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of the death bereaving them of their natural courage. If, then, we rest our legislation upon dishonourable views of the nature and character of men, we debase ourselves as them, and blind ourselves to the truth. It is not by the fear of death that punishment has its power; but by shame -by exclusion from the sympathy of men-by the infrequency of infliction, which leaves the natural sense open to natural fear-and by conscience. The history of those who have died by the hand of public justice will support this belief. The common sentiment of men, which, whatever its authority may be in grounding a law, is our only authority in the case, is perfectly unequivocal. Shame, and men's abhorrence, and the burden of his own conscience-are the weight which a culprit cannot bear; these are the terrors that sink his heart under the approach of death.

If this be true, it is in vain that the legislator seeks to load his laws with terror. The terror is not there. It is in the minds of men; of those who stand around to condemn; and of him who suffers. How, then, may he command these terrors, and bring them in to aid his law? The answer is in one word-Justice. If his punishment be measured to the crime, the legislator will have the sympathy of men on his side. There is a moral indignation which never sleeps in their hearts; and which, at the perpetration of atrocious crime, rises up to second the arm of power, and to curse the criminal from the earth. There is a moral dread which is lodged in every human heart, which crime once acted rouses up from its slumber, and which expects the stroke of Justice. But by Justice only can the lawgiver reach that overmastering fear.

It is obvious, that the same circumstances which make death overwhelming when it comes, make it formidable in prospect. If it is to repress in men's hearts the motives to crime, it must be because shame and abhorrence invest it; and that Fear of Conscience is in league with natural Fear-that the distant prospect of death will have power to awe even the passions of men from the act, or to impose a curb on their perverted will; or it must be because

the temptation is not strong, and the punishment certain and immediate. But that implies much. It implies, in the first place, that punishment is measured to crime according to a natural standard in men's feelings, and not according to an artificial standard in their schemes of policy. It implies, in the next place, that there is among the community a just state of moral feeling, and that every man is able to know by his own experience of men, which way shame and abhorrence will go, that they are against him utterly. It implies that the number trained in iniquity should not be great; but that the greater part of those who are supposed to be restrained from crime by positive fear of its human consequences, may be those who would be driven to new crime by great passions or strong temptations. It implies, that, among those whose life is wicked, and who are tempted to crimes of the greatest enormity, there should be yet a surviving conscience, which is in consonance with the Law, and acknowledges the Justice of the more dreadful penalty which they have not yet incurred, hung over the crime which they have not yet committed.

But all this is equivalent to saying, that in every way there shall be Justice; that is, the due admeasurement of punishment to crime. For the state of the moral sense of a people, which depends upon many causes which the penal legislator cannot control, depends also upon him in no small degree. Especially in this case

the highest-it depends much on him, whether that moral abhorrence which attends upon the most atrocious crimes shall be strong and clear, or not. He has it in his power to confirm it; he has it in his power greatly to shake and weaken it. For the force of moral condemnation, indignation, and abhorrence, is nothing definite and fixed; but unstedfast, wavering, and transient. And though it is on great occasions, on the whole, just, yet it is more or less so. It is a power variable with the influences to which it is subjected. One of the strongest determining causes of the moral judgment of a people, is the moral opinion of those authorities to which they look up in the highest resort. One of the chief of those authorities is their national

law. The seal of acquittal or condemnation by the laws weighs greatly upon the minds of the people. If their own judgment be just, and the law by its condemnation ratifies this judgment, their moral judgment is strengthened; their dependence on it is confirmed; their feelings connected with it are all called into stronger and more vigorous action; their views are made through it clearer. If their judgment be just, and the law departs from it, acquitting where they condemn, and condemning where they acquit, or more severely than they do or can, then they are shaken in their moral judgment; are drawn from their reliance on it; their feelings are repressed; their views are disturbed; and they are in some degree forced to relinquish their own just judgment for a false one. Thus, the whole scheme of the law affects the moral sense of the people; most of all in its highest punishment-because to that is annexed the most powerful emotion.

