The first law which it becomes a Reformer to propose and support,
at the approach of a period of great political change, is the
abolition of the punishment of death.
It is sufficiently clear that revenge, retaliation, atonement,
expiation, are rules and motives, so far from deserving a place in
any enlightened system of political life, that they are the chief
sources of a prodigious class of miseries in the domestic circles
of society. It is clear that however the spirit of legislation may
appear to frame institutions upon more philosophical maxims, it
has hitherto, in those cases which are termed criminal, done little
more than palliate the spirit, by gratifying a portion of it; and
afforded a compromise between that which is bests--the inflicting
of no evil upon a sensitive being, without a decisively beneficial
result in which he should at least participates--and that which is
worst; that he should be put to torture for the amusement of those
whom he may have injured, or may seem to have injured.
Omitting these remoter considerations, let us inquire what, DEATH
is; that punishment which is applied as a measure of transgressions
of indefinite shades of distinction, so soon as they shall have
passed that degree and colour of enormity, with which it is supposed
no, inferior infliction is commensurate.
And first, whether death is good or evil, a punishment or a reward,
or whether it be wholly indifferent, no man can take upon himself
to assert. That that within us which thinks and feels, continues
to think and feel after the dissolution of the body, has been the
almost universal opinion of mankind, and the accurate philosophy
of what I may be permitted to term the modern Academy, by showing
the prodigious depth and extent of our ignorance respecting the
causes and nature of sensation, renders probable the affirmative
of a proposition, the negative of which it is so difficult to
conceive, and the popular arguments against which, derived from
what is called the atomic system, are proved to be applicable only
to the relation which one object bears to another, as apprehended
by the mind, and not to existence itself, or the nature of that
essence which is the medium and receptacle of objects.
The popular system of religion suggests the idea that the mind,
after death, will be painfully or pleasurably affected according to
its determinations during life. However ridiculous and pernicious
we must admit the vulgar accessories of this creed to be, there
is a certain analogy, not wholly absurd, between the consequences
resulting to an individual during life from the virtuous or vicious,
prudent or imprudent, conduct of his external actions, to those
consequences which are conjectured to ensue from the discipline
and order of his internal thoughts, as affecting his condition in
a future state. They omit, indeed, to calculate upon the accidents
of disease, and temperament, and organization, and circumstance,
together with the multitude of independent agencies which affect
the opinions, the conduct, and the happiness of individuals, and
produce determinations of the will, and modify the judgement, so
as to produce effects the most opposite in natures considerably
similar. These are those operations in the order of the whole of
nature, tending, we are prone to believe, to some definite mighty
end, to which the agencies of our peculiar nature are subordinate;
nor is there any reason to suppose, that in a future state they should
become suddenly exempt from that subordination. The philosopher is
unable to determine whether our existence in a previous state has
affected our present condition, and abstains from deciding whether
our present condition will affect us in that which may be future.
That, if we continue to exist, the manner of our existence will be
such as no inferences nor conjectures, afforded by a consideration
of our earthly experience, can elucidate, is sufficiently obvious.
The opinion that the vital principle within us, in whatever mode
it may continue to exist, must lose that consciousness of definite
and individual being which now characterizes it, and become a unit
in the vast sum of action and of thought which disposes and animates
the universe, and is called God, seems to belong to that class of
opinion which has been designated as indifferent.
To compel a person to know all that can be known by the dead
concerning that which the living fear, hope, or forget; to plunge
him into the pleasure or pain which there awaits him; to punish or
reward him in a manner and in a degree incalculable and incomprehensible
by us; to disrobe him at once from all that intertexture of good
and evil with which Nature seems to have clothed every form of
individual existence, is to inflict on him the doom of death.
A certain degree of pain and terror usually accompany the infliction
of death. This degree is infinitely varied by the infinite variety
in the temperament and opinions of the sufferers. As a measure of
punishment, strictly so considered, and as an exhibition, which, by
its known effects on the sensibility of the sufferer, is intended
to intimidate the spectators from incurring a similar liability,
it is singularly inadequate.
Firstly, Persons of energetic character, in whom, as in men who
suffer for political crimes, there is a large mixture of enterprise,
and fortitude, and disinterestedness, and the elements, though
misguided and disarranged, by which the strength and happiness of a
nation might have been cemented, die in such a manner, as to make
death appear not evil, but good. The death of what is called a
traitor, that is, a person who, from whatever motive, would abolish
the government of the day, is as often a triumphant exhibition
of suffering virtue, as the warning of a culprit. The multitude,
instead of departing with a panic-stricken approbation of the laws
which exhibited such a spectacle, are inspired with pity, admiration
and sympathy; and the most generous among them feel an emulation
to be the authors of such flattering emotions, as they experience
stirring in their bosoms. Impressed by what they see and feel,
they make no distinctive between the motives which incited the
criminals to the action for which they suffer, or the heroic courage
with which they turned into good that which their judges awarded
to them as evil or the purpose itself of those actions, though that
purpose may happen to be eminently pernicious. The laws in this
case lose their sympathy, which it ought to be their chief object
to secure, and in a participation of which consists their chief
strength in maintaining those sanctions by which the parts of the
social union are bound together, so as to produce, as nearly as
possible, the ends for which it is instituted.
