her laws, he dissolves his connexion with her, and even declares war against her.. The preservation of both sides is incompatible: one of the two must perish; and when the criminal dies, he dies less as a citizen than as an enemy. The trial and the sentence announce that he has broken the social contract, and is consequently no longer a member of the state. Having then at least by his residence been regarded as such, he must be cut off by banishment as a violator of his agree ment, or by death as a public enemy. He has no longer any moral character: he is simply a man; and it is one of the rights of war to kill the vanquished.

TURNER.

These observations are intended to have a particular reference to capital punishments; which, however defended by some politicians, appear to have been opposed of late by all the most respectable writers on government; and indeed are certainly in most cases, if not universally, absurd and impolitic.

Every wise and benevolent man will consider with himself, that as life is a blessing which he cannot give, so it behoves him carefully to examine his right to take it away. He will consider, that when mankind entered into society, they only gave up such a portion of their natural liberty, and submitted to only such a measure of restraint, as was essentially necessary to secure to its members the advantages of society and therefore, that if this important end can be answered without having recourse to the punishment of death, there is no right belonging to the magistrate of inflicting such a punishment. Now that so far from being necessary to answer this end, capital punishments are exceedingly impolitic, and as far as they operate, tend frequently to prevent it, the observations already made on severe punishments in general, might be sufficient to show.

MABLY.

Though the laws can never be too mild, it is still impossible wholly to abolish capital punishments. If our natural depravity occasionally burries us into heinous excesses, and all the resources of policy have been ineffectually exhausted for its restraint; is it unreasonable to hold out regulations of terror, and ought not the laws to exert themselves in curbing it with a more powerful hand? To place the sword in the grasp of the legislator, by no means implies a previous right in us to dispose of our own lives as we please. On the contrary, it is in order to defend them against the open or covert attack of the murderer, that we call for those sanguinary and revolting enactments. In the state of nature I have a right to take the life of him who lifts his arm against mine: this right, upon entering into society, I surrender to the magistrate. Why should he not make use of it? Mankind never authorise the legislator to take away their lives in sport: for this would be a ridiculous and a useless concession. But they require him to watch over their safety; to repel hand in hand any dangers by which they may be threatened; and to protect them from the domestic foe who may meditate their destruction.

The necessity by which a state is impelled to oppose force to foreign aggression, is, it is affirmed, a certain demonstration of its right to do so. By the same unanswerable argument I think I can prove, that the laws should in certain instances inflict capital punishment.

HERMAN PISTORIUS.

We are persuaded, that certain offenders, particularly dangerous ones, must be punished with death, if we seek the security of society. Would slighter punishments serve in such cases, punishments that would not destroy the transgressor, but preserve him an useful member of society, no rational or well-minded man would justify capital punishments, but hold them equally pernicious and detestable. We may even hope, that, when the benevolent and more enlightened eye of philosophy shall have inspected that important part of legislation, the distribution of punishments, this will become less and less destructive, without being less efficacious, and be gradually converted into correction of offenders.-Notes on Hartley, page 494.

BENTHAM.

With regard to the origin of the right of punishment, I have nothing particular to say upon it: it rests upon the same foundation as all other rights of government. It is not possible even to conceive a single right, either of government or of individuals, which can subsist without the right of punishment. It is the sanction of all the others.

Very respectable authors have maintained that punishment could only be legitimate by virtue of the previous consent of the individuals: as if by some solemn act, they had declared themselves willing to submit to a certain punishment, on condition that every one else entered into the same engagement.

:

We may undoubtedly discover some traces of such a compact in those forms of government in which the people have a share in the legislation but even in democracies, this idea of a compact will generally prove a fiction as dangerous as it is unfounded. That which authorises punishment, is its superior utility, or, to speak more properly, its necessity. Delinquents are public enemies; where is the necessity that enemies should give their consent to be disarmed and confined?

In the savage state, or state of nature, the power of inflicting punishment is exercised by each individual, according to the degree of his resentment, or of his personal strength. Each stage of civilisation has been marked by some limitation of the exercise of this power: as each step towards anarchy is marked by some effort of the multitude to repossess themselves of this power. In a well ordered political society, the only power of this kind retained by individuals, is that which the law cannot take from them, the right of withholding their voluntary services from those who have offended them. Domestic authority, that of parents for example, formerly so important, has been by degrees restricted to the simple punishment of correction. In countries where slavery is not abolished, the greatest evil of this

state consists in the right of punishing possessed by the master: and which it is so difficult, not to say impossible, to restrain within proper limits.

DR. JOHNSON.

The lawgiver is undoubtedly allowed to estimate the malignity of an offence, not merely by the loss or pain which single acts may produce, by the general alarm and anxiety arising from the fear of mischief and insecurity of possession: he therefore exercises the right which societies are supposed to have over the lives of those that compose them, not simply to punish a transgression, but to maintain order and preserve quiet; he enforces those laws with severity that are most in danger of violation, as the commander of a garrison doubles the guard on that side which is threatened by the enemy.

FILANGIERI.

"No one," it is said, can surrender what he does not possess. But no one has a right to put himself to death: therefore the state, which is merely the depository of the aggregate of rights surrendered by individuals, can have no right to put any one to death.”

