PUNISHMENT BY DEATH- 
 
 AUTHORITY AND EXPEDIENCY, 
 
 BY Q 
 
 GEORGE B. CHEEVER, D.D. 
 
 Td KaA'jOj 6 %oi/ rt6\tt Tr&\aiffn& 
 jjtfi TTOTC XtJcroi Qebv ttiTov^at. 
 
 I Will never implore the Deity to slacken that avenging effort which hath 
 the good of the state in view. 
 
 CEdiptu TyrannuS) 879, 880, 
 
 V 
 
 NEW YORK: 
 JOHN WILEY, 161 BROADWAY, 
 
 AND 13 PATERNOSTER ROW, LONDON, 
 1849. 
 
CONTENTS. 
 
 PART i . 
 
 CHAPTER I. PAOI 
 
 The argument from Scripture, The original ordinance consid- 
 ered, : ... 123 
 
 CHAPTER II. 
 
 Argument from Scripture continued, Circumstances of the hu- 
 man race, when this ordinance was promulgated, . .131 
 
 CHAPTER III. 
 
 Argument from Scripture continued, Universality and compre- 
 hensiveness of this ordinance, ..*.... 137 
 
 CHAPTER IV. 
 
 Argument from Scripture continued. The Mosaic Statutes, a 
 luminous commentary upon this ordinance, .... 142 
 
 CHAPTER V. 
 
 Argument from the New Testament. The ordinance not abro- 
 gated, but confirmed, Proof from Paul's writings and expe- 
 rience, 146 
 
 CHAPTER VI. 
 Proof from the consentaneousness of Divine Providence, . 153 
 
 CHAPTER VII. 
 
 Argument from Scripture continued. Purpose and design of 
 this ordinance. Its sanction of the civil magistracy. Of the 
 Origin of Government. Of its power to take life. Benevo- 
 lent design of this ordinance, 159 
 
 CHAPTER VIII. 
 
 Argument from Scripture connected with the argument from 
 expediency. Wisdom and necessity of this ordinance. Com- 
 monness of the spirit of Cain in human society, . . .172 
 
 CHAPTER IX. 
 
 Argument from Expediency continued. Consentaneousness of 
 the Law of Nature with this Enactment. The Power of Con- 
 science, and the Necessity of Righteous Law to sustain it, 178 
 
CONTENTS, 
 
 CHAPTER X. pAaK 
 
 Objects, ^4ka~J2ujMA&meni-4^^^ constitutes the 
 
 Perfection of Criminal Jurisprudence 1 The Theories of God- 
 win and Hume,- Difference between Justice and Revenge, 185 
 
 CHAPTER XI. 
 
 The Ends of Punishment further considered, False View of 
 the Matter. Difference between Punishment in this Life and 
 in the Life to come, ........ 192 
 
 CHAPTER XIL 
 
 txtfearfulness and Efficacy of the Punishment by Death. Causes 
 of the Dread of Death. Prospect of the Guilty in Eternity. 
 Objection considered, of cutting off the Criminal in his Sins. 
 The Answer of Grotius. Answer from Fact and Experi- 
 ence. Also from the Divine Providence and from Expedi- 
 ency. Objection considered, of the unwillingness of juries 
 to convict in cases of murder 5 190 
 
 CHAPTER XIII. 
 
 Occasion of the prejudice against Capital Punishment. Inju- 
 rious consequences of the severity of sanguinary codes. 
 Difference between the reformation of penal codes, and the 
 annihilation of penalty. The abrogation of the punishment 
 of death a premium on the crime of murder. Recklessness 
 of the desire of concealment, 20? 
 
 CHAPTER XIV. 
 
 \ Proposed plan of Imprisonment for Life, instead of the Penalty 
 
 of Death, considered, 217 
 
 CHAPTER XV. 
 
 Tendency of the common reasonings against Capital Punish- 
 ment, to weaken the sanctions of the Divine Government. 
 Retributive justice a reality. Prophetic aspect of the penalty 
 of death for murder. Power and solemnity of the argument 
 from analogy. Conclusion, ..,,. 2*20 
 
INTRODUCTION. 
 
 Otf the Sabbath succeeding the execution of two men fbf 
 piracy, in New Orleans, in the year 1820, an eloquent minis- 
 ter of the Gospel, Rev-, Sylvester Larned, preached a sermon 
 with reference to the solemn spectacle, on the execution of the 
 penalty of the Divine Law. He opened his discourse with 
 the following remarks *^> 
 
 " The principle, upon which the recent execution was 
 grounded, is one of the most impressive and imposing charac-* 
 ter In the judicial act of hurrying two fellow*beings into 
 eternity, we have not been looking on the infliction of revenge, 
 we have not been viewing a sacrifice to the mere excitement 
 of public feeling, we have not been witnessing the fate of per- 
 sons too abandoned for reformation. None of this* The one 
 single principle presiding over the necessity and tlie sternness 
 of so mournful a scene has been the unbending majesty of law ; 
 of law, which knows none of the impulses of mercy, which 
 puts away from it every sympathy with the suffering it de- 
 mands* While then the laws of man evince so much sever- 
 ity ^ suppose we carry our contemplation higher, and look at 
 the similar relation, in which all of us stand to the laws of the 
 Godhead. Do not call this an unnatural transition to another 
 subject. It is essentially the same subject. If there be any 
 truth in the Bible, ** sentence has passed upon all men to con- 
 demnation," and surely, when sentence has issued, we need 
 
120 INTRODUCTION. 
 
 hot be lo,ld;tbat; ^orfcewhere a law must exist, and that it has 
 been violated, and that it has put forth its penalties against 
 ; tl^ttcansgrassqr'. /***,.. .Upon those who have had the means of 
 knowing the Book of God's Revelation, it will enforce all its 
 penalties, and inflict all its punishments. It will move for- 
 ward to complete and rigid execution in spite of the ridicule, 
 the neglect, and the complaints of mankind." 
 
 The view here taken, the connections opened out, and the 
 light shed upon the subject, were most salutary and impres- 
 sive. The effect produced, manifested the salutariness of the 
 punishment of death for murder, upon a community where 
 men are disposed, instead of endeavouring to bring contempt 
 and odium upon the law and its penalty, to consider it in its 
 true and proper character and relations. 
 
 We have endeavoured so to present it in these Essays. 
 We have taken the Divine statute, and examined the light 
 shed upon it in the whole course of the Divine revelation, to- 
 . gether with its connections with the Divine government. We 
 have also gone into a full discussion of the question of its ex- 
 pediency. We have taken up objections, and gone over the 
 whole field of the argument. One or two minor points we 
 have not noted, but may speak of them here. 
 
 It is argued by our opponents that the statute in Genesis 
 is simple and merely permissive, but not an injunction. But 
 it follows, according to this construction, that God gives to 
 any and every man the permission to kill the murderer. 
 Now God declares that private revenge is sinful ; " avenge 
 not yourselves, but rather give place unto wrath." And yet 
 this constructive argument compels our opponents to the as- 
 sumption that God here authorizes any and every individual 
 to take into his own hands the avenging the crime of murder 
 
INTRODUCTION. 121 
 
 by the death of the murderer. There is no way of avoiding 
 this inconsistency, but by the interpretation of the statute as 
 belonging not to private individuals, but to the magistracy. 
 But if our opponents say that it is permissive not to individ- 
 uals, but to governments, then we have, on their own conces- 
 sion, a complete divine sanction for this death penalty, if any 
 government deem it expedient. 
 
 There is a remark of Schlegel in regard to the statutes in 
 the Old Testament, which is of great weight in application to 
 this. He observes that in the writings of Moses, whatever is 
 meant to be a practical law is expressed with the greatest ac- 
 curacy and precision. This is the case with this statute ; it 
 stands out from the context with the utmost clearness and 
 precision, as a command. And when God says, At the hand 
 of every man's brother will I require the life of man ; if you 
 ask how he will require it, then instantly follows the great en- 
 actment, Whoso sheddeth man's blood, by man shall his 
 be shed. 
 
 It is sometimes said that in that early period there were no 
 prisons, and therefore it was necessary to kill the murderer, 
 because they could not keep him. What then could they do 
 with the thief, the robber, the house-breaker ? By the same 
 reasoning they must kill him, because they had no prisons 
 in which to keep him. We think if they could build cities, 
 they could also build prisons. The state of society in which 
 the Tower of Babel could be erected, was not likely to suffer 
 for want of a jail. 
 
 If this had been the reason for this statute, certainly it would 
 have been stated. The statute would have run thus : Who- 
 so sheddeth man's blood, by man shall his blood be shed, be- 
 cause at present there are no prisons to confine him in. And 
 
122 INTRODUCTION. 
 
 it would have been added : As soon as you are strong enough 
 to build a jail, or to hew and transport stones of a sufficient 
 size for a murderer's prison, then this statute must be laid 
 aside, there being no longer any use or necessity for it. If 
 this had been the reason for this statute, how happens it that 
 at an after period, when there was no more deficiency in pris- 
 ons than in thieves and murderers, there being abundance of 
 both, this very same statute is re-promulgated, with the ad- 
 ditional command that in no case whatever shall the penalty 
 of death to the murderer be commuted, but that in every case, 
 without fail, the murderer shall be put to death ? Was this 
 because they had no prisons ? 
 
 In truth, in the case of every argument brought against this 
 statute, and every expedient by which men would evade it, 
 we need only turn to the reason given for it by Jehovah, and 
 in a moment, in spite of all sophistry, its meaning is as clear 
 as the day, its obligation is seen to be perpetual. 
 
ESSAYS ON PUNISHMENT BY DEATH. 
 
 PART FIRST. 
 CHAPTER I. 
 
 THE ARGUMENT FROM SCRIPTURE. THE ORIGINAL ORDINANCE 
 
 CONSIDERED. 
 
 THE argument from Scripture in favour of capital 
 punishment, is plain and powerful. It is easy to distin- 
 guish between what is local and transitory on the one 
 hand, and what is universal and permanent on the other. 
 We do not resort to the former, but confine ourselves to 
 the latter. We do not inquire concerning the social 
 or civil regulations of the Hebrews, as if, because they 
 possessed the divine sanction for themselves, therefore 
 they are binding upon us ; at the same time we may 
 derive much instruction from their study. In looking 
 carefully for the final causes of the local Mosaic enact- 
 ments, we shall often have reason to admire their wis- 
 dom, when a superficial observer would set them down 
 as capricious or unintelligible. Their thorough exam- 
 ination requires much research and discriminating ob- 
 servation ; and it has come to be a common thing, for 
 
124 CAPITAL PUNISHMENT, 
 
 persons who have never made the Antiquities of Chris- 
 tianity in any shape the object of their study, to speak 
 of the Mosaic code as " crude, cruel, and unchristian." 
 Now there are four things to be remarked of this 
 code, in its particulars. 
 
 1. The laws were not those of Moses, but of God. 
 Jehovah himself was the Lawgiver, and Moses acted 
 simply as his agent or minister, being in no sense him- 
 self a lawgiver, as we apply this title to men like Solon 
 or Lycurgus. The whole code, from beginning to end, 
 was framed by divine inspiration, and possesses the au- 
 thority of the divine sanction, whether consisting of 
 new precepts revealed for the first time from heaven, or 
 of precepts already in existence, and permitted by the 
 divine wisdom to stand. 
 
 2. Not one of these precepts was ever abrogated by 
 our Saviour, but on the contrary, they were sustained and 
 sanctioned by his own declarations and example. His 
 own death fulfilled, and so abrogated, the Jewish dispen- 
 sation ; but not one of its laws was abrogated, not even 
 of its typical and ceremonial institutes, while he was liv- 
 ing ; and as to its moral precepts, they all, as well as the 
 final causes of them, were to endure not merely to the 
 time of his crucifixion, when he should say, It is finish- 
 ed ; but till heaven and earth should pass away, not one 
 jot or tittle was to be repealed, till all should be fulfilled. 
 
 " Whosoever, therefore, shall break one of these 
 least commandments, and shall teach men so, he shal] 
 be called the least in the kingdom of heaven ; but who. 
 
SPIRIT OF THE MOSAIC ENACTMENTS. 125 
 
 soever shall do and teach them, the same shall be called 
 great in the kingdom of heaven."* Thus did our bless- 
 ed Lord extend into the Christian dispensation, and con- 
 firm arid repromulgate there, as of perpetual obligation 
 in that kingdom of heaven, which was to have no end, 
 the moral precepts of the Jewish dispensation. 
 
 3. They contain the great of law love, promulgated 
 anew in the Gospel. It is as really revealed in the Mosaic 
 precepts, as it is in our Saviour's sermon on the Mount. 
 The spirit of courtesy, kindness, and benevolence pre- 
 vailing in them is remarkable ; their protection of the 
 stranger and the poor, the fatherless and the widow; 
 their inculcation of love to God, love to our neighbour, 
 and kindness even to enemies, would have constituted in 
 the Jewish nation, had they obeyed them, a bright tran- 
 script of the divine perfections. And as to their penal 
 sanctions, a learned and judicious writer has remarked, 
 after speaking of the offences punished capitally by the 
 Jewish law, that " in the other penal laws of the Mosaic 
 code, there prevails a constant spirit of mildness and 
 equity, unequalled in any other system of jurisprudence, 
 ancient or modern." " The Jewish law adjusted its 
 punishments more suitably to the real degree of moral 
 depravity attending different species of guilt, than mod- 
 ern codes, "j- 
 
 4. They were, in that age and generation, a collec- 
 
 * Matt. v. 17-19. 
 
 t GRAVES on the Pentateuch. Part II., Lect. 3. 
 
 12* 
 
126 CAPITAL PUNISHMENT. 
 
 tion of superhuman wisdom, standing out in such bright 
 contrast with the statutes of the heathen world, as to con- 
 stitute a most satisfactory and conclusive demonstration 
 of their divine original. The calmest profound study of 
 them does entirely justify the declaration of Moses him- 
 self to his countrymen in reference to their observance : 
 " Keep therefore and do them : for this is your wisdom 
 and your understanding in the sight of the nations, which 
 shall hear all these statutes, and say, Surely this great na- 
 tion is a wise and understanding people. For what na- 
 tion is there so great, who hath God so nigh unto them, 
 as the Lord our God is in all things that we call upon 
 him for ? And what nation is there so great, that hath 
 statutes and judgments so righteous, as all this law, 
 which I set before you this day ?"* 
 
 While, therefore, we do not resort to this code as the 
 foundation or necessary support of any part of our ar- 
 gument, we shall have occasion to advert to it as a source 
 of most important light in our examination of the subject. 
 Meanwhile, the inconsiderate manner, in which proof 
 from the Mosaic books is sometimes pronounced upon, 
 has seemed to demand, first of all, these preceding ob- 
 servations. 
 
 The direct argument from Scripture commences with 
 the ordinance against bloodshed communicated to Noah ; 
 this being the first instance of divine legislation with the 
 punishment of death annexed a.s its sanction. Taken 
 with the context, it reads thus : " And surely your blood 
 * Deut. iv. 6-8. 
 
THE NOACHIC STATUTE. 127 
 
 of your lives will I require ; at the hand of every beast 
 will I require it, and at the hand of man ; at the hand of 
 every man's brother will I require the life of man. 
 Whoso sheddeth man's blood, by man shall his blood be 
 shed : for in the image of God made he man."* 
 
 BLOOD BE SHED. 
 
 The original of this passage is as follows : 
 
 tnsm en ^siti 
 
 1 " T T TTT TTT T * 1 
 
 literally, Shedding man's blood, by man shall his blood be 
 shed. In the Septuagint translation the pronoun is dis- 
 tinguished, as in our English translation, Whoso sheddeth, 
 
 &C. *O CK%0)v aifjia dvdpvarrov, dvr\ TOV a'ifiaros avrov CK%vOf}creTat. 
 
 Our common English version is the natural translation 
 of the Hebrew construction ; any other translation is 
 forced and unnatural. If the sentence were given forth 
 from our English Bible, Whoso sheddeth man's blood, &c.. 
 to be translated literally into the Hebrew, the same con- 
 struction would be used as is used in the original text. 
 Our common English version is the one almost univer- 
 sally sanctioned ; and where it is departed from, it is not 
 to avoid the application of the passage with the penalty 
 to the murderer, but to extend and confirm it. 
 
 Attempts have been made to neutralize the power of 
 this ordinance, by the use of the pronoun whatsoever 
 instead of whosoever, in the translation. We believe 
 
 * Gen. ix. 5, 6. 
 
128 CAPITAL PUNISHMENT. 
 
 there is not a commentator in the world by whom thif 
 change has been proposed, as by some legislators of the 
 present time, with the purpose of evading or altering the 
 obvious scope and meaning of the passage. It is utterly 
 without authority and without foundation. 
 
 Vatablus has remarked on the context of this passage,* 
 that to require the blood of man from the hand of man is 
 simply a Hebraism for expressing the extreme punish- 
 ment of death to be inflicted on the murderer. It avails 
 little, therefore, to alter the translation of the ordinance 
 itself, where its sense has been so explicitly given in the 
 context. The Chaldee paraphrastic interpretation of the 
 passage is as follows : Whoso sheddeth man's blood, by 
 man, that is, by witnesses, with the sentence of the 
 judges, shall his blood be shed. 
 
 The German commentator Michaelis chose to render 
 it whatsoever instead of whosoever, simply in order to 
 make it include both man and beast, and yet his opinion 
 has with some unfairness been quoted in such a manner 
 as to make the unlearned reader conclude that Michaelis 
 denies the doctrine commonly received from the passage. 
 His translation and commentary are as follows : " What- 
 soever creature sheddeth human bloody be it man or beast, 
 by man shall its blood in like manner be shed, Gen. ix. 6 ; 
 for according to the tenor of the preceding verse, where 
 mention is made of beasts as well as men, and where 
 
 * Hebraismus, Requirere sanguinem hominis de manu hominis 
 pro supplicio extremo afficere aliquem qui homincm occiderit, et 
 sanguinem ejus fuderit. VATABLUS in Crit. Sac. in Gen. ix. 
 
OPINION OF ROSENMUELLER. 129 
 
 God had said that he would require the blood of man 
 from men as well as beasts, and, as he himself declares, 
 not immediately, but through the instrumentality of men 
 intrusted by him with the commission of vengeance, the 
 sixth is not to be rendered whosoever, but whatsoever 
 sheddeth man's blood, so as to include beasts as well as 
 
 men."* 
 
 The translation of Luther accords with ours : Wer 
 Menschen Blut vergeusst, Whoso sheddeth man's blood. 
 The Latin Vulgate has the same translation, Quicumquc 
 effuderet humanum sanguinem. The context makes this 
 translation as necessary as the construction. 
 
 We shall only add a short comment from one of the 
 most eminently learned and impartial of the German 
 commentators, E. F. C. Rosenmueller, in which he 
 refers to the opinion expressed by Michaelis : " Because 
 tjDiB is the nominative absolute, there are some persons, 
 who would have it apply not only to men, but also to 
 beasts, so that it may read, whatsoever sheddeth man's 
 blood. But to us the commonly received opinion, which 
 confines the application of T^tti to man only, seems the 
 best. For the sacred writer, having in the preceding 
 verse spoken concerning punishing both man and beast 
 for the taking away of life, repeats now in the sixth 
 verse the ordinance concerning the punishment of homi- 
 
 * 1st der sechste vers nicht zu ubersetzen : Wer Menschenblut 
 vergiesst, sondern, Was Menschenblut vergiesst, so dass die Thiere 
 mit eingeschlossen sind. MICHAELIS. Commentaries on the Laws 
 of Moses. Art. 274. 
 
 ft 
 
130 CAPITAL PUNISHMENT. 
 
 cide, on account of that superior dignity of man, con- 
 cerning which the last words of this verse are spoken, 
 viz., for in the image of God made he man."* 
 
 Were it necessary for the elucidation of this passage, 
 a vast body of authorities might be brought forward, 
 including the names of Selden, Hammond, Grotius, Le- 
 clerc, Calvin, Rivetus, Matthew Henry, Scott, Dr. E. 
 Robinson, and many others. Indeed, the union of the 
 tenor of the context with the necessity of the construc- 
 tion is such as fairly to forbid any other rendering in this 
 case, than that given by our English translators. We 
 shall therefore pass to the consideration of the circum- 
 stances in which the ordinance was promulgated. 
 
 * ROSENMUELLER. Scholia in Gen. ix. 6 : Nobis vulgo recepta 
 sententia qua 'nBiti de homine duntaxat capitur, potior videtur, etc. 
 
CHAPTER II. 
 
 ARGUMENT FROM SCRIPTURE CONTINUED. CIRCUMSTANCES OF THE HU- 
 MAN RACE, WHEN THIS ORDINANCE WAS PROMULGATED. 
 
 THE circumstances in which Noah was placed, on 
 taking possession of the earth after the deluge, were in 
 some respects very similar, in others very dissimilar, to 
 those of Adam, when just invested with the sovereignty 
 of the creation. A formal grant was made to him as to 
 Adam. His prerogatives were settled, and his possession 
 confirmed, in the earth redeemed from the deluge, in a 
 form of benediction like that which attended the first 
 proclamation of Adam's Paradisaical empire. But there 
 was this mighty difference : when the earth was given 
 to Adam, there had been no sin ; all was simplicity and 
 peace, guilelessness and innocence, fearlessness and se- 
 curity. There had been no evil passions among men, 
 no ferocity among animals, no knowledge of death, no 
 fear of cruelty or violence. The earth brought forth 
 abundantly, and men and animals were sweetly nourish- 
 ed by its fruits and vegetables. Now, there was a 
 dreadful change. There had been sin, and death as its 
 consequence. The ground had been cursed for man's 
 sake, and was to yield stintedly, and with much labour, 
 what at first it yielded freely, submissively, and abun- 
 
132 CAPITAL PUNISHMENT. 
 
 dantly, of itself. There had been murder and violence 
 on the part of man against his brother man, and savage- 
 ness and ferocity in the animal creation. All these dif- 
 ferences were to be remembered and provided for, in the 
 terms of the new grant made to Noah and his sons, and 
 the new covenant with him and his posterity. 
 
 Accordingly he was graciously assured against the 
 dread which he might have felt lest such a handful 
 of helpless beings should be destroyed from the earth by 
 the increase and ferocity of the animals, that the deepest 
 fear of man should be impressed upon the whole animal 
 creation. Against the dread of another deluge, whicii 
 otherwise must have filled men's souls with every storm 
 that swept across the horizon, Noah was assured that 
 God would not again destroy the ground for man's sake, 
 would not again bring the waters of a flood over it but 
 that, while the earth remained, seed-time and harvest, 
 cold and heat, summer and winter, day and night, 
 should not cease. The benediction and command to be 
 fruitful and multiply and replenish the earth was laid 
 upon him, and the grant of animal food was made to 
 him, in addition to the provision recorded for the suste- 
 nance of Adam. This was doubtless intended in part 
 as a compensation for the difficulty and scantiness with 
 which, in comparison with the luxuriance and abun- 
 dance of an age of innocence, the earth yielded her 
 fruit since the curse because of man's sins. But with 
 this grant there came a prohibition against eating the 
 flesh with the blood thereof, the life thereof; and the 
 
COVENANT WITH NOAH. 133 
 
 final cause of this prohibition is exceedingly solemn and 
 interesting, as pointing, without any doubt, to that divine 
 atonement to be made by blood for the sins of the world ; 
 a prohibition reiterated with great solemnity in the Mo- 
 saic institutions,* and intended to impress upon the soul 
 a prophetic sense of the sacredness of the blood of \ 
 atonement. " For the life of the flesh is in the blood : 
 and I have given it to you upon the altar, to make an 
 atonement for your souls : for it is the blood that maketh 
 an atonement for the soul."f 
 
 This prohibition introduces another provision in the 
 covenant with Noah, intended to secure him and his 
 family against the dread, which from past experience 
 they must have entertained, lest the passions of men, 
 which had already proved so ferocious, should break out 
 again, in universal violence and murder. God therefore 
 declares to Noah and his sons, as personating the whole 
 family and race of mankind, that he would require 
 their blood in return for the life-blood which they should 
 shed ; he would require it of every animal, and he 
 would require it of every man ; at the hand of every 
 man's brother would he require the life of man. If 
 any man should shed the life-blood of his brother, the 
 blood of that man should, in return, be required of him. 
 
 Here, if God had proceeded no further, the assurance 
 to Noah would simply have conveyed the knowledge of 
 what the Divine Being himself would do in protecting 
 
 * Lev. xvii. 10-14 ; Deut. xii. 16, 23. t Lev. xvii. 11. 
 
 13 
 
134 CAPITAL PUNISHMENT. 
 
 the peace of human society, and in avenging, by his own 
 providence, the murder of every man by his brother 
 man. There seems evidently to be a tacit reference to 
 the different manner of his providence in the case of 
 Cain, and an assurance to Noah that never again should 
 the crime of murder be punished so slightly. In the 
 case of Cain, when the murderer feared being killed for 
 his crime, God made a provision against it ; and from 
 the history of Lamech afterwards, to which we shall 
 more explicitly refer, we may suppose that this careful- 
 ness grew into a precedent, and that it was not customary 
 in the antediluvian world to visit the crime of murder 
 with the death of the murderer. Men indulged their 
 passions in every sort of violence, and even the provi- 
 dence of God did not then insure the return of such vio- 
 lence upon their own heads. Now, on the other hand, 
 God assures Noah that he would himself exact, by his 
 own providence, the blood of every man from the man 
 who should shed it, and would thus preserve the human 
 family against being destroyed in its infancy. 
 
 Such is the introduction to the great declaration that 
 follows ; which declaration may fairly be considered as 
 pointing ultimately to the existence of human govern- 
 ment and law, and as announcing and establishing its 
 sanctions under all the awfulness and permanence of the 
 divine authority : WHOSO SHEDDETH MAN'S BLOOD, BY 
 
 MAN SHALL HIS BLOOD BE SHED. Some of the most 
 
 learned and judicious commentators are united in regard- 
 ing this ordinance as a declaration that death by the hand 
 
OPINION OF MICHAELIS. 135 
 
 of the magistrate shall follow the commission of the 
 crime of murder; and if so, then it must be considered 
 as in fact the divine institution and sanction of the civil 
 magistracy. We shall have occasion to revert to this 
 point more explicitly in considering the purpose and de- 
 sign of the ordinance. God's argument with Noah in 
 introducing it is this : " Fear not. The Divine Omnipo- 
 tence and Avenging Justice shall protect you. In mine 
 own overruling providence I will insure the punishment 
 of every murderer by death. As a part of this provi- 
 dence I determine that in the very foundation of the 
 human government there shall be laid, as its corner- 
 stone, this ordinance : Whoso sheddeth man's blood, by 
 man shall his blood be shed. Henceforward I ordain 
 death by the hand of the magistrate to follow the com- 
 mission of the crime of murder." 
 
 This view of the circumstances of the human race, 
 and this general interpretation of the ordinance with its 
 context are sustained by Michaelis in his Commentatio 
 Prior de Poena Homicidii. Two things, he observes, 
 were contained in this law given to Noah, namely, the 
 power to proceed by capital punishment against the 
 homicide, and the imperative obligation to use that power. 
 God had declared that he would make inquisition for 
 blood, and he adds that he would do it by the instrumen- 
 tality of men, committing to them the right of death 
 against the murderer. It was thus that the Divine 
 and most benignant Legislator bound together arid 
 
136 CAPITAL PUNISHMENT. 
 
 strengthened the society of the first postdiluvian common- 
 wealth.* 
 
 * Nee tamen capitis poenam ab homicidis repetendam permittebat 
 modo, sed et imperabat lex divina. Dixerat Deus se qusesiturum 
 sanguinem hominum, additque per homines, quibus jus necis in hom- 
 ieidas concedat, se id facturum, etc. MICHAELIS, Commentatio 
 prior de Poena Homicidii. 17, 20. 
 
CHAPTER III. 
 
 ARGUMENT FROM SCRIPTURE CONTINUED. UNIVERSALITY AND COM- 
 PREHENSIVENESS OF THIS ORDINANCE. 
 
 THESE being the circumstances of the race, and the 
 context of this ordinance, we proceed to deduce and es- 
 tablish its universality and comprehensiveness. On the 
 face of it, this point is so clear, that it would scarcely 
 seem to need an argument. It is a signal part of the 
 formal benediction, law, and covenant, under which 
 Noah, as a second father of the human race, was in- 
 vested, like Adam, for his posterity, with the sovereignty 
 of the animated creation. It is not confined to any partic- 
 ular family, tribe, or people ; it is not a covenant with * 
 God's chosen people, so called, but with the whole hu- 
 man family. It is not dependent on the Mosaic institu- 
 tions, derives from them no part of its authority, perma- 
 nence, or sacredness, but would be just as perfect, clear, 
 and authoritative, if they were all swept from existence. 
 It is an ordinance as extensive and comprehensive as is 
 the promise that while the earth continued, heat and cold, 
 day and night, summer and winter, seed-time and har- 
 vest, should not fail. It is an ordinance just as universal 
 for all mankind, as the permission to eat animal food ; no 
 more to be restricted to a particular people, or consid- 
 13* 
 
138 CAPITAL PUNISHMENT. 
 
 ered as connected merely with the after application of 
 the Levitical law, than the declaration that the dread of 
 man should be upon the beasts of the forest is to be con- 
 sidered as a promise made only to the Hebrews ; no more 
 than the declaration that the blood of man shall be re- 
 quired of every beast is to be considered as applying 
 only to particular races of animals, or to animals occu- 
 pying a particular portion of the earth, the land of Canaan 
 for example. The ordinance is just as universal and 
 comprehensive, as were to be the posterity of Noah ; it 
 was given to him for all his sons, and all their races. It 
 is neither Jewish, nor Gentile, nor Christian ; neither be- 
 longing to one dispensation nor another ; but it is an or- 
 dinance of humanity and of civil society, the world over. 
 Men might as well tell us, when we see the rainbow in 
 the sky, that we behold no memento of God's loving- 
 kindness after the deluge, as that, when we see this or- 
 dinance in human governments, we must not trace its 
 obligation and authority to that primeval statute revealed 
 to Noah. 
 
 There is a wonderful explicitness, compactness, and 
 authority in the terms in which it is expressed : it stands 
 forth in these respects, as prominently from the context, as 
 ' the commandments on the tables of stone stood forth amidst 
 the ceremonial law and observances. Its manner is like 
 the imperative comprehensiveness of the command, 
 Thou shalt have no other gods before me. Indeed, the 
 same mode of arguing that would annihilate the general 
 obligation of the ordinance given to Noah, would also 
 
UNIVERSALITY OF THE STATUTE. 139 
 
 displace the decalogue itself from its throne of divine 
 authority and supremacy. We believe that this enact- 
 ment possesses the same rank with reference to all penal 
 enactments, that the commandments in the decalogue 
 possess, with reference to all moral duties. It stands at 
 the head of the science of social and criminal jurispru- 
 dence, just as the statutes in the decalogue stand at the 
 head of the science of Christian ethics. 
 
 Now if any man will deny the evident universality of 
 this ordinance, it is for such an one to show proof either 
 of its limitation or its abrogation ; but this cannot be 
 done. Where is the law, or the authority, repealing it ? 
 Will any man assert that it was binding only upon Shem 
 and his posterity, or that in process of time it became 
 obsolete with the other lines of Noah's posterity, and con- 
 tinued only with the Hebrews ? If its obligation ceased 
 at any time, or with any race, when did its obligation 
 cease, and by what sign or message from God did men 
 know it ? These are questions that no man can answer. 
 Not a trace of the abrogation of this ordinance can be 
 found, either in the course of God's providence, or" in the 
 tenor of God's word ; either in sacred or profane his- 
 tory ; either in the Old or the New Testament. On 
 the contrary, there are plain intimations of its continu- 
 ing in force through every successive dispensation. \ 
 
 The reason, which we have not yet considered, given 
 by the Divine Being for the ordinance itself, is one of the 
 strongest arguments for its perpetual obligation : For in 
 the image of God made he man. Now whether we take 
 
140 CAPITAL PUNISHMENT. 
 
 this, as some have done, to signify that image of God as 
 a governor and legislator, of which the magistracy, di- 
 vinely constituted, is a representation ; or, according to 
 the more common and probable opinion, that image in the 
 individual being, of which God speaks in the beginning ; 
 in any case it is manifest that the reason it contains is 
 not transitory, not a matter of expediency, not limited to 
 any age, country, or generation, but coeval and coessen- 
 tial with the race. It recognizes in the crime of murder, 
 not an injury to man merely, or to society, but to God ; 
 the highest possible violation of his authority, the great- 
 est possible insult, through his violated image ; a degree 
 of turpitude and enormity, of which the Divine Majesty 
 requires the highest possible punishment of human law.* 
 The reason of the ordinance appeals to the attributes of 
 God, and to the existence of man in God's image ; the 
 obligation of the ordinance endures, as long as the reason 
 on which it is founded ; consequently, it is perpetual. 
 As long as there are men in God's image, so long will the 
 ordinance be in force, that whoso shcddeth man's blood, 
 by man shall his blood be shed ; for in the image of God 
 made he man. Calvin, in his commentaries, has well 
 
 * Q,uum homo ad Dei imaginem sit factus, sequum est ut qui Dei 
 imaginem violavit et destruxit, occidatur, cum Dei imagini injuriam 
 faciens, ipsum Deum, illius auctorem, petierit. ROSENMUELLER, 
 Scholia in Gen. ix. 
 
 Imago Dei non potest impune destrui, Deus enim ipse laeditur, in 
 imagine sua laesa ; ergo ab homicidio, et destructione imaginis Dei, 
 abstinendum est. A. RIVETUS in loc. Opera, Tom. I. p. 237. 
 
OPINION OF CALVIN. 141 
 
 observed, that though men are unworthy of his wonder, 
 ful goodness, the Divine Being doth here reveal the 
 grounds of his care for the sacredness of human life ; 
 and most sedulously should the doctrine of this passage 
 be marked, that no person can injure his neighbour, but 
 he injures God ; a truth, which, if men would remem- 
 ber, there would be much less violence in human so- 
 ciety.* 
 
 * Sedulo autera notanda est doctrina, neminem posse fratribus suif 
 esse injurium, quin Deum ipsum Iredat. Quoe si probe in animis 
 nostris infixa esset, longe tardiores essemus ad inferendas injurias. 
 CALVIN in Gen. ix. Opera, Tom. I. p. 53. 
 
CHAPTER IV. 
 
 ARGUMENT FROM SCRIPTURE CONTINUED. THE MOSAIC STATUTES, A 
 LUMINOUS COMMENTARY UPON THIS ORDINANCE. 
 
 THE whole Jewish code proceeds on the ground of this 
 previous legislation. To that code we do not resort for 
 argument ; it is unnecessary ; we do not rest the right 
 or duty of capital punishment on any part of it ; never- 
 theless, it forms a luminous commentary on the ordinance 
 revealed to Noah. The existence of this ordinance is 
 just as much taken for granted, as the continued author- 
 ity of the permission to eat animal food ; nor was there 
 any more need of formally republishing it, than of pre- 
 fixing to the decalogue the acknowledged genealogy of 
 the Hebrews from Abraham. In the thirty-fifth chapter 
 of Numbers, in the last five verses, there is a manifest 
 reference to this ordinance, and reasons are given for the 
 urgency and particularity of the divine requisitions of 
 blood for blood, which intimate that, apart from any con- 
 siderations of expediency, there is a heinousness in the 
 crime of murder, that cannot be endured ; that demands 
 and must have present expiation in the blood of the mur- 
 derer, or the land itself is so defiled that God cannot 
 inhabit it. " Whoso killeth any person, the murderer 
 shall be put to death by the mouth of witnesses ; but one 
 
TENOR OF THE JEWISH CODE. 143 
 
 witness shall not testify against any person to cause him 
 to die. Moreover, ye shall take no satisfaction for the 
 life of a murderer, which is guilty of death ; but he 
 shall surely be put to death. So ye shall not pollute the 
 land wherein ye are ; for blood, it defileth the land : and 
 the land cannot be cleansed of the blood that is shed 
 therein, but by the blood of him that shed it. Defile not, 
 therefore, the land which ye shall inhabit, wherein I 
 dwell ; for I the Lord dwell among the children of Is- 
 rael."* Some other passages having reference to this 
 subject 'in the Pentateuch we place at the bottom of the 
 page, to be consulted at the pleasure of the reader. ( 
 
 In one of these passages it is said, " If a man come 
 presumptuously upon his neighbour, to slay him with 
 guile, thou shalt take him from mine altar, that he may 
 die." No refuge was to avail him. From the very 
 altar of God, though he had fled thither, he was to be 
 taken and "surely put to death." Again: " Thine eye 
 shall not pity him, but thou shalt put away the guilt of 
 innocent blood from Israel, that it may go well with 
 thee." The tenor of these declarations, their point, ex- 
 plicitness, urgency and severity, would incline us to think 
 that God had observed at that period the same unwilling- 
 ness to execute the penalty of the Noachic ordinance, 
 the same false sensibility, and the same tendency to in 
 fidelity, which at intervals prevails in society at the pres- 
 
 * Numbers xxxv. 30-34. 
 
 t Exod. xxi. 12, 13, 14. Levit. xxiv. 17. Numbers xxxv. 16 
 seq. Deut. xix. 10 ; xiii. 3. 
 
