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when we consult the history of crimes in those countries, where capital punishments have been frequent. In England, for instance, and in other countries, where they have been greatly multiplied, no results have followed, so favorable as to justify the continuance of this sanguinary system; but the reverse. On the other hand, the preventive and remedial system, which seeks to secure society by the safeguards of equal laws and general education, by rewards for the good, and by efforts to reclaim, rather than to destroy the vicious, has been found to furnish, so far as it has been truly tried, undoubted strength and protection.
In examining this subject by the light of reason and experience, we have endeavored, as we proposed to do, to show, that the infliction of capital punishments is not justifiable, because it secures no good results, which might not as well or better be secured in some other way. In this argument, it will be observed, we have taken for granted, that society has the right of inflicting capital punishment, provided, all things considered, it will do any good. In other words, we have argued the subject on the ground of expediency. But it should never be forgotten, that expediency does not necessarily constitute RIGHT. If it could be shown, (which we believe never has been done,) that society is benefitted by capital punishments, it would still remain an open and important question, has society a right to inflict them. As for ourselves we are obliged to say, (putting the Scriptures out of the question which wholly and absolutely deny the right,) we have never been able as yet satisfactorily to ascertain, in what way society obtains it. Civil society, if we take the view which is commonly taken by writers on this subject, is to be regarded as the result of contract; every individual pledges himself to all the others; and the community pledges itself to each individual.
Each individual surrenders a portion of his private and personal rights in the expectation of receiving protection from the community; and the aggregate of the rights and powers of the community is based upon the surrender, which has been made of the private and personal rights and powers of individuals. The Society or State has no power, which cannot be traced back to this origin. And in accordance with these obvious views, we maintain that the State, in inflicting capital punishments, exercises a power, which was never granted it. And for this simple reason, that individuals, who are the source of all the authority lodged in the State, have no power to grant it. No man can grant to another what he does not possess himself; and as no man has the right to take away his own life, (a principle, upon which writers on moral Philosophy, and mankind generally are more universally agreed than upon almost any other,) it follows, that no man has the right to authorize another to take away his life. So that the infliction of capital punishments, examining the subject in this direction, is undoubtedly to be regarded as usurpation and tyranny.
But it will be replied to this view, although man has no right over his own life, yet in a direct conflict between his own life and that of another, where it is evident one of the two must fall, he has the right by the law of nature to put his adversary to death. This we grant; but the difficulty is, that we cannot reason from this fact in support of the infliction of Capital punishment by Civil Society, because there is no analogy between the two cases. If the man, who has his adversary entirely in his power, who has him bound with chains or enclosed with impassible walls, possesses the right, by the law of nature, to take him out in cold blood and cut off his head, or take his life in any other way, then we grant that he might transfer this right to civil society; and civil socie
ty, supposing it to be governed by the law of nature to the exclusion of the principles of the Gospel, would in that case lawfully possess it.
But that man possesses this right, even by the law of nature, we deny totally and absolutely. Supposing we have taken a thousand men in war; they are wholly and completely in our power; there is no danger from them; yet on the ground of their being disturbers of the peace and our enemies, we lead them out into an open field, and put them all to death in cold blood. Is it right? Most certainly not. Such a proceedure would be abhorrent to every sentiment of justice and humanity. And if it is wrong to put a thousand to death in this manner, it is wrong to put one to death.
In answer to all this, the objector says, this may be true and reasonable as far as it goes; but if the criminal flees from us and attempts to evade or perhaps to resist the officer sent to arrest and to bring him to trial, what is to be done then? I answer, we must get him as we can; but we must not touch the principle of life. We may pursue him; we may press him to surrender by cutting him off from necessary food; we may use all our diligence and skill to secure him; but we assert without hesitation, that his life is, and ought to be sacred, until the law in its majesty and impartiality has pronounced him guilty. We believe, that this view is fully accordant with the common feelings and sentiments of mankind. How often do we hear even of Savage nations permitting their captives to run for their life, and acting on the principle, that he who by superior agility can escape from his pursuers, is fairly entitled, so far as society is concerned, to immunity from punishment! Under the Jewish economy, there were cities of refuge appointed, to which those, who had occasioned the death of others, were permitted to flee. It is a principle of the Law of
Nations, that, if a man commits a crime in one nation, and flees to another, he cannot of right be pursued into that other, nor can he be punished there. A man may be degraded; he may be criminal; he may be cast out from the bosom of society; but still he is a man; and if, by his crimes and his attempt to escape, he has lost his civil rights, there are still some rights of nature, which cling to him in virtue of his humanity. And one is the right of escaping from those, who he has reason to believe will destroy him, if he do not escape. We are bound to recognize this right in the pursuit of a supposed criminal; and particularly so, as in every well ordered government every man is regarded as innocent, until he is taken, and brought before a competent tribunal, and proved to be guilty. Before we can inflict upon him the retribution, which his crime demands, we are bound to understand the nature of the crime, not only the proof of the alledged facts, but all mitigating and aggravating circumstances. Perhaps he committed the crime under dreadful and unheard of provocation; perhaps he was artfully led into it by another ten times more guilty than himself; perhaps he has done it under the influence of a momentary passion and is already the subject of a sincere and deep repentance; and under such circumstances, as well as under all other circumstances, he has the right to escape; he is indeed a fugitive and a vagabond, but like Cain he is a fugitive and a vagabond in the earth; he is under no obligation to surrender himself, if he can make his escape without injury to others. On the contrary, it is his duty to escape, if he anticipates that Society would not do him perfect justice, such as God and his own conscience would approve.
The question then returns, where society gets its right of putting men to death? And the answer is, No where. This pernicious system is to be regarded as one
of the thousand usurpations, that have been introduced by mistake or by cruelty, and which are rendered venerable and sacred by lapse of time. Like the use of the rack, the trial by ordeal, the enslavement or destruction of prisoners taken in war, the poisoning of wells and fountains, and other pernicious and unlawful practices, which were once authorized and perhaps considered essential to the existence of society, the time is coming, when it will be condemned by the good judgment and the humane feelings of mankind, and wholly renounced as both inexpedient and wrong.
CHAPTER TWENTY THIRD.
PRACTICAL EVILS OF CAPITAL PUNISHMENTS.
SOME of the evils attending the infliction of capital punishments have already been referred to. There are other incidental evils, which could not without some confusion be introduced into the main argument; but which are undoubtedly entitled to some consideration, in forming a proper and just estimate of this subject. These will now be noticed as briefly as possible.
I,One of the difficulties attending the infliction of Capital punishments is this. Witnesses are unwilling to testify, and juries are unwilling to convict, where the penalty is known to be death. This difficulty is not limited to those persons, numerous as they are, who have