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argumentatively proved their case. The Eighteenth Century was dominated by the chimera of the Social Contract; and, with the demolition of that fantastic idea, Beccaria's arguments fell to the ground. Beccaria denied that man had given up to Society his rights of natural liberty to life, and thence concluded that the punishment of death was illegitimate. But it was ably argued that, if Society cannot guarantee the life of its citizens otherwise than by death, it has power to impose death. Hence, as Diderot said, the legitimacy of the punishment of death for crime is derived from its necessity to Society. Filangieri is opposed to the punishment of death, in his Scienza della Legislazione, Lib. II., part iii., cap. 3. The Abbé Morellet, in his note on Beccaria, points out that the punishment of death is irrevocable and irreparable, and thence infers that it should not be inflicted. But this argument does not prove unlawfulness, and merely points out one of the vices of the punishment of death. Voltaire combats the punishment of death by the common saying: "Qu'un pendu n'est bon à rien.” Pastoret holds Beccaria's opinion, on the ground that the punishment of death was not indispensable to Society. Bentham, the declared enemy of this punishment, did not examine the matter from the moral point of view, but as contrary to the social interest and utility. Those who bring forward the personal and inviolable right to existence against the legitimacy of this punishment, use an argument which is uncertain, and too general to be strongly relied on. Rousseau, in his Contrat Social, Bk. II., chap. 5, defends the punishment of death on the ground of its being necessary for legitimate self-defence. But how can there be legitimate self-defence, when defence is no longer required, and it is undertaken by Society against the wrong-doer ? Surely, Rousseau and his followers have here confounded legitimate defence with the right of punishment. Every man has the right to
defend himself against every attack on his life; but every man has not, and only Society has, the right to punish. Pastoret completely answers all the arguments, hitherto advanced in favour of the punishment of death, on the ground of the legitimacy of self-defence-Vide “Des Lois Pénales," 2° partie. Merlin argues for the right of Society to defend itself as much as an individual, and to destroy an enemy, if it cannot preserve him without danger -Vide Répertoire, Peine. But what analogy is there between one man struggling against another man and an unarmed man against a whole Society? When a man defends himself, he is in imminent, present, inevitable peril ; but when Society punishes, the danger is past, and Society can reflect freely, and in full knowledge, on the cause and the effect of punishment. The positions of Society, and of the individual defending his life are not identical.
But, it is said, the punishment of death is allowable in certain circumstances-e.g., by a husband in defence of his wife and children; by a woman in defence of her chastity; and by a general against a traitor on the field of battle. I may admit these cases as affording legitimate grounds for the infliction of death. But I deny that Society, as such, has a right to take away the life of another person, because it is called upon to guarantee public security and the established order of things. Beccaria answers the arguments based on the universality of the punishment of death, op. cit., c. 10, where he truly says that, “ History is an immense ocean of errors, from which, at great intervals, some truths emerge.” The universality of human sacrifices in all countries, at some time or another, is no argument, in the present age, for the legitimacy of such sacrifices. Boresco well says that the “Human spirit is feeble, and marches slowly to the discovery of truth."
Į have shewn, I think, thaț the punishment of death by
the State is not legitimate on the grounds of legitimate defence, or of History; and have now to consider whether it is lawful on the grounds of Morality. Observe that it is by the title of punishment that Society inflicts death on an offender. Has, then, capital punishment all the essentials of just punishment? If the answer is in the affirmative, it is just; but if in the negative, it is unjust. We have already seen that punishment has for its end to re-establish the moral and the social orders overthrown or set at defiance by an offender; and that the moral order is re-established on reparation by the offender; and the social order by the repression of the offender. Now, the punishment of death by Society does neither the one nor the other of these things; for the guilty person, by being deprived of life, is not able to repair the evil he has caused, and the measure of repression adopted far exceeds the necessity of the social interest. All the world acknowledges that the punishment of death is not reformative, and that civilized Society can effectually protect itself against a murderer, or a traitor, by perpetual imprisonment. Further, the punishment of death is illegitimate for the same reason as confiscation and tortures are unjust: for it is, as well as they are, immoral by exceeding the measure sufficient to maintain public order, and is depravatory by hardening the morals of the innocent as well as of the guilty. Formerly, tortures on criminals were usually but the opening stages to the punishment of death. Such tortures have been abolished in the Criminal legislation of all civilised countries. Let us hope the day will soon dawn when the punishment of death shall be universally abolished.
