its practical necessity, that the penalty of death for murder should be inflicted. We have not been contending with a man of straw, as some might reasonably suppose, in contending against the denial of such a conditional right; for the abolitionists do almost universally deny such a right. Besides, if there is any difference between right and expediency, if they are not taken as convertible terms, and if this question has anything to do with both; such a conditional right is all that can be contended for under the name of right. Such a conditional right established, the theoretic right, in its full and absolute extent, is established; which then waits for expediency in order to become a practical right, i. e. in order that its exercise should become fit and proper.
That the assailants of capital punishment deny its right, irrespective of its expediency, the whole course of their argument
"A sanguinary," "crude, cruel, unchristian," "Draconian" code. See O'Sullivan's Report.
2 No fair and reflecting mind can fail to perceive the wide difference, in the way of authority and precedent, between a set of general, formal enactments, intended as a system of permanent jurisprudence, as the divine norma of political justice, for a whole nation; and special commands and commissions given by God to individuals or nations in particular emergencies, or for specific, insulated and temporary purposes.
The Sixth Commandment.
from the Scriptures implies; and one remaining argument, on which they have almost uniformly dwelt, will show still more conclusively. They contend that the sixth commandment cuts off from the civil authority all right to inflict the penalty of death for any crimes whatever. The Rev. Messrs. Spear, Chapin, Upham, Tenney, Lake, etc., insist upon this point as fundamental; Mr. O'Sullivan, in his Report, appeals to it with the greatest devotion; and even Mr. Rantoul, in his Letter of Feb. 14, 1846, as well as in his Report of 1837, calls the infliction of capital punishment a "violation" of the divine command "Thou shalt not kill."1
As the learned author of the Manual of Peace handles the question more methodically than the rest, and as his authority as a Biblical critic must naturally have great practical weight, and perhaps has served as a basis for the declamations of many others; we shall meet the argument as he has presented it. He states his position thus: "We have no idea that this command, Thou shalt not kill, was limited, as some imagine, to cases of manslaughter and murder. We are aware that some distinguished names would impose this limitation. Even Rosenmüller translates it by the Latin expression, NE HOMICIDIUM COMMITTITE; thus limiting the prohibition to the crime of murder in its various forms. But we venture to assert, it will not be maintained by Biblical critics, that this limitation of meaning is found in the verb itself, which is unquestionably one of the most general import. The meaning of the pas sage, taken by itself, is simply this: Thou shalt not take life; life is sacred, inviolable." pp. 90, 91. And again, on p. 222, he repeats : "It will be noticed that the command is given in the most simple and explicit terms. It is possible, however, that some may maintain, that it means simply, Thou shalt not maliciously kill; thou shalt not kill with evil intent; thou shalt not murder. But we are compelled to look upon this as a wholly gratuitous limitation. There is nothing in the Hebrew term itself, and nothing in the immediate connection, which requires us to limit the command in this way."
First, then, as to the meaning of the Hebrew term, considered by itself, which is the main pivot on which the controversy is made to turn. We shall not endeavor to determine it by an appeal to
'The writer in the North American Review, already referred to, while asserting his belief that the sixth commandment forbids "only murder, and has been wrongly used against all taking of life," yet allows himself to say, in another place: “Governments cannot monopolize the privilege of killing." Is this meant for declamation, or argument? VOL. IV. No. 14.
etymology, or to the definitions of lexicons or commentators; but we make our appeal directly to the final tribunal, the usage of the term in the text of the Hebrew Bible.
The Hebrew word translated "kill," in the sixth commandment, is ; and whenever we thus speak of a word, in this discussion, we wish it to be generally understood as standing for this, or some of its derivative forms. This word is used, in all, forty-nine times in the Bible; of which, twenty-eight are in the Pentateuch and eight in Joshua; and in every one of these thirty-six cases, it is used in connection with laws relating to murder and manslaughter. Of the remaining thirteen cases, we omit two, (to which we shall refer hereafter,) in Ez. 21: 27 (22) and Ps. 42: 11 (10), where the Hebrew abstract noun is used, and which would not affect the result. Two more in Jer. 7: 9 and Hos. 4: 2, may also be set aside, as they are plainly quotations from the commandment in question, the same words being used in immediate succession for murder, stealing and adultery, as are employed in the sixth, seventh and eighth commandments. That in Ps. 62: 4 (3), can determine nothing either way. Neither can that in Prov. 22: 13; though, in this last case, some English readers might suppose that the "lion" was the implied "slayer." But there is nothing expressed or implied, in the original, to favor such a supposition. It might, with equal propriety, have been translated: "There is a lion in the way; I shall be murdered in the streets;" the Septuagint reads : λέων ἐν ταῖς ὁδοις· ἐν δὲ ταῖς πλατείαις φονευταί.
