individual injustice involved in all great examples, is redeemed by their public utility."

'*

The advocates of the second hypothesis are animated by the love of humanity. But is this an enlightened love? Does it not hurry them beyond the bound of reason; and make them \ forget that protection which honesty requires against guilt, and consequently the security and tranquillity of the commonwealth? This class, likewise, appeals to general expediency; witness the preamble of the Grand Duke of Tuscany to his new criminal code: "In consideration of the proper objects of punishment—the redress of the public or private damage; the correction of the delinquent, who is still, however, to be regarded as a child of the state, and never beyond the hope of amendment; the certainty, that he shall never again have the power of repeating his atrocities; and, lastly, public example.-We have resolved to abolish, and do by this present law abolish, for ever, the punishment of death in all cases whatever, though the criminal may have been openly convicted of offences hitherto denounced as capital." Elizabeth, Empress of Russia, pledged herself, on mounting the throne, never to inflict the punishment of death, and she kept her word. Peter III. was not less frugal of the blood of his subjects. And Katharine very rarely caused it to be shed by the hand of the law-never, except in cases of high treason.

By Frederic II. it was not more frequently adopted, except in cases of murder, when he invariably authorized its infliction. And this constitutes the third theory; which appears to rest upon the same feeling as the second, under the control of calm and sober reason. But does not this calm and sober reason, too, much weaken the impulse of natural sensibility? Do we not perceive, in this modified principle, too gross a remnant of the

*Tac. Ann. xiv. 42.

old ferocity of barbarous and ignorant ages? Can any compromise be made with the rights of humanity? The friends, however, of this opinion, in their turn, refer to the public utility: The life of the innocent is endangered, if that of the guilty be spared.

Upon an ordinary subject, it might have sufficed to have thus briefly sketched the differences of opinions and principles; but on this, it becomes a duty to develop them to their full extent; and that not by a rapid analysis, lest we should unconsciously weaken the arguments respectively adduced in their support. As this first hypothesis, however, is now almost wholly given up, we shall chiefly confine ourselves to the examination of the two latter ;* and, beginning with Montesquieu and Rousseau, proceed to Beccaria, Mably, and Filangieri, by his friends denominated "the Montesquieu of Italy," whom death has prematurely torn from literature, from reason, and from humanity.

II.

MCNTESQUIEU.*

MONTESQUIEU rather gives us a glimpse of his opinion, than a full disclosure of it: but it is delightful to learn the thoughts of a great man, whose judgment was for a long period regarded as authority.

"A man," says he, "deserves death, when he has violated the security of the subject so far as to deprive, or attempt to deprive another man of his life. The punishment of death is the remedy, as it were, of a sick society. When there is a breach of security with regard to property, there may be some reasons for inflicting a capital punishment; but it would perhaps be better, and cer

* Espr. des Lois, xii, 4.

tainly more natural, that crimes committed against the security of property should be punished by the loss of property; and so it ought to be, if men's fortunes were common or equal. But, as those who have no property of their own are generally the readiest to attack that of others, it has been found necessary to substitute instead of a pecuniary, a corporal punishment.

"All that I have here advanced," he subjoins at the close of the chapter where the above extract is taken, " is founded in nature, and extremely favourable to the liberty of the subject."

I may add, that no one has remonstrated more vehemently than Montesquieu against rigorous punishments: "Mankind must not be governed," he elsewhere observes, "with too much severity;" we ought to make a prudent use of the means which nature gives us for their guidance."

It is asked, "How individuals, who have no right over their own lives, can transfer to the sovereign what they do not themselves possess?" The apparent difficulty of answering this question is caused by the mode in which it is proposed. Every man has a right to risk his life, with a view of preserving it. When a person, in order to escape from a house on fire, breaks his neck by throwing himself out of a window, has he ever been pronounced guilty of suicide? Or is this crime ever imputed to one who perishes in a shipwreck, though when he embarked, he could not but have foreseen such a contingency?

The object of the social contract is the safety of the contracting parties. To will the end, is to will the means; and from these

*Contr. Soc. ii. 5.

means some hazards, nay even some sufferings, are inseparable. Every man who would preserve his life at the expense of others, should also be ready to resign it, if necessary, for their advantage. Now, the citizen is no longer a judge of the danger to which the law requires him to expose himself; and, when the sovereign informs him that "his death is essential to the common weal," he must submit to die: since it has been upon this ground alone, that he has hitherto himself lived in safety; and his life is no longer simply a boon of nature, but a conditional grant of the

state.

In something like this point of view must be regarded capital punishment, as inflicted upon a delinquent. To preserve our lives from the knife of the murderer, we consent to die, if we should ever commit murder ourselves. In this agreement, far from disposing of our lives, we are only providing for their protection; as it cannot well be imagined, that any of the contracting parties is projecting to get himself hanged.

Besides, every malefactor, who attacks the rights of society, becomes by his crimes a rebel and a traitor to his country. By violating her laws, he dissolves his connection with her, and even declares war against her. The preservation of both sides is incompatible: one of the two must perish; and when the criminal dies, he dies less as a citizen than as an enemy. The trial and the sentence announce that he has broken the social contract, and is consequently no longer a member of the state. Having then at least by his residence been regarded as such, he must be cut off by banishment as a violator of his agreement, or by death as a public enemy. He has no longer any moral character: he is simply a man; and it is one of the rights of war to kill the vanquished.*

Con. Soc. ii. 5.

IV.

BECCARIA.*

WHAT right have men to cut the throats of their fellowcreatures?" Certainly not that, on which the sovereignty and laws are founded. The laws are only the sum of the smallest possible portions of the private liberty surrendered by each individual, and represent the general will, which is the aggregate of that of each individual. But did any one ever choose to resign to others the right of taking away his life? Can it be supposed that, in the smallest possible portions of the liberty of each sacrificed to the good of the public, is comprised the greatest of all goods, life? And even, admitting this to be the case, how is such a principle to be reconciled with the maxim which prohibits suicide? Either man must have a right to dispose of his own life, or he must be incapable of transferring to another, or to an entire society, what he does not himself possess.

The punishment of death is not authorized by any right. I have demonstrated, that no such right exists. It is therefore a war of a whole nation against a citizen, whose destruction they consider as necessary, or at least useful to the general good. But, if I can farther demonstrate that such a measure is neither necessary nor useful to that good, I shall have gained the cause of humanity.

There are but two motives which can render the death of a ⚫citizen necessary. In those agitated moments, when a nation is on the very verge of recovering or of losing it's liberty; in those times

* Del delitti e delia Penes, xvi.