144 CAPITAL PUNISHMENT. 
 
 ent day. He was resolved to extirpate this feeling, and 
 to make the obligation to punish the guilt of innocent 
 blood, as unqualified and peremptory as any duty in the 
 decalogue. The same testimony as to the guilt of " in- 
 nocent blood," a guilt so regarded by the Divine Being, 
 that in no circumstances would he permit it to go un- 
 punished by death, is borne throughout the Scriptures. 
 It is one of the sacred proverbs, " A man that doth vi- 
 olence to the blood of any person shall flee to the pit ; 
 let no man slay him." In revenging this guilt of blood- 
 shed, it is declared by the prophets that " the stone shall 
 cry out of the wall, and the beam out of the timber shall 
 answer it." 
 
 If we are not mistaken, there was a high and solemn 
 end, which is not distinctly noticed, in all this training 
 of the consciences of men on this subject ; in making 
 human blood so sacred, in affixing to the human life the 
 value of a price so inestimable. It is not improbable 
 that all the strains of prophetical preaching on this point, 
 and all the multiplied enactments in regard to it, and all 
 the terrible sternness with which they were insisted on, 
 were partly intended to prepare the mind for the gran- 
 deur and solemnity of divine truth in the atonement. 
 God would prevent the cheapening of human life, in or- 
 der that the value of the sacrifice of Christ's life might 
 not be diminished in men's estimation. In very truth, 
 had no law ever been promulgated annexing the penalty 
 of death to the crime of murder, it is not too much to 
 say that the sacrifice of Christ upon the cross would 
 
IMPREGNABLE STRENGTH OF THE ARGUMENT. 145 
 
 God intended that our conceptions of the unspeakable love 
 of Christ in laying down his own life for his enemies 
 should not be weakened, but assisted, by our habitual as- 
 sociations, by the whole world's prevailing habits of 
 thought and feeling on this subject. 
 
 We insist strongly on the sure, emphatic manner, in 
 which God reasserts and establishes the death-penalty 
 for murder, hedging the enactment about by so many 
 solemn and stern provisions against its violation or neg- 
 lect, that the man must be wilfully blind who can deny it. 
 
 " YE SHALL TAKE NO SATISFACTION FOR THE LIFE OF A 
 MURDERER WHICH IS GUILTY OF DEATH ; BUT HE SHALL 
 
 SURELY BE PUT TO DEATH." This is God's legislation ; 
 no man can deny it. It is his legislation hundreds of 
 years after the law promulgated to the world through 
 Noah, and it is intended to reiterate and establish the 
 law of death for murder among the Hebrews so firm- 
 ly, that there may remain no room for the shadow of a 
 doubt in regard to the intention of the law-giver, and no 
 possibility of evading the execution of the penalty. 
 This reiteration of the law by the Divine Being, is an 
 insurmountable obstacle against the reasonings of those 
 men, who endeavour to deny that at first, when God de- 
 clared that men should be put to death for murder, he 
 meant any such thing. \ Will any one have the hardi- 
 hood to assert that when God commanded that no satis- 
 faction for the life of the murderer should be taken, but 
 he should surely be put to death, he meant that he 
 should not be put to death ? 
 14 
 
CHAPTER V. 
 
 ARGUMENT FROM THE NEW TESTAMENT. THE ORDINANCE NOT AB- 
 ROGATED, BUT CONFIRMED. PROOF FROM PAUL'S WRITINGS AND EX- 
 PERIENCE 
 
 WE come next to the argument from the New Testa- 
 ment ; and here we find, both in the letter and spirit of 
 the Gospel, a strong confirmation of the doctrine taught, 
 on this subject, in the Old. We shall both notice the 
 perfectly groundless assertion, that the penal statutes of 
 the Old Testament were abrogated by our Saviour, and 
 we shall entertain the question, How far does the spirit 
 of the Christian dispensation interfere with the ordinance 
 given to Noah, in authorizing and enjoining a greater 
 mildness in the whole code of penal inflictions ? It is as- 
 serted that our Saviour, in his sermon on the Mount, 
 clearly reprobates the vengeful and retaliating tenor of 
 the laws before his time, referring to one or two in par- 
 ticular : " Ye have heard that it hath been said by them 
 of old time, An eye for an eye, and a tooth for a tooth," 
 &c. Here we answer, 
 
 1. That our Lord's teachings were not directed to the 
 laws themselves, either as vengeful or retaliating in an 
 improper sense, but to the abuse of them. He had in 
 view the correction of the spirit of malice and private 
 
ERASMUS ON THE JEWISH LAW. 147 
 
 revenge ; the rebuke and removal of the habit of indi- 
 vidual retaliation, for which the Jews most wickedly 
 pleaded the sanction of laws, that were wisely given for 
 the maintenance of public justice. He did not mean to 
 say that the penalties of the Jewish law were too severe, 
 or that they should cease to be executed whenever jus- 
 tice demanded it ; but, that individuals should forgive in- 
 juries, and should not, for the sake of personal revenge, 
 take advantage of public law, in opposition to the great 
 law of love, on which hung all the law and the prophets. 
 The provisions of the Jewish law were wise and equita- 
 ble, and not vengeful or retaliatory ; but the abuse of 
 them by the selfish and malicious spirit of the Scribes 
 and Pharisees had reached a degree, which demanded the 
 sternest reprobation. The paraphrase of Erasmus on 
 this passage is admirable : " Ye have heard what degree 
 of indulgence the law permitted to our fathers in the 
 avenging of injuries : an eye, it is said, for an eye, and 
 a tooth for a tooth. For God had known their minds 
 greedy of revenge, and therefore he restricted them to 
 certain rules to be applied by the sentence of the judges ; 
 the man who had maliciously destroyed an eye, should 
 lose an eye, and he who had destroyed a tooth, should 
 lose a tooth ; for if the angry mind had been permitted 
 to take vengeance without such rules, it might often have 
 happened that life would have been taken for a tooth 
 broken. The law therefore was so constructed, that 
 justice might not proceed farther than equity. Now I 
 do not abrogate this law, but confirm it. But I teach 
 
148 CAPITAL PUNISHMENT. 
 
 you not to seek revenge ; not to return injury for injury, 
 nor railing for railing, but contrariwise, blessing."* But 
 it is manifest, 
 
 2. That our Saviour's teachings had no reference 
 whatever, either directly or by implication, to the pri- 
 meval statute revealed to Noah. The change from the 
 Jewish dispensation to the Christian had nothing to do 
 with it ; men might as well argue that the divine au- 
 thority of the book of Genesis was annihilated by that 
 change, as that the sanction was taken from this penal 
 ordinance. What would be thought of the argument, 
 that the change of the Sabbath from the time and man- 
 ner of its observance in the Jewish synagogues to the 
 time and manner of its observance as the Lord's day, 
 had abrogated the ancient law of the decalogue, to 
 honour the Sabbath and keep it holy ? But we argue, 
 
 3. If the Law of Love in the Christian dispensation 
 required the abolition of this statute, the same law must 
 have prevented its enactment, for our Lord draws that 
 law of love from the old dispensation itself. But, it is 
 evident, 
 
 4. That both the spirit and the precepts of Christian- 
 ity confirm it. The spirit of the Gospel, while it incul- 
 cates forgiveness upon individuals, approves and re- 
 quires in " the powers that le" the infliction of just 
 penalties against offenders, the maintenance of order, 
 
 * Desiderii Erasmi Roterodami, Paraphraseon hi Novum Testa- 
 mentum. Tom. I. p. 74. 
 
PRECEPTS OF THE GOSPEL. 149 
 
 security, and obedience to law. It is remarkable 
 that Paul brings together these two duties, and insists 
 upon them with equal authority, in one and the same 
 passage. He asserts, as clearly as language can do it, 
 that the duty of private forgiveness does not interfere 
 with the course of public justice in the punishment by 
 death. In one verse he says : " Dearly beloved, avenge 
 not yourselves, but rather give place unto wrath ;" and 
 then immediately he speaks of the magistrate as bearing 
 not the sword in vain, but as " a revenger, as the minis- 
 ter of God, to execute wrath upon the evil-doer. 3 ' Cap- 
 ital punishment then, and the mild spirit of the Christian 
 Dispensation are not incompatible, but consistent. 
 
 Besides this, the precepts of the gospel, in one or two 
 instances, directly suppose the existence of the penalty 
 of death, and as directly sanction it. We believe they 
 contain a manifest reference to the old and well known 
 Noachic ordinance, which had come to be not only a fun- 
 damental law, but a fundamental proverb of society. Of 
 this nature is the argument of the Saviour with Peter : 
 Put up again thy sword in its place ; for all they that take 
 the sword, shall perish ly the sword.* Of the same na- 
 ture is the declaration in the Apocalypse : He that kill- 
 eth with the sword, must le killed with the sword.^ The 
 form which these assertions take, is one that supposes a 
 universal knowledge and acknowledgment of their truth 
 and certainty ; it is an appeal to the authority of a 
 
 * Matt. xxvi. 52 t Rev. xiii. 10. 
 
 14* 
 
150 CAPITAL PUNISHMENT. 
 
 known divine sanction, and to a proverbial sanction, 
 which has grown out of the divine ; which has gathered 
 a power of incontrovertible certainty, from the provi- 
 dence as well as the ordinance of God. 
 
 We will take next the special argument of Paul on 
 this subject. " Let every soul be subject unto the high- 
 er powers. For there is no power but of God : the 
 powers that be are ordained of God. Whosoever there- 
 fore resisteth the power, resisteth the ordinance of God : 
 and they that resist shall receive to themselves damna- 
 tion. For rulers are not a terror to good works, but to 
 the evil. Wilt thou not then be afraid of the power ? 
 Do that which is good, and thou shalt have praise of the 
 same. For he is the minister of God to thee for good. 
 But if thou do that which is evil, be afraid ; FOR HE 
 
 BEARETH NOT THE SWORD IN VAIN I FOR HE IS THE MIN- 
 ISTER OF GOD, A REVENGER TO EXECUTE WRATH UPON 
 HIM THAT DOETH EVIL.' 3 * 
 
 In this passage several things are brought into view. 
 1. The divine appointment of human government. 2. 
 A distinct and explicit recognition of the penalty of 
 death for crime as then in existence, and of the righte- 
 ousness of this custom. 3. A recognition of it not as 
 the result of any compact in society, by which individ- 
 ual rights are committed to the government, but as 
 coming directly from the appointment and authority of 
 God. 4. A recognition of penal inflictions as a matter 
 
 * Romans xiii. 14. 
 
TESTIMONY OF PAUL. 151 
 
 of pure retributive justice, and not of mere expediency. 
 These are most important deductions. We find the 
 apostle clearly sanctioning capital punishment under the 
 Christian dispensation, and referring it to the ordinance 
 of God ; it is the use of the sword in the punishment of 
 crime by magistrates as the ministers of God. There 
 is no other possible view that can be taken of this pas- 
 sage. Calvin calls it in his commentaries " an illustri- 
 ous place" to prove the divine authority of capital pun- 
 ishment ; and he adds that those men contend against 
 God, who deem it an act of impiety to shed the blood of 
 the guilty.* 
 
 In addition to all this, we have a passage in Paul's 
 own life, a commentary in his own experience, which 
 sets in a still stronger light the falseness of the supposi- 
 tion that the penalty of death was abrogated under a 
 milder genius in the Christian dispensation. We find 
 Paul himself fully recognizing the justice and the sol- 
 emn authority of that penalty, in his own person at the 
 judgment bar. When he stood before Festus, who 
 would have had him go up to Jerusalem to be judged by 
 the malignant Jews, he said, " I stand at Caesar's judg- 
 ment seat, where I ought to be judged : to the Jews 
 have I done no wrong, as thou very well knowest. For 
 if I be an offender, or have committed any thing worthy 
 of death, I refuse not to die : but if there be none of 
 
 * CALVINI in Pauli Epistolas Commentarii. Vol. I. p. 174. Con- 
 tendant igitur curn Deo, qui sanguinem nocentium hominum effundi 
 nefas ease putant. 
 
152 CAPITAL PUNISHMENT. 
 
 these things whereof these accuse me, no man may de- 
 liver me unto them. I appeal unto Caesar."* Here, as 
 an innocent man, Paul does not appeal to any law of 
 Christ, or provision of his gospel, abolishing the penalty 
 of death, but, in the full acknowledgment of the right- 
 eousness of that penalty for the guilty, appeals unto 
 Ceesar, with whom the supreme authority of the Roman 
 government, as superior to the Jewish, lay. This must 
 be regarded as a decisive issue of the question. Paul 
 supposes that there are crimes worthy of death, and that 
 a human government may rightfully inflict the penalty 
 of death for such crimes ; he requires a legal investiga- 
 tion in his own case, and if, by such investigation, he be 
 found to have done any thing which deserves that pen- 
 alty, he does not refuse to suffer it, he is willing to die. 
 The argument thus tested in Paul's own experience, we 
 conceive to be perfect. It is incontrovertible, that so 
 far from there being any abrogation of the Noachic ordi- 
 nance, either in the letter or by the spirit of the Chris- 
 tian dispensation, we find, in the opening of that dispen- 
 sation, a new and distinct promulgation of the same. 
 
 * Acts xxv. 10, 11. 
 
CHAPTER VI. 
 
 ' 
 
 PROOF FROM THE CONSENTANEOUSNESS OF DIVINE PROVIDENCE. 
 
 ONE more point of importance as to the lasting obliga- 
 tion of this ordinance remains to be considered, and that 
 is, its consentaneousness with the voice of God's provi- 
 dence. In order to evade the argument drawn from it, 
 some men have asserted that it is only a prediction. 
 Now there are three things that forbid this conclusion : 
 first, the context ; second, the absurdity, to which it re- 
 duces the climax of the divine covenant with Noah ; and 
 third, the after-legislation of God upon this subject.* 
 But supposing for a moment that it might be considered 
 as a prediction simply ; it has either been fulfilled, or it 
 has not. If it has not, this reduces it to a falsehood ; 
 but if it has, it is principally through the penalty of 
 death enacted in all human governments against the 
 crime of murder ; which penalty must therefore be con- 
 sidered as one of God's providential arrangements for the 
 fulfilment of his own prediction, and consequently as 
 
 * Non esse autem praedictionem simplicem sine mandato, hoc loco, 
 Deus ipse ostendit, dum in lege sua postea disertam addit sui statuti 
 explicationom, Exod. 21 : 12, ubi hanc legem sancivit, qui percutit 
 hominem ita est morietur, omnino morte plectitor. RIVETUS in Gen. 
 Exercitatio 59. 
 
154 CAPITAL PUNISHMENT. 
 
 possessing his own sanction, as much as the constitution 
 of government itself. Other providential arrangements 
 combine with this, to secure the same result. 
 
 Now it is worthy of consideration whether we are 
 not bound to watch the course of the Divine Providence, 
 and where it is clear, to imitate it ourselves, to support its 
 conclusions, to carry into effect the lessons drawn from 
 it. To those who regard the light of nature as of equal 
 authority with the word of God, because emanating from 
 the same divine original, the providence of God consti- 
 tuting, in fact, a great part of the light of jjature, this 
 appeal is very powerful. And to those who maintain 
 the decision of Revelation on this subject as final and 
 supreme in its application to all mankind, the appeal is 
 not less consentaneous with their views and feelings. If 
 God has made his will on any point perfectly manifest by 
 the course of events, it is not less obligatory on his crea- 
 tures to obey it, than if it were written in his word. In 
 such a case events are the utterances of the Deity, the 
 publication of his will, the syllables and hieroglyphics 
 in which men read it, the tables of stone on which it is 
 recorded. 
 
 Now the consentaneousness of the course of events 
 with the promise to Noah of what the Divine Providence 
 would do, the perfect adaptation of the reality, as it turns 
 out in the progress of human society, to the rule by God 
 propounded in its commencement, is wonderful. It is so 
 universal, that it has made a deep impression not upon 
 observant and religious minds merely . but upon all minds, 
 
PROOF FROM DIVINE PROVIDENCE. 155 
 
 upon the human mind ; an impression which has passed 
 into a proverb ; and proverbs, we had almost said, are 
 the inspired records of God's providence. And the pro- 
 verb that MURDER WILL OUT, combines in itself the con- I 
 viction not merely that murder will be discovered, but 
 will be avenged. The experience of all mankind con- 
 firms its truth. Cases might be cited almost by hun- 
 dreds, in which a retributive providence has tracked the 
 heels of the murderer, its dark form, like the terrible 
 shadow of the crime committed, like a spirit rising from 
 the blood that hath been shed, pressing nearer and 
 nearer, till it has come up with the guilty man, con- 
 fronted him, and laid him low. Bloody and deceitful 
 men shall not live out half their days.* Now in view of 
 this expression of the Divine determination, even if we 
 had nothing but the voice of nature to speak to us, it 
 would seem presumptuous to strike out from human 
 legislation its corresponding page ; to set up a clause of 
 abrogation, that in fact would contravene this course and 
 declaration of the Divine will ; would falsify and stultify 
 the Noachic precept, if considered as a prediction, and 
 would openly and glaringly insult and violate it if con- 
 sidered as a command. But when we regard the Divine 
 Revelation and the Divine Providence together, the 
 course of wisdom, piety, and duty does not admit a 
 doubt. 
 
 God, in his word, by direct command, by second and 
 third bills of legislation, explanatory and confirmatory 
 * Psalm Iv. 23 
 
156 CAPITAL PUNISHMENT. 
 
 of the first, and by precepts and general instructions, 
 has clearly manifested his will that the murderer should 
 be put to death. He has also in his providence, by giv- 
 ing effect to those laws, by providing institutions for 
 their execution, by establishing the civil magistracy 
 with the power and right of death as a penalty, and 
 by so securing the punishment of the murderer, from 
 age to age, that it has become an instinctive convic- 
 tion of the human mind that he is destined to death 
 as the punishment, a conviction almost as deep as the 
 assurance that the sun will continue to rise and set, 
 manifested the same determination, so that his word and 
 his providence correspond, even as the dial plate of a 
 watch, with the internal arrangement of the machinery, 
 or the waxing and waning of the moon, with the rising 
 and refluence of the tides. Now the attempt to disjoin 
 these manifestations of the Divine will, and to render 
 them contradictory, by securing the murderer against 
 death, through the instrumentality of human statutes for 
 his protection, is as absurd and wrong, as if men should 
 attempt by statute to alter the laws of nature. 
 
 All mankind have judged the punishment by death to 
 be the only proper penalty against the crime of murder. 
 All mankind have thought thus, because God has so 
 clearly made known his thoughts upon the subject. 
 The prejudice, if you please to call it such, is as old as 
 the repeopling of the world after the deluge ; it was 
 solemnly sanctioned by the ordinances of God ; it has 
 obtained in all nations even more universally, than the 
 
PROOF FROM DIVINE PROVIDENCE. l5i 
 
 custom of sacrifices ; and it has the testimony of the 
 human conscience universally in its favour. And the 
 thing is so evident in the Scriptures, that even from the 
 endeavours of those who argue against them, a man 
 who had never seen or heard them anywhere but in the 
 pages or debates of their opponents, might see which 
 way the truth lies ; as an old writer says, it were end- 
 less to enumerate the echoes of the Christian Law, 
 which those Rocks that oppose it do themselves reverbe- 
 rate ; so that a man intently listening, may gain the be- 
 ginning, middle, and end of some of those very precepts 
 which they reject. And human experience, though of- 
 ten too late, inevitably finds out the same lessons, which 
 have been taught for our instruction beforehand by 
 Divine wisdom ! 
 
 The business of a wise legislator is, in Wordsworth's 
 striking language, to copy with awe the one Paternal 
 Mind, and not, by processes humane in show only, but 
 in reality subversive of the good of society, to reject, and 
 as far as possible to thwart, the lessons of that mind. 
 God, in this ordinance of death for murder, and in the 
 consentaneousness of his providence therewith, and in 
 the universal and ineradicable convictions of the human 
 mind corresponding thereto, has communicated a power 
 and majesty to the whole theory and practice of a just 
 human law, of which it were a fearful thing if the state 
 should be shorn ; if the dignity and sanction of the 
 state fell below and contradicted the example of the 
 Scriptures and the working of the human conscience. 
 15 
 
158 CAPITAL PUNISHMENT. 
 
 This truth is finely set forth in the condensed lines of 
 the great moral poet. 
 
 Not to the object specially designed, 
 
 Howe'er momentous in itself it be, 
 
 Good to prevent or curb depravity, 
 
 Is the wise Legislator's view confined. 
 
 His spirit, when most severe, is oft most kind. 
 
 As all authority on earth depends 
 
 On Love and Fear, their several powers he blends, 
 
 Copying with awe the one Paternal Mind. 
 
 Uncaught by processes in show humane, 
 
 He feels how far the act would derogate 
 
 From even the humblest functions of the state, 
 
 If she, self-shorn of majesty, ordain 
 
 That never more shall hang upon her breath 
 
 The last alternative of Life or Death. 
 
CHAPTER VII. 
 
 VRGUMENT FROM SCRIPTURE CONTINUED. PURPOSE AND DESIGN OF 
 
 THIS ORDINANCE. ITS SANCTION OF THE CIVIL MAGISTRACY. OF 
 
 THE ORIGIN OF GOVERNMENT. OF ITS POWER TO TAKE LIFE. 
 
 BENEVOLENT DESIGN OF THIS ORDINANCE. 
 
 WE are to consider in the next place the purpose and 
 design of this ordinance. It must be considered first, as 
 we have already intimated, as containing the sanction 
 and divine authority of a civil magistracy. Doubtless, 
 this was one of its objects. What goes before asserts 
 and promises the providential interposition of God in 
 making inquisition for blood, and visiting the iniquity of 
 bloodshed on those who were guilty of it. But this or- 
 dinance commits into the hands of men the solemn and 
 awful power, authority, and duty of taking vengeance. 
 Whoso sheddeth man's blood, BY MAN shall his blood be 
 shed. Now, as it is not to be supposed for a moment that 
 God meant that any and every individual in the event 
 of a murder should consider himself authorized to kill 
 the murderer ; since this would be to produce anarchy 
 instead of order and security in society ; as we cannot 
 suppose that God intended to commit this power at ran- 
 dom into the hands of individuals ; we must regard it as 
 referring to the formal exercise of justice in the civil 
 
160 CAPITAL PUNISHMENT. 
 
 government. We are, in fact, compelled to this conclu- 
 sion, there being no alternative.* 
 
 * The learned Huguenot, Andreas Rivetus, among other com- 
 mentators, has presented this view of the Noachic ordinance most 
 clearly and satisfactorily, at the same time adducing and refuting 
 the objections of the Socinians, Anabaptists, and others, who, he says, 
 endeavoured to corrupt the passage and elude its force. " Est igitur 
 hoc loco tucLTayna, seu constitutio Dei ipsius ore prolata, qua sanguis 
 homicidae voluntarii, qui humanum sanguinem ausu nefario effudit, 
 per hominem, nempe id ad legitime constitutum, id est, per Magis- 
 tratum, vita privati debet." " The passage is a rule, by God himself 
 promulgated, according to which the voluntary wicked homicide, 
 the man who maliciously sheds human blood, shall himself be de- 
 prived of life by man, that is, by the legitimately constituted ma- 
 gistracy." RIVETUS. Exercitatio 59 in Gen. 
 
 The expressions of this opinion by other learned writers are equal- 
 ly explicit. " Magistratus hie a Deo instituitur, eique gladius datur 
 in manus. Deus, qui prius totum judicium sibi sumpserat, nee vel 
 Cain ab homine occidi voluit, post diluvium communicat potestatem 
 cum homine, et tribuit ei potestatem vitae et necis." " The magistracy 
 is here constituted by God, and a sword put into its hands. God, 
 who had hitherto taken the judgment into his own hands exclusive- 
 ly, and did not permit even Cain to be slain by man, after the deluge 
 makes man a partaker of this authority, and gives to him the power 
 of life and death." MUNSTERUS in Poli Synops. in Gen. IX. Tom. I. 
 p. 110. 
 
 In like manner VATABLUS : " Hoc versu homicidis mortem denun- 
 ciat quomodocunque moriantur sive jussu magistratus, sive a quo- 
 cunque aliunde a Deo misso carnifice." " In this verse death is de- 
 nounced against the murderer, whether by command of the magis- 
 trate, or by any other executioner commissioned from God." Critici 
 Sacri, Tom. I. p. 158. 
 
ESTABLISAMENT OF THE MAGISTRACY. 161 
 
 And this view is confirmed by the history of the di- 
 vine legislation afterwards and in detail. For a while, 
 previous to the more regular forms of human govern- 
 ment, an institution prevailed, marking the transition 
 state of society, an institution in part voluntary, in part 
 by social consent and sanction, by which the nearest rel- 
 ative of a party murdered was bound to pursue and ex- 
 ecute vengeance on the murderer. Even this may be 
 considered as a fulfilment of God's assurance to Noah, 
 that the divine providence would secure the punishment 
 of bloodshed by death. But when afterwards God re- 
 sumed his legislation on this subject through his minister 
 Moses, he took this imperfect, and in many respects 
 dangerous institution, and adopting it into the provisions 
 of the magistracy, hedged it around with such other 
 forms as were necessary at once to preserve its power, 
 prevent its abuse, and secure to the criminal the priv- 
 ilege of a trial by witnesses. But all this after-legisla- 
 tion bears reference to the first broad statute enacted 
 \vith Noah, the ordinance designed for all his posterity. 
 
 Also CALVIN : " Sic autem Deus vindictam minatur ac denunciat 
 homicidis, ut arraet etiam gladio magistrates ad coedes ulsciscendas, 
 ne impune fundatur sanguis hominum." " God thus threatens and de- 
 nounces the punishment of the murderer, in order that the magis- 
 tracy may be armed with a sword for the avenging of murder, lest 
 the blood of men should be shed with impunity." Opera, Tom I. p. 53. 
 
 Also GROTIUS: De Jure Belli ac Pacis. Lib. I. Cap. 2. The com- 
 mand, Thou shalt not kill, Grotius observes, does not disprove the 
 right and duty of capital punishment inflicted on criminals. 
 15* 
 
162 CAPITAL PUNISHMENT. 
 
 That ordinance confers directly from God upon the 
 civil magistracy the power of the sword, the power of 
 life and death, as the highest and most awful sanction of 
 the human government. It clothes the administration of 
 righteous law with a divine authority. It settles the 
 question as to what, in this case, is righteous law. It 
 confers a power, which God alone had a right to confer, 
 and which, until he should have distinctly conferred it, 
 perhaps no form of civil society would have had a right 
 to assume ; although, if considered as a matter of self- 
 defence, it belongs as naturally and unquestionably to 
 nations as to individuals. It takes the highest function 
 of government as a personification, exponent, or repre- 
 sentative of all its just functions, and by surrounding it 
 with all the solemnity and unquestionable authority of a 
 commission from God, establishes forever the principle 
 set forth in such explicit language by the apostle, that 
 " the powers that be are ordained of God ; and whoso- 
 ever resisteth the power, resisteth the ordinance of God ; 
 for the ruler is the minister of God, bearing not the 
 sword in vain, but as a revenger to execute wrath 
 upon him that doeth evil." Thus God is seen at the 
 commencement of a new peopling of the world, laying 
 the foundations for the superstructure of the civil gov- 
 ernment throughout all generations. And thus bringing 
 together again the view of this subject in the Old and 
 the New Testament, our former conclusion is strength- 
 ened, that, so far from there being any abrogation of this 
 ordinance either in the letter or by the spirit of the 
 
ORIGIN OF THE CIVIL MAGISTRACY. 163 
 
 Christian dispensation, we find in the opening of that 
 dispensation a new and distinct promulgation of the 
 same. 
 
 We have said that as a matter of self-defence the 
 right to take life belongs as naturally and unquestionably 
 to nations as to individuals. It is important to dwell for 
 a moment on the consentaneousness of the divine author, 
 ity in human governments, in this matter, with that 
 which is derived from the pretended elementary and vol- 
 untary formation of human society. The right position 
 in regard to the civil government we take to be this : 
 that man, in his essential nature, as he comes from the 
 hand of God, is a social and political being : that law 
 and government are a part of the essential development 
 of the race, as much as living in houses : that man, in 
 respect to the race, is as essentially an animal governing 
 and to be governed, as he is, in respect to the individual, 
 a walking, marrying, thinking, reasoning animal.* The 
 same Being, who made man in the beginning male and 
 female, and surrounded him with all the rights and sa- 
 credness of the family constitution, made him in the be- 
 ginning to be a creature of society, and endowed him 
 with all the rights necessary to the maintenance of soci- 
 ety in its most perfect form. We cannot but regard the 
 
 * CICERO : De Finibus, etc. in Grotius. " As we make use of our 
 limbs hefore we have learned what was the design of Nature in fur- 
 nishing us with them, so we are naturally formed for civil society, 
 without which there would be no room for the exercise of Justice or 
 Goodness." 
 
164 CAPITAL P'JNISHMENT. 
 
 idea that society comes from nothing but the voluntary 
 compact, as a pure figment of the imagination. The 
 learned Grotius treats it as such in the preliminary dis- 
 course to his great work De Jure Belli ac Pacis ; and 
 even Hume expresses very nearly the same opinion.* 
 
 Admitting, however, the assumption of the voluntary 
 compact for the sake of the argument, we are met with 
 the assertion, than which there was never a weaker 
 piece of sophistry, that inasmuch as government derives 
 its rights from the delegated rights of individuals, and 
 men cannot delegate that which they do not possess, and 
 no man has a right to take away his own life, therefore, 
 no man can give this right to another, and consequently, 
 no government can have the right to take away life in 
 any circumstances. 
 
 The falseness of this reasoning may be shown in two 
 ways. First; every man has by nature the right of 
 self defence. If a man's wife and children be set upon 
 by a murderer, he has the right to kill the murderer. 
 Now this right of self defence, which every man pos- 
 sesses in a state of nature, he gives up, to a certain 
 degree, in the compact of society ; it is in part the busi- 
 ness of the government to protect and defend individuals, 
 and the privilege so delegated, gives to the government 
 the right to take away life. But, 
 
 Second ; the falseness of this reasoning may be shown 
 by the reductio ad absurdum. It proves too much. For, 
 no man has the right to imprison himself for life, in a 
 * GROTIUS: De Jure Belli ac Pacis. Prel. Disc. VI. 
 
ANTEDILUVIAN PENALTIES. 165 
 
 solitary cell, an outcast from society, a contemner of its 
 relative duties. But if lie has not this right in himself, 
 he cannot give it to others, and consequently no human 
 government can have the right to imprison a man for 
 life. Taking this course of reasoning, we are brought 
 inevitably to this result. Either way we are forced to 
 the conclusion that a government must have the power of 
 life and death lodged with it for the purposes of human 
 society. 
 
 We believe that it was one design of God by the Noachic 
 ordinance solemnly to confer this authority, and place it 
 beyond dispute. Besides this, it was his purpose to set 
 up a barrier, which had not before existed, against the 
 cruelty and violence of men's passions ; to hedge in and 
 restrain their malice and hatred by penalties, which do 
 not seem to have been known in the Antediluvian world.* 
 At the outset he comforted Noah, who remembered the 
 violence and wickedness of the Antediluvians with ter- 
 ror, by the assurance that crime, and especially , the 
 crime of murder, should no more go unpunished, or 
 slightly punished, as it had done ; there should be a 
 greater carefulness of human life, a greater regard to 
 its sacredness. In the Antediluvian world the milder 
 
 * GROTIUS is of this opinion. De Jure Belli ac Pacis. Lib. I. Cap. 
 2. sec. 5. Grotius quotes, as usual, some striking passages from an- 
 cient writers ; the following from Thucydides : " It is probable that 
 in former days heinous crimes were slightly punished ; but when in 
 time these punishments came to be despised, they were changed into 
 death." In Lib. III. De Bello Pelopon. 45. 
 
160 CAPITAL PUNISHMENT. 
 
 course had been chosen, but in vain ; the mildness of 
 that legislation only tended to fill society with violence 
 and crime. God spared Cain, and the consequence was, 
 since no murder could ever be committed under more 
 aggravating circumstances than that of Abel, that every 
 murderer felt secure. This was the very reasoning of 
 Lamech. Informing his wives that he had slain a young 
 man, having been himself also wounded, he comforts 
 them against the fear that vengeance might be taken 
 upon him, by referring them to God's lenity in the case 
 of Cain ; and if, says he, a sevenfold vengeance was 
 threatened against any man who should kill Cain, be as- 
 sured that the life of Lamech shall be protected seventy 
 times seven. Lamech was the last lineal descendant of 
 Cain mentioned in the Scriptures ; so that we have the 
 remarkable fact that the very first thing known of Cain 
 is the murder of his brother, and the very last thing re- 
 lated of his posterity is the slaying of a young man per- 
 haps quite as unnecessarily ; for we have no testimony 
 but Lamech's in the case. The act of manslaughter 
 may have been committed in self-defence against an in- 
 dividual or a marauding party, who had set upon him, 
 or, he may himself have provoked or begun the contest, 
 in such a manner, as to make it actual murder. 
 
 Now this reasoning of Lamech was very natural ; 
 and God, we may suppose, was willing to permit the ex- 
 periment of such mildness, in order to demonstrate more 
 fully the monstrous wickedness of men. The demon- 
 stration was terrific ; the earth was filled with violence ; 
 
POSTDILUVIAN PENALTIES. 167 
 
 the deluge followed, sweeping the earth of its corrupt in- 
 habitants ; and now, with Noah as the world's second 
 progenitor, God was determined to establish a code of 
 laws of more efficient and salutary severity. It was as 
 if he had said to Noah and his sons, Fear not, although 
 ye know, and tremble to remember, the violence that has 
 hitherto filled the world of the ungodly, the dreadful 
 carelessness of life that has prevailed, and the dreadful 
 scenes of destruction that were enacted habitually. It 
 shall be so no more. If there be a Cain in your poster- 
 ity, he shall be slain for the life of his brother. Whoso 
 sheddeth man's blood, by man shall his blood be shed. 
 Whoso defaces and destroys by violence in the person 
 of his brother the image of his Maker, shall himself be 
 put to death without mercy. 
 
 Here it should be remarked that we do not need this 
 antediluvian argument to strengthen our conviction of 
 the wisdom of this statute, or to protect its reason from 
 cavil. Neither is it necessary that we should know the 
 cause of its not having been promulgated as early as 
 the first murder. Its intrinsic reasonableness carries ail 
 appeal to the human mind ; and moreover, Jehovah has 
 condescended to annex to it the highest possible reason 
 that could be supposed or given ; neither can our igno- 
 rance of the reason why an ordinance based on such 
 perpetual grounds was not promulgated at a previous 
 period weaken the nature of such grounds in our esti- 
 mation, our diminish our sense of the intrinsic reason- 
 ableness of such an ordinance. If it did, we might also 
 
168 CAPITAL PUNISHMENT. 
 
 say that the late promulgation of the Christian Religion 
 to the Gentile world was a proof that it is not of univer 
 sal necessity, nor of scriptural excellence, for that, if it 
 had been, it would assuredly have been promulgated to 
 all the world much earlier, which reasoning would be a 
 most presumptuous and daring arraignment of the wis- 
 dom and goodness of God. 
 
 The ordinance thus established at the commencement 
 and foundation of society, was evidently and pre-emi- 
 nently an institution of benevolence. God's design in 
 it was one of love to his creatures. Every part of the 
 divine covenant with Noah is marked with mercy, as if 
 the divine justice had been fully displayed and vindicated 
 with earth's cleansing by the deluge, and now again God 
 had nothing to do but to bless his creatures, as at the be- 
 ginning of creation, and to form institutions, and reveal 
 promises for their good. As an institution of benevo- 
 lence this ordinance was first promulgated as an institu- 
 tion of benevolence it has been continued for the, welfare 
 of the human community ; to make the life of man a 
 sacred charge committed for safe-keeping not only to 
 every individual, but to organized human society. The 
 attempt to fix upon it the stigma of cruelty, the reproach 
 of being the offspring of a hard-hearted age and people, 
 cannot but be regarded as an extremely presumptuous and 
 insolent judgment of the divine wisdom ; a judgment 
 founded on no better grounds than those with which some 
 men would arraign the Supreme wisdom and benevolence 
 at the bar of ignorance, prejudice, and unbelief in this 
 
BENEVOLENCE OF THE STATUTE. 169 
 
 world, because the punishment of eternal death is affixed 
 to the violation of the Divine Law by Jehovah. 
 
