Now, this imperfection in the state of nature society has found the means to correct; not by creating a new right, but by insuring the exercise of an old one. In this improved order of things, it is no longer one individual armed against another for the punishment of a crime: it is society in the aggregate. The depositary of the public authority exercises this general right, which has been transferred by the joint concessions of every individual to the society at large, or to it's representative head.

These concessions were by no means instantaneous. A long interval elapsed before mankind entirely stripped themselves of so important a right.

To return. Man, in a state of nature, has a right to life; aright, which he cannot resign, but which however he may forfeit by his crimes. All men have, in that state, a right to punish the breach of natural laws; and, if the breach be of such a magnitude as to have rendered the transgressor worthy of death, every man has a right to take his life. This right then, which in the state of natural independence each posseses over all, and all over each respectively, has been transferred to society, and deposited in the hands of the sovereign. Sodeposited, it depends, like the right of inflicting other punishments, upon the surrender of the right, which each individual possesses over the rest of his species. At the very moment, when I entrusted to him my right over the life of others, others entrusted to him their right over mine: and thus, without giving up our right to life, we mutually subjected ourselves to the contingency of losing it, if we should ever be guilty of any of the crimes, against which the legislature has denounced the punishment of death,

VII.

EXAMINATION OF THE ABOVE THEORIES.

It is with some apprehension, that I venture to subjoin my own thoughts upon capital punishment. When an opinion has been adopted by Montesquieu, defended by Mably and Rousseau, and espoused and maintained by one of their most distinguished disciples; can a young writer, without incurring the imputation of temerity, engage in the contest against his masters? I have neither the presumption, nor the power, to place myself on a level with those high names: and I should have remained profoundly silent, had their system appeared to me less pregnant with mischief; had it not struck at the very basis and principles of justice herself; at those eternal truths, upon which the benefits and the happiness of all political associations are necessarily established.

But in combating the opinion of Montesquieu, of Rousseau, and of Mably (the latter of whom has displayed the greatest vigour and address in it's defence) and in preferring to their theory that of Beccaria, I am far from blindly adopting the reasonings of the latter philosopher. I do not repeat, after him, "Man has no right to dispose of his life; he cannot therefore transfer such a right to others."—An argument, which Filangieri however has poorly answered, by saying; "As no one has a right to dispose of his life, so no one has a right to dispose of his character, or of his personal freedom." In disposing of his life, a man deprives society of a citizen, who might have done her service. This is not the case with one in confinement. The prisoner still promotes her interests by his labour: the dead man is lost to her for

ever.

Equally to be rejected are those unfounded ideas of retaliation, of that pretended right of Rhadamanthus, though sanctioned by the celebrated principle of the Pythagoreans, which insists that "Justice injoins us to inflict upon the criminal the sufferings, which he has previously inflicted upon the aggrieved." Such a maxim, indeed, would not confine itself to the simple penalty of death: it would frequently ordain that death to be accompanied by every mode of cruelty. If I have committed a murder with dreadful aggravations, will the gallows retaliate upon me the pangs, which I have caused another to endure?

Neither do I admit more readily the truth of the observation, which, however, numbers of political writers repeat as a sort of axiom: "A man knows the penalty, and in becoming a member of the society submits to it." Would not one suppose, that the compact is just drawn up, and that the criminal had been personally present at its ratification? I know very well, their meaning is; "If we continue to live in a society, with whose laws we are acquainted, we cannot complain that by those laws we are judged." But this reasoning would justify the most horrible punishments: it would even justify the arbitrary decrees of the despot. For is not the slave acquainted with them, who trembles at his frown?

But let us enter upon a deeper examination of this great question.

And, first, it appears to me that all, who have hitherto engaged in the discussion, have confounded rights and duties.

Duty is an obligation; right is an authority.

In the natural state of man, no one having any authority over others, there is no right to punish. To punish, is the action of

a superior on an inferior; not of an equal on an equal. What calamities indeed must ensue, if each, under the impulse of ignorance or of passion, should assume to become the public avenger! Punishment supposes laws enacted, and an empire established. Right must, generally, be the result of compact. Even in the social state, to punish is, not a right, but a duty of the sovereign. The language addressed to him is; "Protect us, and we will obey you." If despotism were not a mouster in civil and political existence; if right and tyranny were not two words mutually clashing with and repelling each other; a despot, holding every thing from himself, might have rights. But in governments founded upon reason and justice, and supported by a free compact with their subjects, the head or heads, holding every thing from others, have only duties. It is a mistake to say; "Society grants to those, whom it places at it's head, the right to punish." It does not grant them the right, it imposes upon them the obligation; or rather the obligation is imposed upon them by the very force of circumstances: as it is impossible for society to subsist, without the infliction of penalties upon those, who transgress it's laws.

But though in the state of nature there exists "no right to punish," there exists in it an obligation to defend and to preserve one's self. These two essential necessities are duties, one emanating from the other; or, if you please, inseparably linked together. A rooted instinct, transcending all rights (inasmuch as right rests upon reasoning, whereas instinct is vitally connected with the strongest feelings of our nature) inspires the man who' kills to save himself from being killed. He avails himself of the strength, which has also been denominated a right by a gross blasphemy against humanity, and he triumphs.

These, principles once established, what becomes of the assertions of Mably, and of Filangieri? "In the state of nature," says the first, “I have a right to take the life of him, who lifts his

arm against mine. This right, upon entering into society, I surrender to the magistrate." "The person assaulted," says the latter, "has a right to kill the assailant in his own defence: but if he has this right, in the event of his death he can transmit it to society, which is constituted for the redress of nature."

As the sophism consists in the word right, let us substitute for it that of duty; and, upon reconsideration of the argument, we shall perceive it's complete futility.

Filangieri contends; "If I have a right to kill another man, he has lost his right to life; for it would imply a contradiction to suppose the co-existence of two opposite rights."

In the very outset, this pretended "right to kill" is much more dependent upon man, than the pretended "right to life;" as it is much easier to take the life of another, than to prolong one's own. Again: these pretended rights, of killing and living, are not (as it is alleged) opposite and contradictory to each other. The contradiction would be in the exercise of the rights, not in their essence: a right unexercised is only a metaphysical abstraction.

But equivoques abound. Admitting even the word right, we have only the right of defending ourselves, (as we have already observed) not that of inflicting a penalty; since the power or faculty of punishing is adequate to the right of preserving one's self with one's wife and children. The actual punishment of the assailant will be in the success of the just efforts of the person assaulted. And here we are bound not to forget the great principle of natural law, which is also the great principle of humanity. Both of these, far from injoining the killing of man, prohibit it, except in the single case of doing it unavoidably in self-defence. By both of them, therefore, the person assaulted would be deemed criminal, if he killed the assailant, so long as he had any other means of escaping his attack.