merely suffer upon the scaffold, what poverty would have inflicted upon them elsewhere. And even that death is viewed only through the dim medium, which is always interposed between the imagination and distant objects. Distress and poverty, on the other hand, are constantly before their eyes. Every day is a new source of wretchedness, and life itself is but a perpetual succession of moments bringing sorrow along with them. Let us never forget the maxim of Beccaria: "It is not the intensity of punishment, but it's duration, which makes the greatest impression upon the human mind.”

I shall waste little time upon the second object of punishment, as having the slightest claim upon the legislator's regard. If individual vengeance is at variance with public utility, the former ought to give way: if they coincide, they are confounded together. In certain cases even, for instance where the injured person is. indigent, or leaves an indigent family, or (if not murdered outright) has received wounds, either incurable, or incapacitating him for the exertions necessary to his subsistence-would it not be more expedient to condemn the offender to labours, of which the daily produce, however inconsiderable, might contribute to relieve the wants he had created?

Does capital punishment, then, promote public utility by the example which it holds out?

This it assuredly does not, if instead of inspiring fear, it inspires rather pity for him who suffers, and horror toward hin who inflicts it; if all the spectators, seized with an involuntary shuddering, feel an interest (in spite of their convictions) in favour of the man, whom the law points out for their abhorrence; if, in fine, the infliction is so frightful as to deter any one from denouncing a crime which he may have witnessed, however persuaded he may be of the advantage to accrue from the seizure of the criminal.

D

Shall I add, that you insensibly habituate the spectators of executions to feelings of cruelty? For they must either be distressed by them, or approve them. Do they approve them? Woe to the society containing men, who can behold the death of a fellow-creature with indifference! Are they distressed by them? -You have produced an effect opposite to that, which you intended. This very sympathy is a cry of nature, proving how much she is outraged by a mode of punishment involving the effusion of blood.

A criminal can only be punished for the crime actually committed. To enhance his sufferings, in contemplation of his contingent misconduct, is barbarity. Such an anticipation may authorize precaution, but cannot justify increase of punishment.

A monarchical government has been erroneously assimilated to the government of a father; and, by a perversion of this doctrine, tyrants have been made to believe, that they were still the fathers of their people. Is this paternity never to be forgotten, but in the infliction of punishment! The ministers of the altar have displayed superior wisdom. With a mildness worthy of their sublime function, they have invariably repeated, “The church abhors blood." Affecting maxim, which society ought to have adopted without reserve! Ah! why has the priesthood of humanity been so defectively supplied?

Absolute nécessity alone can justify the punishment of death. If, as Montesquieu affirms, it is “the remedy of a sick society,”* it is not sufficient that it is efficacious; it must, likewise, be indis

So, after him, says the Empress of Russia, in her Instructions, § 7%. Briton $ 200, 201, &c. This is amputating an arm, however, instead of curing it. There are other remedies to be found. Besides, is it quite correct to say, that the whole of society in such a case is "sick?”

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pensable. In proposing it as a mean of security, it will not assuredly be denied, that any other mode of punishment which, without taking away the life of the offender, produces the same effect, is highly preferable. Filangieri confesses, that a punishment, which is useless, is necessarily unjust; and, in his judgement,* the object of the laws is, through the medium of terror, to prevent crimes. If this prevention, then, can be accomplished without death, death is useless, and therefore by his own concession unjust. Nay, Rousseau himself, the ardent advocate of capital punishments, allows that "we have no right to put to death, even for the sake of example, any but those, who cannot be permitted to live without danger." And what is, to say the least, extraordinary (or rather, as contrasted with his other opinions, contradictory) he had just before observed, "There is no wretch so flagitious, as not to admit of being made useful for some purpose or other."

The aversion inspired by a criminal, whatever inferences may be attempted to be drawn from it, does not necessarily sanction the punishment of death. The assailant exposes himself to lose his life, but he does not give it up. To risk, is not to renounce. In vain one sophism is heaped upon another: society obviously, in taking away life (without any reference to circumstances or motives, which may render an action good or bad, lawful or unlawful) commits the very deed, which it professes to punish. A single phrase of Beccaria's appears to me to solve the whole difficulty. "Men have been compelled," says he, "upon entering into society, to sacrifice a portion of their liberty; but it is the smallest portion possible. Can it be supposed, then, that in the smallest possible sacrifice is comprised that of the greatest of all goods, life?" Men submit to imprisonment, to protracted

* Ib. iii.

confinement, to penalties of other descriptions: but they cannot submit to death. The smallest portion possible' is not the loss of life.

Besides, if your personal liberty have been unjustly taken from you, it may be restored to you again, and you may receive compensation for the injury. Your honour, if you have been disgraced by the sentence of the law, may be recovered, and a formal repa"ration may cause you to forget a misfortune, which will only be remembered by others to the more extended establishment of your innocence and your virtues. But, in the event of a mistake followed by capital punishment, how is your life to be replaced, or any compensation to be made to you for the loss of it? Need I suggest the fallibility of man, the uncertainty of testimony, the errors of verdicts? Justice may trace the run-away criminal; but she can never find the executed innocent.

I have said, "Absolute necessity alone can justify the punishment of death:" and I am compelled to agree with Rousseau, that "Society ought to put to death the delinquent, who cannot be permitted to live without danger." To public tranquillity and general utility every thing must, in that case, give way. Now there is one crime of this description so strongly marked, as to render it impossible to spare the life of the wretch, who is guilty of it-I mean, engaging in those dark conspiracies and treasonable insurrections, which would involve the safety of an entire community, if the heads of the principal traitors, who hold in their hands the secret threads of the plot, were to be left upon their shoulders. Then the commonwealth is really in danger, and, without instantaneous intervention, may be subverted. Strike, therefore the general welfare demands of nature this sacrifice.

Beccaria's remark will be recollected: "In those agitated moments, when a nation is on the verge of recovering, or of losing, it's liberty; in those times of anarchy, when the laws are silent, and disorder and confusion occupy their place—if an indi

vidual, though deprived of his liberty, has still such credit and connexions as may endanger the security of the nation, or by his existence is likely to produce a dangerous revolution in the established form of government, he must undoubtedly die." Mably adds: "In condemning the traitor to death, I should be truly concerned to be understood as pronouncing hostile to the public tranquillity, the citizen who has the courage to abstain from flattering his countrymen, and who only meditates changes favourable to their welfare. It is not a little singular, that I should thus be obliged to protest against the punishing of one, who ought to be the object of universal love and veneration. > But it is no fault of mine, that modern times offer so many instances of countries, where a Cato could not make his appearance without personal danger. Where truth is liable to pu nishment, there (rest assured) the laws have been enacted by persons, who find their advantage in error, abuses, and misconduct, and at once accelerate and announce the ruin of the state."

But in the case of every other crime, except that of treason or conspiracy, capital punishment, as I think I have abundantly proved, has not the character of utility necessary to sanction it's infliction. No government has a right to inflict it. It is even subversive of the end for which it is inflicted.

These propositions I seem to myself to have completely substantiated. Beside the prejudice, however, excited against my conclusion, by the circumstance of it's differing from that of several great philosophers, one (and that, perhaps, the strongest) arises from the almost unanimous opinion of mankind. Nature shrinks equally from death, whether inflicted by one individual upon another, or by numbers upon one. But the love of life, and the fear of losing it, have also their language, and it is a language of severity. It would be less severe, if it were more deliberate. But the very term murder inspires horror. It conjures up a