 In the case of Noah, it was not a race of savages for 
 whom God was legislating ; it was the germ of a refined 
 people, a cluster of families with all the refinement and 
 knowledge of the Antediluvian world. If some two or 
 three English families of education and refinement, the 
 father and ruler of their households being eminently a 
 man of God, should be placed upon *t desert island to 
 colonize it, the laws which should be framed for its gov- 
 ernment would assuredly not be promulgated for a race 
 of barbarians ; they would not be devised on the suppo- 
 sition that the posterity of these families would be sav- 
 age, ignorant and ferocious. They would be framed to 
 prevent the possibility of such a race existing. They 
 would be of a nature suited and intended to secure 
 the happiness of a society of intelligent men and 
 women. And such were the laws which God framed 
 for the world's government under Noah : laws adapt- 
 ed to the world in its best state, and which will re- 
 main in the period of its greatest glory. They were, 
 in point of fact, made and issued when there was a 
 greater proportion of religion in the world, than there 
 has been at any period since. Perhaps three fourths of 
 the world's inhabitants were sincere Christians ; nor is 
 the use of the word Christians an anachronism ; for 
 Noah, like Abraham, saw Christ's day, and believed in 
 the foreshadowed atonement. This grand Noachic or- 
 dinance, therefore, far from being the product or the ne- 
 16 
 
170 CAPITAL PUNISHMENT. 
 
 cessity of an uncultivated and irreligious age, was rather 
 the offspring and the excellence of cultivation and of 
 piety ; it was the gift of God to a Christianized Human- 
 ity. It was God's bow, set in the angry clouds of hu- 
 man passion, binding and restraining them ; revealing 
 God in the same attit^3 of mercy, as when, to calm the 
 fears of the gratefuj^Rl admiring patriarch, he spanned 
 the threatening naa^K of the storm with the lovely 
 colours of the rpjJKw erecting, in this ordinance, 
 a sign of peace arid* order for the moral world, as full 
 of beauty and security, as the rainbow for the natural 
 world. 
 
 There is a deplorable disregard of truth, as well as a 
 surprising degree of ignorance, in much of the decla- 
 mation against this statute. What se^^W* references 
 men are often found making to a supposed barbarous 
 state of the world, which may have made this statute 
 necessary, though a more refined state of existence 
 would render it unnecessary ! It can only be inconse- 
 quent, inaccurate, and forgetful reasoners, who will be 
 deluded by such declaimers. Not only was this law 
 first given forth while there was a greater proportion 
 both of piety and wisdom in the world than there has 
 ever been since, but it was re-enacted many centuries 
 afterwards, still more explicitly, for the wisest, most re- 
 fined and religious community in the world's history. 
 
 We have said that the design of the Deity in this 
 enactment was evidently a design of love ; we may now 
 add that the attempt to take away the sanction of the 
 
BENEVOLENCE OF THE STATUTE. 171 
 
 penalty of death, whether from the human or the divine 
 government, is not an attempt of mercy, but against 
 mercy, against the highest purposes and views of the 
 divine goodness. We know well who it was that in the 
 beginning attempted to persuade the parents of the hu- 
 man race that no such penalty as that of death for the 
 violation of law existed ; it was no benevolence in him 
 that led to the denial of this penalty, neither is it benev- 
 olence that in our time would lead to its abrogation. It 
 was good and benevolent in God to affix to human law 
 by divine authority, the highest penalty, of which, in 
 the nature of things, human law is susceptible. That 
 penalty is death. Its annexation to law in this world 
 was an act of wisdom and goodness. It foreshadows 
 and proves by analogy the principles of the divine gov- 
 ernment in eternity. As the highest penalty possible in 
 the nature of things is annexed to the highest violation 
 of law in this world, so, and with equal wisdom and 
 goodness, the highest penalty possible in the nature of 
 things is annexed to the violation of the divine law in 
 eternity. Man can kill the body, and it is all that he 
 can do; but God can destroy both soul and body in 
 hell. 
 
CHAPTER VIII. 
 
 ARGUMENT FROM SCRIPTURE CONNECTED WITH THE ARGUMENT FROM 
 EXPEDIENCY. WISDOM AND NECESSITY OF THIS ORDINANCE. COM- 
 MONNESS OF THE SPIRIT OF CAIN IN HUMAN SOCIETY. 
 
 WE are now to consider the wisdom and necessity of 
 this ordinance. So far as facts in past ages can teach 
 us, we take this to have been clearly demonstrated in 
 the experience of the world before the flood, so that it 
 was not consistent with the wisdom and goodness of 
 God to repeat the experiment made with the .progeny 
 of the first murderer. The lenity that ,charaeteri- 
 zed the divine dealings with Cain in the Old World 
 would have been misplaced if continued in the New. 
 In order to prevent society from running the same race 
 of wickedness, a different order of things was neces- 
 sary ; a different period of life, a different code of law T s, 
 a different set of institutions.. We cannot indeed tell 
 with absolute certainty what might have been the result, 
 if God had not set up the barrier of this enactment, but 
 it is probable that there would have been less and less 
 regard to the sacredness of human life, and men's pas- 
 sions would have increased with indulgence, till it 
 would have become a customary thing, for the gratifica- 
 tion of malice, to take life with very little provocation* 
 
SECURITY OF SOCIETY. 173 
 
 Men would have stabbed and killed one another, in a 
 sudden fit of anger, or for the execution of some cher- 
 ished spite, with as much freedom and commonness as 
 they would kill a noxious animal. " Am I my brother's 
 keeper ? Who shall call me to account ?" It is to be 
 remembered that the very first crime on record after the 
 fall is that of murder, and not only so, but the murder 
 of one's own brother ; and as we have no reason to be- 
 lieve that Cain, as a specimen of humanity, was any 
 worse than his descendants, and on the contrary are as- 
 sured by divine authority that the spirit of murder 
 dwells in the heart of every man that loveth not his 
 brother according to the gospel, it is probable that mur- 
 der was frightfully common in the antediluvian world ; 
 it is probable that it would have been quite as common 
 in the world after the deluge, if God had not set this 
 barrier against it. No man can tell how much of its 
 peace and security society owes to this very ordinance, 
 how much of the fearfulness that now invests the crime 
 of murder, and of the horror with which all men regard 
 it, has been thrown around it by God's annexing to it 
 this awful penalty. Those who desire the abrogation 
 of this law, and reason against it because of its severity, 
 can have little conception of the state in which society 
 would now have been existing, if from the beginning of 
 the world there had been no such divine enactment. 
 
 Neither can it be told how greatly the absence or the 
 abrogation of this law would have weakened the force 
 of all other penalties, each lower penalty suffering in its 
 16* 
 
174 CAPITAL PUNISHMENT. 
 
 degree, and all together being shorn of that awful pow- 
 er, which invests the functions of Law, when the dread 
 alternative of life, or death, the power of the sword, in 
 the language of the apostle, stands ministering to its 
 judgments. 
 
 The brief, dark, stern account of the first murder is 
 terrible in its warnings and its lessons. It shows four 
 things ; the fatuity and sullen insensibility of the mur- 
 derer ; the intolerable deadliness of his crime ; the 
 certainty of its discovery and punishment ; and the 
 nativeness of the spirit of murder. The fatuity of this 
 guilt is one of its peculiar characteristics ; a man under 
 the influence of a guilty conscience loses his common 
 sense, and becomes mad, blind, foolish. Murder be- 
 trays itself sometimes by its insane anxiety for conceal- 
 ment. The manner of Cain's answer might have made 
 it evident to any person that he was the murderer. In 
 all probability he had been hiding Abel's body. This 
 would naturally be his first step after killing him. He 
 would hastily dig a pit in the ground, or at least drag 
 the corpse of his murdered brother into the woods, and 
 cover it with leaves and branches ; and as he did not 
 think of the interposition of God in the discovery and 
 punishment of his crime, he might have expected to 
 keep it concealed from every creature. He had a ready 
 falsehood for his father and mother, if they had inquired 
 after their murdered son. And the same falsehood was 
 just as ready for God. " And the Lord said unto Cain, 
 Where is Abel thy brother ? And he said, I know not : 
 
THE FIRST MURDERER. 175 
 
 am I my brother's keeper?" And yet the murderer 
 could scarcely have had time to wash the stains of his 
 brother's blood from his own hands, and to cleanse his 
 raiment. There he stood before God, pale and trem- 
 bling, with hell in his soul, the first murderer and the 
 first liar ! 
 
 " And God said, What hast thou done ? the voice of 
 thy brother's blood crieth unto me from the ground. 
 Thou art cursed from the earth, which hath opened her 
 mouth to receive thy brother's blood from thy hand." 
 This most striking declaration finds a solemn commen- 
 tary in that passage from the book of Numbers already 
 quoted. It shows that there is that ingredient in the 
 crime of murder, which will not suffer God to rest till it 
 be expiated. But the spirit of Cain, and the common- 
 ness of Cain's answer in this selfish world, is that which 
 touches most sharply the present tenor of our argument. 
 Am I my brother's keeper ? There was as much mur- 
 der in Cain's answer as there had been in Cain's ac- 
 tions. But this is not all. It embodies the spirit of the 
 world in opposition to the spirit of the gospel, the spirit 
 of selfishness in opposition to the spirit of benevolence, 
 the spirit of hatred in opposition to the spirit of love. 
 The same spirit which makes Cain the questioner, will, 
 in appropriate circumstances, constitute Cain the mur- 
 derer. A man who will ask, Am I my brother's keep- 
 er ? will rise up in the field against his brother, and 
 slay him. Hence the necessity of the terrible severity 
 >f the divine ordinance against this crime. 
 
176 CAPITAL PUNISH 
 
 Am I my brother's keeper ? Yes ! thou art thy broth 
 er's keeper. On the gospel scheme thou art ; by the 
 law of God thou art; for thou shalt love thy neighbour 
 as thyself. If thou art thine own keeper, thou art also 
 thy brother's keeper : and in the highest and most 
 sacred point, this ordinance is designed to show it : this 
 ordinance was necessary as the safeguard of this truth, 
 Thou art thy brother's keeper. 
 
 We therefore take the necessity of Capital Punish- 
 ment to have been very clearly .demonstrated by men's 
 experience before the deluge. We can hardly suppose 
 that unless God had found it necessary for the well-be- 
 ing of society, he would have increased the severity of 
 any enactment ; and his placing this enactment the 
 very first thing after the deluge in the fore-front of all 
 legislation, does, of itself, argue a necessity growing out 
 of the very elements of human depravity. If neces- 
 sary for the good of society, then was it also benevolent 
 and wise ; and its terrible severity, which by some is 
 made the grand argument against it, is the very proof 
 of its wisdom. All those arguments which go to show 
 its cruelty, so called, go to show its wisdom, for they 
 show its efficacy. This would not be the case, if the 
 punishment were unjust, were contrary to men's natural 
 ideas of justice. This it is not ; the experience of all 
 murderers, and the testimony of all men's consciences 
 from Cain downwards prove that it is not. If the pun- 
 ishment were unjust, then, the greater its severity ; the 
 
WISDOM OF THE PENALTY. 177 
 
 greater its injustice ; but admit the , enormity of the 
 crime and the justice of the punishment, and then every 
 powerful colouring, in which you depict its severity, 
 shows more clearly its wisdom, for it shows it to be the 
 more perfectly adapted to the end you have in view. 
 
CHAPTER IX. 
 
 ARGUMENT FROM EXPEDIENCY CONTINUED. CONSENTANEOUSNESS OF 
 
 THE LAW OF NATURE WITH THIS ENACTMENT. THE POWER OF CON- 
 SCIENCE, AND THE NECESSITY OF RIGHTEOUS LAW TO SUSTAIN IT. 
 
 IT is important to dwell for a moment on the consen- 
 taneousness of the law of nature with this enactment. 
 We speak now of the spontaneous and natural opinion 
 of mankind as in all ages developed. The universality 
 of the sentiment in the soul of man respecting the jus- 
 tice and necessity of the punishment of death for mur- 
 der is such, that we might well regard it as a part of 
 the Law of God written on the heart : the common 
 thoughts and usages of nations, even in the light of na- 
 ture merely, would go far to corroborate this opinion. 
 The experience of Cain himself, in the commencement, 
 sheds a singularly powerful light on this part of the sub- 
 ject. His conscience told him, before either his crime, 
 or any law against it, or for the avenging of it, had been 
 promulgated, that he was worthy of death ; worthy of 
 the same last evil, which he himself, in his enormous 
 iniquity, had inflicted on his own brother : the very fore- 
 boding of his soul within him declared that all mankind 
 would seek to kill him ; and it would seem that in order 
 to avoid this, it was necessary to resort to some particu- 
 lar edict in defence of Cain, This deep horror of the 
 
POWER OF CONSCIENCE. 179 
 
 crime of murder, and this inwrought image and predic- 
 tion of avenging justice, supported by the voice of God, 
 has been developed wherever men have grown into com- 
 munities. We have an instance of this, of very peculiar 
 interest and power in the " barbarous people," who, 
 though the majesty and dignity of Rome called them 
 barbarous, like all foreigners, showed so much courtesy 
 and kindness to Paul after his shipwreck. " No doubt," 
 said they among themselves, when they saw the venom- 
 ous viper, from the fire which he had kindled, hanging 
 on his arm, " No doubt this man is A MURDERER, whom 
 though he hath escaped the sea, yet vengeance sufFereth 
 not to live."* This is indeed very striking. This venge- 
 ance, h 3i K ri, this divine justice, had a strong place in the 
 convictions of the anoients, and the sentiment here ex- 
 pressed in regard to the guilt and just desert of murder 
 it would seem is the natural sentiment of the heart ; a 
 sentiment which, stamped by the divine sanction, is 
 proved to be as just as it is natural ; though, if not sup- 
 ported by the divine authority, it is evident that it would 
 soon lose its power, and become obliterated. The natu- 
 ral conscience of mankind gets exceedingly darkened 
 and corrupted without the light of revelation ; and our 
 sense of the enormity of any crime may be greatly 
 moulded by the nature of the penalty annexed to it ; so 
 that, in the course of ages, supposing the penalty of 
 death had never been connected by the Almighty with 
 this crime, we might have come to consider its iniquity 
 as very slight. 
 
180 CAPITAL PUNISHMENT. 
 
 The reason for this mysterious depth and intensity of 
 feeling in regard to the nature of justice in the case of a 
 murderer is to be found partly in the fact that the crime 
 of murder is itself the climax and concentration of all 
 malice, in the violation of the great law of love, on 
 which hang all the law and the prophets. 
 
 The offence is rank ; it smells to Heaven, 
 
 It hath the primal eldest curse upon it. 
 
 Hence the universal conviction that murder cannot be 
 concealed ; 
 
 Those dread Beliefs, coiled serpent-like about 
 The adage on each tongue, MURDER WILL OUT. 
 
 God forbid the legislation, that should weaken the pro- 
 tecting power of these inward prophets and ministers of 
 justice ! " The voice of thy brother's blood crieth unto 
 me from the ground !" The whole creation of God 
 seems to array itself against the offender ; the elements 
 scowl and darken upon him ; the air is " with dreadful 
 faces thronged." 
 
 The fiends in his own bosom people air 
 With kindred fiends, that hunt him to despair. 
 
 The feeling of sure discovery and retribution follows the 
 murderer himself the world over ; and the very image 
 of his iniquity, the " damned spot," which he cannot 
 wash out, the bloody dagger which he sees before him, 
 draws him to the sufferance of its penalty. 
 
POWER OF CONSCIENCE. 181 
 
 The ERINNYS of the ancients, their EUMENIDES with 
 serpent-wreathed heads, is a creation of the mind of 
 man, which speaks volumes as to the predictive truth 
 and power of the human conscience. The etymology 
 of the word from "Ept? and Nofc the strife or fury of the 
 mind, is a tremendous revelation.* It opens up at once, 
 to any man whose thoughts will pursue it, the whole doc- 
 trine of an internal hell in the unquenched elements of 
 human passion. Some of the most remarkable passages 
 in classical literature, in which the ministry of the Fu- 
 ries is introduced, are those connected with this very 
 crime of murder as the occasion of the sentiment. There 
 is a striking similarity between the descriptions in heathen 
 writers and those in the Scriptures themselves in regard 
 to the just providence of God making inquisition and ex- 
 ecuting vengeance for blood. " For this," says the 
 prophet Tiresias to Creon, in the Antigone of Sophocles, 
 " For this are the Furies of Hell and of the gods, pursuers 
 with penal vengeance, lying in wait for thee, that thou 
 mayest be insnared in the very same misfortunes. "f 
 
 * These, says the poet Gray, alluding perhaps to this very deriva- 
 tion of the word, and contemplating a group of youthful beings : 
 These shall the vulture passions tear, 
 The FURIES of the mind ! 
 
 t SFv^iJi' r' dri'^Wf iv rd<pM KaTumaas' 
 
 * * * * 
 
 Tolfrwi' at \o){3rjrripts {xTrcpotydopot 
 Xo^cDcrtj/ 'At(Jov Kal deuv 'Egttvvve?, 
 / Tolatv avTois rotate \ij<pQfjvai. 
 
 Antigone of Sophocles, 1064-1076. 
 
 17 
 
182 CAPITAL PUNISHMENT. 
 
 To this purpose may be noted the irpfyavTis At*a and the 
 xa\KOTrov S 'Epivvvs of the Electra ; this expression of pro- 
 phetic justice conveying, to any mind that will reflect 
 upon it, a great and high idea beyond that which is or- 
 dinarily attached to the signification of the word in hu- 
 man society.* The highest idea of justice is a prophetic 
 idea, pointing to a future retribution. 
 
 That is a powerful passage in which Webster has de- 
 picted the workings of the murderer's conscience, the 
 impossibility of hiding his crime. " The whole creation 
 of God has neither nook nor corner where the guilty 
 can bestow such a secret, and say it is safe. The guilty 
 soul cannot keep its own secret. It is false to itself; or 
 rather, it feels an irresistible impulse of conscience to be 
 true to itself. It labours under its guilty possession, and 
 knows not what to do with it. The human heart was 
 
 The Hebrew idea of the pollution of the land by Wood, in the view 
 of the Deity, and of the necessity of expiating it by blood again, is 
 exhibited in the Oedipus Tyrannus of Sophocles. See from the 95th 
 line to the 14!st. 
 
 " Homicidse plerumque poenas luuiit coedis," says Le Clerc, " seu 
 in judicum maims incidant, seu justa Dei providentia, violenta nece 
 intereant." He quotes JEschylus in the Agamemnon : 
 Twi/ TToXwroVwj/ yap 
 
 OVK OLffKOKOt Qtoi * 
 
 The gods have their eyes upon bloody men ; they are not wanting 
 in vigilance. The black Furies hurry them to darkness, Le Cierc 
 in Gen. IX. Commentarius, p. 79. 
 * The Electra, Chorus 473-515. 
 
TESTIMONY OF CONSCIENCE. 183 
 
 not made for the residence of such an inhabitant. It 
 finds itself preyed on by a torment, which it dares not 
 acknowledge to God or man. A vulture is devouring it, 
 and it can ask no sympathy or assistance, either from 
 Heaven or earth. The secret which the murderer pos- 
 sesses soon comes to possess him, and like the -evil spirits 
 of which we read, it overcomes him, and leads him 
 whithersoever it will. He feels it beating at his heart, 
 rising to his throat, and demanding disclosure. He 
 thinks the whole world sees it in his face, reads it in 
 his eyes, and almost hears its workings in the very si- 
 lence of his thoughts. It has become his master. It 
 betrays his discretion, it breaks down his courage, it con- 
 quers his prudence. When suspicions from without be- 
 gin to embarrass him, and the net of circumstances to 
 entangle him, the fatal secret struggles with still greater 
 violence to burst forth. It must be confessed, it will be 
 confessed ; there is no refuge from confession but suicide, 
 and suicide is confession."* 
 
 Ye brood of Conscience, Spectres ! that frequent 
 
 The bad man's restless walk, and haunt his bed, 
 
 Fiends in your aspect, yet beneficent 
 
 In act, as hovering angels when they spread 
 
 Their wings to guard the unconscious innocent ! 
 
 Slow be the statutes of the law to share 
 
 A laxity that could not but impair 
 
 Your power to punish crime, and so prevent. 
 
 * WEBSTER : Argument on the trial of Knapp. Speeches, Vol. 
 I., p. 452. 
 
184 CAPITAL PUNISHMENT. 
 
 And ye, Beliefs ! coiled serpent-like, about 
 The adage on all tongues, Murder will out ! 
 How shall your ancient warnings work for good, 
 In the full might they hitherto have shown, 
 If for deliberate shedder of man's blood 
 Survive not judgment that requires his own? 
 
 WORDSWORTH. 
 
CHAPTER X. 
 
 OBJECTS OF THE PUNISHMENT OF CRIME. WHAT CONSTITUTES THE 
 
 PERFECTION OF CRIMINAL JURISPRUDENCE ? THE THEORIES OF GOD- 
 WIN AND HUME. DIFFERENCE BETWEEN JUSTICE AND REVENGE. 
 
 IT is necessary for a moment to consider what is the 
 object we are seeking in the punishment of crime in this 
 world, and what, consequently, would be the perfection 
 of criminal jurisprudence. The punishment of crime 
 in a world of probation we believe to have three ends ; 
 justice, the good of society, and the reformation of the 
 offender. That there is such a thing as justice, separate 
 from the other aims of penalty, can be clearly demon- 
 strated. The very word conveys an idea which is not 
 to be confounded, or lost sight of, in the expediency of 
 Law ; the word Justice does not mean the same as the 
 word expediency ; men sometimes forget the latter, and 
 have their minds solely fastened on the righteousness of 
 the former. Some crimes are so enormous, so brutal, 4 
 so shocking, so cruel, that the whole moral sense of the 
 community rouses up against them, and calls for penal 
 infliction ; it is not the spirit of retaliation, it is no per- 
 sonal malice, no feeling of ill-will that gives utterance 
 to this call ; it is justice that is demanded, the intuitive, 
 spontaneous expression of the moral sense of what is 
 17* 
 
186 CAPITAL PUNISHMENT. 
 
 proper and right ; and the good of society and the ref- 
 ormation of the offender are forgotten in the urgency 
 ^of this demand. 
 
 This feeling of the nature and necessity of justice is 
 developed individually still more clearly than in the 
 moral sense of the community. No man with right 
 feelings ever sees a man that is unjust and cruel even 
 to his beast, without wishing to punish him ; if you see 
 a waggoner in the street needlessly beating his horse, 
 you will wish to beat the waggoner ; no man ever sees 
 a brute in the shape of a man wantonly inflicting vio- 
 lence upon his brother man, but feels that he ought 
 to be punished ; and yet there is no vengeance in 
 this sentiment, nor any idea of restitution, nor any par- 
 ticular thoughtfulness for the good of society, but a 
 deep, spontaneous feeling that the man deserves punish- 
 ment, that it is an outrage on the moral sense to let him 
 go" without it, that he himself ought to be made to feel 
 the wickedness of his conduct. This is especially the 
 case, if the man be hardened, sullen, and obstinate ; if 
 he show sorrow and contrition, there is a very different 
 feeling ; contrition itself, as showing that the man is 
 pained and suffering for his crime, seems to meet, in 
 some measure, this spontaneous demand for justice. 
 
 We think this view is sustained by Grotius, in a good 
 degree, though he does not pursue it, but confines him- 
 self to the argument from expediency. Nevertheless, 
 he defines punishment as malum passionis, quod infligilur 
 ob malum actionis, evil inflicted, on account of evil com 
 
GROUNDS OF PUNISHMENT. 187 
 
 mitted ; and in the following extract there is a higher 
 ground indicated than that taken by many writers on 
 this subject. 
 
 " Among those things, which Nature herself tells us 
 to be lawful and just, this is one, That he that doeth 
 evil, should suffer evil ; which the philosophers call the 
 most ancient and Rhadamanthean law. To the same 
 purpose is that saying of Plutarch, Tw 0ca> Iverat aw, &c. 
 Justice is the attendant of God to take vengeance 
 of those who transgress the divine law, which all men 
 naturally have recourse to against all men as their fel- 
 low-citizens. And Plato declares that, Neither God nor 
 man ever said this, that he who hath done wrong to an- 
 other, doth not deserve to suffer for it. And Hierax de- 
 scribes justice by this as the noblest part of it, that it is 
 the execution of punishment on those who have first of- 
 fended. And Hierocles calls punishment the medicine 
 of wickedness. And Lactantius says, They are guilty 
 of no small error, who miscall punishment, either hu- 
 man or divine, by the name of bitterness and malice, 
 imagining that he ought to be esteemed guilty, who only 
 punishes the guilty.*" 
 
 The reasoning of many persons on this subject would 
 conduct us to the conclusion that in fact there is no such 
 thing as desert to be considered in human society ; that a 
 man is not punished, or ought not to be punished, because 
 he is guilty, but SOLELY because the punishment is use- 
 
 * GROTJUS : De Jure Belli ac Pacis. Lib. II. Cap. 20. 1. See 
 also what Grotius says of Justice, Book I. Chap. 9. 
 
188 CAPITAL PUNISHMENT. 
 
 ful, and therefore that no man ought to be punished from 
 respect to what is past, but solely from regard to the fu- 
 ture. This is the argument pursued by Hume ;* but 
 Godwin carries it out more fully. It is the result to 
 which all must come, who deny the propriety of punish- 
 ing a man simply because he deserves to be punished. 
 Godwin argues that, strictly speaking, there is no such 
 thing as. desert ; it is a chimerical idea ; and therefore 
 the common idea of punishment is altogether incon- 
 sistent with right reasoning. The infliction should bear 
 no reference to a man's innocence or guilt. An inno- 
 cent person is the proper subject of the infliction of suf- 
 fering if it tend to good. A guilty person is the proper 
 subject of it under no other point of view.f 
 
 Now it is not requisite to hold to this writer's system 
 of Necessity, in order to come to this absurd conclusion ; 
 for if the utility of punishment be absolutely the SOLE 
 ground of its infliction, the only reason why it is just 
 and proper to inflict it, then this conclusion is perfectly 
 correct. And if our courts of justice could take per- 
 fect cognizance of future results, so as to be sure that in 
 any given case this method would on the whole be pro- 
 ductive of the greatest good, they ought to punish the 
 innocent just as much as the guilty. This monstrous 
 proposition is just a fair result of shutting out the idea 
 of simple justice in view of desert, as one of the ends 
 of penal infliction. This end, let it be remembered, is 
 
 * HUME : Philosophical Essays. Principles of Morals, Sec. 3. 
 t GODWIN: Political Justice, Book VIL Chap. 1. 
 
JUSTICE IN PUNISHMENT. 189 
 
 not revenge, embraces in itself nothing of the idea of 
 revenge or of a revengeful spirit ; although it is one of 
 the most common pieces of sophistry to argue against the 
 punishment of death for murder as if it were revenge- 
 ful and on that account barbarous, when it has no more 
 of a vengeance in it, than imprisonment for life, or any 
 other penal infliction. It has j ustice, and, so has every 
 appropriate penal infliction ; and the moral sense of the 
 human mind intuitively demands and regards justice as 
 one of the objects of such infliction ; a truth which we 
 think every reflecting mind must acknowledge, if it be 
 not blinded by a system of philosophy founded solely in 
 expediency. 
 
 This requisition of justice by the moral sense has a 
 development in reference to nations as well as individu- 
 als : and in this direction sometimes it may be seen more 
 clearly how distinct is this sentiment both from that of 
 retaliation on the one side and expediency on the other. 
 There is scarcely an individual, for example, who would 
 not be glad to see the government of France humbled 
 and severely punished for the atrocious iniquity of her 
 war against Tahiti. We should rejoice to see her com- 
 pelled to restore fourfold for the injury done in her pride 
 of power, to an entirely unoffending and defenceless na- 
 tion. This is the sentiment of justice ; it is the sponta- 
 neous demand for it in the human mind. 
 
 Other crimes again are so dangerous, that the sense 
 of the community and the aim of the law fasten mostly 
 on the good of society ; so that neither justice, as we 
 
190 CAPITAL PUNISHMENT. 
 
 have spoken of it, nor the good of the offender, are much 
 thought of. The good of society indeed will be ac- 
 knowledged by all to be the great important aim of Law 
 and its penalties in a human government. The good of 
 society comprehends several things which have some- 
 times been enumerated as separate ends of penalty ; res- 
 titution to men defrauded or injured, the support of law 
 in its dignity, the strength of the government, the confir- 
 mation and support of virtue, and the restraint of vice. 
 
 Other crimes, again, are of such a nature, or com- 
 mitted under such circumstances, that the reformation of 
 the offender may be the principal thing for which pun- 
 ishment is regarded. But it is evident that there are 
 crimes so dreadful, as to make it necessary that justice 
 and the good of society solely shall be considered. 
 
 If now all these three ends of the punishment of crime 
 could be always attained together, it would be the very 
 perfection of criminal jurisprudence ; but it is very far 
 from being the perfection of criminal jurisprudence to 
 have it as mild as possible. There are ends to be attain* 
 ed much higher and more important than that of mild- 
 ness and benevolence to the offender. 
 
 Yet even in the punishment of a murderer by death 
 it is possible to unite all the three objects of the law, 
 justice, the good of society, and tho reformation of the 
 offender. Not indeed his reformation in point of moral 
 ity merely, or his living a moral life as a correct mem 
 ber of society ; for this the alternative of perpetual im- 
 prisonment contemplates as an impossibility, even if th* 
 
ENDS OF PUNISHMENT. 191 
 
 punishment of death were abolished ; jiiitJ^s^spintuj 
 and eternal reformation, his repentance towards God, a 
 deep and holy change in his character, the pardon of his 
 sins through faith in the blood of his Saviour, and a pre- 
 paration to meet God and be blessed in his presence. 
 This the sparing of his life in imprisonment might utter- 
 ly prevent, when the sentence of death might have been 
 the means of a hardened criminal's conversion. 
 
CHAPTER XL 
 
 THE ENDS OF PUNISHMENT FURTHER CONSIDERED. FALSE VIEW OP 
 
 THE MATTER. DIFFERENCE BETWEEN PUNISHMENT IN THIS LIFE 
 
 AND IN THE LIFE TO COME. 
 
 IT is one of the greatest mistakes, both for this world 
 and for Eternity, to suppose, as some of the oppugners 
 of the penalty of death for murder contend, that punish- 
 ment is always or exclusively designed for reformation. 
 That it is not so, the common sense of all mankind 
 avows. It is well known that penal laws, with their 
 sanctions, contemplate not reformation, but punishment. 
 Punishment is the end ; the effort at reformation is sub- 
 servient and secondary. The penalty of violated law is 
 suffering, not reformation. If it were not suffering, if it 
 were not severity to the offender, if it were mere ref- 
 ormation, it could not be called penalty. What sort of 
 logic would it be to say to the thief, You shall pay the 
 penalty of your crime by being reformed, or to the 
 murderer, You shall atone for your violation of the high- 
 est law, human and divine, by being made good and hap- 
 py ? Penalty is suffering, and suffering is inflicted as 
 punishment, for the benefit of society, and not for the 
 benefit of the criminal. The reformation of the crim- 
 inal is an effort separate and distinct from the satisfac- 
 
DESERT AND JUSTICE. / 193 
 
 ............ 
 
 tion of justice, and the security of the community. It 
 is an effort of wisdom and mercy, to come in along with, 
 and after, and also by means of, the punishment, but it 
 is not the final cause of the punishment. The words 
 desert, justice, punishment, convey ideas over and above 
 the idea of utility. We do not punish because it is use- 
 ful, but because it is deserved and just ; and being de- 
 served and just, it cannot but be useful. There can be 
 no doubt that punishment, even in this world, is some- 
 times called for, apart from the question whether it be 
 useful or not. Indeed, there is sometimes a demand in 
 the bosom of the guilty person himself, for punishment, 
 and a sort of satisfaction beneath the punishment, as if 
 a necessary law of the human mind, apart from all con- 
 siderations of utility, were complied with. No doubt 
 such a law exists, in regard to retribution for sin ; and 
 though there can be no conceivable case in which such 
 retribution is not useful, still the human mind, in its 
 judgment of the matter, does not base the necessity of 
 retribution upon its usefulness, but upon its justice. Its 
 intrinsic justice is the ground of its utility ; its utility is 
 not the ground of its justice. 
 
 Every possible effort ought to be made to reform the 
 criminal, but he is not to be taught that he is punished 
 solely for his* own good, this being a perfect lie in the 
 face of all legislation, human and divine. If his refor- 
 mation were the end of his punishment, then the moment 
 he repents he should be restored. The murderer should 
 come back to society with all the esteem and happiness, 
 
 s 
 
194 CAPITAL PUNISHMENT. 
 
 which an innocent man could enjoy. But God teaches, 
 and human legislation, under God, teaches, that punish- 
 ment is the just and necessary vindication for the viola- 
 tion of righteous law. It is such in this world, it is 
 such, also, in the Eternal World.. Punishment in the 
 Eternal World must be, with respect to the individ- 
 ual, the work of Justice solely. Punishment in this 
 world would also be the work of Justice solely, without 
 possibility of any effort at the reformation or restoration 
 of the offender, if it were not for the intervention of the 
 grand and infinitely merciful atonement for sin by the 
 sufferings and death of Jesus Christ. This holds the 
 violator of law in a world of probation in such a position 
 of mercy, that while punishment is inflicted as justice, 
 it may also be turned into a medicine of reclaiming 
 love ; it may be attended and followed by all possible 
 efforts to soften the heart and bring the criminal to re- 
 pentance. 
 
 There is, then, this mighty difference between punish- 
 ment in this life, and punishment in the life to come. I 
 have mentioned three ends to be attained in this life, but 
 there are only two, which are possible in Eternity. 
 Justice, and the good of God's universe, are all that can 
 be consulted there. The reformation of the offender is 
 tried in this world, has in every case been tried, and if 
 without success here, then there remains no more effort 
 to be made hereafter. Even if such effort could be 
 made in Eternity, it would be useless. But it cannot 
 be made. This is our world of probation, and there is 
 
PUNISHMENT HERE AND HEREAFTER. 195 
 
 none other. In the future life there remaineth no more 
 sacrifice for sin, and the efficacy of the system of Re- 
 demption, in suspending the sword of Divine Justice from 
 the unrepentant guilty, lasts no longer than the limits of 
 this life ; it extends not into eternity. It was not made 
 for eternity, but to prepare men for eternity, to save men 
 from eternal perdition, and if it fails in that, by the 
 offender continuing unreclaimed through all the period 
 in which he might be reclaimed, it has no more that it 
 can do, and punishment for the ends of justice and the 
 good of the universe is the only thing that can follow. 
 These are truths that commend themselves as perfectly 
 to the human reason, as they show themselves clearly 
 in the Divine Revelation; but they cut men off com. 
 pletely from the theory that the sole end of punishmenl 
 is reformation. 
 
 
CHAPTER XII. 
 
 TEARFULNESS AND EFFICACY OF THE PUNISHMENT BY DEATH. CAUSES 
 
 OF THE DREAD OF DEATH. PROSPECT OF THE GUILTY IN ETERNI- 
 TY. OBJECTION CONSIDERED, OF (?&KTING OFF THE CRIMINAL IN 
 
 HIS SINS. THE ANSWER OF GROTIUSV ANSWER FROM FACT AND . 
 
 EXPERIENCE. ALSO FROM THE DIVINE PROVIDENCE AND FROM EX- 
 PEDIENCY. OBJECTION CONSIDERED, OF THE UNWILLINGNESS OF 
 
 JURIES TO CONVICT IN CASES OF MURDER. 
 
 SOME men argue that punishment by death is not, 
 after all, so severe and terrible, as to make it of all 
 modes of punishment the most efficacious to deter men 
 from crime. It is asserted that hardened villains, for 
 example, fear death very little, and that to some the idea 
 i X of imprisonment for life is far more terrific. Now we do 
 y^ld* not believe there is an individual in existence, who, if the 
 , v" Y0 ( alternative were presented of choice between an v igno i _ 
 tStfi \ minious death and imprisonment for life, would not 
 ^ A choose the latter. There are degrees in the fear of 
 
 & death, and some men are more afraid to die than others, 
 
 whose preparation for death is no better than their own ; 
 but in proportion as the laws are well administered, the 
 tone of moral sentiment healthful, a good common school 
 education prevalent, and the Sabbath well observed in 
 any community, death will be regarded by all as the 
 last and most terrible of punishments to a criminal. 
 
