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state of mere nature vested in every individual. For it must be vested in somebody; otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution; and if that power is vested in any one, it must also be vested in all mankind; since all are by nature equal. Whereof the first murderer Cain was so sensible, that we find him * expressing his apprehensions, that či hoever should find him would slay him. In a state of society this right is transferred from individuals to the sovereign power; whereby men are prevented from being judges in their own causes, which was one of the evils that civil government was intended to remedy. 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. And to this precedent natural power, of individuals, must be referred that right which some have argued to belong to every state (though in fact never exercised by any) of punishing not only their own subjects, but also foreign ambassadors, even with death itself; in case they have offended, not indeed against the municipal laws of the country, but against the divine laws of nature, and become liable thereby to forfeit their lives for their guilt t.
As to offences merely against the laws of society, which are I only mala prohibita, and not mala in se; the temporal magisro trate 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 sove
with a right of making laws, and of enforcing obedience to them when made, by exercising, upon their nonobservance, 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
* Gen. iv. 14.
+ See Vol. I.
they entered, when first they engaged in society; it was calculated for, and has long contributed to, their own security.
This riglit therefore being thus conferred by universal consent, gives to the state exactly the same power, and no more, over all its members, as each individual member had naturally over himself or others. Which has occasioned some to doubt, how far a human legislature ought to inflict capital punishments for positive offences; offences against the municipal law only, and not against the law of nature; since no individual has naturally a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in se, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as, in the case of murder, by the precept delivered to Noah, their common ancestor and representative I, “ Whoso sheddeth man's blood, by man shall his blood be shed." In other instances they are inflicted after the example of the Creator, in his positive code of laws for the regulation of the Jewish republic; 'as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature ; as for forgery, for theft, and sometimes for offences of a lighter kind. Of these we are principally to speak : as these crimes are, none of them, offences against natural, but only against social rights; not even thest itself, unless it be accompanied with violence to one's house or person : all others being an infringement of that right of property, which, as we have formerly seen , owes its origin not to the law of nature, but merely to civil society.
The practice of inflicting capital punishments, for offences of human institution, is thus justified by that great and good man, Sir Matthew Hale: “ When offences grow enormous,
I Gen. ix. 6.
§ Book II. ch. 11.
| Hal. P. C. 13.
frequent, and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the king lom or its inhabitants, severe punishment, and even deatu itself is necessary to be annexed to laws in many cases by the prudence of lawgivers.” It is therefore the enormity; or dangerous tendency, of the crime, that alone can warrant any earth y legislature in putting him to death that commits it. It is not iis frequency only, or the difficulty of otherwise preventing it, that will excuse our attempting to prevent it by a wanton effusion of human blood. For, though the end of punishment is to deter men from offending, it never can follow from thence, that it is lawful to deter them at any rate and by any means ; since there may be unlawful methods of enforcing obedience even to the justest laws. Every humane legislator will be therefore extremely cautious of establishing law that inflict the penalty of death, especially for slight offences, or such as are merely positive. He will expect a better reason for his so doing, than that loose one which generally is given, that it is found by former experience that no lighter penalty will be effectual. For is it found
For is it found upon farther experience that capital punishments are more effectual ? Was the vast territory of all the Russias worse regulated under the late Empress Elizabeth, than under her more sanguinary predecessors? Is it now under Catherine II. less civilized, less social, less secure? And yet we are assured, that neither of these illustrious princesses have, throughout their whole administration,
inflicted the penalty of death: and the latter has, upon full persuasion of its being useless, nay even pernicious, given orders for abolishing it entirely throughout her extensive domiinions **. But indeed, were capital punishments proved by *experience to be a sure and effectual remedy, that would not prove the necessity (upon which the justice and propriety de
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pend) of inflicting them upon all occasions when other expedie ents fail. I fear this reasoning would extend a great deal too far. For instance, the damage done to our public roads by loaded waggons is universally allowed, and many laws have been made to prevent it; none of which have hitherto proved effectual. But it does not therefore follow, that it would be just for the legislature to inflict death upon every obstinate carrier, who defeats or eludes the provisions of former statutes. Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity. To shed the blood of our fellow creature is a matter that requires the greatest deliberation, and the fullest conviction of our own authority': for life is the immediate gift of God to man; which neither he can resign, nor can it be taken from him, unless by the command or permission of him who gaveit; either expressly revealed, or collected from the laws of nature or society by clear and indisputable demonstrations,
I would not be understood to deny the right of the Legislar ture in any country to enforce its own laws by the death of the transgressor, though persons of some abilities have doubted it but only to suggest a few hints for the consideration of such as are, or may hereafter become, legislators. When a question arises, whether death may be lawfully inflicted for this or that transgression, the wisdom of the law must decide it: and to this public judgment or decision all private judgments must submit, -else there is an end of the first principle of all society, and government. The guilt of blood, if any, must lie at their doors who misinterpret the extent of their warrant; and not at the doors of the subject, who is bound to receive the interpretations that are given by the sovereign power,
Lastly, as a conclusion to the whole, we may observe, that punishments of unreasonable severity, especially when indis
criminately inflicted, have less effect in preventing crimes, and amending the manners of a people, than such as are more mer. ciful in general, yet properly intermixed with due distinctions of severity. It is the sentiment of an ingenious writer, who seems to have well studied the springs of human action t, that crimes are more effectually prevented by the certainty than by the severity of punishment. For the excessive severity of laws (says Montesquieu D) hinders their execution : when the pu: nishment surpasses all measure, the public will frequently, out of humanity, prefer impunity to it. Thus also the statute 1 Mar. st. 1. c. 1. recites, in its preamble, “ that the state of every king consists more assuredly in the love of the subject towards their prince, than in the dread of laws made with rigorous pains; and that laws made for the preservation of the commonwealth, without great penalties, are more often obeyed and kept, than laws made with extreme punishments.” Happy had it been for the nation, if the subsequent practice of that deluded princess, in matters of religion, had been correspondent to these sentiments of herself and parliament, in matters of state and government! We may farther observe, that sanguinary laws are a bad symptom of the distemper of any state, or at least of its weak constitution. The laws of the Roman kings, and the twelve tables of the decemviri, were full of cruel punish: ments: the Porcian law, which exempted all citizens from sentence of death, silently abrogated them all. In this period the republic flourished: under the emperors, severe punishments were revived; and then the empire fell.
It is moreover absurd and impolitic to apply the same pu. nishment to crimes of different malignity. A multitude of sanguinary laws (besides the doubt that may be entertained concerning the right of making them) do likewise prove a manifest