Secondly,--Persons of energetic character, in communities not
modelled with philosophical skill to turn all the energies which
they contain to the purposes of common good, are prone also to fall
into the temptation of undertaking, and are peculiarly fitted for
despising the perils attendant upon consummating, the most enormous
crimes. Murder, rapes, extensive schemes of plunder are the actions
of persons belonging to this class; and death is the penalty of
conviction. But the coarseness of organization, peculiar to men
capable of committing acts wholly selfish, is usually found to
be associated with a proportionate insensibility to fear or pain.
Their sufferings communicate to those of the spectators, who may be
liable to the commission of similar crimes a sense of the lightness
of that event, when closely examined which, at a distance, as
uneducated persons are accustomed to do, probably they regarded with
horror. But a great majority of the spectators are so bound up in
the interests and the habits of social union that no temptation
would be sufficiently strong to induce them to a commission of the
enormities to which this penalty is assigned. The more powerful, and
the richer among them,--and a numerous class of little tradesmen are
richer and more powerful than those who are employed by them, and
the employer, in general, bears this relation to the employed,--regard
their own wrongs as, in some degree, avenged, and their own rights
secured by this punishment, inflicted as the penalty of whatever
crime. In cases of murder or mutilation, this feeling is almost
universal. In those, therefore, whom this exhibition does not
awaken to the sympathy which extenuates crime and discredits the
law which restrains it, it produces feelings more directly at war
with the genuine purposes of political society. It excites those
emotions which it is the chief object of civilization to extinguish
for ever, and in the extinction of which alone there can be any
hope of better institutions than those under which men now misgovern
one another. Men feel that their revenge is gratified, and that
their security is established by the extinction and the sufferings
of beings, in most respects resembling themselves; and their daily
occupations constraining them to a precise form in all their thoughts,
they come to connect inseparably the idea of their own advantage
with that of the death and torture of others. It is manifest that
the object of sane polity is directly the reverse; and that laws
founded upon reason, should accustom the gross vulgar to associate
their ideas of security and of interest with the reformation, and
the strict restraint, for that purpose alone, of those who might
invade it.
The passion of revenge is originally nothing more than an habitual
perception of the ideas of the sufferings of the person who inflicts
an injury, as connected, as they are in a savage state, or in such
portions of society as are yet undisciplined to civilization, with
security that that injury will not be repeated in future. This
feeling, engrafted upon superstition and confirmed by habit, at
last loses sight of the only object for which it may be supposed
to have been implanted, and becomes a passion and a duty to be
pursued and fulfilled, even to the destruction of those ends to
which it originally tended. The other passions, both good and evil.
Avarice, Remorse, Love, Patriotism, present a similar appearance;
and to this principle of the mind over-shooting the mark at which
it aims, we owe all that is eminently base or excellent in human
nature; in providing for the nutriment or the extinction of which,
consists the true art of the legislator. [Footnote: The savage and
the illiterate are but faintly aware of the distinction between
the future and the past; they make actions belonging to periods so
distinct, the subjects of similar feelings; they live only in the
present, or in the past, as it is present. It is in this that the
philosopher excels one of the many; it is this which distinguishes
the doctrine of philosophic necessity from fatalism; and that
determination of the will, by which it is the active source of future
events, from that liberty or indifference, to which the abstract
liability of irremediable actions is attached, according to the
notions of the vulgar.
This is the source of the erroneous excesses of Remorse and Revenge;
the one extending itself over the future, and the other over the
past; provinces in which their suggestions can only be the sources
of evil. The purpose of a resolution to act more wisely and virtuously
in future, and the sense of a necessity of caution in repressing
an enemy, are the sources from which the enormous superstitions
implied in the words cited have arisen.]
Nothing is more clear than that the infliction of punishment in
general, in a degree which the reformation and the restraint of
those who transgress the laws does not render indispensable, and
none more than death, confirms all the inhuman and unsocial impulses
of men. It is almost a proverbial remark, that those nations in which
the penal code has been particularly mild, have been distinguished
from all others by the rarity of crime. But the example is to be
admitted to be equivocal. A more decisive argument is afforded by
a consideration of the universal connexion of ferocity of manners,
and a contempt of social ties, with the contempt of human life.
Governments which derive their institutions from the existence of
circumstances of barbarism and violence, with some rare exceptions
perhaps, are bloody in proportion as they are despotic, and form
the manners of their subjects to a sympathy with their own spirit.
The spectators who feel no abhorrence at a public execution, but
rather a self-applauding superiority, and a sense of gratified
indignation, are surely excited to the most inauspicious emotions. The
first reflection of such a one is the sense of his own internal and
actual worth, as preferable to that of the victim, whom circumstances
have led to destruction. The meanest wretch is impressed with a
sense of his own comparative merit. He is one of those on whom the
tower of Siloam fell not--he is such a one as Jesus Christ found
not in all Samaria, who, in his own soul, throws the first stone at
the woman taken in adultery. The popular religion of the country
takes its designation from that illustrious person whose beautiful
sentiment I have quoted. Any one who has stript from the doctrines
of this person the veil of familiarity, will perceive how adverse
their spirit is to feelings of this nature.