There can be no doubt, therefore, that if that penalty, which all men do by their nature contemplate with a serious awe, were reserved for the utmost crimes, the infliction of that signal punishment upon an act, which already had excited in the utmost degree their passionate abhorrence, would, along with the satisfaction which it gave their mind by the retribution upon crime, greatly confirm their abhorrence of the crime; render it more fixed and stable, more decisive and unquestionable-would leave from their passionate feeling a firm and solemn judgment. And thus the moral feeling of the whole people upon that crime would be greatly strengthened. For that is the effect of such confirmation. If the sympathy of their equals heightens their passion, and justifies it for the moment-the assent of their superiors, which is not a sympathy but a judgment, justifies it permanently.

Thus, in the awarding of punishment, especially the highest, the framer of the law has the moral sense of the people in a certain degree dependent upon him; and this is one great consideration which makes it doubtful how far, in extreme offences, the legislator ought to punish below the abhorrence of the people, inasmuch as he is there

by in danger to weaken their just abhorrence. But if this may be matter of doubt, it is beyond all doubt, that he must not punish above their just abhorrence; and that in annexing to offences of lesser enormity that heaviest penalty which natural sense would annex only to the greatest, he disturbs the moral judgment of crime throughout the nation-perplexing their condemnation between greater and lesser crimes; so that, while it, perhaps, reconciles them by use-as use will reconcile to much -to undeserved punishment, it certainly weakens their abhorrence of those worse crimes which are visited by no heavier retribution. The legislator, therefore, who, upon suggestions of policy, departs from men's natural standard of punishment, disables himself in two ways; both, as he loses some part of that mighty force with which the natural feelings of mankind would aid his policy against the worst crimes; and as he separates, in some degree permanently and altogether, the administration of the laws from the sympathy of the people.

It cannot be forgotten, in speaking of the effects of this punishment on our moral judgments, that some considerable part of the awe with which all look upon death, arises not from the life from which it separates them, but from that to which it commits them; that the thought of the dreadful eternity, which lies beyond the mortal punishment of the offender, gives a weight upon their souls to the execution of the law's sentence, which does in the most direct manner, and in the highest kind, confirm their moral feeling of his crime. It is with this deepest and most dreadful of human feelings that the lawgiver trifles, who uses the penalty of atrocious crime for the protection of the lesser interests of society. He teaches them to separate in their thoughts the punishments of this world and another. He stops their fear at the moment of death; and constrains them anxiously to struggle in their minds against the belief of that futurity for the offender, whom they have seen perish, from which they would otherwise not have dared to withhold their belief. It severs the strongest bond of their moral judg

ments at the very point where they ought to be most strongly united.

It is in this way that a conformity to natural Justice is necessary to that legislation which is to be rested on Fear-in order that the Moral Sense of the people, which makes by far the greatest part of that Fear, may be in its utmost strength with the Law. But it is necessary also with respect to those who may be supposed to be restrained by fear from the commission of crimes. For every theory of government supposes that there is among men a very variable disposition to crime. It does not presume to stop all crime; but the greater part. Crime will burst through all restraints. What do we suppose, then, of those whom the law menaces with its heaviest inflic tions, if they commit crimes? We suppose that some men in the midst of the tranquillity and happiness of ordinary life are seduced, or driven by strong and ungovernable passions to crime-some by the compulsion of strong necessity; that some, neglected, or more prone to evil, more indifferent to good, are upon less temptation in danger of falling into transgressions; that some live in habitual lesser violation of the law, and are therefore searing their conscience, and strengthening themselves in the defiance of authority, involving themselves more and more in the occasion and practice of crime, and continuallymore and more solicit ed to worse crime, as they widen the separation between themselves and the common order of society.

Now, from this general description, it may be possible for us to form some judgment of the effect upon these different minds of the natural Justice of the Law.