THE DREAD OF DEATH. 197 
 
 Skin for skin, all that a man hath, will he give for his 
 life ; a true proverb, and not the less correct, because 
 uttered by the father of lies, himself a murderer from 
 the beginning. There is no passion so strong as the love 
 of life. The aphorism of Lord Bacon is not true, that 
 " there is no passion so weak but mates and masters it." 
 There is no grasp so tenacious as that with which men 
 hold on to life ; no delusion more powerful, than that 
 which makes them count upon long years of life in store, 
 though living quite unfurnished for the world to come. 
 
 All men think all men mortal but themselves. Hand 
 in hand with this love of life goes the delusion that life 
 will be preserved, even when, for the indulgence of pas- 
 sion, it is hazarded. When a man is under the influence 
 of any passion that is said to " mate and master" the 
 love of life, it is not the loss of life, the issue of death, 
 that the passion contemplates, but the accomplishment of 
 some scheme, the gratification of some desire, that will 
 render life itself more agreeable. The man expects to 
 have his life continued. Because a passion leads a man 
 to incur danger, to put himself in a situation where life 
 may be lost, it proves by no means that the love of life 
 is overcome by the passion ; the passion itself grows out 
 of the love of life, life in a particular desired way. 
 The possibility of dying is not the hazard on which a 
 man stakes the indulgence of his will in this sort of 
 gambling, but the probability of living ; life itself, in 
 greater enjoyment, is his inducement for the stake. 
 
 We remember to have been very much struck with the 
 18* 
 
198 CAPITAL PUNISHMENT. 
 
 death-scene of a celebrated romance-writer in Germany, 
 who, up to the very last, persuaded himself that he 
 should get well, and spent some of his very last moments 
 in dictating the pages of a new novel he was composing. 
 " Only life !" was his exclamation, " this sweet life ! life 
 at any price, life even with suffering, only life, life, 
 life !" True, it is not every one to whom life is so 
 sweet. But there is an immeasurable distance between 
 the highest, sternest, severest punishment and death. 
 Hence, you will rarely find cases of suicide in prison- 
 ers for life ; but when the sentence is that of death, 
 strange as it may seem, sometimes the very horror of 
 death produces self-destruction. 
 
 We have not far to look for the reason of all this. In 
 truth, this powerful love of life, and this extreme terror 
 of death, are because it is not so much the article of 
 death that men fear, as what comes after death ; nor is 
 there any other passion save one, that can subdue the 
 love of life and the fear of death together, that which 
 was the master passion in Paul's bosom, that, from the 
 object of which neither life nor death, things present nor 
 things to come, could separate him. It is appointed unto 
 men once to die, and after that the judgment. It is be- 
 cause men dread the judgment. It is because of that 
 unknown, untried future, which is ETERNITY. It is be- 
 cause men have lived unprepared to meet God, and 
 when death stares them suddenly and unexpectedly in 
 the face, then the reality of an endless retribution bursts 
 upon them. It is because the soul of the guilty is the 
 
19! 
 
 THE DREAD OF DEATH. 199 
 
 prophet of its own misery. It is because its keen vision, 
 outstripping all mortal guesses, darts past the line of des- 
 tiny, pierces the veil, and gazes affrighted on the fore- 
 shadowed picture of the life to come, the reality of death 
 eternal. It is because there is a sleeping voice, so deep 
 down in the recesses of the soul, that though it be stifled 
 almost all through life, yet, when it begins to speak, it 
 upturns and troubles the whole ocean of being from its 
 foundations ; there is no more possibility of hushing 
 those dread accents, of stilling that deep tumultuous 
 roar, of quelling or quieting the clamour of a roused and 
 angry conscience, than of stilling the resurrection trum- 
 pet. For even as that trumpet echoes through the vaults 
 of death, Awake ye dead, and come to judgment, so does 
 that voice, which is ready for utterance in every man's 
 soul, reverberate through its recesses, startling forgotten 
 and dead sins from their slumbers, and pealing before- 
 hand the anticipated sentence. 
 
 Now it is on the ground of this dreadful prospect in 
 Eternity that some men argue that the punishment of '-> 
 death cannot be right, because it sends an immortal soul 
 unprepared into eternity. This is a very solemn con- 
 sideration. But let us place it in the right light, and 
 we shall find that it bears more in favour of punishment 
 by death than against it. We shall find that in taking 
 away this sanction from the majesty of law, we have 
 deprived our criminal jurisprudence of its highest re- 
 generating and sanative influence, and have left it 
 more likely than ever to be the mere usher of impenU 
 
200 CAPITAL PUNISHMENT. 
 
 tent and unprepared men into the presence of their 
 Judge. It may be very powerfully argued that the sen- 
 tence of death is an event, which is more likely than 
 the solitude of the longest life, to rouse up the con- 
 science of a hardened sinner, and set him to crying ear- 
 nestly for mercy from his God ; and if that does not 
 do it, it is almost certain that nothing else will. A man 
 is not sentenced and hurried instantly to the gallows, 
 but space is given for repentance, and if, under such 
 circumstances, the criminal is not awakened, it is little 
 likely that he ever would be. The sentence of death 
 tends powerfully to impress the criminal with a sense 
 of the exceeding enormity of his guilt ; but in the case 
 of the sentence of imprisonment for life, the pressure 
 which the hand of death had laid upon the man's con- 
 science is lightened ; the power that brought him so 
 near to the face of God is broken, and he shrinks back ; 
 the grasp of conviction is relaxed, the soul is again 
 thrown upon its own resources, and its ingenuity is ex- 
 ercised in revolving the possibilities of escape. The 
 time is long ; there are many things that may happen ; 
 a pardon is possible ; there are precedents that greatly 
 favour the idea ; a studied good behaviour may procure 
 a mitigation of the sentence ; at all events, the long in- 
 dulged and powerful habit of religious procrastination 
 need not be so hastily and violently broken up ; there 
 will be time enough for repentance. 
 
 Now it is precisely this grant of time enough for 
 repentance, that is likely to keep the individual from 
 
REPENTANCE OF THE CRIMINAL. 201 
 
 repenting at all ; it is likely to fix in solitude that habit 
 of procrastination, which has become so strong in active 
 life, and so incorporated with the soul's nature by crime. 
 The sacred declaration applies with great power, Be- 
 cause sentence against an evil work is not^e&eculert speed- 
 ily, therefore the heart of the sons of r/teu lisljhuty set 
 in them to do evil.* In view of these truths Wiv turn" * 
 this argument back upon its propounded, beHtfvirlg that 
 the practice of imprisonment for life, should it prevail to 
 the exclusion of the punishment of death, would some- 
 times seal men for perdition in eternity, when the sen- 
 tence of death might have proved the salvation of their 
 souls. 
 
 The learned Grotius has noted and refuted this objec- 
 tion in a passage which, taken with the commentary 
 that we shall append to it from actual experience in 
 Newgate, merits consideration. " Some men are at 
 fault with capital punishment, because with life all op- 
 portunity of repentance is cut off. But they well know 
 that good magistrates have the greatest, vigilance in this 
 matter, that no criminal may be hurried to execution 
 without ample time to acknowledge and heartily detest 
 his sins ; which late repentance, although by reason of 
 death works do not follow it, may be accepted of God, 
 as proves the example of the penitent and pardoned 
 thief upon tha cross. But if men say that a still longer 
 period of life might produce a still deeper repentance, it 
 may be answered that the experiment has often, proved 
 * Eccles. 8:11. 
 
202 CAPITAL PUNISHMENT. 
 
 otherwise: there have been those to whom that pithy 
 and solemn sarcasm of Seneca might have been address- 
 ed, We have one good thing more to offer you, and that is 
 death : and of whom those other words of the same au- 
 thor may b3 'applied, that in that way only can they cease 
 to be wicrced. 1 AYhich is what Eusebius had said before ; 
 sih'oe they 'cannot be reformed by any other means, let 
 " them, tfeing' thus freed from their chains, bid adieu to 
 their villanies."* 
 
 We believe that Seneca's thought is a true one, and 
 that there are cases in which death had been better than 
 life for the spiritual interests of the prisoner. A stri- 
 king confirmation of this is presented in Mr. Edward 
 Gibbon Wakefield's experience in Newgate, detailed in 
 his " Facts relating to the punishment of Death." He 
 says that " the Reverend Mr. Cotton, the ordinary of 
 ^Jgjjigatgj^jvho has been chaplain of the jail for more 
 tharf a dozen years, has often acknowledged to him, that 
 he does not remember an instance of what he considered 
 sincere conversion to religious sentiments, except in pris- 
 oners who were executed. A very great show of relig- 
 ipus fervour is often made by prisoners, even from the 
 moment of their entrance into Newgate, still more after 
 they enter the cells. But in such cases, when the pun- 
 ishment is finally settled at something less than death, 
 the prisoner invariably behaves as if all his religion had 
 been hypocrisy. 79 
 
 The objection we are here speaking of is urged 
 * GROTITTS: De Jure. Lib. II, cap. 20, $ 12. 
 
S?ACE FOR REPENTANCE. 203 
 
 against capital punishment in this world on the ground 
 of the truth of eternal punishment in the world to come. 
 It is, indeed, no objection at all, except upon the undeni- 
 able reality of a future endless retribution. If there 
 were no such retribution, and the unscriptural scheme 
 of some religious speculators were true, then the pun- 
 ishment of crime in this world by death, far from being 
 dreadful or severe, would be the highest favour the law 
 could possibly confer, since it would transfer the crim- 
 inal to a blissful existence from a life of shame and suf- 
 fering. It should be added that the objection, if it pos- 
 sessed any weight at all, would lie as strong against the 
 very first Divine ordination of capital punishment, as 
 against the penal statutes of any modern government. 
 Nay, it would be stronger, because the execution of the 
 penalty of the law doubtless followed more rapidly 
 upon the commission of the crime then, than it does 
 now. But the objection can have no weight against the 
 justice or propriety of a law established by Jehovah, 
 however much force it may have as to the expediency 
 of lengthening the time between the sentence and its 
 execution. When space is given for repentance, and 
 the guilty individual refuses to avail himself of it, then 
 it is not so much the punishment, that hurries him un- 
 prepared into Eternity, as it is his own dreadful choice, 
 the hardness and obstinacy of his own heart, which in- 
 deed, if under such circumstances it cannot be broken 
 up, probably would remain for ever. 
 
 A very admirable notice of this objection appears in 
 
204 CAPITAL PUNISHMENT. 
 
 the pages of a British periodical,* in which the great 
 and venerable poet Wordsworth has brought the wisdom 
 of seventy years, the power of an illustrious name, and 
 the undiminished fire of his imagination to the illustra- 
 tion of this subject. The writer argues that " it is 
 manifest that the sudden death of sinners enters into the 
 dispensations of Providence ; and whenever it appears 
 to be good for mankind, according to the arrangements 
 of Providence, that such death should be inflicted by 
 human ministration, it is as false a humility, as it is a 
 false humanity, and a false piety, for man to refuse to be 
 the instrument. The unwillingness and the objection 
 turns upon the alleged impiety of a sinner being cut off 
 in his sins. Now assuming that we are all sinners, and 
 assuming also the efficiency of the punishment for pre- 
 vention, say to the extent of preventing one half of the 
 murders, which would be committed without it, it fol- 
 lows that the state, by sparing to cut off A, who has 
 murdered B, would be the occasion of C murdering D, 
 and E murdering F ; that is, of two persons being cut 
 off in their sins by the hand of the murderer, instead of 
 one by the hand of the executioner. This is an issue, 
 which human judgment can distinctly reach and take 
 account of, and in respect of which, therefore, God has 
 devolved upon man a responsible agency. " 
 
 This is true ; it is excellent reasoning ; and it not 
 only meets the particular objection we have considered^ 
 
 * London Quarterly Keview, No. CXXXVII. 
 
THE TRUE PRUDENCE. 205 
 
 but it is a sufficient answer to those, who argue the ex- 
 pediency of abolishing capital punishment, from the un- 
 willingness of juries to convict of a capital crime. In 
 the case of the crime of murder, where the Divine Law 
 is so clear, with both Providence and Conscience to sup- 
 port it, the true expediency would be, by a well-ordered * 
 sternness and immutability in the execution of the Law, 
 to train the minds of all men to the perception and ac- 
 knowledgment of the justice and necessity of its ulti- 
 mate sanctions. This giving way to the disease of 
 wrong feeling or mistaken opinion in the multitude, in 
 cases of clear moral right and duty, because it is feared 
 that otherwise the purposes of Law cannot be answered, 
 is a proceeding of melancholy omen in any government. 
 It is the wisdom of digging down the charcoal founda- 
 tions of the Temple of Ephesus, in order to keep up the 
 fires upon its altars.* It is " purchasing the sword 
 with the loss of the arm that is to wield it." This is 
 not the virtue of Prudence ; nor can there be any gen- 
 uine expediency, without lasting principles as its living 
 root. Assuredly, if these be despised, " instead of state- 
 wisdom we shall have state-craft, and for the talent of 
 the governor the cleverness of an embarrassed spend- 
 thrift ; which consists in tricks to shift off difficulties and 
 dangers when they are close upon us, and to keep them 
 at arm's length, but not in solid and grounded courses to 
 preclude or subdue them. We must content ourselves 
 
 * COLERIDGE : The Friend. Essay V. 
 19 
 
206 CAPITAL PUNISHMENT. 
 
 with expedient-makers ; with fire engines against fires, 
 life-boats against inundations : but NO HOUSES BUILT 
 
 FIRE PROOF, NO DAMS THAT RISE ABOVE THE WATER 
 MARK."* 
 
 * COLERIDGE : Essay IV, of the Landing Place. 
 
m* 
 
 mi 
 
 CHAPTER XIII. 
 
 OCCASION OP THE PREJUDICE AGAINST CAPITAL PUNISHMEN^ INJU- 
 RIOUS CONSEQUENCES OP THE SEVERITY OF SANGUINARY CODES. 
 
 DIFFERENCE BETWEEN THE REFORMATION OF PENAL CODES, AND 
 THE ANNIHILATION OF PENALTY. THE ABROGATION OF THE PUN- 
 ISHMENT OF DEATH A PREMIUM ON THE CRIME OF MURDER. 
 
 RECKLESSNESS OF THE DESIRE OF CONCEALMENT. 
 
 IT is a question that very naturally forces itself upon 
 the mind, assuming the fact of the divine original of 
 capital punishment. Whence should have arisen so 
 violent a prejudice in some quarters against it 1 In this 
 chapter we shall state only the reason connected with 
 this part of our argument, which we take to be the 
 ,vish use and consequently the great abuse, under 
 many governments, of the highest, most awful, and 
 most solemn sanction of the law. Having a sword put 
 into their hands, men in power, like little children, have 
 loved to flourish it on every occasion. If legislators 
 had restricted themselves to the application of the orig- 
 inal ordinance of Jehovah, we believe there would have 
 arisen no more question in regard to the justice and ex- 
 pediency of that law, than in regard to the authority of 
 the very first commandment in the decalogue. Modern 
 codes have been tyrannous and sanguinary ; and the an- 
 nexation of the punishment by death to minor offences, 
 
208 CAPITAL PUNISHMENT. 
 
 in codes of law notoriously severe, has begotten a deep 
 sentiment of injustice, which the mind has afterwards 
 connected with the punishment by death in any case. 
 This has led criminals to such disregard and contempt 
 of it, and juries to such frequent sympathy with offend- 
 ers, and such connivance at their escape, acquitting 
 them sometimes both against law and evidence ; and it 
 has trained the public feeling to such compassion for 
 criminals arraigned and condemned under such laws, as 
 if they were persecuted wretches ; that some writers 
 have seemed to possess strong ground in their plea for 
 the abrogation of the penalty. A law which, by ex- 
 tending the punishment of death to many offences, oc- 
 casions murders to avoid death, must either become a 
 dead letter where it ought to be applied, or, by such a 
 spectacle, must weaken the power of the penalty of 
 death, even in countries where these injurious and noto- 
 rious abuses of it have not been prevalent. 
 
 Now it is one of the most difficult things in the world 
 for men to divest themselves of a prejudice so engen- 
 dered, and to look dispassionately and without blindness 
 at the authority, justice, and expediency of punishment 
 by death for murder. It is undeniable that modern 
 penal codes in their lavish application of the last penally 
 of law have well merited the accusation of savageness 
 and barbarity ; while the Jewish code, against which so 
 many ignorant and ill-timed censures have been direct- 
 ed, is incomparably superior in the equity and gentle- 
 ness of its provisions. In that code, the penalty of 
 
REFORMATION OF PENAL CODES. 209 
 
 death was never permitted for any mere invasion of 
 property.* 
 
 During the reign of Henry VIII. 72,000 persons 
 
 ' 
 were punished by death in England, or about 2,000 
 
 every year ; and in the time of Judge Blackstone one 
 hundred and sixty different species of crime were pun- 
 ishable with death in that country ! Such legislation as 
 this does but increase the number of offenders ; for in 
 the words of the Judge himself, " The injured party, 
 through compassion, will often forbear prosecution ; 
 juries, through compassion, will forget their oaths, and 
 either acquit the guilty, or mitigate the nature of the 
 offence ; and judges, through compassion, will respite 
 one half the convicts, and recommend them to the royal 
 mercy. Among so many chances of escape, the needy 
 and hardened offender, overlooking the multitude who 
 suffer, boldly engages in some desperate attempt to re- 
 lieve his wants or supply his vices ; and if, unexpected- 
 ly, the hand of justice overtakes him, he deems himself 
 peculiarly unfortunate in falling at last a sacrifice to 
 laws, which long impunity had taught him to con- 
 temn."! 
 
 Now we are so far from advocating an unreasonable 
 severity of legislation, that we hail with delight the 
 
 * Save one ; the iniquitous invasion and assumption of property 
 in man. " He that stealeth a man and selleth him, or if he be 
 found in his hands, he shall surely be put to death." Ex. 21 : 16 . 
 
 t BLACKSTONE : Commentaries on the Laws of England. Book 
 IV. ch. 1. 
 
 19* 
 
210 CAPITAL PUNISHMENT. 
 
 progress of Christian Philanthropy in rendering it both 
 odious and unavailing ; we honour and admire as of the 
 highest character the benevolence of those, who have 
 laboured for the reformation of such codes. This is 
 very different from that crude and wholesale spirit of 
 revolution and experiment which would abolish utterly 
 from human legislation a solemn and divinely author- 
 ized statute, denying its application, even to that one 
 crime, for the punishment and prevention of which it 
 was promulgated directly by Jehovah. Let us try the 
 experiment, say some men, and see how it will work. 
 Experimentum de corpore vili, says Mr. Burke, is a good 
 rule ; but experiments upon so sacred an interest as the 
 constitution of the country and the religious foundations 
 of Law, are of another character. A spirit of refor- 
 mation is never more consistent with itself, than when it 
 refuses to be rendered the means of destruction.* 
 
 The Prison Discipline Society of our own country 
 have perhaps gone more thoroughly and extensively into 
 the investigation of this subject than has been done 
 anywhere else in the world. The conclusion to which 
 they are brought will be sustained, we believe, by the 
 whole world's experience, " that the punishment of 
 death for murder could not be abolished with safety ; 
 and that the Law of God seems holy, just, and good, 
 Whoso sheddeth man's blood, by man shall his blood be 
 shed." Experience in both ways, in the abrogation as 
 
 * BURKE : Appeal from the new to the old Whigs. Works, Vol 
 III. 358. 
 
EXPERIMENTS IN EUROPE. 211 
 
 well as existence of this statute, has sustained its wisdom 
 and proved its necessity. The experiments made under 
 the reign of the Empress Catherine of Russia in the 
 North, and through the influence of the Marquis Becca- 
 ria, under Leopold of Tuscany in the South of Europe 
 have been quoted with confidence in favour of its abro- 
 gation. Their continuance was too short for any un- s 
 questioned conclusions to be drawn from them ; and inas- F 
 much as they were made in states where the penal code 
 had been dreadfully and unrighteously severe, no con- 
 clusion against the penalty of death for murder could 
 be legitimate ; and the whole happy result (which no 
 just mind can doubt) of the abrogation of the penalty 
 of death for minor offences, to which it ought never to 
 have been annexed, has been appealed to as an argu- 
 ment for annihilating that penalty utterly and entirely 
 from all possible offences, not even excepting the crime 
 for which it has been solemnly enacted by Jehovah ! 
 No experiment of this kind could be a fair one, unless it i/ 
 were tried in a country where the criminal code has not 
 been severe, and where the punishment by death has 
 been restricted to the crime for which the Divine Legis- 
 lation has made it obligatory ; neither in such a case 
 could it be conclusive, unless tried in the long run, and 
 through all the currents and circumstances of society. 
 Accordingly the indisputable authority of the Conversa- 
 tions-Lexicon in Germany is adduced on the other side 
 to prove that the results of the European experiments 
 were unsatisfactory ; for it is declared in that work that 
 
V 
 
 212 CAPITAL PUNISHMENT. 
 
 " even in those states where, from a one-sided benevo- 
 lence, the governments wished to abolish capital pun- 
 ishment, they were compelled again to avail themselves 
 of it, and that on the ground that in the opinion of men 
 death is the greatest of evils, in preference to which 
 they would willingly undergo the most laborious life 
 with some hope of escape from it, because the death- 
 punishment is the most terrible of penalties."* 
 
 There can be no doubt that the undue frequency of 
 the punishment by death, through its abuse in applica- 
 tion to minor offences, especially if executions come 
 thus to be familiar to the public mind, does inevitably 
 tend to lower the estimate of human life both in the 
 view of the criminal and of the community. On the 
 other hand, the penalty of death for murder, inflicted by 
 a government that reserves it for this awful crime, the 
 penalty of death by the government for the taking away 
 of life by the individual, is admirably adapted at once 
 to increase men's sense of the value of human life, and 
 to deepen their conviction that the penalty of death is 
 incalculably more dreadful than any other punishment. 
 For the restraint of crime, it adds both to the power of 
 the government, and to the more invisible and awful 
 efficacy of the common conscience of mankind. 
 
 To punish by death for the stealing of a horse or a 
 sheep, as in England, or for other minor offences there 
 or elsewhere, is in effect to throw in the way of the 
 
 * Biblical Repository : Vol. X. An admirable article by Professor 
 S. S. Schmucker, D. D. 
 
PENALTIES IN FRANCE AND CHINA. 213 
 
 criminal a temptation to murder for the concealment of 
 crime. It has been said with truth that we had better 
 have ten robberies without murder, than one robbery 
 with murder ; so that it would be better, even if minor 
 offences should increase, that this last and most dreadful 
 offence should be made to decrease, by taking the pun- 
 ishment of death from the former, and reserving it only 
 for the latter. Blackstone remarks that " in France the 
 punishment of robbery, either with or without murder, 
 is the same : hence it is that though perhaps they are 
 therefore subject to fewer robberies, yet they never rob, 
 but they also murder. In China, murderers are cut to 
 pieces, but robbers not; hence, in that country they 
 never murder on the highway, though they often rob."* 
 On the same principle it has been found in the State of 
 Pennsylvania that the substitution of imprisonment in- 
 stead of death for the punishment of highway robbery 
 was followed by a sensible diminution of the murders. 
 When highway robbery and murder were alike punish- 
 able by death then the crime of murder was mare fre- 
 quent ; obviously because, if a man must be hung for 
 robbery, his punishment would be no worse for the mur- 
 der, while by committing this crime, he might entirely 
 escape. 
 
 On the other hand, this same argument is still more 
 powerful against taking away the penalty of death for ! 
 murder. By putting this crime on a level with others, 
 we tempt man to commit it for the ^same inducements f 
 
. 
 
 CAPITAL PUNISHMENT. 
 
 ; 
 
 obviously for the same reason ; if a man must be im- 
 prisoned for robbery, his punishment will be no worse 
 for murder, and by committing this crime he may en- 
 tirely escape. In abrogating the penalty of death, we 
 secure the murderer's life, and do in effect set a premi- 
 um upon the crime of murder. No worse consequences 
 will follow, the midnight robber may argue, for even if 
 the murder should be discovered, I am safe against being 
 killed, and by the removal of all witnesses I may suc- 
 ceed in burying up all traces of my crime forever. In 
 effect the abrogation of this statute would tend to arm 
 every lower passion, under the influence of which a man 
 commits the lower degrees of crime, with the power and 
 sharpness, the dreadful ferocity and decision of the 
 stronger impulses, that ever lead him to the commission 
 of murder. The desire of concealment would be per- 
 fectly reckless in its measures. 
 
 One of the main pillars of our security against the 
 outbreakings of human depravity would therefore be 
 taken away, if this statute were abolished. Assuredly, 
 men would not feel more secure, if compelled to travel 
 in lonely places with money, if alone in the streets at 
 midnight, to remember that while they themselves are ex- 
 posed defenceless to the steel of the assassin, the fear of 
 death is entirely removed from the murderer. A statute 
 is framed to protect the murderer's life, but the life of 
 his victim is left unprotected ! And if, by the abrogation 
 of the penalty of death, the horror with which the crime 
 
EFFECT ON PRISON DISCIPLINE. 215 
 
 of murder is regarded should be so gradually diminished, 
 
 that the keenness of pursuit and the requisite plainness 
 
 of evidence should fail, then would private revenge 
 
 /" spring up in all its terrors, and the angry justice of 
 
 ) friends, or the passions of the mob, as in some parts of 
 
 / our own country, would take by force that satisfaction, 
 
 "which the majesty of law fails or refuses to secure. 
 
 This is the forcible reasoning in that sonnet of Mr. 
 Wordsworth on the scale of retribution for crime, and 
 the danger of striking out its highest sanction. 
 
 Fit retribution, by the moral code 
 
 Determined, lies beyond the state's embrace, 
 
 Yet, as she may, for each peculiar case, 
 
 She plants well measured terrors in the road 
 
 Of wrongful acts. Downward it is, and broad ; 
 
 And the main fear once doomed to banishment, 
 
 Far oftener then, bad ushering worse event, 
 
 Blood would be spilt, that in his dark abode 
 
 Crime might lie better hid. And should the change 
 
 Take from the horror due to a foul deed, 
 
 Pursuit and evidence so far must fail, 
 
 And, guilt escaping, Passion then might plead 
 
 In angry spirits for her old free range, 
 
 And the wild justice of Revenge prevail. 
 
 One consideration remains to be added in the matter 
 of expediency, an important one, which indeed might be 
 regarded in itself alone as settling the question ; namely, 
 the effect which the abolition of capital punishment 
 Would have upon Prison Discipline. There are many 
 
J 
 
 CAPITAL PUNISHMENT. 
 
 desperate villains now in prison for the crime of murder. 
 What additional punishment have they to dread, were 
 they to rise and kill their keepers ? How readily would 
 they do this, if a fair hope were thus presented of es- 
 caping ! And who could be found willing to act as keep- 
 er of a prison, if his life were not protected from the as- 
 saults of men, whose hands are already imbued in hu- 
 man blood, by something which they dread more, than 
 the punishment they are already enduring ? 
 
CHAPTER XIV. 
 
 PROPOSED PLAN OF IMPRISONMENT FOR LIFE, INSTEAD OF THE PEN- 
 ALTY OF DEATH, CONSIDERED. 
 
 IT may be said with truth that we do not look at this 
 subject fairly and fully, unless we give an impartial con- 
 sideration to the alternative proposed, in the place of cap- 
 ital punishment abolished. We are willing to take it in 
 its best aspect. Every philanthropist will rejoice, if the 
 attempted abrogation of the punishment of death shall 
 have occasioned a plan of imprisonment for life, by 
 which our legislators, without destroying the last sanc- 
 tion of the law in the penalty of death for murder, shall 
 have for the next grade of offences a punishment as ef- 
 ficacious in restraining men from crime, and as salutary 
 in reforming them for Eternity, as the punishment of 
 death has proved to be in reference to the crime of mur- 
 der. The punishment of imprisonment for life, as most 
 generally executed, is little better than a name. In the 
 State of New York, the average length of time spent in 
 prison by those criminals, who have been sentenced to 
 imprisonment for life, has been six years ! 
 
 On the other hand, the effect of solitary confinement, 
 as that too has been ordinarily managed, has proved so 
 20 
 
218 CAPITAL PUNISHMENT. 
 
 terrible to the mind, so disastrous to the individual's na- 
 ture, that it would be a strange philanthropy, which 
 should prefer the slow execution of the wretched crim- 
 inal in that way, to his execution by the gallows or the 
 scaffold. There are some fearful proofs on record, and 
 that even up to the present year, of the consequences of 
 such treatment, in the number of persons in France, 
 who, so imprisoned, have become insane. This mode of 
 reforming criminals, and preparing them for heaven by 
 insanity, no man will contend for. 
 
 But let the plan proposed be open to none of these ob- 
 jections ; let the power, and so the possibility of pardon 
 be removed, that the criminal may feel assured his sen- 
 tence is for life ; and let all the appliances of religion 
 and of education be interwoven with the scheme, and 
 brought to bear upon the offender ; still, for that purpose 
 which is the great object of penalty in this world, the pre- 
 vention of crime in others, and the welfare of society, it 
 cannot possibly supply the place of death. It may be a 
 good punishment, admirably constituted and applied, and 
 , especially good for the offender, but yet altogether insuf- 
 ficient in its energy of terror and power of restraint. In 
 . fact, the more humane you make it, the more you relieve 
 it of its terrors ; and although the purpose of terror is 
 not to be gained at the expense of humanity, and a spirit 
 of revenge is never to be indulged in the punishment of 
 the criminal, yet it would be an ill-judged benevolence 
 indeed, which, forgetting the design of penalty, should 
 both take from it all immediate fearfulness by the secu- 
 
REFORMING EFFICACY. '219 
 
 rity of life, and make, at the same time, a comfortable 
 restingj)lacje for life's continuance. 
 "The most important argument urged in favour of im- 
 prisonment instead of death, is the superior opportunity it 
 is alleged to give for the reformation of the offender. 
 To prevent this good result in such a case, there comes 
 in, first, the hope of escape, which the fact of life in 
 prospect always nourishes ; second, the habit of procras- 
 tination, which the continuance of life always confirms ; 
 and third, the absence of any consideration of immediate 
 danger, so requisite to rouse a mind hai'dened by crime 
 out of its slumbers. Putting these things in contrast 
 with the power of conviction, and the power of awaken- 
 ing, assumed over the conscience by the near approach 
 of death, we think few minds would hesitate as to the 
 superior efficacy of this last mode of punishment for 
 final reformation and well-being of the criminal. But 
 if such superior efficacy be probable, then the argu- 
 ment of benevolence to the offender, as well as the good 
 of society, truly and properly urged, would render the 
 appointment of death for the penalty of his crime, (as- 
 suming it, as in the case of murder, to be an act of jus- 
 tice,) the highest act of mercy also. 
 
CHAPTER XV. 
 
 TENDENCY OF THE COMMON REASONINGS AGAINST CAPITAL PUNISH-- 
 MENT, TO WEAKEN THE SANCTIONS OF THE DIVINE GOVERNMENT. 
 
 RETRIBUTIVE JUSTICE A REALITY. PROPHETIC ASPECT OF THE 
 
 PENALTY OF DEATH FOR MURDER. POWER AND SOLEMNITY OF 
 
 THE ARGUMENT FROM ANALOGY. CONCLUSION. 
 
 THE argument from Expediency is one that some men 
 love to dwell upon too exclusively ; but in such exclu- 
 siveness we are not fond of it. Not because we distrust 
 it ; it is powerful, and in its legitimate place, correct ; 
 but because, by a sort of Popish tendency, it is so often 
 hoisted out of its legitimate place, to lord it over the 
 word of God, the reason and the conscience. In the 
 present instance, taken alone, it tends to lower the sub- 
 ject. There are higher grounds to rest upon, than any 
 that mere -expediency understands or notices. Even in 
 the penal inflictions of this world we see an image of the 
 Divine Justice, which, though inadequate, is awful and 
 grand. 
 
 Some men in their reasonings seem unwilling to ad- 
 mit of such a reality as Justice apart from Expediency. 
 They do not even include it as in any way an end in 
 their philosophy of penal inflictions. They would have 
 no such thing as Justice, retributive Justice, if it were 
 
RETRIBUTIVE JUSTICE. 221 
 
 not to deter men from crime. This mistake lies at the 
 foundation of all false reasonings on this subject : it 
 would exclude Capital Punishment from the universe, 
 from the government of God. There is such a thing as 
 Justice, retributive Justice, besides and apart from the 
 purpose of security against crime, or the necessity of the 
 guardianship of society and the universe. The idea is 
 in our souls ; the prophecy is in our consciences ; the 
 revelation is in God's word ; the REALITY is in Eternity ! 
 There is a just penalty, just in itself, though we never 
 rise to it here : and no man will probably say, when a 
 murderer is hung for his crime, that this was all he de- 
 served, though all that society could inflict. The com- 
 mon proverb, Hanging is too good for him, shows a deep 
 under-current of conviction in some cases as to the na- 
 ture of Justice. What a man deserves he never receives 
 here ; if he did, this would be the place of final judg- 
 ment, this the scene of final retribution. The utmost 
 that can be done here is but a shadowing forth of the 
 nature of Justice, an approximation to reality. There 
 is an Image, a Miniature, a Prophecy of that which is to 
 come ; and as such we should regard human justice ; 
 not a creature of expediency merely, but an image and 
 a humble imitator of Eternal Truth. " Though to give 
 timely warning and deter," remarks Mr. Wordsworth, 
 
 Though to give timely warning and deter 
 Is one great aim of Penalty, extend 
 Thy mental vision farther, and ascend 
 Far higher, else full surely thou shalt err. 
 20* 
 
222 CAPITAL PUNISHMENT. 
 
 What is a State ? The wise behold in her 
 A creature born of Time, that keeps one eye 
 Fixed on the Statutes of Eternity, 
 To which her judgments reverently defer. 
 
 As such, she speaks powerfully to the conscience j her 
 voice is glorious ; nor would we have that voice hushed 
 or weakened. 
 
 It is one of the strongest objections which a believer 
 in Christianity must feel to the whole reasonings of some 
 men on this subject, that they tend to weaken and de- 
 stroy the sanctions not only of the human government, 
 but of the Divine. The same false ideas of benevolence, 
 the same sickly and ill-placed tenderness, the same false 
 sentimentality and compassion, that lead men to exercise 
 a deeper sympathy with the murderer, brought to his 
 trial, than with the murdered man, stricken down and 
 thrust into an untimely grave; the same habits of 
 thought and feeling, that lead them to dwell with more 
 of pity and complacency upon the guilty man, than of 
 hatred and abhorrence upon the guilt ; are transferred 
 to the case of criminals under the Divine government, 
 and lead men to argue that it is impossible that a God of 
 Mercy can ever execute the penalty of Eternal Death 
 upon any offender. All this leads men to pity the sin- 
 ner and forget the sin ; to take the part of the sinner 
 against God, and to forget God's insulted holiness, his 
 abused goodness, the violated majesty of his Law, the in- 
 jury against the universe. The incalculable evil of sin 
 is but little noted, and instead of a spontaneous defence 
 
THE DIVINE PUNISHMENTS 223 
 
 of the Law against the contemner of its majesty and 
 goodness, the goodness of God itself is challenged and 
 questioned, in reference to the very provisions, by which 
 the holiness and happiness of the universe are secured. 
 
 Doubtless, such reasoning would have been far more 
 familiar, more universal than it is, if God had never 
 promulgated the enactment connecting the penalty of 
 death with the crime of murder. In establishing this 
 statute, he has done much to render the judgment of the 
 natural conscience of mankind consentaneous with the 
 voice of his word, in regard to the punishment of sin in 
 Eternity. If this sanction had never been annexed to 
 human law, it would have been more difficult than it 
 now is to enforce upon the conscience the sanctions of 
 the Divine Law ; there would have been more of infidel- 
 ity in regard to those sanctions ; a more universal effort 
 to deny and reproach them as false, malignant, and incon- 
 sistent with the Divine Benevolence. But the sternness 
 of Justice in the divine establishment of human govern- 
 ment has prepared the way for right ideas in regard to 
 the Divine government ; it has assailed that false reason- 
 ing beforehand ; it has proved a universal prophet in 
 men's hearts of the principles on which God will deal 
 with incorrigible sinners in Eternity. The argument is 
 one from analogy, and all men feel it ; and the universal 
 affirmative response in all ages to the justice and propri- 
 ety of the dreadful penalty of death for murder, against 
 him who aims at the existence of the human government, 
 is accompanied by a response as irresistible to the jus- 
 
224 CAPITAL PUNISHMENT. 
 
 tice of the sentence of eternal death against the con- 
 temner of the Divine government. 
 