Such is the sophism, which has misled so many political writers. And yet how easy would it be to extend this principle to every other species of punishment inflicted for the prevention of crimes! Might it not with equal propriety be contended, that it implies atrocious injustice to condemn any one to the galleys, to the mines, or to perpetual imprisonment? As no one has a right to put himself to death, no one has a right to do any thing by which his death may be accelerated, that is, to allow himself to be condemned to the mines, the galleys, &c. Nay--it may further be alleged that, as no one has a right to dispose of his life, so no one has a right to dispose of his character, or of his personal freedom. Consequently, whatever punishment affects either of these is unjust.

SIR W. BLACKSTONE.

As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemeanour, it is clear, that the right of punishing crimes against the law of nature, as murder and the like, is in a state of mere nature vested in every individual. Whatever power, therefore, individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community.

As to offences merely against the laws of society, which are only mala prohibita, and not mala in se, the temporal magistrate is also empowered to inflict coercive penalties for such transgressions; and this by the consent of individuals; who, in forming societies, did either tacitly or expressly invest the sovereign power with a right of making laws, and of enforcing obedience to them when made, by exercising, upon their non-observance, severities adequate to the evil, The lawfulness, therefore, of punishing such criminals is founded upon

this principle, that the law by which they suffer was made by their own consent; it is a part of the original contract into which they entered, when first they engaged in society; it was calculated for, and has long contributed to, their own security.

ANSWER TO MADAN.

It will be unnecessary for me, however, upon the present occasion, to speak of the defects of those laws, any otherwise than as they are unreasonably severe: for it is that defect alone which can be remedied by the execution of the laws; and, in treating of that defect, I shall not, with the Marquis of Beccaria, and the many writers who have adopted his humane principles, contend that the punishment of death ought not, and cannot legally be inflicted by the legislature for any crime committed under any circumstances.

SIR MATTHEW HALE.

The practice of inflicting capital punishments for offences of human institution, is thus justified by that great and good man Sir Matthew Hale:1 "When offences grow enormous, frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment, and even death itself is necessary to be annexed to laws in many cases by the prudence of lawgivers."

PASTORET,

Absolute necessity alone can justify the punishment of death. If, as Montesquieu affirms, it is "the remedy of a sick society," it is not sufficient that it is efficacious; it must likewise be indispensable. In proposing it as a mean of security, it will not assuredly be denied, that any other mode of punishment which, without taking away the life of the offender, produces the same effect, is highly preferable. Filangieri confesses, that a punishment which is useless is necessarily unjust; and in his judgment, the object of the law is, through the medium of terror, to prevent crimes. If this prevention, then, can be accomplished without death, death is useless, and therefore by his own concession unjust. Nay, Rousseau himself, the ardent advocate of capital punishments, allows that "we have no right to put to death, even for the sake of example, any but those who cannot be permitted to live without danger. And what is, to say the least, extraordinary, (or rather, as contrasted with his other opinions, contradictory,) he had just before observed, "There is no wretch so flagitious, as not to admit of being made useful for some purpose or other."

I have said, "Absolute necessity alone can justify the punishment of death :" and I am compelled to agree with Rousseau, that "Society ought to put to death the delinquent who cannot be permitted to live without danger." To public tranquillity and general utility every thing must, in that case, give way.

11 Hal. P. C. 13.

3dly, The Doctrine of Scripture as to the Right of Government to inflict the Punishment of Death.

Soon after the publication by Madan of his Thoughts on Executive Justice, Mr. Baron Perryn, in his charge to a grand jury, noticed the publication.

Madan replied to these observations; and, amongst other things, he says, "The learned judge then said; 'that it had been disputed among theological writers, how far the Jewish law is repealed, or how far it is lawful to put men to death among Christians.'

"As for theological writers and disputants, I have read enough of them, to make me narrow my studies of that sort, to those who, being divinely inspired, can neither lie nor deceive; and, indeed, the learned judge seemed of the same opinion; for his lordship appealed to the scriptures of the New Testament for a proof, that it is lawful, among Christians, to put men to death for certain crimes.

་

"The first text his lordship mentioned was Rom. xiii. 4. For he' (the magistrate) 'beareth not the sword in vain.'

"The sword is an instrument of death, and stands here, metonymically, to denote capital punishment; and this sentence, therefore, evidently proves the power of magistrates to put criminals to death, otherwise these magistrates would bear the sword in vain.

"But one might carry the text further, and say, that the magistrate bears the sword in vain (eiкñ), to no purpose, if laws are not duly put in execution. The whole reasoning of the context implies this.

"Ver. 3. Rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise for the same.'

"Ver. 4. For he' (the ruler or magistrate) is the minister of God to thee for good: but if thou do that which is evil, be afraid: for he beareth not the sword in vain, for he is the minister of God, a revenger' (ekdikos eis opy-an avenger-to execute wrath or punishment) upon him that doeth evil.'-a stronger passage cannot be produced to prove that it is not only lawful, but the magistrate's absolute and indispensable duty to punish offenders according to law: that he is God's minister for this very purpose.

"Ver. 5. 'Wherefore ye' (Christians-even then, living under an heathen government) 'must needs be subject'-i. e. to the laws of the state-not only for wrath'-not only with respect to the punishment which will otherwise ensue; but for conscience' sake'-i. e. towards God; who, ver. 1, commands every soul to be subject to the higher powers, and, of course, to obey the laws.

"The other text, mentioned by the learned judge, was Acts xxv. 11, where the apostle Paul says, before Festus, the Roman governor, at his judgment seat-'If I be an offender, or have committed any thing worthy of death, I refuse not to die.' This text is also much to the purpose, and justifies our reformers in declaring 'Art. 37. Of the civil Magistrates'-that the laws of the realm may punish Christian men with DEATH for heinous and grievous offences."