In the first place, it may be said, that, to all these, there is some degree of moral sense. In none, perhaps, is it utterly obliterated. In this way, the Justice of the Law affects them, by the response it makes to the Conscience; and because the greater the moral sense of the community, the greater theirs. In the next place, this sense of the judgment and condemnation of men will be in proportion to the degree in which they see moral judgment to exist among them-in which they themselves were sensible to it, be

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fore their own days of crime. farther, it is evident, that, of all these classes, the last are those with whom the law must find it most difficult to deal by fear.

For them it seems desirable to preserve two conditions; one, that there should be left them, if we may dare to speak so, a range of crime safe from the penalty of death; the other, that the sort of war carried on against them by the state should bear as much as possible the character of necessity, and as little as possible that of resentment and eager persecution. The two resolve themselves into this-that the extreme punishment of the law should be as much as possible withheld. Perhaps this may seem to require farther explanation.

Those who live by crime, must be continually hardening themselves against the apprehensions of punishment. Men have power to do so to a wonderful extent. Now, it is important to the state, that the penalty against which these men should be least tempted to harden themselves, should be its extremest penalty— that of death. But the moment the state begins to punish with death the offences by which they habitually live, it compels them to harden themselves against the fear; and it is found that they succeed in doing so. Of course, in hardening themselves against this worst extremity, they quite lift themselves above the thought of all lesser punishment; and thus there is produced among this class of the community the temper of hardest insensibility to the inflictions of law. And whatever force the fear of punishment might have had among them-as it is always presumed to affect even these-is greatly taken away, by the very excess beyond natural justice, by which the law sought to augment it. This, then, is one sufficient reason why there should be a range of crime safe from the punishment of death.

But there is another reason. For these men, in some degree retaining the natural judgment of crime, and partly guided by the actual state of themselves in human life, commit more willingly, and have oftener occasion to commit, the lesser offences. But if the law visits them with death they find themselves, early in their

career of progressive crime, already under the worst penalty of the law. Then, what temper of mind can be expected in them, but to become at once desperate; and, as past human recovery, and as forfeited to themselves, to associate themselves to the worst offenders of the law-to enter without fear into those worst crimes which have most temptation, and which sometimes become the safest? It is further a consideration with regard to such men, that there should be as little as possible done by the law to exasperate them against the society with which they are at war. This is a subject on which it is difficult to speak, as there can be but little sympathy with what may be said upon it. But it is necessary to be stated. The temper of those who live in violation of law is more or less hardened, more or less fierce against society. It may be imagined that they have but one governing sentiment—that of making the most profit to themselves by injury to others, with impunity. But that is not the truth. They are not at war with society only, but with themselves; and there are few of them who do not well know that their life is madness. They have contentions in their own minds, and are subject, more or less, to determining causes, which alternately impel them one way or the other. It may seem prudence in a state, and a duty upon man governing men, not to add to the causes which determine them to crime-not to cast into the temper of those who are wavering amidst the suggestions of wickedness and possible hope, the desperate feeling of resentment against society, and at the same time against the moral order which society upholds, by bitter and merciless persecution. They have made themselves enemies to society, but it is in the power of society to determine what shall be the character of their hostility.

Yet further for all those, of whatever class or character, whom the law is to control by fear from crime, it is evident that the first essential condition of the punishment is-its certainty. This has been found, and may be shewn in many ways; by the unwillingness to accuse-to witness against to condemn-to execute, when the punishment is beyond

natural justice;-by the inequality of administration, which necessarily enters into a system of law not consistently planned. The same spirit which would carry the most perfect justice into the frame of laws, would carry the most perfect exactness into their execution. But violence is always a sign of deficient energy. There must have been much already wanting to just government, in the temper and wisdom of that society, which could consent to protect itself by a fear beyond justice.

Thus there seem to be Three Great Causes of Inefficiency in the Laws which are framed to severity beyond the crime-their deadening the moral sense of the people-their hardening the temper of criminals-their uncertainty of execution.