 God in his providence, as well as in his word, is an in- 
 finitely wise instructor of his creatures. He has trained 
 the common conscience of mankind on some fundamental 
 principles, essential to the safety of the universe, so pow- 
 erfully, that the utmost efforts of infidelity against a rev- 
 elation that contains those principles can effect little more 
 than a manifestation of hatred ; can do little or nothing 
 to shake the inmost convictions of the human mind, to 
 upset the established foundations of human opinion, to 
 alter the common elements of judgment, to make the 
 voice of the human conscience prophesy falsely. What 
 God did in regard to the atonement by the institution of 
 sacrifices, producing an expectation of the atonement, 
 and preparing the way for a belief in it, he hath done in 
 regard to the retributive principles of the divine govern- 
 ment, by annexing the penalty of death to the laws of a 
 human government, producing an expectation of the na- 
 ture of the divine justice, and preparing for the response 
 of faith to the terms of its revelation. 
 
 These are the grounds on which we are content to rest 
 this argument. We stand upon eternal principles. We 
 ask for the final causes of this enactment, and we find 
 them not only in the exigencies of human society, but in 
 the eternal, fundamental principles of the Divine govern- 
 ment. It is by the light of such principles that we de- 
 sire to judge all human institutions ; and it is a miniature 
 or shadow of such principles that we expect to find in all 
 
LAW OF RETRIBUTION. 225 
 
 ordinances and forms in this world, that are established 
 by divine authority ; a family likeness, if we may so 
 speak, between such laws in this world, and what Plato, 
 with almost supernatural wisdom, hath called THEIR sis- 
 
 TERS, THE LAWS IN THE OTHER WORLD.* For according 
 
 to that remark of the son of Sirach in the book of Eccle- 
 siasticus, on which Bishop Butler erected the mighty su- 
 perstructure of his Analogy of Religion natural and re- 
 vealed, " All things are double one against another ; 
 and he hath made nothing imperfect."f He hath set 
 one thing over against another. He hath put a sword 
 into the hands of the human government ; a sword is also 
 wielded in the Divine government. We see its glitter 
 here ; it is the foreboding of its flashing terrors in Eter- 
 nity. For " God judgeth the righteous, and God is angry 
 with the wicked every day. If he turn not, he will 
 whet his glittering sword ; he hath bent his bow and 
 made it ready. For it is written, Vengeance is mine, I 
 will repay, saith the Lord." 
 
 There is deep and awful truth in these passages, mer- 
 ciful in their sternness, blessed in their salutary power 
 
 * The laws in this world are represented as speaking to their ene- 
 mies, " We shall fill you with trouble whilst you live, and when you 
 mingle with the dead, our Sisters, the Laws of Hell, will give you a 
 fearful reception, knowing that you endeavoured to ruin us." 'Hpcis 
 ri cot %a\eiravovnv $MVTI nal IKCI ol fyxerepoi dtieXtyol oi iv^Atov v6^oi ofa 
 ffyeifusasfmofctovTaiysiddTts STI /ecu fip&$ iiri-^eipriyag diro\C(rai TO aov f 
 
 The Dialogues of Plato: KPITJ2N : 16. 
 
 t Ecclesiasticus42:24. 
 
226 CAPITAL PUNISHMENT. 
 
 of warning. Every man's conscience responds to them, 
 and into the very elements of language God in his prov- 
 idence has so interwoven the ideas contained in them, 
 that to use the English tongue itself, is to be familiar 
 with their meaning. 
 
 There is a word, from which men, beneath the power 
 of a guilty conscience, shrink back, pale and affrighted. 
 There are those, who would expunge, if they could, that 
 word from the language, and its idea from all creeds of 
 belief and codes of law, penal, moral, theological 
 RETRIBUTION ! If the character of that region of 
 wo, over the gates of which the poet Dante affixed so ter- 
 rible an inscription : 
 
 Lasciate ogni speranza, voi ch' entrate : 
 All hope abandon, ye who enter here !* 
 
 could be condensed into one word, it would be this, 
 RETRIBUTION, not Expediency. Retribution itself is in- 
 deed expedient ; it is the highest expediency ; but that 
 
 * DANTE. Canto III. The whole of this celebrated inscription, 
 translated by Gary, is as follows : 
 
 " Through me you pass into the city of wo : 
 Through me you pass into eternal pain : 
 Through me among the people lost for aye. 
 Justice the founder of my fabric moved: 
 To rear me was the task of power divine, 
 Supremest wisdom, and primeval love. 
 Before me things create were none, save things 
 Eternal, and eternal I endure. 
 All hope abandon, ye who enter here." 
 
LAW OF RETRIBUTION. 227 
 
 is not God's reason for it. We believe that in the nature 
 of things, no injury can die, no wrong-doing pass with- 
 out recompense. There is this provision in the universe : 
 Evil felt balances evil committed. There is no escape 
 from this tremendous law ; none, but in the blood of 
 Jesus Christ, which cleanseth from all sin ; none, but in 
 the sacrifice of Christ, which maketh an atonement; 
 none, but by that act of Faith in Christ, in which the 
 soul, personally resting upon him for relief, pardon, and 
 shelter, finds itself no more under Law, with its stern, 
 immitigable PENALTY, but under Grace, with its Heaven 
 of holiness and blessedness now and for ever. Now do 
 we praise God, both for such a Salv-ation, and for such 
 righteous terrors of the Law, as may teach guilty men 
 their need of it, and constrain them to flee to it. 
 
 BLESSING, AND HONOUR, AND GLORY, AND POWER, BE 
 UNTO HIM THAT SITTETH UPON THE THRONE, AND UNTO THE 
 LAMB FOR EVER AND EVER. 
 
ESSAYS ON PUNISHMENT BY DEATH, 
 
 PART SECOND. 
 
 21 
 
 
ARGUMENT 
 
 IN REPLY TO 
 
 J, L, O'SULLIVAN, ESQ., 
 
 DURING THE DEBATE 
 
 IN THE BROADWAY TABERNACLE 
 
 IN 1843. 
 
INTRODUCTION. 
 
 ALTHOUGH it will be found that some points in the fol- 
 lowing argument are somewhat occupied and dealt with 
 in the preceding pages, yet it has been deemed best to 
 let it stand with but little abridgment or alteration. So 
 many applications have been made to the author for 
 copies of the argument in the debate, that, even at the 
 hazard of some little repetition, or the appearance of it, 
 it is preserved nearly as it was first published. In its 
 statistics it is perfectly impregnable, no reply having been 
 able to destroy the authority of the Belgian Minister of 
 Justice in his official report. 
 
 The statistical argument from the tables in that Report 
 of M. Ernst, has been examined anew with great care. 
 No deficiency can be found in it. The attempt to set it 
 aside or to evade its force are fruitless. Neither suppo- 
 sitions nor probabilities will answer against exact crimi- 
 nal statistics under the hand of the Minister of Justice 
 addressing the king. 
 
 21* 
 
DEBATES ON PUNISHMENT BY DEATH. 
 
 ARGUMENT OF THE FIRST EVENING. 
 
 1. THE ORDINANCE IN GENESIS INTENDED AS A COMMAND. 
 
 FOR the interpretation of this ordinance as a command, 
 we have the authority, first, of the greatest commenta- 
 tors that have ever appeared in the world. Among them 
 I shall mention the names of Hammond, Grotius, Cal- 
 vin, Matthew Henry, Michaelis, and Rosenmueller. 
 Second, for the particular construction of the passage, 
 according to the laws of the Hebrew language, we have 
 the authority of the greatest Hebrew scholars that the 
 world has ever known. If you will turn to the Hebrew 
 grammars of Gesenius, Stuart, or Nordheimer, you will 
 find that for the imperative in this case no other form 
 could be used but that which is used, by man shall his 
 blood be shed. The Hebrew imperative has no third 
 person, and the future is always used in its stead. But 
 not only so, the future supplies the form of the impera- 
 tive throughout the whole decalogue, not one of the pre- 
 cepts of which is any more mandatory in its form than 
 
236 CAPITAL PUNISHMENT, 
 
 this ordinance. But this is not all : I can bring you a 
 parallel passage from the book of Proverbs, (xxviii. 17,) 
 by which you may see that even if you put aside the 
 imperative form, the assertion in the ordinance is still of 
 the nature of an injunction. " The man that doeth vio- 
 lence to the blood of any person shall flee to the pit ; let 
 no man stay him." That is, he shall immediately die. 
 It cannot mean, he will flee to the pit, for he certainly 
 will not if he can help it ; but, he shall do this ; he 
 shall immediately be cut off; and to make this certain, it 
 is added, Let no man stay him ; let no man interfere to 
 save him ; let no man prevent, or seek to prevent, that 
 immediate destruction, which is the penalty of his crime. 
 
 2. METHODS PROPOSED FOR EVADING THE FORCE OF THIS 
 ORDINANCE. 
 
 It certainly is not wonderful that the advocates for the 
 abolition of Capital Punishment should wish to evade the 
 force of this statute : it is the citadel of our argument, 
 commanding and sweeping the whole subject. All else 
 is a mere guerilla warfare, if you cannot carry this 
 entrenchment. In the matter of utility and expediency, 
 we are in as strong possession of the ground as in the 
 matter of the Scriptures and theology, and this I propose 
 to show conclusively. The meaning of this statute is 
 first to be settled, and defended from objections. Both 
 the context and the interpretation show manifestly that it 
 is a command, an injunction, a law. Two methods have 
 been proposed for its annihilation ; first, to render it 
 
ABSURD EVASIONS. 237 
 
 whatsoever sheddeth man's blood, and to restrict its appli- 
 cation to beasts ; and second, to treat it as a mere pre- 
 diction. I shall show the absurdity of these positions, 
 and then proceed in my argument. The first position is 
 impossible in the interpretation, since, if you even ren- 
 dered it, whatsoever, it includes both man and beast. 
 But it is still more absurd in its nature and consequences ; 
 for it amounts to this ; that God, at the opening of the 
 world, and in regard to the crime of murder, is legisla- 
 ting for brutes and not for men ! If a wild beast, driven 
 by hunger, or hunted and provoked, kills a man, capital 
 punishment shall be executed upon him. If a man 
 murders his fellow-man, no blood must be exacted. 
 Suppose, then, (to use a forcible illustration for which I 
 am indebted to the kindness of a friend,) a malicious 
 neighbour in that early age to have set a trained blood- 
 hound on a man whose life he was seeking ; and the 
 obedient animal, true to his own nature, and an admira- 
 ble instrument of murder for his master, takes the life- 
 blood of his victim. Must the man be arraigned and 
 executed on the charge of murder ? By no means, say 
 the humane expositors of this law of God ; that would 
 be to add murder to murder. Let the man escape, but 
 the dog must be hung ; the ferocious brute, that knew 
 no better than instinctively to do what his master bade 
 him, and so to slay a man made in the image of God, 
 deserves to die. Let the court proceed to condemn the 
 blood-thirsty quadruped ; and, to show the sacredness of 
 human life, and protect society from the incursions of 
 
238 CAPITAL PUNISHMENT. 
 
 wild beasts, let the creature be solemnly executed ; and 
 let it be done in the sight of all the other beasts and 
 bloodhounds you can summon to the spectacle ; for the 
 statute is, " Whatsoever sheddeth man's blood, by man 
 shall that beast's blood be shed !" 
 
 Perhaps now you will choose to abandon this ground, 
 and admitting that it refers to man, you contend that it is 
 merely a prediction. Now mark the consequences. It 
 is either manifestly false, and has not been fulfilled, or 
 the prediction itself has caused its own fulfilment, and 
 must have been given for this purpose. But supposing 
 it to be a prediction, is it not a little singular that you 
 yourself are opposing its fulfilment ? If it be really 
 what you say, a prediction of Jehovah, do you believe 
 that you can prevent its fulfilment? Certainly, if I 
 thought God had predicted that every murderer should 
 be punished with death, I should not dream of being 
 able to prevent it. Your efforts against capital punish- 
 ment are unavailing, if God has here predicted that 
 capital punishment shall prevail. But not only so, they 
 are presumptuously irreligious. The Emperor Julian, 
 the apostate, to show his spite against Christianity, and 
 to falsify one of its most important predictions, tried to 
 build again the walls and temple of Jerusalem, but the 
 hand of Heaven prevented him. You are trying to 
 destroy an institution, which you yourself contend that 
 God has predicted shall stand. 
 
 God either meant that the prediction should be fulfill- 
 ed, or he did not. If he did, you are opposing God's in- 
 
DURATION OF THE STATUTE. 239 
 
 tention, and endeavouring to prove him a liar. If you 
 say that he did not mean it should be fulfilled, you make 
 the sentence a nullity of idle words, and God a trifler. 
 Moreover, you contend that capital punishmenkis wrong ; 
 in effect, you argue that it is a sin. Here, then, conse- 
 quently, is a sentence from Jehovah, which you say is a 
 prediction concerning the prevalence of a sin ; but 
 which is so worded, that the whole world for four thou- 
 sand years have considered it a command, and acted upon 
 it ; the Hebrews themselves, under the very guidance of 
 God, taking it as a law, and acting accordingly. As- 
 suredly this supposes in the framer of such a prediction 
 either wilful deception or the most astounding stupidity. 
 To put it in a strong light, let me ask what would you 
 think, if God, intending to forbid stealing, had predicted 
 that men will steal, but had uttered this prediction in 
 such a manner, that men for four thousand years should 
 have interpreted it as a command to steal, and acted ac- 
 cordingly, the mistake never once being corrected in all 
 after legislation ! But, indeed, the efforts to evade this 
 statute, involve absurdities in every direction. 
 
 3. PROOF OF THE UNIVERSAL APPLICATION, AND UNLIMITED DURA- 
 TION OF THIS STATUTE. 
 
 THREE things are noted in this statute ; its PRIORITY 
 
 TO ALL LEGISLATION ', ITS COMPREHENSIVENESS ; AND ITS 
 
 UNLIMITED DURATION. It comes immediately and solely 
 from God. It was meant for all mankind. Its author- 
 ity continues as long as the race. As it is solely from 
 
240 CAPITAL PUNISHMENT. 
 
 God, God only could repeal it. He never has repealed it, 
 and it is just as binding upon us, as it was upon the gen- 
 eration to whom it was first given. If you deny its ap- 
 plication to us, to nations and governments now, you 
 must point out the place where its application stops. Is 
 it in the first generation, when the scarcity of men, and 
 their relationship with one another made it less necessary ; 
 or is it at an after period, when men and crimes increas- 
 ed together, so that every year that the race lived made 
 it more necessary ? It is the first law in the world ; but 
 not only so, it is the first law of God in the world. 
 What subject would he be likely to legislate upon in 
 such circumstances ? One of temporary, transitory im- 
 portance, or one which, beginning with the race, should 
 last with the race ? The law, as well as the covenant 
 connected with it, was intended, beyond all doubt, for all 
 mankind ; you cannot stand at any point in the stream 
 of time, or the history of man, and tell me, There this 
 legislation stops ; you can no more separate its obligation 
 now, from its obligation in the age of Noah, than you 
 can stand at any point in the river that supplies this city 
 with pure water, and tell me what particular drops find 
 their way into the reservoir, and what not. 
 
 It is not to be denied that the covenant of God with 
 Noah on this occasion covers the whole transaction ; in- 
 eluding the promise of a blessing; the grant of animal 
 food, the ordinance in question, the command to be fruit- 
 ful and multiply, and the assurance that there should be 
 no future deluge. Now of this covenant God expressly 
 
STATUTE NEVER REPEALED. 241 
 
 says that it was meant for perpetual generations, as long 
 as the world should stand, an everlasting covenant. 
 
 The comprehensive application and perpetual obliga- 
 tion of this law, for Noah, and his posterity to the end 
 of time, unless revoked by the Divine Legislator, are as 
 unquestionable as the right to eat animal food. This 
 right was granted to Noah and his posterity for all man- 
 kind to the end of time, unless expressly revoked by the 
 Divine Legislator. Does any man doubt it ? Does any 
 man believe that the grant to eat animal food was made 
 only to Noah, or only to that generation, or only to the 
 Hebrews ? But the same arguments, which would 
 throw off the binding force of this statute, would destroy 
 the permissive force of this grant. You cannot show 
 from this passage, that it is lawful for us to eat animal 
 food, if you cannot also show that it is binding on us to 
 punish the murderer with death. You cannot point out, 
 in God's after-legislation, any statute, which either re- 
 vokes the grant or repeals the obligation. If its obliga- 
 tion ceased at any time, or with any race, when did it 
 cease, and how did men know it ? That the law contin- 
 ued to be fulfilled, we know from all history, both sacred 
 and profane ; when, or how, or by what agency did it 
 cease to be a law, though its fulfilment continued ? 
 
 In the terms of the law itself, there is positive proof 
 that it remains, and is binding now. The common sense 
 of law lays down a maxim, which no lawyer would set 
 aside, on which this permanence may be established. It 
 is this lex stat dum ratio manet ; the law stands while 
 22 
 
242 CAPITAL PUNISHMENT. 
 
 the reason remains. What was the reason for this law ? 
 Does that reason remain ? The reason is connected with 
 the law, and is given in God's own words ; for in the 
 image of God made he man. Does this reason still ex- 
 ist ? Then assuredly, the law is still in force ; for, how- 
 ever men may act without reason, and change without 
 reason, God does not. The law remains while the rea- 
 son remains. 
 
 This was in part the meaning of our Saviour, when he 
 said that not one jot or tittle should pass from the law, 
 till all should be fulfilled ; till its purpose should have 
 been accomplished, or the reason should have ceased to 
 exist. Are we made in the image of God ? Then, on 
 the strictest principles of reasoning, this law is still in 
 force. A government now, is as much bound to put to 
 death the man who kills his fellow-man, as the govern- 
 ment, of whatever nature you choose to suppose it, to 
 sustain the authority of which this law was first promul- 
 gated. A government attempting to set aside or do away 
 this law, transcends its sphere ; it legislates against the 
 divine legislation. It has no more right to do this than 
 it has to abrogate the law against stealing. It is as great 
 a solecism to commence the reformation of human legis- 
 lation with the abrogation of this law, as it would be for 
 a preacher of the gospel to commence the reformation of 
 human society, by denying a divine revelation. 
 
 This law is as obligatory as any statute in the deca- 
 logue. Its authority, like that of the decalogue, is 
 demonstrable, because the precept is a moral duty ; a 
 
PENALTY INVARIABLE. 243 
 
 moral duty to society, a duty which a benevolent and 
 wise regard to the interests of society renders binding. 
 It is just as demonstrable as the authority of the princi- 
 ple, "thou shalt love thy neighbour as thyself." But it 
 has one point in its favour over and above the decalogue ; 
 because it was addressed formally to all mankind. The 
 decalogue was meant for all mankind unquestionably ; 
 its essential nature, as necessary for man's highest inter- 
 ests, proves this. The prefix to the decalogue was limit- 
 ed ; Hear, O Israel. The prefix to this statute against 
 murder, was addressed to all the inhabitants of the world. 
 In fact, this is one of the laws of the decalogue itself, 
 with an invariable penalty stated. It is neither more 
 nor less than the law, Thou shalt not kill, with the pen- 
 alty for killing fixed by the lawgiver. This statute to 
 Noah, and every statute in the decalogue, stands on the 
 same basis of moral goodness, by the same moral neces- 
 sity. The statute springs out of what I may call the 
 necessity of love the necessity of watching over and 
 protecting the welfare of society the necessity of pro- 
 tecting the innocent against the passions of the depraved. 
 The nature of goodness compelled the promulgation of 
 this law. But a law is nothing without a penalty ; and 
 the same goodness that necessitates the law, necessitates 
 also the penalty and the enforcement. 
 
244 CAPITAL PUNISHMENT. 
 
 4. PROOF AND ILLUSTRATION OP THE MEANING OF THIS STATUTE 
 FROM THE SUCCEEDING LEGISLATION AMONG THE HEBREWS. 
 
 Suppose now, that an intelligent being, having heard 
 the first promulgation of this law to Noah, should have 
 been transported to some distant quarter of the universe, 
 not to return to this world for the space of twelve hun- 
 dred years. Would he expect to find this statute in 
 existence ? And if he did find it in existence, with other 
 similar statutes founded on it, would not this be an addi- 
 tional proof, if such were needed, of the universal and 
 perpetual intent and obligation of this law ? Let us then 
 take the place of this supposed angelic being, and visit 
 the world after twelve hundred years have passed away. 
 We will not go to any barbarous, inhuman part of it, for 
 you might say that such a race had interpreted this 
 statute according to their own cruelty and ignorance. 
 There is a bright spot on the earth's dark surface ; you 
 may know it by the mountain cedars, and the groves of 
 palm trees. A supernatural radiance rests upon it, and 
 a wall of light infolds and circles it, reaching from earth 
 to heaven. There is a temple there, but in it no idol is 
 to be found ; but only the sublime presence of the invisi- 
 ble God ! Now let us open a book of the legislative wis- 
 dom of this elevated and favoured people. " Whoso 
 killeth any person, the murderer shall be put to death by 
 the mouth of witnesses. Ye shall take no satisfaction 
 for the life of a murderer which is guilty of death ; but 
 he shall surely be put to death. So ye shall not pollute 
 
ILLUSTRATIVE EVIDENCE. 245 
 
 the land wherein ye are ; for blood, it defileth the land , 
 and the land cannot be cleansed of the blood that is shed 
 therein, but by the blood of him that shed it. Defile not 
 therefore the land which ye shall inhabit, wherein I 
 dwell ; for I the Lord dwell among the children of Is- 
 rael." Num. xxxv. 30-34. Does this look like the 
 abrogation of this law, or the cessation of its binding 
 power ? Nay, is it not the same law repromulgated far 
 more explicitly, with the same reason annexed ? "I the 
 Lord dwell among the children of Israel." How re- 
 markable is this language ! How remarkable the infer- 
 ence ! The more closely and nearly God condescends 
 to dwell on earth among his creatures, the more inva- 
 riably must this law of death to the murderer be exe- 
 cuted ! 
 
 Here I wish it to be distinctly understood, that in all 
 reference to the Mosaic institutions so called, I make it 
 not to gain from them a sanction for this law, but simply 
 to show the light which they throw upon it. The law 
 would stand upon the same unquestionable authority that 
 it does now, if the whole mass of revelation between the 
 book of Genesis and the gospel of Matthew were annihi- 
 lated. But the illustrative character of the evidence 
 is wonderful. It is precisely like that which would be 
 gained for any human law, by tracing in accordance 
 with it a whole body of precedents and conclusions un- 
 interrupted and unquestioned for hundreds of years. 
 
 There is a great distinction between the common law 
 of the world expressed to Noah, and local enactments 
 22* 
 
246 CAPITAL PUNISHMENT. 
 
 for particular reasons among the Hebrews. By those 
 enactments we are not bound. The authority of the 
 decalogue we do not- put merely upon the fact that God 
 gave it to the Jews, but that its principles are eternal, 
 universal. 
 
 But perhaps you will say, This after all is but the 
 childhood of society ; the race is only struggling towards 
 the perfection of humanity ; these are but tentative 
 processes in legislation, which must wait to be perfected 
 in the nineteenth century. Let us then leave the world 
 to its progress a thousand years longer. Where are we 
 now ? and what is the condition of humanity ? The 
 Creator and Saviour of the world himself is there ; God 
 manifest in the flesh, the Wisdom and the love of Eter- 
 nity, shedding its radiance through the veil of human 
 nature, adopted in mercy to mankind. His words are 
 all those of love, and God is love ; and yet he speaks of 
 death as well as life, of wrath as well as mercy, and 
 threatens the one while he promises the other. You find 
 at this period of our Saviour's abode in Judea, a great 
 abuse of the whole law with all its penalties, for the 
 purposes of private revenge. Does the present Law- 
 giver abrogate this statute ? No ! He condemns most 
 severely the spirit of revenge, but confirms the law, and 
 corrects the mistakes of any who supposed he would 
 destroy it. " Think not that I am come to destroy the 
 law or the prophets ; I am not come to destroy but to 
 fulfil." 
 
THE SWORD IN MAGISTRACY. 247 
 
 5. PROOF AND ILLUSTRATION FROM THE EPISTLE TO THE ROMANS, 
 AND FROM PAUL'S EXAMPLE. 
 
 Step now, thirty years after the crucifixion of this 
 blessed Being, into the zenith of civilization and splen- 
 dour, the capital of the world, and there listen to a new 
 voice of revelation on this subject. " Let every soul be 
 subject unto the higher powers. For there is no power 
 but of God ; the powers that be are ordained of God. 
 Whosoever therefore resisteth the power, resisteth the 
 ordinance of God ; and they that resist shall receive to 
 themselves damnation. For rulers are not a terror to 
 good works, but to the evil. Wilt thou then not be afraid 
 of the power ? Do that which is good, and thou shalt 
 have praise of the same. For he is the minister of God 
 to thee for good. But if thou do that which is evil, be 
 afraid ; for he beareth not the sword in vain ; for he is 
 the minister of God, a revenger to execute wrath upon 
 him that doeth evil." Rom. xiii. 1 4. 
 
 Two things are to be specially noted in this passage ; 
 the Divine origin of government as an ordinance of God ; 
 and the power of inflicting death as the minister of God. 
 If these two things be not recognized in this passage, 
 then there is no meaning in it. The sword, as the sym- 
 bol of power in the magistracy, indicated not an inferior 
 power, merely ; but the well-known highest power of 
 life and death, which, as in all such cases, is taken as 
 the symbol. This power Paul sanctions under the Chris- 
 tian dispensation, as springing from and sustained by the 
 
248 CAPITAL PUNISHMENT. 
 
 ordinance of God. There is no other possible view that 
 can be taken of the passage. There is in it no sugges- 
 tion of any repeal of any law no appeal to the milder 
 genius of the Saviour's dispensation no appeal to the 
 sermon on the Mount no retreat from your savage 
 genius of the Old Testament to the mild, forgiving spirit 
 of the New ; but an unhesitating, explicit recognition 
 and re-promulgation of the lawfulness and divine au- 
 thority of the punishment of death by the magistrate, as 
 the revenger of crime, the minister of God to execute 
 wrath upon the guilty. The phrase " bearing the 
 sword " could have been understood by those to whom 
 Paul was writing only as referring to the power of death. 
 The Roman government had not abolished capital pun- 
 ishment, nor was Paul writing to a community of Qua- 
 kers. He was writing to those who would inevitably 
 have understood him to reiterate as belonging to the 
 magistracy under the Christian dispensation that power 
 to take life, with which society was invested of God 
 under the Noachic and the Jewish dispensation. 
 
 Let this argument be carried one step farther in order 
 to test it in Paul's own conduct, and it becomes perfectly 
 decisive. In his own person, at the judgment bar, Paul 
 fully recognizes the justice and solemn authority of the 
 penalty of death. " If I be an offender, or have com- 
 mitted anything worthy of death, I refuse not to die." 
 Acts xxv. 11. Paul supposes that there are crimes 
 worthy of death, and that a human government may 
 rightly inflict the penalty of death for such crimes ; he 
 
ARGUMENT TESTED. 249 
 
 requires a legal investigation in his own case, and if by 
 such an investigation, he be found to have done anything 
 which deserves that penalty, he does not refuse to suffer 
 it, he is willing to die. The argument thus tested in 
 Paul's own experience, is perfect. It is incontrovertible, 
 that so far from there being any abrogation of ordinance 
 given to mankind through Noah, either in the letter, or 
 by the spirit of the Christian dispensation, we find, in the 
 very opening of that dispensation, a new and distinct 
 promulgation of the same. Nor is this to be wondered 
 at : for the legislation of God with Noah was as purely 
 benevolent as the precepts of our Saviour's sermon on 
 the Mount. 
 
 6, SUSPICIOUS NATURE OF ANY ARGUMENT WHICH BEGINS BY DE- 
 PRECIATING THE AUTHORITY OF GOD'S WORD. 
 
 As to the light which this ordinance sheds upon the 
 divine government, and the radiance which it pours over 
 questions of the highest moment in human affairs, it is, 
 amidst all the depravity, darkness, and bewildering 
 schemes of men, like a sun shot into chaos. It is an 
 orb of light. The attempts to destroy it are just as if 
 you strove to pluck the planets from their places. Nor 
 are the arguments by which its divine obligation is 
 sought to be avoided, restricted, or explained away, any 
 better than the false humanity that characterises the ef- 
 fort. An argument, which begins with a depreciation 
 of the authority, or the excellence of any part of the 
 word of God, is. from that very circumstance, suspicious. 
 
250 CAPITAL PUNISHMENT. 
 
 It would be better to yield up the whole benefit of an ap- 
 peal to divine truth uncontradicted, than to endeavour to 
 ward it off by cavils against its authority, or sneers upon 
 its barbarism. They who speak thus either of the Noa- 
 chic or the Jewish economy, speak both ignorantly and 
 presumptuously. There has never been a regulation 
 under God's authority which was barbarous or injudi- 
 cious. It was ever the highest wisdom ; but divine wis- 
 dom itself is not an abstraction, but in its exercise re- 
 gards circumstances : and therefore, if any enactment 
 be manifestly local, the question we have to ask is not, 
 Was such an ordinance meant for us 1 but, how far are 
 our own circumstances so similar to those of the men 
 for whom it was intended, as to make it applicable to us, 
 wise for us ? The remarks of a great philosopher on 
 the Jewish economy, one who will not be suspected of 
 religious prejudice, or blindness, are worth consideration. 
 It is Sphlegel, who has observed on this subject, that " in 
 practical life, Reason serves as the divine regulator, in 
 so far as it adheres to the higher order of God. But 
 when it refuses to do this, and wishes to deduce all from 
 itself, and its own individuality, then it becomes an ego- 
 tistical, over-refining, selfish, calculating, degenerate 
 reason, the inventress of all the arbitrary systems of 
 science and morals, dividing and splitting everything 
 into sects and parties/" 5 The same great writer has ob- 
 served of the whole existence of the Jewish people, that 
 " the keystone of its moral life projected its far shad- 
 ows into futurity ;" he might have observed the same 
 
IMAGE OF FUTURITY. 251 
 
 of the ordinance given to Noah, which indeed is the 
 keystone placed by divine wisdom in the magnificent 
 arch of human legislation constructed from on high. 
 This, too, according to that noble expression, projects its 
 far shadows into futurity ; it is a prophetic miniature of 
 the key-stone of divine justice and goodness in the gov- 
 ernment of God in eternity. You may see here an 
 image of the infinite, in the finite, even as you may see 
 the whole cope of heaven reflected in a dew-drop. 
 
 7. THE GREAT SACREDNESS AND PROTECTION OF HUMAN LIFE PRO- 
 DUCED AMONGST THE HEBREWS BY THIS STATUTE. 
 
 I have now proved to you the original, comprehensive 
 ordinance unshackled, unrestricted, bold, universal, in 
 an authoritative annunciation as simple, clear, conclusive, 
 as any command in the decalogue, with reasons as mani- 
 fest, with cogency as great. I then prove to you after- 
 wards additional particular statutes framed manifestly 
 under the authority of this universal statute, in the legis- 
 lation of a people who received this first book containing 
 it as one of the portions of the Divine law ; and this 
 particular enactment as belonging to themselves, as one 
 of the great families of mankind sprung from Noah ; 
 which local statutes, though restricted to the Jews, look 
 back to the great original statute as their fountain, and 
 prove incontrovertibly that thus far that statute had never 
 been repealed. I show these statutes to you couched in 
 such terms, accompanied with such remarkable declara- 
 tions as to the guilt of murder, that even in local enact- 
 
252 CAPITAL PUNISHMENT. 
 
 merits this crime has been manifestly singled out and 
 held up to the world as an exception to all others, in 
 admitting no reprieve or repeal in any case whatever 
 from its assigned penalty. There are no deeper colours, 
 in which the pencil of inspiration itself is ever dipped. 
 
 It is astonishing to mark the jealousy of the Divine 
 Being, lest the sympathy of his fallen creatures with 
 sin, and their mistaken pity for the murderer instead of 
 the murdered victim, should turn the course of justice 
 from its prescribed channel. Doubtless the Divine Le- 
 gislator had observed an unwillingness to follow his 
 supreme wisdom, a readiness to connive at crime and 
 clear the guilty, a readiness on the part of witnesses and 
 of judges to perjure themselves, a sympathy produced 
 partly by family influence, partly by the declamation of 
 demagogues, partly by infidelity, and partly by the plau- 
 sible pretence of a benevolence superior to God's. For 
 a season, these explicit statutes prevailed to check these 
 influences, and stay the crime of murder, so that, under 
 the administration of the Judges it was so uncommon, 
 that the whole nation from Dan to Beersheba rose up in a 
 complicated case, to punish it. A noble state of public 
 opinion, and produced entirely by the salutary power of 
 these laws. But in after times the law grew again to be 
 neglected, and this remissness in its execution is charged 
 against the nation, as constituting one of its greatest sins, 
 this carelessness of human life, and this permission of 
 bloodshed without avenging it. Your hands are full of 
 blood, says the prophet Isaiah, unavenged blood, and 
 
SACREDNESS OF LIFE. 253 
 
 therefore you may be ever so religious in your prayers, 
 but God will not hear them. 
 
 It is described as one of the characteristics of a reli- 
 gious man, which shall dwell on high, that he shutteth 
 his hands from holding bribes, and stoppeth his ears 
 from hearing blood ; will not, for one moment, listen to 
 anything, but the execution of the Divine law upon the 
 murderer. All this is remarkable. And all these in- 
 stances are proofs of the admirable character of the 
 Jewish code : in no nation in the world, while it was 
 observed, had human life any sacredness or protection 
 compared with that experienced among the Hebrews. 
 And in the period of that nation's greatest prosperity, the 
 feeling of such sacredness, and the sense of the Divine 
 law, had sunk down so deep into the soul of people and 
 king, that David, about to depart from life, could not rest, 
 while he remembered that the crime of murder in one 
 of his own captains had gone unpunished. He was 
 compelled by the invisible Spirit of Law and Justice, 
 and Humanity too, to leave it as his dying injunction to 
 Solomon, that the blood of Amasa and Abner, whom 
 Joab slew, should be avenged as the Divine statute 
 directed. 
 
 8. THIS STATUTE RE PROMULGATED AND ESTABLISHED IN THE NEW 
 TESTAMENT. 
 
 Passing now from the argument among the Hebrews 
 of the old dispensation, I carry ^ou down to the period 
 of the great re-enactment and publication of the Divine 
 23 
 
254 CAPITAL PUNISHMENT. 
 
 law by the Saviour, its repromulgation under the form 
 of love which quality is the basis of all Divine legis- 
 lation ; for the restraint and punishment of vice in the 
 vicious, grows out of love to the virtuous ; and 1 prove 
 o you that at that time, and all along, before and after, 
 there were cases of capital punishment, and that the 
 authority and power of capital punishment is held un- 
 diminished, and of divine origin and sanction. I prove 
 to you that in the time of the apostles this power is 
 recognized as belonging to the magistracy, so that Paul 
 apparently almost goes out of his way to reiterate it, and 
 to hold it up as the highest delegation of power from God 
 to man, emanating directly from the Divine Legislator. 
 And I show you, that so far from any appeal being taken 
 from this law to the law of Christ, it is confirmed by the 
 gospel ; and that, so far as our blessed Lord remarked 
 upon the Mosaic institutions, it was not to condemn them, 
 but the rapacity, cruelty, and oppression of the Jews 
 abusing them, and turning their spirit of justice and love 
 into malignity ; not to repeal a single one of them, but to 
 regulate their application. I prove to you, that even if 
 our Lord had stricken out, with his own hand, any one 
 of them, this would not have lessened the authority of 
 those that remained ; for till the same hand should blot 
 them all away, no human authority should dare to do it. 
 So that, as long as there cannot be found the slightest 
 reference by our Saviour to the law of death for mur- 
 der ; except it may be where he declares that they that 
 take the sword shall perish by the sword, which saying, 
 
LAW OF RETRIBUTION. 255 
 
 so far as it goes, is a reiteration of that law ; even if he 
 had said distinctly as to the law of retaliation by an eye 
 for an eye and a tooth for a tooth, It is all done away ; 
 which he never did say, but simply rebuked the spirit of 
 private revenge making use of that law as its instrument 
 or for its concealment ; this would not have the least 
 bearing on the penal statute for murder, either to ques- 
 tion, restrain, limit, or repeal it. Even supposing one 
 statute of the Divine Law repealed by its author, who 
 dare take this example, and follow in the repeal of an- 
 other, without a direct command from the Deity ? This 
 mode of reasoning is altogether presumptuous and incor- 
 rect. 
 
