Sivut kuvina

place, to confider the general nature of punishments: which are evils or inconveniencies confequent upon crimes and mifdemefnors; being devised, denounced, and inflicted by human laws, in confequence of difobedience or misbehaviour in those, to regulate whose conduct fuch laws were respectively made. And herein we will briefly confider the power, the end, and the measure of human punishment.

1. As to the power of human punishment, or the right of the temporal legislator to inflict discretionary penalties for crimes and misdemefnors h. It is clear, that the right of punishing crimes against tne law of nature, as murder and the like, is in a state of mere nature vested in every individual. For it must be vested in fomebody; 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 [8] fince all are by nature equal. Whereof the first murderer


Cain was fo fenfible, that we find him1 expreffing his apprehenfions, that whoever fhould find him would flay him. In a ftate of fociety this right is transferred from individuals to the fovereign power; whereby men are prevented from being judges in their own causes, which is 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 vefted in the magiftrate alone; who bears the fword of justice by the consent of the whole community. And to this precedent natural power of individuals must be referred that right, which fome have argued to belong to every state, (though, in fact, never exercised by any) of punishing not only their own fubjects, but also foreign ambassadors, even with death itself; in cafe 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 .

[blocks in formation]

As to offences merely against the laws of fociety, which are only mala prohibita, and not mala in fe; the temporal magistrate is also empowered to inflict coercive penalties for fuch tranfgreffions: and this by the confent of individuals; who, in forming focieties, did either tacitly or exprefsly invest the sovereign power with a right of making laws, and of enforcing obedience to them when made, by exercifing, upon their non-obfervance, severities adequate to the evil. The lawfulness therefore of punishing such criminals is founded upon this principle, that the law by which they fuffer was made by their own confent; it is a part of the ori ginal contract into which they entered, when first they engaged in fociety; it was calculated for, and has long contributed to, their own fecurity.

THIS right therefore, being thus conferred by univerfal confent, gives to the ftate exactly the fame power, and no more, over all it's members, as each individual member had naturally over himself or others. Which has occafioned [9] fome to doubt, how far a human legislature ought to inflict capital punishments for pofitive offences; offences against the municipal law only, and not against the law of nature; fince no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent. With regard to offences mala in fe, capital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as in the cafe of murder, by the precept delivered to Noah, their common ancestor and representative'," whoso sheddeth man's blood, by man shall "his blood be fhed." In other inftances they are inflicted after the example of the creator, in his pofitive code of laws for the regulation of the Jewish republic; as in the cafe of the crime against nature. But they are fometimes inflicted without fuch exprefs warrant or example, at the will and difcretion 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 thefe crimes are, none of them,

1 Gen. ix. 6.


offences against natural, but only against social rights; not even theft itself, unless it be accompanied with violence to one's house or perfon: all others being an infringement of that right of property, which, as we have formerly seen", owes it's origin not to the law of nature, but merely to civil fociety (4).

THE practice of inflicting capital punishments, for offences of human inftitution, is thus juftified by that great and good man, fir Matthew Hale": "when offences grow " enormous, frequent, and dangerous to a kingdom or state, "destructive or highly pernicious to civil focieties, and to "the great infecurity and danger of the kingdom or it's in"habitants, fevere punishment and even death itself is ne"ceffary to be annexed to laws in many cases by the pru"dence of lawgivers." It is therefore the enormity, or dangerous tendency, of the crime, that alone can warrant any earthly legiflature in putting him to death that commits it. [10] It is not it's frequency only, or the difficulty of otherwise

preventing it, that will excuse our attempting to prevent it
by a wanton effufion 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; fince there
be unlawful me-
thods of enforcing obedience even to the jufteft laws. Every
humane legislator will be therefore extremely cautious of

m Book II. ch. 1.


ny Hal. P. C. 13.

(4) It is ftrange that the learned Judge's conclufion, viz. that theft itself is not an offence against natural rights, did not lead him to fufpect the fallacy of the pofition, that the right of property ores it's origin not to the law of nature, but merely to civil fociety, which he has also advanced in a former volume, (2 vol. p. 11.,) and which I have there presumed to controvert. If theft is not a violation of the law of nature and reason, it would follow that there is no moral turpitude in dishonesty.

[ocr errors]

Thou shalt not fteal, is certainly one of the first precepts both of nature and religion.


eftablishing laws that inflict the penalty of death, especially for flight offences, or fuch as are merely pofitive. He will expect a better reason for his fo 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 upon farther experience, that capital punishments are more effectual? Was the vaft territory of all the Ruffias worfe regulated under the late emprefs Elizabeth, than under her more fanguinary predeceffors? Is it now, under Catherine II. lefs civilized, lefs focial, lefs fecure? And yet we are af fured, that neither of these illuftrious princeffes have, throughout their whole administration, inflicted the penalty of death: and the latter has, upon full perfuafion of it's being useless, nay even pernicious, given orders for abolishing it entirely throughout her extenfive dominions. But indeed, were capital punishments proved by experience to be a fure and effectual remedy, that would not prove the neceffity (upon which the justice and propriety depend) of inflicting them upon all occafions when other expedients 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 univerfally 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 legiflature to inflict death upon every obftinate carrier, who defeats or eludes the provifion of former ftatutes. Where the evil to be prevented is not adequate to the violence of the preventive, a fovereign that thinks seriously can never justify such a law to the dictates of confcience and huma- [ 11 ] nity. To fhed the blood of our fellow-creature is a matter that requires the greateft deliberation, and the fulleft conviction of our own authority: for life is the immediate gift of God to man; which neither he can refign, nor can it be taken from him, unless by the command or permiffion of him who gave it; either expressly revealed, or collected from

• Grand instructions for framing a new code of laws for the Ruffian empire, $210.


the laws of nature or fociety by clear and indisputable demonstration.

[ocr errors]

I WOULD not be understood to deny the right of the legiflature in any country to enforce it's own laws by the death of the tranfgreffor, though, perfons of fome abilities have doubted it but only to fuggeft a few hints for the confideration of fuch as are, or may hereafter become, legislators. When a question arifes, whether death may be lawfully inflicted for this or that tranfgreffion, the wifdom of the laws muft decide it and to this public judgment or decifion all private judgments must submit; else there is an end of the first principle of all fociety and government. The guilt of blood, if any, muft lie at their doors, who mifinterpret 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 fovereign power.

[ocr errors]
[ocr errors]

2. As to the end, or final caufe of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the fupreme being: but as a precaution against future offences of the fame kind. This is effected three ways: either by the amendment of the offender himself; for which purpose all corporal punishments, fines, and temporary exile or imprisonment are inflicted: or, by deterring others by the dread of his example from offending in the like way, "ut poena (as TullyP expreffes it) ad paucos, metus ad omnes, "perveniat," which gives rife to all ignominious punishments, and to fuch executions of juftice as are open and [12] public: or lastly, by depriving the party injuring of the power to do future mifchief; which is effected by either putting him to death, or condemning him to perpetual confinement, flavery, or exile. The fame one end, of preventing future crimes, is endeavoured to be anfwered by each of these three species of punishment. The public gains equal fecurity, whether the offender himself be amended by wholeP pro Clucutio, 46.


« EdellinenJatka »