But much more may be said that the very conception of controlling men's passions and crimes by fear, is in itself false; for in all cases, and with its utmost strength, it is an inefficacious power to control human action. They have already overcome a much greater fear. It would seem as if lawgivers had stood in the front of society, to wield power against the criminal passions; as if they saw nothing in all society but crime on the one side, and the power of punishment on the other, and felt themselves called upon to punish, and nothing else, till society was protected. A vain imagination indeed! For they forget that the great control of our propensities to transgression, is not in the law, but in that whole system of moral powers and restraints, whatever they may be, which bind society together; that if they indeed had to wage war with the passions let loose, the utmost human power would at once be swept away, and that the only power of the punishment, is that it is a part of a system, of which it is but a very small part. The order of society subsists already ten thousand restraints are imposed throughout all its parts on the license of the will; but they are not sufficient, and in extremity the legislator interposes. He does not make the peace of society, nor ordinarily does he preserve it; but the moment he loses sight of his real situation, as the guardian of peace in extremity, which to a far greater extent is guarded without him, he loses

sight of the only principle that can safely guide him, and imagines a magnitude and self-dependence in his function, which it does not possess. He conceives that he has only to go on exerting the power with which he is armed, till he has made it avail. He, therefore, blinds himself entirely to the true condition of his office; and does not understand that it is but a small portion of punishment that society can bear-that he must husband, and not lavish, his power, and that he augments by sparing it.

Let us, for a moment, conceive of punishment under human law, as merely consonant to, seconding, and fulfilling Divine and Moral Lawthat all these were to every man's contemplation-one and the same. Would not the condemnation of transgression be something more impressive and overcoming, when he found that to whichever he should look of the great authorities under which he lives, the same stern aspect of menacing interdiction frowned upon him? That beyond the warning of his conscience, the hand of human law was lifted up, and behind all mortal punishment a more dreadful avenging? Would not each confirm the other? The same consideration that weighs with men at one time, does not equally affect them at another. At one time a man's heart has more moral sensibility, and the inclinations of his own mind will then much govern him;-at another, he is under religious impressions, and then terrors and promises will take hold upon his understanding, and rule his will. At another time, when his higher nature has little power, and he rests on the present, he will be swayed by the fear of men-he will acknowledge the necessity of submitting to the Code of the Law. Thus to every man's serious moral contemplations, or to his most obscure moral fluctuations of feeling, the code of his country's penal law, if it be conformable to natural human sentiment, is of important influence; and the punishments, lesser or greater, which are annexed to transgression, have their daily force in determining the moral temper and condition of a whole people.

In arguing this question, it is necessary that we consider not only the

condition of those upon whom the criminal law is to act, but also the causes of that condition. What if that condition was made evil, not by themselves, but by what would seem almost to be a necessary evil inherent in every highly civilized society? If so, are we to punish merely, or, by mercy tempering justice, seek to restore? If crime springs out of ignorance and poverty, and if that ignorance and poverty have fallen upon thousands as a doom, shall we punish such criminals with death, and not sin against conscience, reason, and God?

There is one portion of our population more corrupt than the rest— which, by indigence, vice, ignorance -abject condition of every kind, is the lowest amongst us. Indeed, it may be understood, that in a great and various population like ours, causes are continually operating to cast down from every part of it numbers into its lowest and worst conditions. If the natural constitution of society be considered, it must be understood that unless such a moral order prevails through the whole, that all are rightly governed in their place, which is not the condition of human nature -there must exist in every country an infamous caste. For, the lower men are born, the more easily do they escape from the bonds which hold them to some place in ordered society-they are on the verge, and, if they let go, they drop.

For men hold their place in ordered society, not by their conduct merely --but by their rights-and he who holds those personal rights in society, which are an important part of its own entire institution, as the rights of property, may commit many forfeitures, and yet not lose his place; but he who holds his place in his person only, more easily forfeits it. And when the difficulty of human conduct is considered, and the extreme ignorance in which, by the natural separation of the classes of society, and the extreme neglect of their condition in that extreme separation, great numbers are rearedand the vehemence of the gross temptations that assail them-it cannot be wondered at that there should be continually dropping from the bosom of society into that class which is below her lowest rank, numbers

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