 The precepts of our Saviour are sometimes urged as 
 if really the Spirit of God and the Spirit of Christ were 
 contradictory. When the Saviour says, Thou shalt love 
 thine enemies, it is the same benevolence which speaks, 
 The murderer shall surely be put to death. When God 
 says, Resist not evil ; Recompense to no man evil for 
 evil ; Vengeance is mine, I will repay, saith the Lord ; 
 he speaks to individuals and not to the civil government ; 
 there could not be a more perfect obedience to this com- 
 mand, than when the avenging of the blood of a murder- 
 ed man is put into the hands of the government, and 
 God'"s own penalty is executed. This is God's own ven- 
 geance ; this is God repaying, and not man. Your ob- 
 ligation to love your enemies, is no greater than your ob- 
 ligation to love the community. This train of thought 
 is admirably developed by Rev. Mr. Thompson of 
 
CAPITAL PUNISHMENT. 
 
 New York. What it may be wrong for you to do as a 
 private individual, it may be wrong for you not to do as 
 a citizen or an officer of justice. You have no right to 
 inflict a personal injury upon your neighbour, but to love 
 him, though he be your enemy ; even if he have mur- 
 dered your own brother, you are bound to forgive him 
 the injury yourself; but you are also bound to bring him 
 to justice. If you are a magistrate, and your neighbour 
 or your enemy is brought before you charged with an of- 
 fence against the laws, you are bound to inflict an injury 
 upon him, by the penalty of law, and if the crime be 
 murder, by death. If your dwelling should be set on 
 fire at midnight, and one of your children murdered by 
 your enemy, the Spirit of Christ commands you to for- 
 give him personally, but it commands you also not to 
 shield him from the penalty of the law. The same 
 Spirit of Christ commands you, as you love the welfare 
 of the community, to bring this murderer to justice, to 
 have him arrested and put in prison to receive his doom. 
 You yourself would be an enemy to the community, if 
 you connived at his escape. 
 
 9. CONCURRENT PRACTICE AND OPINION OF THE WHOLE ANCIENT 
 WORLD. 
 
 % 
 
 I have dwelt upon the existence of this law through 
 the whole course of Jewish legislation, and the contin- 
 ual reference to it in the stream of Divine revelation. I 
 cannot dismiss this point without noticing the strong cor- 
 
TESTIMONY OK ANTIQUITY. 257 
 
 roboration our argument receives from the consentaneous 
 legislation of the world from the time of Noah. 
 
 We have the unanimous concurrence and practice of 
 the whole ancient world to sustain our interpretation of 
 the Noachic ordinance. We have in the stream of 
 Pagan and classical literature, a continual reflection and 
 memory of its light. " Philosophers, legislators, poets," 
 I speak in the words of one of our distinguished native 
 scholars, (Prof. Taylor Lewis), " all speak of it as de- 
 rived from primeval tradition, and as coming from a 
 source transcending the memory of history. It is the 
 very precept which Aristotle produces, and with a stri- 
 king resemblance in some of his terms to the language 
 of the Bible, as an example of what he styles unwritten 
 law, noj; peculiar to Athens, or Macedon, or Persia, but 
 coextensive with mankind, and found among all nations, 
 civilized and savage. The ancient poets, better ex- 
 pounders of the natural sentiments of mankind than the 
 philosophers, ever speak of it as a law having something 
 peculiarly sacred and holy about it, and differing in this 
 respect from all other statutes, thereby intimating that 
 special Divine origin of which we have so precise an ac- 
 count in the Bible. 77 
 
 10. TENOR OF THE GRECIAN POETS ON THIS POINT, AND ILLUSTRA- 
 TIONS F THE JUDGMENT OF THE HUMAN MIND, IN THE CASE OP 
 THE INHABITANTS OF MELITA WITH PAUL. 
 
 I may add to this, that the voice of the Grecian poets 
 especially recognizes the proverb that " Murder will 
 23* 
 
258 CAPITAL PUNISHMENT. 
 
 out ;" and is an echo of that deep utterance, which God 
 himself interpreted of inanimate nature, " the voice of thy 
 brother's blood crieth unto me from the ground" You 
 may find in the Greek poets a constant reverberation of 
 that voice which in the book of Proverbs comes from 
 heaven : " A man that doth violence to the blood of any 
 person, shall flee to the pit ; let no man stay him.' 7 It 
 seems to be a law of the human mind, in the natural, 
 social state, to sleep not, to rest not, until the spirit of the 
 murdered victim is answered in this appeal. There is 
 an instinct for the punishment of murder by the death 
 of the murderer ; Cain himself manifested its power 
 and its terror when he said, " Every man that seeth me 
 will slay me." The inhabitants of Melita manifested 
 its power when they said, in the very spirit of a^. chorus 
 in the Greek Tragedies, and of the word of God itself, 
 as they saw the viper fastening upon Paul's hand, " No 
 doubt this man is a murderer, whom, though he hath es- 
 caped the sea, yet vengeance sufFereth not to live." 
 The word here means not so much vengeance, as the in- 
 visible, Divine Avenger the ever-watchful Deity of 
 Justice. This is one of the most remarkable expressions 
 to be found on record, of the sense in the minds of the 
 heathen, of the existence and providence of such a 
 power. I may add, also, that this is an equally signal 
 development of the innate idea of right, as applied to 
 punishment. These men did not think of the good of 
 society or the necessity of punishment for its protection ; 
 but they said, This man is a murderei'; he ought to 
 
INNATE FEELING. 259 
 
 have been put to death ; justice required it, and now 
 justice hath overtaken him. In this they simply uttered 
 the innate feeling of right the inward sentence of the 
 soul, to which every soul responds. It is right that the 
 murderer should die. There was nothing vindictive 
 nothing revengeful in this feeling. It is the constitution 
 of our nature to make us feel that crime demands pun- 
 ishment ; it is not merely a suggestion of expediency 
 it is an instinct of our being. 
 
 To the argument from the scriptures I shall now add 
 one more text, because standing at the close of the Bible, 
 it completes the golden chain of argument, running like 
 a furrow of light through the whole Bible on this subject, 
 from Genesis to the Apocalypse. It is this, from the 
 Revelation of St. John, xiii. 10 : " He that killeth with 
 the sword must be killed with the sword." It is power- 
 ful for two reasons. First our marginal annotators, 
 without any point to gain or any special pleading, have 
 referred us for a scriptural comment on the meaning of 
 this passage, to the ordinance in Genesis. Second, the 
 impersonal Greek verb Set, which is here used, carries 
 with it the sense of necessity, propriety, fitness, moral 
 obligation. He that killeth with the sword, must, ought, 
 shall be killed by the sword. This also is very like that 
 proverb which I have quoted : " He that doth violence 
 to the blood of any person shall flee to the pit : let no 
 man stay him." 
 
260 CAPITAL PUNISHMENT. 
 
 11. CONSIDERATION OF THE SLANDER THROWN UPON THIS STATUTE 
 AS IF IT WERE VINDICTIVE BENEVOLENCE OF THIS STATUTE. 
 
 This brings us to the consideration of the slander 
 thrown upon this statute as if it were malevolent, re- 
 vengeful, vindictive. The sophistry of our opponents is 
 often mainly deployed upon this point. You are pleased 
 to call it vindictive, and in this way seek to array against 
 the punishment of malice, that feeling of indignation, 
 which rises in a just mind against malice itself. Now it 
 is perfectly clear, that in this legislation there is nothing 
 malicious, nothing vindictive. It proceeds from love, 
 from benevolence, from the absolute, humane necessity 
 of preventing crime, and guarding the world against it. 
 Of all processes of law, that in which the murderer is 
 condemned to death is the most solemn, deliberate, com- 
 passionate. The law never shows its majestic combina- 
 tion of immutable sternness, with the constant play of 
 human sympathy more clearly. The benefit of every 
 doubt is allowed to the prisoner ; the court, judge, and 
 jury all wish that he may be proved innocent ; the ver- 
 dict of guilty is pronounced with hesitation and sorrow ; 
 the judge declares the sentence with reluctant humanity ; 
 the whole community, pressed on by the invisible, sub- 
 lime power of that element, whose agency supports the 
 universe, do nevertheless shrink back in horror and pity 
 from the awful conclusion. All this proves at once the 
 absence of every vindictive element ; but demonstrates 
 at the same time, the protective and salutary terrors of 
 
NOT VINDICTIVE. 261 
 
 the punishment. The impression on the community is 
 a most deep, salutary, beneficial one. The image of 
 divine law and divine retribution is reflected as in a 
 mirror to the inward prophetical vision of the soul. 
 The thought of vindictiveness is the last that would 
 enter the mind ; the thought of the dreadfulness of the 
 crime of murder, and the awfulness, immutability, and 
 certainty of justice, in its punishment, is roused. If any 
 just penal inflictions could suggest the idea of vindictive- 
 ness, there are other modes of punishment, which would 
 do it much more readily. Punishment by death is no 
 more vindictive in its nature than imprisonment, than 
 fine, than banishment. But the word itself is a sophism, 
 It does not belong to justice, which is vindicating, but not 
 vindictive. When you apply it, you are guilty of a de- 
 liberate misstatement ; you appeal to prejudice by an 
 argument which you must know to be false. 
 
 It is not only not vindictive, but it is humane in the 
 highest degree. That is true humanity, which looks 
 to the highest good of the greatest number. In this 
 view, all penalties of the divine law, and all just penal- 
 ties of human law, are the offspring of benevolence. 
 Your frowning prisons, in which living men are im- 
 mured in a death to society, to love, to domestic tender- 
 ness, to nature, to the sweet changes of the seasons, to 
 all that can render life desirable, on your reasoning are 
 inhuman and vindictive in the last degree. The element 
 of malice, if you charge it against the penalty of death, 
 is more marked and manifest by far, in this penalty of a 
 
262 CAPITAL PUNISHMENT. 
 
 living death in perpetual imprisonment. When one of 
 the trusted ministers of Louis XL had betrayed his 
 master, that tyrant kept him fourteen years in an iron cage 
 in one of his grim castles. There was more vindictive 
 malice in that act than in twenty executions. In all forms 
 the just penalties of law are not vindictive, but benevolent. 
 
 12. MISTAKE CONCERNING THE NATURE OF BENEVOLENCE. 
 
 There is no mistake more general, than that concern- 
 ing the nature of benevolence, the monstrous mistake of 
 supposing that benevolence cannot punish. Nor is there 
 any statute of the Divine law better adapted to correct 
 that mistake, than this statute of capital punishment. 
 The highest proof of malevolence would be not to pun- 
 ish, but to let sin prevail. In this view, the evil which in 
 this world follows the commission of crime, the evil which 
 is attendant on sin in all its forms, is a necessary part of 
 the demonstration of the Divine goodness. This being 
 a world of sin, if it were not also a world of misery, 
 you could not prove that God is ,a benevolent God. A 
 being not benevolent would let mankind go on in their 
 sins without any check. The miseries of mankind do, 
 in this view, prove the goodness of God ; and instead of 
 needing an explanation or apology, as if they constituted 
 a difficulty in God's government, they are absolutely 
 necessary to demonstrate that we are under his govern- 
 ment. They prove that a being of infinite goodness is 
 at the head of aifairs. Nor is there anything that proves 
 
RETRIBUTIVE JUSTICE. 263 
 
 this more truly, than the ordinance that whosoever shed- 
 deth man's blood, shall himself die. 
 
 The retribution in this statute is an image of the 
 divine retributive justice in eternity. Into this one 
 statute the principles of the Divine government are 
 concentrated ; it is a prophetic image ; and those who 
 disregard the statute, and deny its principles, must, 
 according to the warning even of a heathen philoso- 
 pher, look that they be prepared for a future develop- 
 ment, which may very much astonish them. It was 
 Plato, and not a Calvinistic theologian, who said that the 
 laws in the eternal world, the sisters of the laws in this 
 world, will give their enemies a fearful reception in 
 eternity. 
 
 13. CONCLUSION OF THE SCRIPTURE ARGUMENT. NATURE OF THB 
 ATTEMPT TO ABOLISH THIS STATUTE. 
 
 Here I must for the present rest the argument, but I 
 leave it on an immovable foundation. The argument 
 from expediency against the abolition of Capital punish- 
 ment is equally strong, the divine will and wisdom be- 
 ing the highest possible expediency ; it will lead me 
 over a path of the deepest interest, both in the statement 
 of the argument itself, and in answering the objections 
 brought against the statute as it stands, where we hop* 
 it ever will stand, in our codes of law, and is happily 
 and humanely practised, where we hope it ever will be 
 practised, in our Courts of Justice. 
 
 The attempt to abolish it js the array of the opinion 
 
264 CAPITAL PUNISHMENT. 
 
 of a few persons, at a particular juncture of time, 
 against the dictate of divine wisdom, and the wisdom 
 and experience of all nations, in all states of society, in 
 all ages of the world. It is a hardy enterprise, this 
 opposition, as it has been admirably stated, of the vox 
 populi of the present moment against the vox Dei of the 
 Scriptures, and the vox liumanitatis of the whole human 
 race. But the opponents of this law have not even the 
 vox populi to sustain them ; it is a mistake if they as- 
 sert this to be the popular opinion ; the appearance of it 
 is only the assertion of it by themselves with the unsub- 
 stantial echo, but not the voice. I rejoice in feeling 
 sure that this is the case, that the popular feeling, and 
 the benevolent feeling, are in favour of this law. I be- 
 lieve in general, and we have the history of the French 
 revolution to support the opinion, that the very same 
 men who sometimes clamour the loudest for the abolition 
 of Capital punishment, on account of the vaunted 
 humanity and enlightened public opinion of the day, 
 would be the persons, if a tempest of public opinion 
 happened to sweep in favour of Lynch-law, who would 
 drag a man even from the safety of the prison, and 
 hang him on the nearest lamp-post. 
 
 Public opinion may be mistaken at a particular junc- 
 ture often is. And we wish it to be considered wheth- 
 er any one generation of human society is capable of 
 deciding, by its own experience even, the fitness or the 
 unfitness of a law, which God has seen best to promul- 
 gate for the human race. Before all experience, we 
 
STATUTE FOR ALL GENERATIONS. 265 
 
 should judge that a legislation intended for six thousand 
 years would very probably pass over intervals of time 
 and phases of society, in which the particular applica- 
 tion of its wisdom might not seem so manifest might 
 possibly be deemed questionable. But should we say 
 that the doubt or the question engendered by particular 
 circumstances, or by one people, could justify the race 
 in altering or repealing such legislation ? Should a law 
 intended for a thousand years, be repealed because the 
 experience of one of those years seems to run not ac- 
 cordant with the line traced by the reason of that law ? 
 Proportioned to the importance and unchangeable wisdom 
 of this law, is the universality of its publication. There 
 is no nation so barbarous, no period of the world so 
 rude, degraded, ignorant, that has not known it, that has 
 not possessed it, however simple and informal may have 
 been the elements of legislation. There is no nation 
 that has risen to refinement and vigour of mind enough, 
 to embalm in an undying literature, the voice, the opin- 
 ion, the experience, of morality and prudence, that has 
 not spontaneously echoed and sanctioned this statute, as 
 if it were as much the dictate of man's being as of 
 
 o 
 
 God's wisdom. It stands at the opening of an early and 
 unpolluted world, before one drop of blood, save that of 
 a hallowed sacrifice, had bedewed the earth, yet fresh 
 and moist from the cleansing deluge. Before there was 
 room for a single emotion but of gratitude and love, it 
 was revealed as one grand element, not of revenge, but 
 of blessing, in the Divine covenant with the human race. 
 24 
 
266 CAPITAL PUNISHMENT. 
 
 The hand that drew the rainbow over the sky, in sign 
 " that storms prepare to part," wrote this statute in lines 
 no more to be effaced till the destruction of all things, 
 than the colours of the rainbow c^ be blotted from the 
 sky, while lasts the constitution of this physical universe. 
 And as in every conflict of the elements that might 
 fill men's souls with terror of another deluge, this bow 
 of mercy, this vision of delight, should span the clouds 
 with the glittering arch, so in every storm of human 
 passion, that rises to the violence of death, this statute, 
 as a bow of promise, is God's assurance to the world, 
 against the anarchy of murder. There probably never 
 was an instance of murder in the Christian world, in 
 which men did not think of it ; nor ever an instance in 
 the heathen world, in which the voice of conscience did 
 not echo its assurance. As it stands in the Scriptures, 
 it is one of the planets in the firmament of revealed 
 truth ; to strike it out from its place, and from its author, 
 ity for the guidance of human legislation, would be like 
 striking the constellation of the Pleiades, or the bright 
 North Star, from heaven. A great writer has said, 
 with most profound wisdom, that it is only by celestial 
 observations that terrestrial charts can be accurately 
 constructed ; and so, it is only by the divine light that 
 comes down from these divine statutes, that human legis- 
 lation can be perfected ; it is only by comparison with 
 these statutes, that the mistakes of human prejudice or 
 ignorance can be detected and adjusted. Sure we are, 
 that on the ocean of human passion, neither states nor 
 
GUIDANCE OF LAW. 267 
 
 individuals can be safe, but by charts, mapped and 
 marked beneath the light of these enactments. It is 
 light, like that of the planets, has travelled unaltered 
 and unabated across the storms and changes of thou- 
 sands of years ; and still it shines, and still will it shine 
 to the end of the world ; for as sure as we are that a 
 God of mercy gave this comprehensive element of law 
 to Noah, so sure we are that he will never suffer it to be 
 blotted from human statute books, by the presumptuous 
 tampering of a single generation. 
 
ARGUMENT OP THE SECOND EVENING. 
 
 1. REASON OF THE STATUTE PERPETUAL. 
 
 AN objection is sometimes brought against the binding 
 and perpetual obligation of the Noachic statute, that if 
 you take it as we contend, you must also take the pro- 
 hibition not to eat blood. This is worth noticing. I 
 might contend that this is simply a prohibition against a 
 species of cannibalism, for it is not the blood that is for- 
 bidden solely, but the flesh with the blood. But I apply 
 to this prohibition the same reasoning as to the injunc- 
 tion. It is of force while the reason for it remains. It 
 was given, in reference to the sacrifices which were to 
 constitute the standing type and prediction of the great 
 sacrifice of the Messiah for the sins of the world. To 
 make that rite more sacred, to maintain the idea of the 
 solemnity and sacredness of religious sacrifices, in which 
 so deep and holy a life and meaning was in the blood of 
 the victim, this prohibition was laid down against eating 
 the blood with the flesh. As long as the rite of sacri- 
 fices lasted, the force of this prohibition stood, because 
 the reason for it remained ; but when sacrifices and 
 
PENALTY MARKING GUILT. 269 
 
 types were abolished, the particular binding force of this 
 prohibition fell with it, the reason for it no longer exist- 
 ing. But this does not affect in the least degree that 
 great injunction of the punishment of death for murder. 
 If the reason for that command could be shown to be no 
 longer existing, then the injunction itself would fall, but 
 not otherwise. Lex stat, dum ratio manet. The reason 
 remains. We are made in God's image ; every genera- 
 tion to the end of the world will be ; therefore, on every 
 generation this law is binding. 
 
 2. ENORMITY OF THE GUILT OF MURDER, AND NECESSITY OF A 
 PENALTY THAT SHALL MAKE IT PARAMOUNT IN ITS RETRIBUTION, 
 AS IT STANDS IN ITS GUILT. 
 
 There is no computing the enormity of the guilt of 
 murder. It stands alone, and unapproached by any 
 other crime in its atrocity. Its intrinsic enormity, and 
 its dreadful consequences are such that we need not 
 wonder at the language in which it is described and de- 
 nounced by Jehovah, nor at the penalty of death affixed 
 to it. It is right, it is benevolent, it is necessary, that 
 such a crime should invariably, without any exception in 
 any case whatever, be punished with the extremest pen- 
 alty of which heaven has annexed the authority to hu- 
 man law. There ought to be such a penalty, high, aw- 
 ful, distinctive, to mark this crime in its retribution, as it 
 stands in its guilt, paramount to every other. The con- 
 science of society should be educated in the view of such 
 a penalty ; and if it were not, or when it is not, poor 
 24* 
 
270 CAPITAL PUNISHMENT. 
 
 and cheap indeed is the estimate placed upon the sacred- 
 ness of human life. 
 
 The object of all punishment is benevolent, it is the 
 well-being of the community. It is to prevent crime by 
 supporting law. The penalty of the law must be an 
 evil, which the man intending crime will balance against 
 the good he proposes to himself by the crime. He must 
 fear the evil more than he desires the good. Do you 
 say that men commit crimes in passion, and that there is 
 seldom this balancing of motives and considerations ? I 
 answer, this may possibly be true in regard to all minor 
 penalties, and this is one strong argument for having in 
 the case of murder so terrific, strong, overbearing a pen- 
 alty, that it shall break down all other considerations, 
 that it may stem the torrent of passion, that the criminal 
 may hear a voice amidst the roar of the tempest of pas- 
 sion commanding him to refrain. 
 
 3. STATEMENT OF THE QUESTION OF EXPEDIENCY. 
 
 Now, it being granted that the murderer deserves to 
 die, and that society have the right in some cases to in- 
 flict the punishment of death, the question of expediency 
 before us is simply whether punishment by death oper- 
 ates more effectually to prevent the crime of murder 
 than any other penalty. Now, then, who are they from 
 whom we have to fear murder ? Any man may become 
 a murderer with sufficient temptation ; but in general it 
 is men already hardened by crime, from whom the crime 
 murder is to be feared ; it is men urged by want, out- 
 
TERRORS OF THE PENALTY. 271 
 
 casts from society, beings with whom life is already so 
 deprived of comfort, of respectability, of happiness, that 
 a jail with its food and clothing would be almost a relief 
 instead of a punishment, while death would be the most 
 terrific of penalties. It is manifest that there is almost 
 no good motive to restrain such persons from crime. 
 There is nothing but fear that will do it. But the fear 
 of the prison is almost changed into a relief at the 
 thought of its shelter. With the penalty of death it is 
 very different. Here you appeal to a terror as far great- 
 er than all others, as the crime itself of murder is great- 
 er than all others. " In all secondary punishments," re- 
 marks a legal writer, "it is assumed that the convict is 
 well fed, well clothed, well lodged, and well attended to. 
 He may have no luxuries and few comforts, but he has 
 entire security against starvation or want, perfect protec- 
 tion against the weather, and certainty of medical assist- 
 ance in case of sickness. To the unthinking multitude 
 the secrets of the prison-house can never be fully re- 
 vealed, and there will always be some room for doubt 
 and hope as to the lot of the convict. The executioner 
 alone inflicts a punishment of which the sufferings can 
 never be called in question." 
 
 I may add to this, that you may put what guards you 
 will about your plan of imprisonment, to make it perpet- 
 ual, there will always be hope of escape. Criminals 
 sentenced to imprisonment for life, have ordinarily, on 
 an average if you take this State for an example 
 spent in prison about six years ! But even if you made 
 
 
CAPITAL PUNISHMENT. 
 
 the date absolutely immutable, there will always be 
 murderers, who, with the ingenuity of Baron Trenck, 
 could almost eat their way through stone walls, as easily 
 as they could eat the heart out of their own humanity. 
 Or if not, a villain who will commit a murder that 
 brings him into prison, would not hesitate a moment to 
 commit one that shall take him out. 
 
 4. POWER OF THE FEAR OF DEATH AS A PUNISHMENT - ILLUSTRATED 
 IN THE CASE OF COLT. 
 
 Indeed, there is nothing that can possibly check the 
 spirit of murder, but the fear of death. That was all 
 that Cain feared ; he did not say, people will put me in 
 prison, but, they will put me to death ; and how many 
 other murders he may have committed when released 
 from that fear, the sacred writer does not tell us. Nor 
 is it anything but this, that the whole progeny of mur- 
 derers, from Cain downwards, ever fear, nor anything 
 but this fear that ever will restrain them. They fear 
 the same tremendous evil which they inflict on others, 
 but nothing else. 
 
 And you may range the whole Newgate Calendar, 
 with the experience of all gentlemen elopers with the 
 estates of heiresses, who, like Gilbert Wakefield, have 
 got into it ; and you may tell as much as you please of 
 the insensibility of obdurate villains even in the face of 
 death ; but such testimony weighs no more against the 
 power of the fear of death in all mankind, than the tes- 
 timony of a perjurer and a murderer would weigh 
 
TERRORS OF THE PENALTY. 273 
 
 against an honest man's testimony in a court of justice. 
 But if it did weigh, what does it prove ? Why, that, 
 there are such monstrous villains, so steeled and invete- 
 rate in wickedness, that death itself ha's no terror for 
 them ; but certainly if they do not fear death, they fear 
 imprisonment still less ; and if they would murder even 
 with the fear of death before them, much more will they 
 murder when that fear is taken away. Besides, if be- 
 cause a villain says that he neither fears your law nor 
 its deadly penalty, you bring that as a reason for abol- 
 ishing the penalty, suppose another knot of villains tell 
 you that they do not even fear God, nor his terrific pen- 
 alty ; the same reason would be just as good for striking 
 that penalty from the government of the universe. Or 
 if another gang tell you that they care not a fig for your 
 perpetual imprisonment, then by parity of reasoning, 
 you ought to abolish perpetual imprisonment. The rea- 
 soning from these drivellings of depravity in malefactors 
 is to the last degree wretched and absurd. Hard push- 
 ed indeed must he be in argument, who can consent to 
 dive down into the polluted heart of a Newgate criminal, 
 in order to fish up, from the confession of his monstrous, 
 unnatural obduracy, an argument in that very obduracy 
 against the fit punishment of his own crimes. 
 
 I think there is a testimony from criminals sometimes 
 elicited as to the real fear of death, which it may be 
 well to set over against all this. It is that rather than 
 die by the penalty of the law, they sometimes kill them, 
 selves. But who ever heard of a man killing himself 
 
274 CAPITAL PUNISHMENT. 
 
 to avoid imprisonment ? What malefactor, whom the 
 officers of justice were carrying to prison, if the popu- 
 lace should try to kill hi^ would not cry lustily for 
 help ? You cannot believe that the wretched Colt would 
 have killed himself, if his punishment had been merely 
 imprisonment instead of death. Besides, what language 
 was it which was spoken in that hurrying and anxiety 
 to have his sentence commuted, that intense effort on the 
 part of counsel, friends and criminal for this purpose. 
 Well then, a punishment which the criminal fears more 
 than death, must be of all others most powerful to re- 
 strain from crime. 
 
 But you object that it leads to suicide. We answer, 
 that it places suicide itself as a terrific consequence of 
 crime, a terrific form of vengeance uprising behind the 
 shade of the murdered man to the murderer's own view. 
 It places the crime of murder on one side a public ex- 
 ecution or suicide on the other, with no possible alterna- 
 tive. Now the whole system of criminal jurisprudence 
 goes upon the supposition of a future state of retribution, 
 the supposition that men believe it, and that no man will 
 flee voluntarily from this to that. It does not contem- 
 plate, and it ought not, a state of society, in which men's 
 fear of a future judgment is taken away. It contem- 
 plates that judgment; and its highest, last, most awful 
 resort, when men commit the highest, last, most awful 
 crime, a crime from which all lesser penalties are una- 
 vailing to restrain them, is to hand the criminal over to 
 that dread tribunal, which alone can deal with him. It 
 
CERTAINTY OF THE PENALTY. 275 
 
 seems to me that in this point we have a most solemn 
 connecting link between God's jurisprudence and our 
 own. God's high court has a passage from our inferior 
 one ; and in the case of this crime, it is as if God had 
 said, Here you can. do nothing but to hand the criminal 
 over to his last judge ; he has passed that limit, in which 
 it was possible to permit men to sin under the jurispru- 
 dence of probation. 
 
 5. OBJECTION CONSIDERED, OF THE UNCERTAINTY OF THE PENAL- 
 TY. SALUTARY POWER OF THE PENALTY OF DEATH FOR MURDFR, 
 
 AS CERTAIN. 
 
 I am not now arguing for the restraining power of an 
 uncertain penalty, but of a penalty, which, restricted to 
 the crime of murder, shall be made absolutely certain. 
 One of your objections against punishment by death is 
 the uncertainty of its execution, and that this uncer- 
 tainty renders the penalty itself ineffectual. Very true; 
 and this very uncertainty, and the consequent weakening 
 of the power of law and of its protective energy to the 
 community, is in part owing to men's injudicious efforts 
 against this penalty. They act some of them from a 
 warm heart, no doubt, but not from a wise and large 
 philanthropy. This uncertainty, with all this whimsical 
 scrupulosity of jurors, is not a little produced by that 
 mawkish sensibility, which weeps over the fate of the 
 murderer, but forgets the murdered victim, and neglects 
 the protection of the innocent. 
 
 Now to test this fear of death, and its power for pre- 
 
276 L^'-TAL PUNISHMENT. 
 
 venting crime, put aside these uncertainties, from what- 
 ever cause produced. Make the penalty certain. Sup- 
 pose the intended criminal to know that the public eye 
 is on him, that Justice will not sleep till he be detected, 
 that such is the virtuous state of feeing in the commu- 
 nity, such the regard to God's law, such the sense en- 
 tertained of the sacredness of human life, and of the 
 enormity of the crime of murder, that no effort or ex- 
 pense will be spared to bring him. to justice, and that if 
 brought to justice, he will inevitably be executed ; that 
 no jury will entertain any false scruples, that no false 
 sensibility will be exercised towards the murderer, that 
 no deputations from the bar will be hurrying to and fro 
 for his pardon, but that there will be such a humane re- 
 gard for the murdered victim and the interests of soci- 
 ety, as will surely avenge his death I say, suppose 
 all this, which is what we contend for, and then the 
 murderer sees at once that to take the life of another 
 man is just to take his own. He might just as well 
 commit suicide as murder. He plunges the dagger into 
 his own bosom, when he strikes it into that of his neigh- 
 bour. And how often do you suppose he would thus 
 strike it if this were the case ? Why, it would restrain 
 the angriest, most passionate malignity. The truth is, 
 it would be the very perfection of jurisprudence, if you 
 could make murder a suicidal act : the crime of murder 
 would well-nigh cease from existence. Put your statute 
 on the right basis, and you do make it such. Throw 
 away your absurd reasonings, your cavillings against 
 
PKEVENTION OF CRIME. 277 
 
 the laws of God and man, and make the execution of 
 the penalty of death for murder absolutely certain, and 
 its restraining power against crime is immeasurable. 
 This is the reformation we need ; not the abrogation of 
 this penalty, but the putting it where God puts it for all 
 mankind, as the penalty alone for murder. 
 
 6. THE PROTECTIVE POWER OF THIS PENALTY FOR SOCIETY. NE- 
 CESSITY OF HAVING THE GREATNESS OF THE GUILT OF MURDER 
 MARKED TO THE CONSCIENCE OF THE MURDERER, BY THE PEN- 
 ALTY. 
 
 I have proved the restraining influence of this pen- 
 alty in preventing crime. Next as to its protective in- 
 fluence for society. It is manifest that this is just pro- 
 portioned to its restraining influence over the criminal. 
 Whatever prevents crime, protects society. Now, your 
 abrogating course is so far from giving society protec- 
 tion, that it is almost an invitation to murder. Let us 
 trace the course of things. Nemo repente fuit turpissi- 
 mus. No man becomes a murderer at once. A man 
 begins his career with small steps. From his father's 
 house forth into the wilderness of crime he goes timidly. 
 But the tenderness of his conscience is gradually de- 
 stroyed, and one crime and another is committed it may 
 be with impunity. The penalty of discovery he has 
 often faced, and become accustomed to look at it calmly 
 and to balance consequences. Disgrace, fine, imprison- 
 ment, all these are evils that may be borne. If the 
 worst ensues, still life remains, and there is hope in iri- 
 
 25 
 
278 CAPITAL PUNISHMENT. 
 
 genuity, and even in guilt. But at length his steps in 
 crime have brought him to the verge of murder. His 
 victim is before him. Perhaps it is a rich, gray-haired 
 old man, sleeping calmly in his bed at midnight. The 
 dagger is lifted. Now, between this crime about to be 
 perpetrated, and every lower crime, there is a vastness 
 of separation which the mind cannot fathom. It is in- 
 vested with horrors ; it puts whole coils of serpents in 
 the conscience ; it has a redness and a blaze of guilt, 
 which, if any symbol could mark them, ought to be set 
 up in open day to the universe, ought to be made to flash 
 like a sword of fire upon the soul. But your hardened 
 man of guilt does not see this. And what have you 
 done to remind him of it ? What separating wall have 
 you raised to keep his soul from the damnation of this 
 guilt, of which God himself hath said that no murderer 
 hath eternal life abiding in him ? He has come to the 
 verge of murder. What is there now to stay him ? 
 What writing on the wall, what external sign, what ad- 
 ditional terror to rouse up his conscience, and show him 
 the tremendous depths of the gulf he is about passing ? 
 What is there to show him that the step he is taking is 
 not one of his previous degrees of crime, but a convul- 
 sive, awful sweep of his being into a depth of guilt, com- 
 pared with which the whole previous iniquity of his life 
 is as nothing ? You have put no mark here. You 
 have torn down the barrier, which God himself had 
 erected in mercy to the criminal as well as to the inno- 
 cent. You have taken away the landmark, the warning 
 
DISTINCTIVE MARK FOR MURDER. 279 
 
 which God himself has put up for all mankind, and 
 which assuredly marks a mightiness of guilt and of ter- 
 ror in the next step of evil, which nothing but the wide 
 difference between the penalty of death and every lower 
 penalty could mark. You must have such a mark the 
 soul of humanity calls upon you for it ; the blood of 
 every murdered victim crieth from the ground ; you are 
 guilty of a monstrous iniquity if you blot it out ; for 
 there is no comparison between the madness, the ruthless- 
 ness, the monstrousness of murder and every other 
 crime. In mercy to your fellow-creatures, you are call- 
 ed on to distinguish it from every other, by a penalty 
 which, like that statute of God that statute of mercy at 
 the world's opening, stamped the conviction of its in- 
 iquity into the soul of mankind. 
 
 I have taken the case of a man whose successive steps 
 in crime have brought him to the verge of murder, as a 
 new and separate guilt. But suppose him to be brought 
 to the verge of murder while in the commission of some 
 other crime, and in order to conceal it, then the argu- 
 ment becomes vastly more powerful. While the Tempt- 
 er is whispering, If I take this man's life, I may conceal 
 my crime, conscience and the law should answer, You 
 die for it. The ministers of justice will be infinitely 
 more keen in your pursuit, the eyes of the whole com- 
 munity will be flashing for you, mere suspicion will de- 
 tect you, your own conscience will lead you to discovery ; 
 and death, temporal and eternal, is before you. The 
 motive for the concealment of crime is so powerful an 
 
280 CAPITAL PUNISHMENT. 
 
 incentive to murder in such a case, that we are bound to 
 guard against it. But to abolish this penalty is directly 
 to throw the temptation of murder in the way of a crim- 
 inal, who, perhaps, otherwise would not have dared to 
 think of it, even for the concealment of crime. To 
 abolish this penalty is to make murderers out of common 
 villains. They will murder to conceal their other 
 crimes, as soon as you reduce the penalty for murder to 
 the same level with that for others. The penalty for 
 murder being no greater, they are no worse off, even if 
 discovered. Without the murder, perhaps discovery is 
 inevitable, and imprisonment must ensue. With the 
 murder, even if discovered, the penalty can be no more 
 than imprisonment. But by the murder the whole 
 crime may be concealed, and the murderer may come 
 off completely clear. It is manifest in such a case that 
 nothing but this penalty can protect society. 
 
 7. INJUSTICE AND INHUMANITY OF THE ABOLITION OF THE PENALT/*" 
 OF DEATH FOR MURDER. 
 
 I have shown that this penalty is necessary for the 
 restraint of crime and the protection of society. I shall 
 now show that the proposed abolition of it is unjust and 
 inhuman in the last degree. It is a policy, the cruelty 
 and barbarism of which is susceptible of a perfect de- 
 monstration. It introduces the element of inhumanity 
 into the very education of society. Your jurisprudence 
 is a most important part of your education for the com- 
 munity. It trains the common conscience. But in the 
 
PROTECTION OF SOCIETY. 281 
 
 abolition of this penalty, you occasion a general degra- 
 dation of the moral sense ; you teach that there is no 
 difference between the guilt of murder, and that of mere 
 forgery and stealing. You lessen men's estimate of the 
 sacredness of human life, and you are unconsciously 
 training men's passions for the cruelty of murder. You 
 degrade the whole subject and science of morals ; for 
 this is at the foundation of it, involving all its principles. 
 You give place and full swing to duelling, bloody riots, 
 and private revenge. What you refuse as a government 
 to do for the family and friends of the murdered man, 
 and for the interests of the community, you may be 
 sure the malignity of private revenge will not fail to ac- 
 complish. You take away the strong security of your 
 police, and you expose the lives of your jail-keepers to 
 imminent hazard. A most faithful and vigilant police 
 officer, since the abolition of capital punishment has 
 been spoken of as a probable thing, has had his own life 
 threatened, and the lives of others in his presence, and 
 when he has told the villain that his own life must pay 
 the forfeit of such a crime, the answer has been, 
 " There is no fear of that in these days." The police 
 officer added, that if the law should deprive him of this 
 protection, he should be afraid to go to haunts of crime, 
 which in the support of the law, he now visits. Whi 
 indeed, what public servant, either in this city or in 
 London, would dare plunge into the recesses of crime to 
 ferret out the villain, if the strong fear of this penalty 
 did not go before him ? 
 
