2.
The subject of capital punishment has occupied the attention of
enlightened men for a long time, particularly since the middle of the
last century; and none deserves to be more carefully investigated. The
right of punishing its members by society cannot be denied; but how far
this right extends, by the laws of nature or of God, has been much
disputed by theoretical writers, although it cannot be denied, that most
nations, ancient and modern, have deemed capital punishment to be
within the scope of the legitimate powers of government. Beccaria
contends with zeal that the punishment of death ought not to be
inflicted in times of peace, nor at other times, except in cases where
the laws can be maintained in no other way. Bee. Chap. 28.
3.
It is not within the plan of this work to examine the question, whether
the punishment is allowed by the natural law. The principal arguments
for and against it are here given.
4.- 1. The arguments used in favor of the abolition of capital punishment, are;
5.
- 1st. That existence is a right which men hold from God, and which
society in body can, no more than a member of that society, deprive them
of, because society is governed by the immutable laws of humanity.
6.
- 2d. That, even should the right be admitted, this is a restraint
badly selected, which does not attain its end, death being less dreaded
than either solitary confinement for life, or the performance of hard
labor and disgrace for life.
7. - 3d. That the infliction of the punishment does not prevent crimes, any more thau, other less severe but longer punishments.
8.
- 4th. That as a public example, this punishment is only a barbarous
show, better calculated to accustom mankind to the contemplation of
bloodshed, than to restrain them.
9.
- 5th. That the law by taking life, when it is unnecessary for the
safety of society, must act by some other motive this can be no other
than revenge. To the extent the law punishes an individual beyond what
is requisite for the preservation of society, and the restoration of the
offender, is cruel and barbarous. The law) to prevent a barbarous act,
commits one of the same kind,; it kills one of the members of society,
to convince the others that killing is unlawful.
10.
- 6th. That by depriving a man of life, society is deprived of the
benefits which he is able to confer upon it; for, according to the
vulgar phrase, a man hanged is good for nothing.
11.
- 7th. That experience has proved that offences which were formerly
punished with death, have not increased since the punishment has been
changed to a milder one.
12. - 2. The arguments which have been urged on the other side, are,
13.
- 1st. That all that humanity commands to legislators is, that they
should inflict only necessary and useful punisliments; and that if they
keep within these bounds, the law may permit an extreme remedy, even the
punishment of death, when it is requisite for the safety of society.
14.
- 2d. That, whatever be said to the contrary, this punishment is more
repulsive than any other, as life is esteemed above all things, and
death is considered as the greatest of evils, particularly when it is
accompanied by infamy.
15.
- 3d. That restrained, as this punishment ought to be, to the greatest
crimes, it can never lose its efficacy as an example, nor harden the
multitude by the frequency of executions.
16.
- 4th. That unless this punishment be placed at the top of the scale of
punishment, criminals will always kill, when they can, while committing
an inferior crime, as the punishment will be increased only by a more
protracted imprisonment, where they still will hope for a pardon or an
escape.
17th.
- 5th. The essays which have been made by two countries at least;
Russia, under the reign of Elizabeth, and Tuscany, under the reign of
Leopold, where the punishment of death was abolished, have proved
unsuccessful, as that punishment has been restored in both.
18.
Arguments on theological grounds have also been advanced on both sides.
See Candlish's Contributions towards the Exposition of the Book of
Genesis, pp. 203-7. Vide Beccaria on Crimes and Punishments; Voltaire,
h. t.; Livingston's Report on a Plan of a Penal Code; Liv. Syst. Pen.
Law, 22; Bentham on Legislation, part 3, c. 9; Report to the N. Y.
Legislature; 18 Am. Jur. 334.
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