PUNISHMENT in human government may be referred originally to two sources; the vengeance of offended Power; and the satisfaction of Justice-that is, retribution measured to transgression. Either of these feelings suggests the idea of punishment, and satisfies the minds of those who impose it. To these is soon added the use to which punishment may be employed, for deterring others from the same crime. The progress of moral civilization adds a fourth purpose-that of moral restoration to the criminal. The illustration of these Four Principles would go through the whole history of Penal Legislation.

The character of those feelings which have given origin to punishment among men, must explain the sanguinary and ferocious character it has borne. For either of them provokes strong passion in the hearts of rude men. Offended power and indignant justice crush the offender. In those early states of mankind in which laws and government have their origin, there is nothing for men to refer to, when occasions arise, but the sentiments they find in their own hearts, whencesoever they are produced; and when any of those great violations occur which call for severer chastisement, the passionate feeling with which they consider the acted offence gives birth to the law.

If we were to look into the history of human institutions to understand how it has happened that those corporeal inflictions which seem to us so terrible-mutilations, torments, death with all possible aggravations -have entered into the scheme of government, we should have to examine the effect among men in the pristine states of life, of crimes perpetrated before their eyes, which provoke vehement indignation. When the punishment is once allowed, its continuance is accounted for, because the minds of men frame themselves to the existing institutions; and the policy of a barbarous people remains to more enlightened ages.

In thus referring the origin of Punishment to passionate sentiments, we at once explain its excess. Because it is the property of such pas

VOL. XXVII. NO. LXVII.

sionate feelings to justify to themselves their own acts. Offended justice and offended power have this in common, that they never question the extremity of their resentment. It will be clear to those who enquire into such conditions of society, that, constituted as the life of man there is, turbulent and ungoverned, their spirit of understanding dark, and every thing new and indeterminate amongst them, they could refer to nothing else but in the individual case to the sentiment of the occasion; that those impetuous dictates of feeling to which they did refer performed a most important service; for that, unless they had acted fearlessly and vehemently under such impulses, there would have been a total relinquishment of all government among them-the worst state into which any society can fall. Therefore, when that state of society is come in which men deliberate with reflective humanity, and, strong in the knowledge and experience of ages, upon their own legislation, they have to separate entirely the history of Punishment, as it may exist among them, from the consideration of its principles. For in one they see the natural resources of uninstructed men; but what they seek for themselves in the other, is the highest wisdom of possible human govern

ment.

This spirit of reflecting humanity in legislation we scarcely find, except in Christian Europe; and there not till its latest ages. The diffusion of these humane sentiments has gradually abolished many modes of torturing punishment, and has taken from the punishment of Death very generally the enormities with which it used to be accompanied. But the softenings of justice are generally to be ascribed rather to the natural influence of a milder spirit, which revolted from shocking inflictions, than to much study of legislators to conform their general laws to the wisest principles. The fearful appendages-the hideous ostentations of the punishments, have dropped away; but the reconstruction of their codes upon the wisdom which the age possesses, is a work yet to

3 L

be done for most of them, yet to be begun. It seems as if great progress indeed, both intellectual and moral, were required to enable men to detach themselves in idea from the system to which their minds have been moulded; and to reform it according to the measure of their understanding and feeling.

When this change in the spirit of the age begins, and they consider not what the laws are, but what are the principles and the rights of punishment-when they throw off all their habitual impressions, and ask for a perfect ground, or reason, for every thing they dare enact the first startling question that comes upon their thought, is, whether men have the right to put men to death? A question involving such ideas of injury and responsibility, that it takes place of all other questions on the subject, and all theories of punishment are framed with a reference to its solution. At the time when such enquiry begins, it is found that a great change has taken place in the prevalent views of punishment; and that, in place of those conceptions of direct and retributive judgment, which prevailed in the origin of laws, the common idea that now holds a place in the public opinion is the notion of its practical utility not its justice, but its expediency. The effect upon society of deterring from the commission of crimes-the efficacy of punishment by examplewill be found to have its chief place in common thought upon the subject; and it may possibly be found, that there is a common disposition to rest punishment altogether upon that ground.