Seven cases still remain, which are properly to decide the meaning of the word out of the Mosaic code; and in every one of which, there can be no doubt the word means murder, in the strictest sense. In 1 Kings 21: 29, we have a clear case of murder. Jud. 24: 4 records one of the most atrocious cases imaginable; which, in the sequel, led to the slaughter of more than forty thou. sand Israelites, besides the almost total extermination of one of their tribes. In Ps. 94: 6, Hos. 6: 9, 2 Kings 6: 32, Job 24: 14, and Isa. 1: 21, our translators have rendered the original word by murder; how correctly, any English reader can judge for himself.
Let us now return to the books of Moses and Joshua. Here, besides being used twice to express the prohibition of the sixth commandment, the word is employed thirty-four times in laws defining explicitly the mode of procedure in regard to those who should be chargeable with its violation. The passages referring to these regulations are contained in Deut. 4: 42 and 19: 3—13,
רָצַח The Strict Sense of
in the 35th chapter of Numbers, and in the 20th and 21st chapters of Joshua, and nowhere else does this word occur.
Thirty-two times out of the thirty-four, it is employed to characterize the act of homicide; where, in every case, the perpetrator was held to be, primâ facie, guilty of murder, and treated as reus rei capitalis. Hence, although, in its strict and proper sense, it indicates murder, it is used of course to designate the involuntary as well as the voluntary homicide. The matter can hardly be set in a clearer light than by quoting a portion of the 35th chapter of Numbers, italicising the words which are translations of
9. And the Lord spake unto Moses, saying,
10. Speak unto the children of Israel, and say unto them, When ye come over Jordan into the land of Canaan;
11. Then ye shall appoint you cities to be cities of refuge for you; that the slayer may flee thither which killeth any person at unawares.
12. And they shall be unto you cities of refuge from the avenger; that the manslayer die not, until he stand before the congregation in judg
16. And [But] if he smite him with an instrument of iron so that he die, he is a murderer: the murderer shall surely be put to death.
17. And if he smite him with throwing a stone wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.
18. Or if he smite him with a hand-weapon of wood wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.
19. The revenger of blood himself shall slay the murderer: when he meeteth him he shall slay him.
20. But [And] if he thrust him of hatred or hurl at him by lying of wait that he die ;
21. Or in enmity smite him with his hand that he die, he that smote him shall surely be put to death; for he is a murderer: the revenger of blood shall slay the murderer when he meeteth him.
Now is it not manifest that we have here a technical use of the word murderer, defined on principles similar to those on which it has always been defined by the common law? We say, a technical use; else, what mean the oft-repeated exclamation, “a murderer!", and the reëchoing awful sentence, "the murderer shall surely be put to death?" What can be the force of such expressions, unless we have the proper, the strict legal sense of the term employed?
And as for the use of the word when it is translated "slayer," ie. when it designates the unintentional homicide; in such a case, after the description of the fact it is never said, g, he is a “murderer!" but it is plain, nevertheless, that such a man was not to be treated as innocent. He was assumed to be guilty. So sa
cred was human life, so jealous was the divine Legislator of the strictness of the sixth commandment, that whoever violated its letter, merely in the external act, was liable to be immediately cut down by the "avenger of blood," and was compelled, if he would avoid this doom, instantly to flee for his life to the city of refuge. And though, when arrived there, no man, whether a voluntary or involuntary homicide, was to be put to death, except at the mouth of two witnesses, testifying to the homicide act and its malicious character; yet, inasmuch as, owing to the absence of witnesses, many murderers might thus escape death, and as all verbal definitions and human judgments are necessarily imperfect, and many cases might arise with circumstances so complicated that it would be impossible to distinguish with precision between the voluntary and the involuntary homicide, as the involuntary homicide would, in most cases, be strictly chargeable with some degree of guilt, at least of imprudence, and as it was important for all to see that no man, by taking advantage of the technical distinctions of the law, or of its cautious provisions in regard to testimony, could intentionally or carelessly kill his fellow-man and escape all punishment; therefore, every homicide, having escaped to the city of refuge, and been there, on trial, acquitted of the charge of malicious murder, should nevertheless be compelled to remain there in custody till the death of the high-priest. In custody, we say; for this answered more nearly to imprisonment among us, than did anything else provided for in the Mosaic code. Such a homicide was not, indeed, shut up within the walls of a prison; but if he durst venture beyond the narrow precincts of his city of refuge, it was at the peril of his life; the avenger of blood might slay him and not be "guilty of blood."
What, then, could be more natural than that, in the spirit of such regulations, the involuntary homicide should be designated by the same technical term which properly designated the murderer? And can this application of the term be fairly adduced as throwing any doubt upon the strict meaning of the word when used without any explanatory connection?
But two extraordinary cases yet remain to be considered—two only out of the thirty-six in the law-two only, we might say, out of the whole forty-nine in the Hebrew Bible.
When it is said, in verse 27th of the chapter from which we have quoted above, "if the avenger of blood kill the slayer" who has escaped from his city of refuge; the word translated "kill" is this same . But before any hasty inferences are made from