But, if the punishment of death is morally illegitimate now, it was, it may be said, always so. Hence former legislators and judges and nations may be said to be guilty of judicial murder. I answer--not so; for there must be premeditation in murder, and there can be no moral culpability where the
act was performed in the exercise of a supposed moral obligation, or of a supposed legal duty. We do not say that a savage is guilty of parricide when he kills his father to prevent him from falling into the hands of his enemies. But, it may be said, public opinion approves of capital punishment; and that, therefore, the punishment is just. In the Middle Ages, tortures and death were inflicted for heresy, and amidst the applause of the multitude. Did that approbation, asks Boresco, prove the justice of the punishment? Those who actually believe that the voice of the people is the voice of God, may say that it did; but I, for one, deny it, and maintain that justice is a higher and grander principle than can be derived from the mass of the people. The punishment of death is a combination of tortures and mutilations. It hardens the morals, and renders the heart insensible. I, therefore, arrive at the conclusion that the punishinent of death, as a principle of pure morality, is illegitimate and unjust, and ought, as soon as possible, to be rejected in all penal legislation. Morality is injured by everything that is unjust and contrary to its precepts. It does not rest on social necessities, the caprice of legislators, or the arbitrariness of Governments. Its laws are perpetual and immutable; consequently they do not depend on times, places, manners, social conditions, or human laws.
I proceed to consider the necessity and utility of the punishment of death-that is to say, punishment of death from the point of view of the social interest. Now, for a punishment to be justifiable by the social interest, it must, as we have seen, conform to several conditions—that is, it should be proportional, personal and moral, equal and real, reforming and exemplary, and remissible. But capital punishment is neither remissible, nor reforming, nor exemplary, nor moral, and is only proportional and equal by the lex talionis, and real and personal in the sense that its
chief ingredients fall principally on the offender. Moreover, the punishment of death ought not to be inflicted as a grand tragic spectacle; but, if at all, as an example to all present and all possible future murderers, assassins, and traitors. But to suppose that men, thoroughly corrupt, whose moral sentiments are alınost extinct by the effects of their criminal misconduct, will ever be convinced, by the knowledge of an execution, of the intrinsic immorality of wilful or culpable homicide, is to believe thing which appears to me to be contrary to common sense and all human experience. To put a murderer to death in order to deter future possible murders is wild, chimerical, and unjust. Nay more, it appears to me to be monstrous to put a man to death for the benefit of other people, or, indeed, to punish a man for any reason whatever, unless on the grounds of his own crimes. I, therefore, infer that the punishment of death is of no use to those for whose benefit, by way of example, it is inflicted.
With regard to the effectiveness of perpetual imprisonment, by way of example, as compared with that of the punishment of death, I venture to assert that perpetual imprisonment is as effective as the punishment of death by way of example. Upon malefactors, and degraded creatures, the punishment of death is, I think, rightly believed to be very small by way of example. Such persons, every day of their lives, are reckless of their lives, and prefer to run great risks rather than abandon their modes of life. In this respect, they act like all persons, such as soldiers, who are engaged in dangerous trades or professions. Familiarity, in more senses than one, breeds contempt. Most people may think the punishment of death a very dreadful thing; but the deep-dyed malefactors do not think so. The criminal classes live a life of savage independence, and of freedom from restraint, and will be as much affected by the dread of perpetual imprisonment as by that of death. I myself