The consideration, therefore, of the expediency of punishment, may perhaps rationally be brought as the first to the question of the right of capital punishment; and it may be asked, is it possible that any degree of expediency, any danger to be repelled from society, can authorize to take away life? The answer of natural feeling is here direct and simple; that, unless the life is forfeited, there can be no right to take it away. And we are thus thrown at once upon the intrinsic difficulty of the subject the forfeiture of the right of life. If there be any cases in which it is certain that men are

commanded by the highest authority under which they live to take away life, upon those cases there can be no deliberation. But if that be doubtful-and we are left upon our human understanding of rights to examine the question-the difficulty is great; for to what law can we refer, but to the common law of human naturedeclared by Feeling, Reason, and Conscience?

The simplest case in which we acknowledge the right to destroy life, is that of resistance against the assault upon life. A man attempting the life of a man, a nation invading a nation with arms, always appears to us to give an unquestionable right to put to death, because in these cases the aggressor breaks up the natural bond of human society; he outlaws himself; he takes his blood upon his own head. He, in fact, gives the right over his life, not to him merely whom he attacks, but to him who passes by. He then appears certainly to have forfeited his right of life.

Our conception, therefore, is not of an absolute right of life. We conceive and admit its forfeiture. Now, can we state on what ground we conceive a right of life? Only upon this-that we are members of one family. Every individual human being has, in our eyes, the same right at our hands, by the community of our nature. But he who attempts life has dissolved for himself this community of nature; he has annulled it, and can derive no right from it. It seems, therefore, a natural reasoning, that he who has violated life has forfeited his own, and made them innocent who destroy it.

Let us take another step. The delinquency of an individual against the society to which he belongs, in those acts which are against the existence of the whole body, seems to be of the same nature; to abrogate his fellowship with them; to put him on the footing of an ordinary enemy; and to justify his death-as theirs, provided the society to which he belongs be lawfully constituted; and thus the forfeiture of life, or punishment of death, may seem to have a justification in the highest trea

sons.

Let us take another step. It seems reasonable to suppose, that the laws,

which have been always extremely sanguinary, against pirates and banded robbers, have proceeded upon such a ground-upon the assumption that they had themselves dissolved their fellowship with men, and separated themselves to be the enemies of human society. Therefore, the question was not, whether they had in particular cases destroyed life, but their occupation of itself was held justly to condemn them.

These are some of the plainest cases of the apparent forfeiture of the right of life. It is possible there may be some in which, by construction, it may be conceived to be forfeited. But if there be a case in which, neither palpably to common sense, nor by any construction, it can be shewn that the natural right of life is forfeited-is it possible that any opinion of the expediency of the severest punishment can justify the use of the punishment of death? It seems very difficult to conceive.

The first great class of penalties upon which this question must be asked-in our own country-are those which regard the invasion of property, where there is no personal aggression. It is plain, that in these cases of fraud and theft, there is nothing whatever of the character of offence which separates a man from his community. He violates a law; but no man will say that that is simply a forfeiture of all right. He violates a right which is of great magnitude and importance, and on which the prosperity of the state is founded. But will any man say, that he has therefore waged war with the prosperity of the state? There may be difficulty in marking the point where aggression, on the one side, breaks up to the man the laws of social life, and on the other, has ceased to do so; but the numerous cases in which wealth lies open to invasion, without any injury of personal aggression, cannot be so construed. For the injury done to me, who suffer most, is not such that I can desire the man's death. The spirit of revenge, the fiercest spirit that ever entered into law, does not ask it. Yet, upon that act, for which the sufferer dare not, before God or man, ask death, the legislator himself imagines to inflict it--making

his cooler deliberation of expediency more remorseless than revenge!