 25* 
 
282 CAPITAL PUNISHMENT. 
 
 8. OBJECTION CONSIDERED OF THE DANGER OF MISTAKING THB 
 INNOCENT FOR THE GUILTY. 
 
 Your zeal for the abolition of this penalty may be the 
 zeal of love, but it is the logic and philanthropy of cru- 
 elty and murder. It is a most inhuman neglect of the 
 interests of the innocent, to save the forfeited lives of 
 abandoned villains, the example of whose security will 
 sharpen the appetite of all other murderers, and who 
 will certainly themselves murder again, if they can get 
 out of prison. It is a philanthropy that pays no regard 
 whatever to the unquestioned fact that thousands of 
 murders have been prevented by this penalty, thousands 
 of innocent men saved, and innocent families preserved 
 from the stab of the assassin, but with a morbid, diseas- 
 ed, pseudo-benevolence it rakes the records of crime for 
 those mistakes to which human imperfection necessarily 
 exposes human legislation, and if in one hundred cases 
 false executions can be made out in two thousand years, 
 it regards the lives of a thousand innocent persons saved 
 from the murderer as nothing in the comparison. Ten 
 innocent persons killed by mistake in two hundred 
 years, are more than a balance against the lives of a 
 hundred innocent persons who would have been killed 
 by the murderer, had it not been for this penalty. The 
 truth is, your statistics and calculations of profit and loss 
 on human life, are, as has been admirably said, the 
 arithmetic of Judas Iscariot, the calculations of the price 
 of innocent blood. 
 
FALSE SENTENCES CONSIDERED. 283 
 
 Now that I have met this objection of the danger of 
 mistaking the innocent for the guilty, it is best to 
 demolish it more fully. There is the same danger 
 against all punishments. False imprisonments occur, 
 and are not discovered till many years have elapsed. 
 Is that an argument against imprisonment for crime ? 
 Suppose you could be assured that there had been one 
 hundred cases of false imprisonment for life in the 
 course of English jurisprudence, would you deem that 
 a justifiable ground for the abolition of imprisonment 
 for life ? But let us grapple a little closer with these 
 cases. They are given, most of them, in a former edi- 
 tion of Phillip's Treatise on Evidence, and they consti- 
 tute, it has been said, the stock in trade of the prisoner's 
 counsel in all murder trials. " Whoever will examine 
 these cases, will find that in almost every instance, ex- 
 cept those in which the corpus delicti was not found, and 
 it appeared afterwards that no murder had been com- 
 mitted, the real culprit has taken away the life of the 
 innocent prisoner by perjury, or, which amounts to the 
 same thing, by arraying and directing a set of circum- 
 stances so as to implicate him. The amount of it is, 
 that the murderer, in addition to the murder already 
 committed, has made use of an institution of justice, 
 instead of the assassin's knife, to perpetrate another. 
 There is, in such cases, an additional murder commit- 
 ted, not by the law, nor by its ministers, nor yet by the 
 State, which gave them their authority, but by the 
 wretch, who has brought upon himself the guilt of a 
 
284 CAPITAX PUNISHMENT. 
 
 double murder to prevent the detection of one. There 
 may therefore occur now and then, with extreme rarity, 
 an instance in which a murderer will seize upon this 
 law to commit another murder, for the purpose of 
 screening the one already committed." But if on this 
 account, you abolish the penalty of death to avoid these 
 cases of murder in the second instance, you at once in- 
 crease the number of murders in the first instance. 
 You relinquish the reality of justice to snatch at its 
 shadow. This objection is not good against the penalty, 
 though it is of use in enjoining the utmost carefulness in 
 criminal trials ; but still we must keep the law, because 
 we are certain that the abrogation of the penalty would 
 lead to tenfold more murders, than can possibly be com- 
 mitted through the abuse of it. The example of our 
 Saviour is in point in a case analogous. The Jews in 
 his day abused the law and its penalties for their pur- 
 poses of private revenge. Did he on this account abro- 
 gate the law, or take away the penalties ? Not at all, 
 but confirmed them both, while he forbade the abuse of 
 them. 
 
 9. DEMONSTRATION CONTINUED OF THE INHUMANITY AND INJUSTICE 
 OF THE ABOLITION OF CAPITAL PUNISHMENT. 
 
 Having disposed of this objection, I proceed now to 
 prove more fully the injustice and inhumanity -'of the 
 effort for the abolition of this penalty. You are unjust, 
 if you do not give to society the same means of self-de- 
 fence against assassins, which they relinquish for the 
 
PROTECTIVE POWER OF THE PENALTY. 285 
 
 protection of the government. Men do not wear arms 
 but why ? Because of the solemn assurance that the 
 government will protect life in the same way, if need 
 be, in which weapons of death protect it ; because of 
 the knowledge that the criminal is aware, if he takes 
 life, that his own will be taken. Now to take away this 
 penalty is in fact to take away from the community the 
 means of self-defence. It is to make cowards of the in- 
 nocent, but brave men of the guilty ; for what man, for 
 example, will dare defend his property, if a villain sets 
 upon it, when the very defence may make the villain 
 murder him, you having taken away from the villain 
 himself all fear of death, no matter what crime he com- 
 mits. If a man breaks into your house at midnight, 
 with the knowledge that the punishment for murder is 
 death, though that for housebreaking is not, you might 
 be ready to confront him, and defend your property ; 
 but if you take away this penalty, you paralyse your 
 own arm, and you nerve that of the house-breaker with 
 tenfold desperation, since he may finish his villainy with 
 success if he murders you ; and if he be caught, the pun- 
 ishment for murder, at all events, is no greater than that 
 for housebreaking, and if he does not murder you when 
 you have confronted him, he is in danger of discovery 
 at any rate. You are therefore rendered defenceless in 
 an attack upon your property by the security of your 
 adversary's life ; or if at all events you do attempt to 
 defend your property, and discover or drive away the 
 villain, you are almost sure to be murdered, ff he can 
 
288 CAPITAL PUNISHMENT. 
 
 murder you, for his life is safe, while the taking of 
 yours is perhaps necessary to his success. He bears a 
 charmed life, the consciousness of which unnerves you, 
 but nerves him. Just so, if your person be assaulted, 
 and you resist, your very defence is likely to procure 
 your murder, for you are the helpless one, your assail- 
 ant has all the advantage ; the assassin cannot be killed, 
 he is secure by law ; but if he kills you, he may escape 
 completely. To abolish this penalty would therefore be 
 gross injustice and inhumanity both to the innocent who 
 are murdered, and to the innocent living. It is secu- 
 ring the murderer against death, but exposing the com- 
 munity to death by the hand of any villain, who, know- 
 ing that his own life is protected by statute, chooses to 
 kill. It is, in fact, a premium on murder, as the safest 
 of crimes. If you commit any lower crime, you may 
 be punished for it too much. If you commit this crime, 
 you are sure of a punishment less than the evil you in- 
 flict upon others. The glaring injustice and inhuman- 
 ity of such an arrangement is perfectly obvious. -) 
 
 Now to fasten this argument with incontrovertible 
 power, I shall refer you to a case, which though it is on 
 record, I have received from a near relative of the 
 monster concerned. The creature in his passion held 
 an axe over his wife's head, and told her that nothing 
 but the law saved her life. " I would kill you in a mo- 
 ment," said he, " if I did not know that I would have to 
 swing for it." I appeal to the good sense and humanity 
 of our audience, is not that a benevolent statute, which 
 
STATISTICAL ARGUMENT. 287 
 
 extends over that lonely and wretched mother the only 
 protection for herself and children 1 And is not that a 
 most inhuman effort which seeks to take away from be- 
 fore that brutal husband the fear of death, which, as he 
 himself says, is all that now restrains him ? Which is 
 the spirit of Christ 1 the spirit that vindicates the law, 
 and protects the community, or the spirit that takes 
 away at once the dreaded penalty of the law, and the 
 protection of the innocent ? Which is the benevolent 
 effort ? that which throws its shield over the murderer's 
 life, but gives up the unprotected victim to his malice, 
 or that which binds and holds back the arm of the mur- 
 derer, by making his own death the certain consequence 
 of his intended crime ? 
 
 10. THE STATISTICAL ARGUMENT ITS WEAKNESS AND ITS SOPHISTRY 
 
 We come next to the statistical argument of my oppo- 
 nent. And I have to say at the outset that it is of such 
 a nature that you cannot trust it. The argument from 
 statistics, so far as it is gathered from all offences below 
 the crime of murder, does not bear upon the question of 
 capital punishment for murder at all ; but if it did, your 
 induction is so narrow, so many causes are unnoticed, 
 and the phases and influences of society are so change- 
 able, that the results of your figures in a question of 
 morals are likely to be utterly fallacious. It is often 
 said that figures cannot lie, but you may marshal them 
 in such a way, as to make them tell a falsehood in one 
 direction, while they speak the truth in another. 
 
CAPITAL PUNISHMENT, 
 
 I Nor can there be anything more palpably false, and 
 yet very plausible, than the mode sometimes adopted 
 in arraying these statistics. Here is a country, for ex- 
 ample, in which the penal code annexes death to several 
 crimes, but in which, for a number of years, from va- 
 rious causes, crime has diminished ; of course capital 
 punishments have diminished also. The murders have 
 not diminished because capital punishments have dimin- 
 ished, but the capital punishments have diminished be- 
 cause the murders have diminished. Now your indus- 
 trious statistic gatherers take these facts. They put the 
 diminuticm of the capital punishments first, and the 
 diminution of the murders as the consequence. In one 
 column you see a decreasing ratio of capital punish- 
 ments, in the opposite a decreasing ratio of murders. 
 Ergo, the diminution of capital punishments has dimin- 
 ished the murders ! This is not exactly, according to 
 the vulgar but pithy saying, the cart before the horse, 
 but it is rather the horse behind the cart. And I think 
 I need not labour to expose either the absurdity of such 
 statistics, or of the conclusions drawn from them, -y^ 
 
 When I hear men reason on the amelioration of a 
 penal code, and then ascribe to this one cause the whole 
 diminution of crime in society, it seems to me much as 
 if Dr. Brandreth should state how many million boxes 
 of his pills society have taken in the last half dozen 
 years, and then having shown a diminution of diseases 
 in that period, attribute the whole improvement in the 
 health of mankind to his pills. The truth is, that this 
 
DECREASE OF CRIME. 289 
 
 same diminution of crimes would have been produced 
 by other existing causes, which undoubtedly are at the 
 foundation of it. The decrease of intemperance, the 
 influence of Sabbath schools, the prevalence of a better 
 education, an increased attendance on the preaching of 
 the gospel, are sufficient to account for improvements in 
 society, which you trace directly to a change in the 
 penal code ; but if not, what a manifest absurdity it is 
 to set up the experience of half a dozen years, in a 
 State, which on the map of Europe you may cover with 
 a sixpence, the experience for example of Belgium, only 
 since 1830, and even that experience most doubtful in 
 itself, and most imperfectly known, against the practice, 
 reason, belief, and experience of all mankind, in all 
 states of society, in all ages of the world. If I chose 
 to reason in this way, I could show you statistics in the 
 recent experience of England, to offset the experience 
 of Belgium. For example, it is well known, from valu- 
 able tables constructed by Rev. Mr. Redgrave, of the 
 Home Office, and annually presented to Parliament, 
 that since the removal of the penalty of death from two 
 hundred offences in 1837, there has been a very consid- 
 erable increase of those offences, an increase of no less 
 than thirty-eight per cent. What shall we make of 
 this ? Shall we say that it proves that the penal code 
 of England ought not to have been ameliorated ? This 
 would be the logic of my opponent, but I say no. The 
 facts are not broad enough to justify the conclusion. 
 There must be a much longer experiment, a much 
 26 
 
290 CAPITAL PUNISHMENT. 
 
 wider and more careful induction, and after all, even if 
 those offences should be found still to increase, that 
 would not justify the applying to them again the penalty 
 of death. 
 
 11. CAUSE OF THE PREJUDICE AGAINST THIS PENALTY. REAL NA- 
 TURE OF THE STATISTICAL ARGUMENT. 
 
 Now with regard to the crime of murder, the case is 
 wholly different. It ought to stand apart in its penalty 
 from all other crimes. And it is the annexing of the pen- 
 alty of death to so many other crimes that has made the 
 whole difficulty. Death has been taken from the hand 
 of the Divine Legislator, from the place he assigned to it 
 as a penalty, and most wantonly, most barbarously, most 
 indiscriminately applied to minor offences, in such wise, 
 that the mind is filled with horror at the sanguinary and 
 oppressive nature of such codes. Hence a prejudice 
 against the infliction of this penalty in any case. Hence 
 has it proceeded that it has become a mere threat, in 
 many cases not executed. Hence the unwillingness of 
 juries to convict. Hence too the penalty of death has 
 lost its preventive power against crime, even the crime 
 of murder ; nay, being applied to minor offences, it fol- 
 lows naturally that murder itself would be committed to 
 conceal them. Now here is the secret of the apparent 
 weight of the statistical argument, which in reality 
 bears not in the least degree against the punishment of 
 death for murder, but only in favour of restricting that 
 penalty to the crime of murder. Nothing can be more 
 
CONCEALMENT OF CRIME. 291 
 
 idle than to array before us statistics in regard to minor 
 crimes, taken from countries where in the penal code 
 there has been a great abuse of this penalty of death. 
 It has nothing to do with our argument. The penalty 
 of death, you say, being abolished, crime has decreased. 
 What does this mean ? Is it a new principle in human 
 nature developed, whereby men will sin the more, the 
 more they have to suffer for it ? Not at all. The solu- 
 tion of the riddle is just this. When the penalty of 
 death was common for minor offences, men committed 
 murder in the hope to conceal their common crimes. 
 Now the penalty of death being taken away from such 
 minor offences, such murders for the concealment of 
 those offences cease, unless you take away the penalty 
 of death from murder also. This is the true account 
 of the matter. Now if, falsely reasoning from this 
 amelioration, you carry your repeal of the penalty of 
 death even to the crime of murder, you destroy all the 
 good you have effected, and bring back the whole evil 
 where it was before, nay, much worse ; that is, inas- 
 much as you annex to murder no more dreadful conse- 
 quences than to other crimes, a man will now commit 
 murder to conceal his other crimes, just as before he 
 felt compelled to do it for such concealment, because 
 those crimes themselves were punishable with death. 
 
 12. ABSURDITY DETECTED AND ILLUSTRATED. 
 
 The truth, then, is this ; the improper application of 
 the penalty of death increases crime, but this forms no 
 
292 CAPITAL PUNISHMENT. 
 
 reason for its abrogation as the penalty for murder. I 
 think I can illustrate the absurdity of the statistical 
 argument by which you would force us to such abroga- 
 tion, in a striking manner, from the science of medicine. 
 Quinine, in medicine, is a grand remedy for fever ; it is 
 a specific, but it needs to be judiciously and skilfully 
 applied. Suppose, now, that a set of quacks should use 
 it injudiciously in the case of fever, and indiscriminately 
 for almost all other diseases, whether of the heart, liver, 
 or lungs, and that in consequence diseases should be 
 multiplied instead of diminished by this medicine. 
 Now gather your statistics of disease in such circum- 
 stances, and a strong argument for the abolition of qui- 
 nine from the medical practice might be made out based 
 upon them. But suppose again that the indiscriminate 
 use of quinine should begin to be diminished, and in 
 consequence it should be shown that diseases had 
 diminished also ; and the cause of such diminution being 
 referred to the discontinuance of quinine, suppose you 
 should be told that it is manifest that this remedy ought 
 to be renounced not only in other diseases, but in fevers 
 also. This would be an exact parallel to the statistical 
 argument for the abolition of capital punishment. 
 Would you accept such an argument ? No, you would 
 retain your quinine, but regulate its application. And 
 so, if you are humane and wise, you will retain your 
 salutary ordinance of death as a penalty for murder, 
 but regulate its application. You will not suffer the 
 abuse of a good thing to destroy its use. In almost all 
 
CASES IN RUSSIA AND TUSCANY. 293 
 
 reformations this has been the error of mankind. They 
 have not distinguished between uses and abuses. At- 
 tacking an evil which was mingled with good, they have 
 swept away the evil indeed, but the good along with it. 
 
 13. RUSSIA, TUSCANY, AND BELGIUM. 
 
 You bring forward the case of Russia ; but unfortu- . 
 nately for the argument, you bring forward no facts to 
 sustain your statement. It is plainly denied, that for 
 the time you assert there have been no capital punish- 
 ments inflicted in Russia. It is perfectly well known, 
 that under the reign of the Empress Elizabeth, so far 
 from performing her pledge, many executions occurred ; 
 and under her order the dreadful punishment of the 
 knout was inflicted on one of the most accomplished 
 ladies of her court. And as to Catherine, she commen- 
 ced her own reign with the murder of her husband and 
 nephew, and reserved to herself ever the privilege of 
 putting to death whom she pleased on the accusation of 
 state crimes, and as a matter of state policy. A singu- 
 lar sort of abolition of capital punishment, truly ! It is 
 more than 80 years since, with this pretended clemency, 
 Catherine began her reign. I find it distinctly denied 
 that since that period there have been but few execu- 
 tions. Where are your statistical tables of the sentences 
 passed and executed throughout all the fifty provinces 
 of the vast territory of this despotism ? It is said by 
 travellers, that the code of Catherine has been long 
 since disused. And who does not know the terrible 
 26* 
 
294 CAPITAL PUNISHMENT. 
 
 punishment of the knout, accompanied sometimes with 
 the cutting out of the tongue, a punishment, which is 
 often death, and which, at a signal of command, can be 
 carried into death at a blow, and is sometimes thus ad- 
 ministered, so that there is in it all the terror, with more 
 than the cruelty of death, with the pretence and reputa- 
 tion of mildness. Humane constitution of things ! 
 Have so many persons died under the infliction of the 
 knout ? Oh, this was merely an unfortunate circum- 
 stance in administering the punishment ; but the code is 
 a very mild one ; it abolishes punishment by death ! 
 
 It does not abolish punishment by death. It simply 
 takes that punishment away from the judges and the 
 courts, through whom the law inflicts it in a free coun- 
 try, and puts it in the exclusive power and keeping of 
 the monarch, to execute when and how he will. It 
 simply makes a more perfect despotism. There is no 
 trial by jury in Russia, and this taking away the power 
 of death from the courts, to keep it solely at the discre- 
 tion of the king, is only a mode of making him more 
 awful to his subjects, while at the same time he gets the 
 reputation of humanity. You might about as well say 
 that in the despotism of Egypt, capital punishments are 
 abolished, because nobody but Mohammed AH has the 
 liberty of cutting off men's heads. The argument from 
 this case fails in every point. 
 
 Then as to Tuscany. The experiment, it is sufficient 
 to say, proved so unsatisfactory, that the government re- 
 stored the penalty of death for the restraint of crime, 
 
TERRORS OF THE PENALTY. 295 
 
 and capital punishment is not now abolished in that 
 kingdom. This is a double proof against you. The 
 government, after trying your experiment, find them- 
 selves compelled to return to this statute. 
 
 Then as to Belgium. Capital punishment has not 
 been abolished. The Code Napoleon is in practice. 
 Murderers are still sentenced to death, and it is only 
 since 1831 that Leopold has commuted the sentence at 
 his own discretion, an experiment so entirely his own 
 temporary fancy, and so little to be relied upon, that at 
 this very time he may be signing a death-warrant for 
 the execution of a criminal. If, since 1831, there had 
 been no executions in New- York, but simply the* punish- 
 ment commuted by the Governor, you might, with the 
 same propriety, assert its abolition here, and institute 
 your statistics accordingly. 
 

 ARGUMENT OF THE THIRD EVENING. 
 
 I 1 . IMPORTANCE OF ADHERING TO THE AUTHORITY OF SCIPTURE ON 
 THIS SUBJECT. 
 
 THERE is a singular desire on this subject to get 
 rid of the authority of the Scriptures entirely. We 
 have been told that it ought not to be brought into this 
 discussion ; that it is too much our habit, as clergymen, 
 to bring it forward on every occasion ! Now it is not a 
 good sign to be afraid of the Scriptures, nor is there 
 anything likely to cast more prejudice over the sincerity 
 of your argument against capital punishment,* than the 
 manner in which, according to your own acknowledg- 
 ment, it shuns the light of the Bible. I am sure that 
 the separation between the expediency and theology of 
 this question is an unnatural one. What is true in the- 
 ology is expedient in practice, and cannot possibly be 
 otherwise. If God appointed this statute for human be- 
 ings, it is because it is expedient for human beings, it is 
 for the best interests of mankind. All the statistics on 
 this subject, all the comparisons between different modes 
 of punishment, are before the Divine mind, and always 
 
PRINCIPLES TO GUIDE THE STATE. 297 
 
 have been, and all the reason that is in them the Su- 
 preme Legislator must have known, and acted accord- 
 ingly. All things considered, it was best that this 
 penalty should be appointed, death as the penalty for 
 murder. For the prevention of crime it was necessary ; 
 and I hazard nothing in supposing that had it not been 
 for this penalty among the nations, millions of human 
 beings that have died quietly, would have been sacri- 
 ficed by the passions of mankind. The expediency of 
 this penalty is therefore in the highest sense an expedi- 
 ency of benevolence ; nor could the Divine being have 
 been just to his own attribute of love, had he not annex- 
 ed this penalty to this crime. 
 
 It is great principles of rectitude and benevolence, 
 which must be our guide on such questions as the one 
 before us, and not mere statistics, or temporary experi- 
 ments ; and if those principles are put into laws for us 
 by our Divine Legislator, so much the better. You 
 may reason against appealing to them in this form, and 
 you may sneer at them as fanaticism, as much as you 
 please ; but on all great occasions involving practical 
 questions of right and wrong in the community, the gen- 
 eral mind will revert to them, and rest upon them. We 
 may bless God for it. If it were not so, if these princi- 
 ples were not elements of our intelligent being, and did 
 not possess a power superior to every consideration, the 
 world to the end of time would be one vast scene of 
 selfishness and cruelty. The principles of mere expe- 
 diency would always prevail over the principle of right, 
 
298 CAPITAL PUNISHMENT. 
 
 and men would prey upon each other like lions and 
 tigers. Let those who make the outcry of fanaticism 
 when benevolent men in moral emergencies attempt to 
 sway the common people by abstract or scriptural prin- 
 ciples, remember that it is to the power of those princi- 
 ples, and not to mere considerations of utility or expedi- 
 ency, that they themselves owe their own condition of 
 happiness in human society. 
 
 The truth is that the ocean of man's being is swayed 
 to and fro beneath the influence of the sublime eternal 
 verities of Scripture, as the sea is dependent on the in- 
 fluence of heavenly bodies in the majestic regularity of 
 the movement of its tides. Blot out those shining 
 truths, pluck these orbs from the firmament, and you 
 would leave naught but a waste of waters infinite, roll- 
 ing in endless agitation, without law or object, as in the 
 night and death of chaos. It is impossible that any 
 system of policy can stand, which is not founded in 
 God's word ; and this is but saying likewise that no 
 system can stand, which is not founded in the essential 
 elements of man's being. The foundations of perpe- 
 tuity in states and empires are only in the book of God, 
 and when institutions are not supported there, they are 
 not supported in the constituent elements of human na- 
 ture. Time will prove their ruin ; for as fast as the 
 principles of man's being come out into notice in the 
 light of the word of God, such institutions will be seen 
 not only not based upon them, but in opposition to them. 
 And whether they come into notice or not, they are per- 
 
FOUNDATION OF CRIMINAL JURISPRUDENCE. 299 
 
 petually working. They heave the ocean, and nothing 
 can abide the contest. It is the Bible, as formed for all 
 time, and containing principles consonant with man's 
 nature as made in the image of his God, and destined to 
 be redeemed into that image, that comprehends and 
 affords the only lasting principles of state policy. That 
 state policy, which is not consonant with the wisdom of 
 the Bible, will be found opposed to the developed wisdom 
 of human society, and to the necessary principles of the 
 human mind. It contains within itself the elements of 
 its own destruction were it only in its opposition to the 
 nature of the soul. 
 
 2. WISDOM AND GOODNESS OF THE PENALTY OF DEATH FOR MUR- 
 DER AS THE FOUNDATION OF CRIMINAL JURISPRUDENCE. 
 
 There is a concentration of wisdom and goodness in 
 the statute given to Noah on murder, which we are but 
 poorly able to appreciate. It was a legislation, which, 
 taking the highest crime of which man is capable against 
 his race, as the fit occasion for the concentration of its 
 wisdom and benevolence, was to send its influence over 
 the human character, and over all penal jurisprudence, 
 down through the whole existence of mankind. It was 
 to take the human conscience from its earliest develop- 
 ment, and in answer to Cain's murderous question, 
 " Am I my brother's keeper ?" it was to answer, " Thou 
 art thy brother's keeper ; thou shalt love thy neighbour 
 as thyself. Thou shalt no more dare to think of taking 
 his life, than thou wouldst of taking thine own. To 
 
300 CAPITAL PUNISHMENT. 
 
 take his life is in truth to take thine own ; for thine 
 shall surely answer for his." It was in fact the very 
 perfection of criminal jurisprudence, making murder a 
 suicidal act. The man that seeks to loosen the certain- 
 ty of this statute, loosens a fundamental pillar of society. 
 The statute is fastened deep in the principles of the hu- 
 man mind, and every stroke you aim at it, cuts at the 
 roots of those principles. As it was intended to go 
 through all human existence, so has it gone, so deep, 
 broad, universal, that to give colour to your daring ex- 
 periment, you can find in the history of the race for 
 four thousand years, not one single state, in which for 
 the period of a single generation, this penalty has been 
 dispensed with. You may be sure this could not have 
 been the case, were not this legislation consonant with 
 and demanded by the elements of the human mind. 
 This statute is a well-spring of truth : it is a shaft sunk 
 into the soul of mankind that goes clear to the bottom of 
 ite sentiments, out of the reach of all mixture of sophis- 
 try, deeper than all cross views of a false and mawkish 
 sentimentality, down into the living rock ; and thence 
 the stream that gushes up is the pure benevolence of 
 truth as clear as crystal. 
 
 3. TWO THINGS INCONTROVERTIBLE J MEN'S LOVE OF LIFE, AND 
 THEIR FEAR OF DEATH. 
 
 To have any ground of plausibility in your argument 
 from expediency for abolishing the penalty oi death for 
 murder, you have to deny two things ; first, that life is 
 
POWER OP THE FEAR OF DEATH. 301 
 
 the. most sacred and desirable of all possessions ; and 
 second, that death is the most terrible of all evils. Now 
 on both these points the sense of mankind is undeni- 
 able. There may be deranged creatures, who deny 
 both the desirableness of life, and the terribleness of 
 death ; just as there are hypochondriacs, who say that 
 their heads are turned round upon their shoulders, so 
 that they can only look behind them ; and there may be 
 inveterately hardened creatures, who have so drugged 
 and stupified the moral sensibility with crime, that no 
 consideration whatever will move them ; but these ex- 
 ceptions no more weaken the power of the argument, 
 than the fall of a solitary leaf in a great forest can 
 prove the death of the whole foliage. You might as 
 well bring forward one of your monsters of the menag- 
 eries, your oxen with two heads, or your calves with 
 five legs, to disprove by such a lusus natura the fact that 
 oxen have but one head, and that calves are quadrupeds. 
 You would be just as wise to take a petrified vegetable 
 from the bottom of a swamp as an example of the qual- 
 ities of the living vegetable world, as to take the heart 
 of a Newgate criminal, to prove that death is not the 
 greatest of evils. 
 
 Now, life being the most sacred of all possessions, it 
 is the natural judgment of mankind that you must guard 
 it by the most terrible of all penalties. But if life be 
 the most precious of all possessions, the human mind 
 again declares that death is the most dreadful of all 
 evils, and therefore consequently the most powerful of all 
 27 
 
302 CAPITAL PUNISHMENT. 
 
 penalties to restrain men from taking life. Until you 
 have disproved these two things, you cannot advance 
 one step in your argument. There is no room for you. 
 You have to root out and destroy these two arguments 
 of the human mind, that life is the most desirable and 
 sacred of all possessions, and that Deathjsjhe King of 
 Terrors. If you can do this, you can changetKe na- 
 ture of mankind. But if not, then the conclusion is 
 irresistible on the ground of expediency, that capital 
 punishment is the most efficacious of all penalties to re- 
 strain men from the crime of murder, and consequently 
 for the good of society ought to be practised. 
 
 It is useless for you to say that capital punishment 
 does not restrain men from minor crimes. The judg- 
 ment of the human mind is not the same as to the fitness 
 and necessity of the penalty of death for such crimes. 
 Take the case of stealing, for example. You have no 
 prior declaration of the judgment of mankind that a 
 man's property is the most sacred and desirable of all 
 possessions, so that if a portion of it is taken, the great- 
 est of all evils is inflicted ; and consequently, the judg- 
 ment of the mind is against the penalty of death in such 
 a case. It does not assert the congruity of such a pen- 
 alty with such a crime. But in regard to murder there 
 is such a congruity ; the voice of our common humanity 
 asserts it. Taking life, you take all ; and life being the 
 most sacred and important of all possessions, the punish- 
 ment by death, since it is feared more than all things, 
 ought to be the penalty. ^ 
 
CONTRADICTIONS. 303 
 
 4. CONTRADICTIONS IN THE ARGUMENT AGAINST THE PENALTY OF 
 DEATH. 
 
 Here it is singular to see the contradictory nature of 
 the arguments of our opponents. They speak with two 
 voices. With one voice they say death is too severe, 
 too dreadful, too barbarous : "the gospel and the gal- 
 lows, Christ and the hangman," it is too shocking to hu- 
 manity to think of. With the other voice they say it is 
 not severe enough, not sufficiently dreadful ; you must 
 have a punishment more to be feared than death, and 
 therefore more barbarous, in order more effectually to 
 restrain crime. If there ever was an argument that 
 stultified itself, this does. If we say death must be the 
 penalty, because men fear death more than all things 
 else, and we wish to restrain the murderer from commit- 
 ting crime ; they say, Not at all ; men do not fear death 
 enough, this punishment has not enough of terror in it 
 to restrain men. If we say, Death is the just penalty, 
 and is demanded by benevolence, they say, Not at all : 
 there is too much terror in it, it is too dreadful a punish- 
 ment ; we must have a milder one ! 
 
 There i$ the same contradictory spirit in the play of 
 their pretended humanity. The advocates for the abo- 
 lition of the penalty of death for murder are perpetually 
 boasting of their benevolence, and with most profound 
 argument as well as tasteful rhetoric, they ring the 
 changes to the vulgar ears upon such elegant phrases as 
 the " gospel and the gallows, Christ and the hangman." 
 
304 CAPITAL PUNISHMENT. 
 
 Now to some minds the juxta-position of the words 
 Heaven and Hell gives just as mortal offence, with the 
 idea of the same Being dispensing the rewards of the 
 one, and the punishments of the other ; and so does that 
 of the phrases God and a consuming fire. This not 
 being argument, I know not very well how to dispose of 
 it. But as to the humanity of this question, so far from 
 the opposition to this statute being the humane side, it is 
 inhuman to the last degree. It is an effort not only de- 
 void of benevolence, but characterized by great cruelty. 
 It is cruelty to take away from the weak and defenceless 
 that protection which is their only hope against the fero- 
 city of the murderer. We have shown this too clearly, 
 to need a word more on the subject. 
 
 5. INHUMANITY TO THE CRIMINAL AND TO SOCIETY OF STRIKING 
 OUT THIS PENALTY. 
 
 To strike out this penalty against murder is as inhu- 
 man to the criminal as it is to society. This is easily 
 demonstrated. Take the case of that drunkard, who 
 would have murdered his wife, had it not been for this 
 penalty ; now in this case, by taking away this penalty, 
 you would at once have occasioned the most enormous 
 of crimes in that wretched man, and the miserable death 
 of that unprotected mother. These two immeasurable 
 evils would have followed your humane legislation. 
 The same thing must take place in multitudes of instan- 
 ces, so that y/>u would at once be creating assassins, 
 and causing the murder of their victims. Therefore 
 
WARNING AGAINST CRIME. 305 
 
 humanity to murderers themselves calls on you to re- 
 strain them by this penalty in order to keep them from 
 this crime, at the same time that humanity and justice 
 to the innocent call on you to protect them from the pas- 
 sions of the murderer. The penalty is a warning ; men 
 see it from afar; it arrests their thoughts, their con- 
 sciences, before they step within the circle of tempta- 
 tion ; or, if hurried unawares, by violent passions, to- 
 ward this point of danger and of guilt, still does the 
 warning of this tremendous penalty arrest the soul, and 
 bring the passions of the murderer to a stand even amid 
 the wildest tempest. Now to strike out this penalty, is 
 as inhuman as it would be, on a dangerous rock-bound 
 coast, to destroy the light-house on the sharpest, roughest, 
 most destructive reef across which the tide sweeps and 
 beats its billows. Or I may say it is as if some en- 
 emy to mankind should confound the signals, by which 
 the mariners of all countries have hitherto known their 
 nearness to particular points of danger. Or it is as if, 
 giving a chart to a ship bound on a long voyage, you 
 should blot out the black warning scroll, that marks a 
 sunken rock in the Atlantic right in that ship's course. 
 We are all bound on the voyage of life, and the reefs of 
 crime past which we sail are indeed many and terrible. 
 But this is of such appalling magnitude, and the conse- 
 quences of striking upon it are so dreadful, that there 
 ought, if possible, to be a red light upon it, whose lurid 
 blaze should glare at midnight over the whole ocean. In 
 mercy to mankind God has himself erected such a sig- 
 27* 
 
506 CAPITAL PUNISHMENT. 
 
 nal, and you are struggling to tear it down. It is a most 
 inhuman, cruel, anti-scriptural, and irreligious effort. 
 
 6. THIS PENALTY CONFIRMED BY THE LAW OF CHRIST, AND DE- 
 MONSTRABLE AS A DUTY SPRINGING FROM THE GREAT LAW OF 
 LOVE. 
 
 This pretence of humanity becomes one of unparal- 
 leled hypocrisy when, it daringly attempts to array the 
 Spirit of Christ in the New Testament against the Spirit 
 of God in the Old. There is not only no contradiction, 
 but a perfect accordance between the New Testament 
 and the Old on this point. The law of Christ confirms 
 this statute, and I repeat my assertion that it is repro- 
 mulgated under the form of Love in the gospel. It is 
 demonstrably deducible from the rule " Thou shalt love 
 thy neighbour as thyself." How much do you love 
 yourself? So much, that if a murderer were to set 
 upon you to kill you, you would kill him in self-defence. 
 Then you are bound to do the same for your neighbour. 
 If a murderer sets upon your neighbour to kill him, you 
 are bound to defend your neighbour, by putting, if need 
 be, the murderer to death. But the same law of love 
 binds the government to do this, especially when the 
 community have to so great a degree relinquished this 
 business of self-defence, in order that the government 
 may perform it more effectually. Now the same law 
 of benevolence, which ought to make a murderer know 
 that if, while you are standing by, he attacks your neigh- 
 bour to kill him, you will defend your neighbour by kill- 
 
PREVENTIVE EFFICACY. 307 
 
 ing, if need be, the murderer, ought to make him feel 
 that the government is exerting the same watchful care, 
 and that if, while the government is standing by, he at- 
 tempts to kill, or does kill your neighbour, the govern- 
 ment also will protect your neighbour as you would, at 
 the expense of the murderer's life. But as the effort of 
 the government is protection and prevention, and not re- 
 venge, there is no possibility of this but by making the 
 murderer know before-hand that if he murders, he shall 
 himself die. If in every case of attempted murder, the 
 government could itself stand by, and at the moment of 
 peril draw its sword, it would be bound to cut off the 
 murderer before he kills his victim ; but as this is im- 
 possible, the next degree of protection must be resorted 
 to, which is preventive, saying to the murderer, If you 
 murder, you die yourself; the whole power of the gov- 
 ernment will be exerted to put you to death, if you kill 
 another. But to say to the murderer, Thou shalt not 
 surely die, is most inhumanly to give your neighbour up 
 unprotected to the stab of the assassin. It is perfectly 
 plain, therefore, that this statute is repromulgated in the 
 great law of love, Thou shalt love thy neighbour as thy- 
 self. ^ 
 
 7. THIS PENALTY NECESSARY TO PRESERVE SOCIETY FROM THE 
 ANARCHY AND VIOLENCE OF PRIVATE REVENGE. 
 
 The truth is, there is no alternative between the be- ' 
 nevolence of this statute of death to the murderer, and 
 the violence of private revenge. One or the other, so- 
 
308 CAPITAL PUNISHMENT. 
 
 ciety will have, and if they throw off the protection of 
 the one, they must endure the misery of the other. 
 This protecting power must be lodged in the govern- 
 ment, with a certainty of its execution, or men must go 
 armed, and we must protect ourselves, and our neigh- 
 bours too, against the murderer as we can. We may 
 depend upon it that, as a general rule, these men who 
 talk so loudly of the spirit of forgiveness, and quote 
 scripture with so much volubility and delight, Resist not 
 evil, Recompense to no man evil for evil, Vengeance is 
 mine, I will repay, saith the Lord, will be the first to 
 disallow and discredit their own doctrine, if you put 
 them in personal danger ; if you insult them when the 
 laws of dishonour call for the duel ; or if you take the 
 life of a brother or a son. What then becomes of all 
 their beautiful morality ? They will avenge themselves, 
 and if the government will not do it, it will be done at a 
 cost of blood and violence and moral outrage in the 
 community, more dreadful than twenty solemn public 
 executions of the guilty. ^ 
 
 Y-There is such a spirit of revenge in the human heart, 
 that you must guard against it. You must take its in- 
 dulgence from individuals, where it exists as revenge, 
 and commit it to the government to vindicate the law, 
 without malice, without vindictiveness, in the form of 
 justice and protection. When you say to another, 
 Avenge not yourself, you must be prepared to say, The 
 law will do it for you. When you say to another, Pro- 
 tect not your own rights, you must be prepared to say, 
 
MOCK HUMANITY. 309 
 
 The government will protect them for you. If you do 
 not, there ensues inevitably a shocking state of society. 
 Let this statute be done away, and you will no more 
 hear these persons who have attempted to set the gospel 
 against it, preaching forgiveness. The maxims which 
 our blessed Lord directs against private malice, they, 
 with most intolerable sophistry, direct against that pub- 
 lic, solemn justice of the government, which is God's 
 own avenging interposition, as he has himself declared 
 to us. Do that away, and then see if these men will 
 give you any more of their homilies about not resisting 
 evil, not avenging injuries. > 
 
 8. THE EFFORT AGAINST THIS PENALTY A MOCK HUMANITY, BUT 
 A REAL CRUELTY THIS DEMONSTRATED BY INCONTROVERTIBLE 
 
 STATISTICS. 
 
 It is plain then that this effort is a mock humanity, but 
 a real and wholesale cruelty. I will show you this by 
 statistics. I find in the report of the Belgian Minister 
 of Justice to the King, A. N. J. Ernst, that the number of 
 murders in Belgium attempted or consummated from 1831 
 to 1834, and of which the" authors remain unknown, were 
 as follows: 6 poisonings, 60 infanticides, 119 assassina- 
 tions : making in all 185. Now here are 185 murders in 
 four years, that is, 462 murders in ten years. Now take 
 the ten years to come and look forward. The question is, 
 what is to be done for the security of society 1 Here are 
 the lives of 462 innocent persons in danger ; for, the same 
 causes existing, the same crimes will be enacted these 
 
310 CAPITAL PUNISHMENT. 
 
 ten years to come as the ten past. The assassins, you 
 know, in some form or other, will attack these innocent 
 persons. What are you bound to do ? The least you 
 can do is to threaten them with death, if they execute 
 their purposes. You know that no other penalty, no 
 lesser fear, has any effect upon them. To take away 
 this penalty is in effect to say beforehand, We give up 
 the 462 innocent persons unprotected, and without any 
 effort to save them, to the stab of the assassin. We 
 value the lives of the 462 assassins, more than the lives 
 of their 462 intended victims. The assassins, although 
 they destroy the lives of the 462 innocent persons, shall 
 themselves be protected. I repeat it, this effort is a 
 mock humanity, but a real and wholesale cruelty. 
 ^ This benevolence to murderers, but disregard of their 
 victims, reminds me of the benevolence of that man 
 alluded to with praise by my opponent, who would go a 
 mile out of the way to avoid treading on a worm, while 
 he was at the very same time thinking of murdering 
 one of his fellow-creatures ! J 
 
 9. WEAKNESS AND FALSEHOOD OF THE STATISTICAL ARGUMENT 
 AGAINST THIS PENALTY. 
 
 I am now going to prove incontrovertibly the false- 
 hood of the statistical argument of my opponent. You 
 are well aware that it is the main foundation on which 
 the advocates for abolishing capital punishment build, 
 and that they have put it forth before us, as if it were 
 impregnable. I shall show that it is not only unsafe, 
 
TIME FOR AN EXPERIMENT. 311 
 
 but in its most important particulars absolutely untrue. 
 Statistics by figures in morals are plausible, but if they 
 be not very accurate, they are sure to go against you. 
 In the present case this sort of reasoning is as a bridge 
 thrown over a deep and rapid stream, where you are 
 very likely to fall through. It reminds me of those 
 bridges you may sometimes meet in the country, with a 
 notice posted up at the entrance, " Five dollars fine for 
 crossing this bridge faster than on a walk." Just so 
 with this reasoning. If you will take passage in the 
 carriage of the man that built the bridge, and go softly, 
 you may perhaps go safely ; but if you attempt to drive 
 a great lumbering wagon of heavy argument across it, 
 you shake it to pieces. 
 
 The first thing that strikes the mind in this statistical 
 argument is the almost imperceptibly minute space of 
 time that it covers. The only experiment which has 
 been brought forward with reliable data of any kind, 
 was one of five years ! five years' commutation, not 
 abolition of the penalty of death, in a European State 
 not one twelfth part so large as the island kingdom of 
 Great Britain ! Now it is so ineffably absurd to pretend 
 to draw conclusions for the legislation of the world from 
 such an experiment, that the attempt becomes absolutely 
 ludicrous. Even on the largest scale of territory, you 
 cannot possibly rely on any experiments or statistics, 
 which do not cover a space of time that goes through 
 the whole education of the life of man. Any time less 
 than a period sufficient for the whole formation and de- 
 
CAPITAL PUNISHMENT. 
 
 velopment of human character is utterly vain. The 
 effect must be seen on a whole generation. The second 
 thing that strikes the mind in this argument is the utter 
 impossibility of separating and distinguishing between 
 the influence of concurring causes. You can never 
 know how much other changes, events, systems of poli- 
 cy, or ameliorating influences Sabbath- schools, Bibles, 
 good books, tracts, and the prevalence of temperance 
 have combined to produce the effect ascribed by you to 
 a single cause. 
 
 There may have been twenty causes operating to 
 produce a change in the statistics of crime during a 
 particular period, when an amelioration or change of 
 any kind in the penal code may have had nothing to do 
 with it. To keep the eye in such a case fixed only on 
 this one cause is indeed absurd. You are always in 
 danger of the post hoc, propter hoc ; just as if an igno- 
 rant boor who has all his life got out of his bed before 
 the dawn, should believe and say that his early rising 
 was the cause of the sun's rising ! 
 
 It is the argument of that old man to Master Sir 
 Thomas More, of which Latimer gives us so amusing 
 an account, that Tenterden steeple was the cause of 
 Goodwin Sands ; for he was a very old man, and he 
 could remember the time when Tenterden steeple was 
 built, but he could not remember to have heard any- 
 thing said before that time, about the sands in Goodwin 
 harbor ; therefore he concluded that Tenterden steeple 
 
EDUCATION OF LAW. 313 
 
 was the cause of Goodwin Sands. This is the logic of 
 nay opponent. 
 
 10. LENGTH OF TIME NECESSARY FOR A PROPER STATISTICAL EX- 
 PERIMENT. 
 
 I have said that the period of a generation is the least 
 possible period for an experiment ; you cannot in any 
 less time, tell either what the human character and in- 
 terests suffer, or what they gain by such a change. A 
 system of law, we are to remember, is in a great degree 
 the education of the community. Its influence is con- 
 stant, silent, unnoticed, but mighty. It is a medicine of 
 society, the operation of which, though not sudden, is 
 lasting and powerful. The penalty of death for murder 
 has been for thousands of years exerting a vast influence 
 over the moral sense of mankind. It has acted on the 
 conscience, it has helped the law of love, it has repress- 
 ed crime, it has been an ingredient in our moral atmos- 
 phere, which at every inspiration of our moral being 
 has gone into our circulation. If you take away its in- 
 fluence, you make a change that cannot at present be 
 known fully in its disastrous effect. It is like a delete- 
 rious alteration in the combination of the gases that con- 
 stitute our atmosphere. This penalty is a tonic to our 
 moral constitution ; the injurious effect of suspending it 
 cannot possibly be seen in less than the growth of a com- 
 plete generation. On the other hand, the principles on 
 which this statute is founded are eternal and immutable ; 
 and when you grapple with principles, you are strong 
 
 28 
 
314 CAPITAL PUNISHMENT. 
 
 and safe. They are as iron bolts in the solid rock of 
 the mind ; and unless you fasten your chains of argu- 
 ment to them, you have nothing to hold on by. Every- 
 thing else is unstable and slippery, as shifting as the 
 sand, and as dangerous to build upon. s- 
 
 11. STATE OF THE CASE IN RUSSIA CAPITAL PUNISHMENT NOT 
 
 ABOLISHED THERE, BUT HELD IN THE POWER OF THE EMPEROR. 
 
 One would really have thought from the language of 
 my opponent that all Europe had abandoned the statute 
 of Capital Punishment ; whereas, not one single State or 
 nation can be found, where this is the case. We were 
 pointed to Russia as an example of penal mildness and 
 refinement, that ought to make us blush at our own bar- 
 barism. I have already stated some facts in regard to 
 Russia, that totally change the aspect of the statistical 
 argument here. I am informed in addition by a gentle- 
 man with whose high reputation we are all familiar, who 
 has travelled extensively in Russia, and was well ac- 
 quainted with the Emperor, (Rev. Dr. Baird), that mur- 
 ders are very frequent in that country. Of the 400 
 criminals whom he saw on one occasion about to depart 
 into Siberia, he judges from statistical data, that one- 
 tenth part were murderers. Criminals are sent to Si- 
 beria, partly for the purpose of colonizing that portion 
 of the Russian empire. The punishment of the knout 
 is first administered on murderers, sometimes the tongue 
 has been cut off in addition, and if the criminal do not 
 die in consequence of this barbarity, he goes into exile. 
 
PENALTY OF DEATH IN RUSSIA. 315 
 
 On every individual who escapes from exile and returns, 
 capital punishment is inflicted. The infliction of death 
 as a legal penalty was taken away, Dr. Baird believes, 
 not from the opinion that it did not prevent crime, or was 
 not the most effectual penalty, but because by irrespon- 
 sible noblemen and corrupt courts, there being no trial 
 by jury, the power was so shockingly abused, it was 
 taken away from among the legal penalties, and reserved 
 as a power of the throne only. This change it is be- 
 lieved was made because it would not do for the nobles 
 to have the power of life and death over their serfs, with 
 the power of swaying the judges at their pleasure, where 
 there is no trial by jury, and the administration of jus- 
 tice in consequence fearfully corrupt. 
 
 Now you can no more reason from such a state of 
 things to our country, than you could reason from Botany 
 Bay to England. And yet this is the country to which 
 we are pointed, forsooth, for an example of mildness and 
 wisdom ! A country without the privilege of trial by 
 jury, a country where punishments of the most barba- 
 rous description are inflicted, a country which is an ab- 
 solute despotism, increased in its unlimited power, by 
 the very fact that capital punishment is taken from the 
 legal penalties, and administered by the will of the Em- 
 peror ! 
 
 12. BELGIAN STATISTICS IN FAVOUR OF CAPITAL PUNISHMENT. 
 
 We come now to Belgium. I really know not how to 
 account for the hardihood of our opponents in referring 
 
316 CAPITAL PUNISHMENT. 
 
 to this case. I hold in my hand a report on the admin- 
 istration of criminal justice in Belgium, during the years 
 1831, 32, 33, and 34, presented by the Minister of Jus- 
 tice to the King. This is the period referred to by the 
 other side with such daring confidence. If my opponents 
 have not seen this work, I pity them for unconsciously 
 bringing forward statistics in the teeth and eyes of truth ; 
 if they have seen it, I shall show the most outrageous 
 misrepresentation. The whole of these statistics bear 
 in favour of capital punishment, and decide with great 
 strength, so far as such a little modicum of evidence can 
 decide anything, against the abrogation or commutation 
 of the penalty of death for murder. 
 
 The first classification among these statistics, which 
 bears directly on our argument, distinguishes the crimes 
 against persons, and against property. Under the head 
 of crimes against persons are included, of course, the 
 murders. Now from 1831, the time when the experi- 
 ment of Leopold's lenity commenced, to 1835, the ac- 
 cusations for crimes against persons were increasing. 
 
 In 1831, they were 123 
 
 " 1832, 130 
 
 " 1833, " " 122 
 
 " 1834, 139 
 
 The last year of this experiment proved to be the most 
 fruitful in crime. Among the crimes attempted or con- 
 summated, of which the authors were not discovered, 
 
BELGIAN STATISTICS. 317 
 
 there were from 1831 to 1834, six poisonings, sixty in- 
 fanticides, 119 assassinations; in all, 185 murders in 
 four years. " In view of such grave statistics as these," 
 the Minister of Justice remarks, that " it is manifest that 
 the administration of criminal justice does uot possess 
 the efficiency necessary for the restraint of crime." 
 
 It is important distinctly to remember that the period 
 here spoken of is the very period, in regard to which it 
 has been asserted by our opponents that the statistical 
 results proved a diminution of crime under the abolition 
 of capital punishment. In the first place, there was no 
 such abolition, but only a temporary suspension of the 
 penalty by Leopold. In the next place, under the exper- 
 iment of this suspension, crimes increased, especially 
 murders. In the third place, the authority of the Bel- 
 gian Minister of Justice is beyond dispute on this point, 
 and his statistics, and the conclusions by him drawn 
 from them, are perfectly to be relied upon. 
 
 Proceeding a little farther in our examination and 
 analysis of these statistics, and comparing the number 
 of crimes of every kind unpunished, there were in 
 1831, 774 ; in 1834, 829 ; showing an increase in these 
 four years. In 1831, the number of crimes in compar- 
 ison with the population, was one to 6560 inhabitants ; 
 in 1834, one to 6476, showing in this way also an in- 
 crease. The number of murders in the period from 
 1826 to 1830, when capital punishment was executed, 
 being compared with that in the period from 1831 to 
 1834, when it was commuted, gives an increase in the 
 28* 
 
318 CAPITAL PUNISHMENT. 
 
 last period in proportion to the number of crimes, 36 
 being the annual average of murders, in that proportion, 
 from 1826 to 1830, and 42 from 1831 to 1834. The 
 Minister of Justice remarks, that from this table it is 
 manifest that from 1831 to 1834, the number of assas- 
 sinations and murders has increased compared with the 
 live preceding years. Again, in the year 1829, when 
 capital punishment was executed, only 11 persons were 
 condemned to death; in 1830, only four; in 1831, when 
 capital punishment began to be transmuted, it rose to 
 nine, but in 1834, to 28 ; here again an increase under 
 the experiment of lenity. Once more, in 1831 the 
 number of assaults and batteries was 4444 ; in 1834 
 it was 6051, showing an increase of 1600 under 
 the experiment of lenity. In 1831 there were before 
 the tribunal of police 21,711 criminals ; in 1834, 
 24,756, showing an increase of more than 3000. Du- 
 ring these four years there was a constant increase of 
 crime. In 1831, the tribunal of simple police rendered 
 7897 judgments; in 1834, 11,762, an increase of 3865. 
 These Belgian statistics are thus proved to be tri- 
 umphantly in favour of capital punishment. In view 
 of these statistics, every person must be ready to say 
 with the Minister of Justice, that the administration of 
 criminal jurisprudence in Belgium, manifestly does not 
 possess sufficient energy to restrain from crime. And 
 what lesson do these statistics teach, as to the conse- 
 quences of Leopold's experiment of not executing the 
 penalty of death for murder ? Surely, so far as any 
 
BELGIAN STATISTICS. 319 
 
 conclusion can be drawn from so limited a period, it 
 must be this, that Leopold's intention, being promulga- 
 ted, occasioned from the first a relaxation of moral and 
 penal restraint in the vicious community, the conse- 
 quence of which was a marked increase of crime, es- 
 pecially of murders. In view of these statistics, given 
 under the hand of the Minister of Justice, and certainly 
 to be relied upon, I know not how to denominate the 
 statistics to which we have been treated in the columns 
 of some of the newspapers, and on which our opponents 
 aeem unfortunately to have rested, as anything else than 
 a bare falsehood. It is highly probable that the statis- 
 tics of Belgium for the last five years, exhibit proofs as 
 strongly in favour of capital punishment, as for the four 
 years whose record is before us ; that is, if Leopold's 
 lenity has been continued ; for the consequence of an 
 assurance that the law, though remaining, will not be 
 executed against murderers, must be a lowering of the 
 moral sense, and an increase of crime. The opinion of 
 the Minister of Justice is strongly marked ; had he been 
 going to remonstrate against the king's experiment, he 
 could hardly have said more ; he has told king Leopold 
 plainly that thus far during this experiment, crime of 
 the worst kind is on the increase, that it has increased 
 above and compared with the period preceding this ex- 
 periment, and that his Majesty's criminal records prove 
 that his criminal jurisprudence needs more energy. 
 Thus the statistical argument from Belgium turns pow- 
 erfully in favour of capital punishment ; and both the 
 
320 CAPITAL PUNISHMENT. 
 
 statistical and historical argument of my opponent, whe- 
 ther you take the case of Russia, Tuscany, or Belgium, 
 breaks down at every step. 
 
 The case of Tuscany has been satisfactorily disposed 
 of, the argument from the experiment there being turned 
 directly against the abolition of capital punishment, since 
 it has been found necessary by experience, probably 
 from the increase of crime, as in Belgium, to return to 
 that punishment. A resident on the spot, in Florence, 
 near the time when the statute establishing capital pun- 
 ishment was repromulgated, gives the following account 
 of the matter : 
 
 " The law abolishing capital punishment was pro- 
 mulged under Peter Leopold, grandfather of the reign- 
 ing Duke. A new code has recently been published, in 
 which capital punishment is threatened in certain cases. 
 Thus Tuscany, whose example has often been quoted 
 by those who would not leave the power of taking life 
 to any tribunal, has gone back to her old position, and 
 taken in her hand again the sword of justice, which 
 many years ago she had laid down. The results of hei 
 experiment, of course, have not been satisfactory. An 
 American resident of Florence observed that the number 
 of murders in Tuscany in a single year, exceeded that 
 of the murders committed in all the United States in the 
 same period. However that may be, it is a clear case, 
 that this humane government has felt the necessity of 
 giving to the law which guards the life of the citizen, a 
 
HISTORICAL ARGUMENT. 321 
 
 more fearful penalty than that which it has possessed for 
 a long time past." 
 
 Thus the attempts to build an historical argument 
 against the penalty of death for murder have all signally 
 failed, as well as the pretences of a statistical argument. 
 They cannot stand the test of truth. Time destroys the 
 historical argument, even the semblance of it ; it crum- 
 bles before the passing of a single generation; and a 
 correct arithmetic turns the statistical argument on the 
 other side. 
 
 13. POWERFUL HISTORICAL ARGUMENT IN FAVOUR OF CAPITAL PUN- 
 ISHMENT. 
 
 I shall now adduce to you on our side an historical ar- 
 gument of a very different nature. I shall refer you to 
 the time in which the effects of the penalty of death for 
 murder were tried in the most enlightened and civilized 
 nation in the world for one thousand five hundred years. 
 For more than one thousand five hundred years in the 
 kingdom of Judea the experiment was tried, and the re- 
 sult was, that when the penalty of death for murder was 
 most faithfully executed, the crime of murder was less 
 common ; but that in times when that penalty was not 
 executed, or, against the requisitions of the Divine law, 
 was evaded, murders and all other crimes became com- 
 mon ; the land was full of blood ; and the accusation of 
 cruelty and oppression is brought against the nation, be- 
 cause its princes not only did not execute the law, but 
 even themselves murdered with impunity. Now this is 
 
322 CAPITAL PUNISHMENT. 
 
 a grand experiment ; there is no being deceived in it ; 
 it is not a limited induction, but extends over one thou- 
 sand five hundred years. And here let me remark that 
 the Divine Legislator, under whose administration this 
 experiment was tried, had a perfect knowledge of all 
 objections that could be brought against it ; there was the 
 same uncertainty even in thp best conducted legal in- 
 vestigations ; the same difficulty of bringing the warped 
 consciences of men up to the standard of the law ; the 
 same false philanthropy for the murderer, and unwilling- 
 ness of jurors to convict ; the same danger lest the in- 
 nocent should be punished instead of the guilty; the 
 same objection of dismissing a man into eternity unpre- 
 pared for death ; but in view of all these things the pen- 
 alty of death for murder was affixed to the law, and the 
 experiment was continued for more than one thousand 
 five hundred years in the nation under God's particular 
 care, while in regard to all other nations there stood un- 
 repealed, the old Noachic ordinance, Whoso sheddeth 
 man's blood, by man shall his blood be shed. Now I 
 think this experiment may safely be put against any ten 
 years in Belgium, or twenty in Tuscany, or eighty or 
 one hundred under the wisdom of a murderer and 
 adulteress, in the despotism of Russia. 
 
 ^ 14. A FINAL OBJECTION ANSWERED. 
 
 There remains to be answered one objection. It is 
 that of the danger of dismissing a man from probation 
 in his sins. " By what authority," it is asked, " do we 
 
SPACE FOR REPENTANCE. 323 
 
 limit the space of a man for repentance ?" The objec- 
 tion has, of course, no weight with those who found the 
 duty to take the life of the criminal on the Divine in- 
 junction, because, it is the Divine Being, who, in the 
 penalty itself, limits his space for repentance, just as he 
 does that of every man, in his providence, by death. 
 But I answer, first, my opponent has conceded the right 
 of society, in certain cases, to take life, the right of a 
 man in self-defence, and of society also. But is not this 
 the limiting a man's space for repentance ? Is not this 
 to run the hazard of cutting a man oif in his sins ? 
 Now if a man may do this suddenly in self-defence, 
 much more may society do it deliberately, for the de- 
 fence of society, allowing even the criminal abundant 
 time for repentance. But we contend that a murderer, 
 condemned to death, with several weeks intervening be- 
 tween the sentence and the execution, is incomparably 
 more likely to repent than if you imprisoned him for 
 life. Indeed, it is the declaration of God himself, that 
 because sentence against an evil work is not executed 
 speedily, therefore the heart of the sons of men is fully 
 set in them to do evil. I suppose that we all, if we 
 knew that sentence of death was issued against us, and 
 would infallibly be executed within a few weeks, the 
 time being fixed, should address ourselves much more 
 diligently and effectually to the work of repentance 
 than if we had an indefinite respite. And the sentence 
 might be the very means of our repentance, while the 
 respite might be the very means of our never repenting. 
 
324 CAPITAL PUNISHMENT. 
 
 Why then should it not be so with the criminal ? In 
 this view, punishment by death is infinitely more humane 
 to the spiritual interests of the murderer, than imprison- 
 ment for life. By imprisoning him for life, you may 
 cause his eternal death ; by sentencing him to death, you 
 may cause his eternal salvation. 
 
 But this objection, to many minds, is met more power- 
 fully by throwing it back upon the abolition of this pen- 
 alty. It is those, who aim at abolishing this penalty, 
 who would cause men to be sent into eternity unprepa- 
 red. In the abolition of this penalty, the number of 
 murders would inevitably be increased, and every indi- 
 vidual so murdered is sent into eternity, not with the 
 weeks of preparation, and all the solemn holy induce- 
 ments and appliances allotted to the murderer, but in a 
 moment, without a breath for prayer, without time so 
 much as to say, God be merciful to me a sinner. Now 
 I say without hesitation, it is worse to send one person 
 into eternity in this manner, than it would be to send ten 
 murderers with six weeks' warning. But if you were to 
 repeal this penalty of death for murder, then by the in- 
 crease of this crime, for every murderer now with sol- 
 emn warning executed, you would probably be the oc- 
 casion of sending two or three innocent persons unwarn- 
 ed and unprepared into eternity. This is an inevitable 
 result on the repeal of this penalty. I say, therefore, 
 that its abolition would be an act of impiety ; for the 
 substitution of imprisonment for life would probably 
 make most murderers die in their sins, while it would 
 
CRITICISMS ON THE NOACHIC STATUTE. 325 
 
 send many innocent persons unprepared into eternity. T 
 turn this objection, therefore, back with tenfold power 
 upon your own proposed repeal of the penalty of death 
 for murder. It constitutes in the mind of every benev- 
 olent person one of the very strongest arguments against 
 such a repeal. 
 
 15. FINAL ATTEMPT TO EVADE THE STATUTE. ABSURDITY OF THE 
 
 EVASION DEMONSTRATED. 
 
 Before concluding my argument I must return for one 
 moment to the great statute of Jehovah with which we 
 set out, in order to expose the fallacy of the latest mode 
 adopted by my opponent for evading the binding force of 
 this statute. He proposes to render the ordinance, among 
 men, instead of ly man shall his blood be shed. Now, 
 in the first place, this would not help the matter at all, 
 since it may be powerfully argued, if you take this as 
 the translation, that it manifestly refers to the solemn 
 process, by which this statute shall be executed, not 
 carelessly, or by single avengers, or without the consent 
 of mankind, but by the judgment of men, by witnesses 
 and judges, as afterwards more definitely these specifica- 
 tions were in fact added, serving as a signal commentary 
 on the statute itself. So that, even if you render it 
 among men, you gain nothing but this, that in all prob- 
 ability the magistracy itself is referred to, and the court 
 of justice signified, as the way in which the penalty shall 
 be affirmed, the sentence of the murderer issued. This 
 would be the meaning if you render it among men, or 
 
 29 
 
326 CAPITAL PUNISHMENT. 
 
 else it must mean simply in the presence of men, which 
 is the sense of Vatablus says those persons wish, who in- 
 terpret it among men ; " Inter homines, that is, publice, 
 et in conspectu omnium, cunctisque viventibus," among 
 men, that is, publicly, and in the sight of all persons look- 
 ing on. This would not in the least degree diminish the 
 force of this statute as an injunction. It is impossible 
 that by this rendering you can convert the death of the 
 murderer into an accident, that may or may not take 
 place among men, for the reason why it shall always 
 take place is given. And besides, if the murderer is 
 put to death among men, it must still be by men that his 
 execution is accomplished. It is not a flash of lightning 
 that is to fall upon him, nor a death by drowning, nor 
 any sudden and fatal pestilence provided for the murder- 
 er, but a death among men by men, by witnesses and 
 judges. Every attempt to break violently through the 
 hedge of this statute, only entangles the opponents of it 
 more helplessly among its thorns. 
 
 My opponent has asserted, with astonishing hardihood, 
 that the Septuagint translation is in favour of this ren- 
 dering. So far is this from being true, that this render- 
 ing cannot be found in the Septuagint translation at all, 
 which omits the phrase by man altogether, and simply 
 says, " The person shedding the blood of man, for the 
 blood of that man his blood shall be shed;" giving the 
 statute the same universal form of injunction, which it 
 has in the Hebrew. The Septuagint translation is as 
 
 iolloWS I 'O /c^o)j/ at/*a dvOpwiros, dvrl TOV aiparos aiirov C 
 
COMMENT OF CALVIN. 327 
 
 The phrase by man is omitted, and it is simply dvri row, 
 &c., which cannot possibly be rendered except by the 
 phrase/or, instead of ; and if the words TO avToa are added, 
 as Le Clerc has suggested from the Complutensian man- 
 uscript, the sentence must be rendered thus : the person 
 shedding man's blood, instead of his blood that was shed, 
 that of the murderer shall be shed. This Septuagint 
 translation therefore powerfully supports the interpreta- 
 tion of the ordinance as an injunction. It is not a pre- 
 diction that in the course of Divine Providence, the mur- 
 derer will die, but it is a statute, that instead of the per- 
 son murdered, the murderer's blood shall be shed, that is, 
 deliberately, designedly and speedily. Le Clerc himself 
 interprets it, pro sanguine hominis, ejus sanguis effunde- 
 tur ; for the blood of man, his blood shall be shed. 
 
 My opponent has also gone so far as to assert, that 
 Calvin's opinion was against the common interpretation 
 of this passage. Now, so far is this from being the 
 case, that Calvin distinctly says that in this statute God 
 arms the magistracy with the sword for the punishment of 
 murderers. Calvin renders the phrase which in our 
 common translation is rendered by man, in homine, in 
 man, and he does this simply because he thinks this 
 phrase was used to mark more expressly the atrocity of 
 the guilt of murder. He says that he does not deny that 
 the punishment of murder with death, by the judges, is 
 here meant, but that more is meant. God prepares other 
 providential executioners of his law, at the same time 
 that he arms the magistracy with the sword, in order that 
 
328 CAPITAL PUNISHMENT. 
 
 the blood of man may not be shed with impunity. The 
 opinion of Calvin, in his commentary, is so clearly and 
 so strongly in favour of this statute as an injunction, 
 that I cannot account for the manner in which my oppo- 
 nent has hazarded his credit, in appealing to this distin- 
 guished writer. 
 
 The direct and natural translation of the passage is 
 by man, and not among men ; so did the Jewish Targum 
 of Onkelos render it ; so did the Rabbins ; so, before all, 
 did Josephus ; and they applied it to the magistracy ; and 
 Le Clerc, to whom my opponent refers, observes that the 
 Hebrew preposition here used may everywhere (passim) 
 signify per, by, or through ; though, as in some peculiar- 
 ities of Hebrew construction the sense of inter, or among, 
 may be admitted, he prefers that sense in this place. 
 But according to Le Clerc's own remark on the preposi- 
 tion, the most natural translation is by man and not among 
 men ; as it is also, whosoever and not whatsoever ; and 
 with these two poor attempts at critical ingenuity, the 
 power of torturing upon this passage is exhausted. Af- 
 ter you have stretched it on the rack, its meaning is still 
 the same, and you cannot succeed in altering it. 
 
 The climax of absurdity to which the proposed ren- 
 dering would reduce the whole statute, as a mere pre- 
 diction, is so great that it is surprising it should find a 
 single advocate. The Divine Being has just been utter- 
 ing the solemn declaration that at the hands of men he 
 would require the blood of man. Now if the question 
 be asked, How will he require it ? how will this threat 
 
IMPLIED ABSURDITY. 329 
 
 be fulfilled ? this proposed interpretation gravely replies, 
 Whoso sheddeth man's blood, that man WILL DIE 
 AMONG MEN ! Wonderful conclusion, most wonderful ! 
 The murderer will, in God's providence, die ; and not 
 only so, but among men he will die ! And this is the 
 way in which God will require the blood of the murder- 
 er at the hands of men ! And not only so, but the mur- 
 derer will thus die among men, because in the image of 
 God made he man f 
 
 In fact, neglecting the context, and attempting to 
 change the common and natural translation of this stat- 
 ute, so as to make it other than a command, you fall 
 into such absurdities, that it is only necessary to state 
 them, in order to strengthen tenfold the assurance of 
 every reader of the Bible in the faithfulness and accura- 
 cy of the translation as it stands. 
 
 16. THE REASON GIVEN FOR THE PENALTY MAKES IT ABSOLUTELY 
 CERTAIN THAT THIS ORDINANCE IS AN INJUNCTION. 
 
 In fact, the reason given for the penalty, stands di- 
 rectly in the way of every possible interpretation of this 
 ordinance, save only that which is on the face of it, as a 
 command. It is not an accident, nor an ordinary occur- 
 rence in the Divine Providence, whereby the blood of the 
 murderer shall be shed, but a particular and perpetual 
 determination of Jehovah, for this reason, that IN THE 
 IMAGE OF GOD MADE HE MAN ; and therefore, he that 
 defaces and destroys that image by murder, shall sol- 
 emnly be put to death. This putting to death must be 
 29* 
 
330 CAPITAL PUNISHMENT. 
 
 among men, or not at all ; it is not among beasts, nor 
 among angels ; and this ordinance is itself the grand 
 means of accomplishing this result ; for without this or- 
 dinance murderers would no more be put to death than 
 other criminals. Put, if you please, in any community, 
 in the place of this ordinance, the mere prediction you 
 contend for, and post at the head of your criminal juris- 
 prudence jUSt this ; MEN THAT MURDER WILL CERTAINLY 
 
 DIE ; and then see if on this account murderers die any 
 more frequently or violently than other men. Indeed, 
 your mode of expounding this passage reduces it almost 
 to a laughable absurdity. The wonder is that you have 
 not gone one step farther in your critical sagacity, so as 
 to interpret the declaration by man shall his blood be 
 shed, as signifying simply that a vein shall be carefully 
 punctured in the arm of the murderer, and a number of 
 ounces of blood taken, and then imprisonment for life 
 administered as the sentence. This amendment would 
 be no more ridiculous than the other expedients, by 
 which you seek to rid yourselves of what you candid- 
 ly acknowledge to be a terrible incubus on your argu- 
 ment. 
 
 CONCLUSION. 
 
 THE RIGHT MODE OF DIRECTING PUBLIC OPINION. 
 
 The statistical argument is what my opponent has 
 mainly relied upon, but it has proved to him unfaithful. 
 
NECESSITY OF SETTLING GREAT PRINCIPLES. 331 
 
 Un the great moral and scriptural principles connected 
 with this subject, the adversaries of the punishment of 
 death for murder are unwilling to dwell. And this, 
 most certainly, is a mark against their cause. But if 
 they, or any community, are averse from the discussion 
 of such a question upon such principles, so much the 
 greater necessity of explaining and defending those prin- 
 ciples. If public opinion is wrong, it is only thus that 
 you can set it right. And if the public mind be greatly 
 excited, you can gain nothing in any time of commotion 
 on a great question, by withdrawing, or attempting to 
 withdraw out of view the great principles around which 
 all the agitation gathers. That agitation will continue, 
 the elements will forever be disturbed, till those great 
 principles find their proper place, and rule in all minds. 
 Push them forth then into notice ; make them more and 
 more prominent ; and then when once rooted and ground- 
 ed, you will have a stable foundation for good order to 
 rest upon. Till then you will have uncertainty, revolu- 
 tion, private revenge, and the horrible despotism of the 
 passions of the multitude. It is a great mistake when 
 you shun the encounter of a prejudice, or seek to allay 
 a commotion, by shutting up a truth. There may be ig- 
 norance and prejudice in juries, there may be a mistaken 
 or a depraved public opinion in communities. But to 
 give up great principles on such occasions, or for such 
 reasons, is just taking away the foundations that you 
 may save the superstructure. It is nothing but the es- 
 tablishment and reverence of such principles that can 
 
33:4 CAPITAL PUNISHMENT. 
 
 preserve aught that is blessed in Church or State. Ana 
 it is the very madness of mock-prudence, through fear 
 of the prejudices or passions of the multitude to shuffle 
 out of view those sublime and awful truths, beneath 
 whose powerful sway only it is that righteous law can 
 be supported, and the passions of the multitude hushed 
 to repose. 
 
 The protrusion of a great principle may arrest and 
 excite all minds, and set the world in an uproar, but it 
 will prevail for good. It is like throwing a vast mount- 
 ain of granite into the sea. For a time you raise the 
 whole ocean in fury ; but wait awhile, and you see the 
 waves that rolled in rival mountains, retreating from its 
 rugged sides, and worshipping around it ; and on its 
 lofty summit you may fix a light-house for the world. 
 The great principle given by Jehovah to Noah in this 
 statute, and to the world through him, is such a lofty 
 mountain, sustaining on its summit a light of life and 
 legislation for all succeeding generations ; and sure we 
 are that the puny efforts directed from time to time 
 against it will prove but as the foam and agitation of the 
 idly raving billows in the ocean. 
 

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