Here, it may be at least an evidence that life is not forfeited, when he whose passions are most inflamed, would never have dreamed it to be So. The case, indeed, appears perfectly clear-that here, life is taken which is not forfeited. To those who believe that, without this selfforfeiture, there can be no such penalty justified as death, the argument is ended. To those who look upon expediency as constituting a necessity, it remains to shew that the punishment is expedient. But the experience that has been had of it does not shew this.

To us the great question is, whether the protection of property, separate from all other considerations, can justify the punishment of death? In most of the aggressions upon property which have, by the common laws of nations, been punished by death, there has been other aggression upon the peace and security of the society, which gave to the crime its more atrocious character. But in a country in which property is so separated from the person that it can be violated alone, the question comes, whether it is lawful, for that violation, to take away life?

Property can be invaded by counterfeiting a signature. Does the necessity of protecting it give a right to take away life, in order to deter from that invasion? The only answer that can be made in the affirmative, must at least bear the qualification," if there is no other method of preventing it, and this is effectual.” What, then, if it can be said that this is the only method that has been tried, and that this is not effectual ?

But it may be doubted whether, in the utmost extremity of the case, it can be justified. For, to what extent is the law bound to interfere for the protection of property? If I lock up my purse in my house, the law will protect it, though I leave my house empty; but if I leave my purse on the highway, the law will not protect it. In one case I do not make the risk-it exists in the nature of things. In the other case, I make it. When commercial houses have arranged, that the check of a holder of money shall command it, without

any other authority or evidence of his intention-if that puts the money at risk, they have put it for themselves; for there is nothing in the nature of property constraining such a risk. It is an arrangement of convenience; and if the law did not protect that arrangement by any penalty, it cannot be doubted for a moment that the holders of property would devise more decisive means of ascertaining their intention. They would be able to avoid the insecurity, but not the inconvenience. It is their convenience, then, and not the property, that is now protected by the penalty of death.

Another invasion of property, of a similar kind, is that which is effected by counterfeiting the promissory engagements of particular commercial houses, which have the currency of money with the public. The fraud is on the public. This case is of much greater importance, because no means which could be taken by those who are liable to suffer from it are sufficient to protect them; the only sufficient means being out of their power. But it is possible that the houses who derive their profit from issuing such engagements, whose interest it is to put this money into circulation, might find the means of protecting the public from fraud. And if there were no protection afforded by the law, it is unquestionable that they would long ago have found the means of imparting some more indisputable character to their money; because the perilous uncertainty of this circulation to the public would otherwise have stopped its currency. But the ready penalty of death was at hand; and the law did as much as lay in it to render so much pains unnecessary.

The protection of such a circulation by the penalty of death, seems to have followed from the protection of the coin of the realm by the same penalty. At least, if this did not lead to it in law, it may be believed that nothing less than some habitual acquaintance with the protection of a currency by death, could have disposed the country so readily to ac quiesce in it. But the protection of the coin by this penalty, is in itself a very extraordinary part of policy; and it is derived, not from any opinion of the sanctity of property, but

from the majesty of the King, against which this crime is an aggression, and therefore punishable as treason. The law was never enacted in obedience to the common sentiments of the nation; but it was one of the acts of offended greatness,-an act of the state; and the penalty was the same, if the coin were good. If it were now for the first time to be deliberated in a civilized and Christian country, in what manner the King's coin, the engagements of banks, and the deposits of individuals, should be guarded from invasion by counterfeiture,-who is there that would first stand up, and propose that the security should consist in the penalty of death? It is not supposable that, in such a state, these laws should take origin. Who is there whose own mind would suggest to him the wish, that the man who had passed on him ten counterfeit guineas or notes, or had forged his check for fifty pounds, should perish for it on the gallows? We have a punishment which no legislator would dare to advise for the crime, and no sufferer by it to desire.

The first idea that presses on our mind is, that property must be protected. The whole establishment of the country seems so interwoven with it, that we look with dread on its insecurity; and its security seems to us a first law of necessity. There is a feeling, that by this crime-Forgery-property may be reached to such an extent-it seems so easy, so small an act to work such great consequences, that we can think of nothing sufficient but the most dreadful protection. It is but a few years since the persuasion was common, that forgery was a crime which never had been, and never could be, pardoned!

The same idea of the facility of crime, the strong temptation to it, from the unprotected nature of the property, led the country to acquiesce in the same punishment for real invasion of exposed property; and if there were no other means of protection, and this were such, it is not probable the holders of property would ever consent to remit the law. But now they feel it to be cruel,because they see it to be ineffectual; and men will not enforce, for the sake of compensation, a penalty ex

ceeding by infinite degrees the measure of their grievance.

But property which stands under conventional securities seems to differ in essential respects from that which subsists and is secured in nature. He that removes a landmark -he that takes my money-that steals my plate-my cattle-cuts away the very substance I hold. But he that passes upon me a false guinea, or a forged note, or obtains from me, by a forged order, the money I hold of another, deceives me, and gets my property with my own consent. This act is fraud, and not robbery. Now, if we would understand how widely these two crimes stand apart, we may observe, that one of great magnitude, and which is never punished with death, stands between themthe breach of trust. The moral offence may be here far greater, and also the danger to property; yet the just sense of men has saved this crime from this punishment. The difference between robbery and fraud seems to consist essentially in this, that in the one the owner has no consent-in the other he has; and therefore it is presumed that, in fact, his own imprudence has made his insecurity. Further, in one there is open and defying war against the establishment of society. There is a wilful arrogating to himself of the disposal of property. The hand that violates property chooses to live by its own law against society; and it has there

fore cast itself out from the brotherhood of men. But the man who lives by fraud puts himself still within the pale of society.

But we have a deeper feeling yet; for we conceive a sanctity in property-an inviolable sacred right. It is like the right in life and limb in marriage, or in blood. The man brings it with him from the hand of God-it is indefeasible except by his own act; and therefore the moment we perceive his own act in effecting his loss of it, we lose the idea of the violation of the right. He who robs braves this right; he who defrauds acknowledges it. Upon such impressions, men in ruder ages may have acted to extremity, and yet justly; but we dare not act upon them now, for the moment we have begun to question them, and find that they have their impulse in

imagination, we know that we are in danger of being deluded, and therefore desire to act on calm reason alone. That tells us that the right of life is not necessarily forfeited by the violation of the right of property. But let us go now to the question of expediency.

Now, if the punishment of death is to be argued upon its expediency, the first question will be, upon what does the power of such punishment rest? Upon Fear. It takes this as the highest punishment, and rests its efficacy on the fact, that the fear of men will be in proportion-that their actions will be most controlled by the strongest fear. But it is altogether contrary to experience to say, that the fear of death has the strongest control over the actions of men. On the contrary, we know that the human heart is full of passions stronger than this fear; and that, so far from its being possible to rest the security of states upon the fear of death in the breasts of its members, their only imaginable security is the power which is in those breasts to triumph over it.

It is necessary to know, therefore, what it is that gives to death its real efficacious fear; and what, in a less degree of the same nature, to other bodily inflictions. We must not hesitate to say, that what lifts men above the fear of death, is-in addition to natural courage-the sense of honour-sympathy with their fellowmen-the necessities of some great cause in which they are engaged constituting a plain duty--and last of all, the habitual presence of death steeling the heart. We know that all these circumstances together, and any one of them singly, raise men entirely above the fear of death; and that, so far from any expectation being entertained by us that their actions will necessarily be governed by the fear of death, we have the most perfect confidence, and rest our sole security upon that confidence, that, in the midst of the most appalling shapes of death, they will be able to look round calmly for other motives-to sustain and guide themselves by other principles of action.

On what then, we ask again, do we rest the efficacy of the fear of death? Not, surely, on the timidity of men! But on the circumstances