repel all aggressions by a force or precaution adequate to the object. This results from the right of self-preservation. If a person attempts to take away my life, I have, doubtless, a right to protect myself against the attempt by all reasonable means. If I cannot secure myself but by taking the life of the assailant, I have a right to take it. It would otherwise follow, that I must submit to a wrong, and lose my life, rather than preserve it by the means adequate to maintain it. It cannot, then, be denied that, in a state of nature, men may repel force by force, and may even justly take away life, if necessary to preserve their own. When men enter society, the right to protect themselves from injury and to redress wrongs is transferred, generally, from the individuals to the community. We say that it is generally so, because it must be obvious that, in many cases, the natural right of self-defence must remain. If a robber attacks one on the highway, or attempts to murder him, it is clear that he has a right to repel the assault, and to take the life of the assailant, if necessary for his safety; since society, in such a case, could not afford him any adequate and prompt redress. The necessity of instant relief, and of instant application of force, justifies the act, and is recognised in all civilized communities. When the right of society is once admitted to punish for offences, it seems difficult to assign any limits to the exercise of that right, short of what the exigencies of society require. If a state have a right to protect itself and its citizens in the enjoyment of its privileges and its peace, it inust have a right to apply means adequate to this object. The object of human punishments is, or may be, threefold; first, to reform the offender; secondly, to deter others from offending; and, lastly, to secure the safety of the community, by depriving the offender of the power of doing mischief. The first consideration rarely enters into human legislation, because of the inadequacy of our means to produce great moral results by the infliction of punishment. The two latter considerations enter largely into the theory and practice of legislation. Who is to be the judge, in such cases, what is the adequate punishment for any offence? Certainly, punishments ought not to be inflicted, which are utterly disproportionate to the offence, and beyond the exigencies of society. No government has a right to punish cruelly and wantonly, and from mere revenge; but, still, the discretion must be vested some

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where, to say what shall be the degree of punishment to be assigned to a particular offence. That discretion must be, from its nature, justly a part of the legislative power, and to be exercised according to the actual state of society. It may, nay, it must be differently exercised in different ages, and in different countries; for the same punishment which, in one age or country, may be sufficient to suppress an offence, or render it comparatively harmless, may, in another age or country, wholly fail of the effect. If mild punishments fail of effect, more severe must be resorted to, if the offence be of a nature which affects society in its vital principles, or safety, or interests. The very frequency of a crime must often furnish a very strong ground for severe punishment, not only as it furnishes proof that the present punishment is insufficient to deter men from committing it, but from the increased necessity of protecting society against dangerous crimes. But it is often said, that life is the gift of God, and therefore it cannot justly be taken away, either by the party himself, or another. If he cannot take it away, he cannot confer that power on others. But the fallacy of this argument is obvious. Life is no more the gift of God than other personal endowments or rights. A man has, by the gift of God, a right to personal liberty and locomotion, as well as to life; to eat and drink and breathe at large, as well as to exist; yet no one doubts that, by way of punishment, he may be confined in a solitary cell; that he may be perpetually imprisoned or deprived of free air, or compelled to live on bread and water. In short, no one doubts that he may be restrained in the exercise of any privileges or natural rights short of taking his life. Yet the reasoning, if worth any thing, extends to all these cases in an equal degree. If, by his crimes, a man may justly forfeit his personal rights, why not his life? But we have seen that it is not true, even in a state of nature, that a man's life may not be taken away by another, if the necessity of the case requires it. Why, then, may not society do the same, if its own safety requires it? Is the safety of one person more important than the safety of the whole community? Then, again, as to a man's inability to confer on others a right which he does not himself possess. Suppose it is so; the consequence which is deduced from this does not, in fact, arise. Blackstone, indeed, in his Commentaries (4 Comment. 8), seems to deduce the right of society to punish capital offences, in

hardly be deemed unjust. The safety of society is most effectually guarded by cutting him off from the power of doing further mischief. If his life be not taken away, the only other means left are, confinement for life, or transportation and exile for life. Neither of these is a perfect security against the commission of other crimes, and may not always be within the power of a nation without great inconvenience and great expense to itself. It is true that the latter punishments leave open the chance of reform to the offender, which is, indeed, but too often a mere delusion; but, on the other hand, they greatly diminish the influence of another salutary principle, the deterring of others from committing like crimes. It seems to us, therefore, that it is difficult to maintain the proposition that capital punishments are, at all times and under all circumstances, inexpedient. It may rather be affirmed that, in some cases, they are absolutely indispensable to the safety and good order of society. We should incline to say that, as a general rule, every nation, in its legislation on this subject, must be governed very much by the manners, customs, habits of thinking, and state of opinion, among the people upon whom it is to operate. In a rude and barbarous state of society, summary and almost vindictive punishments seem more necessary than in a highly polished and civilized state of society.

3. As to the crimes to which capital punishments may, most properly, be limited. From what has been already said, this must depend upon the particular circumstances of every age and nation; and much must be left to the exercise of a sound discretion on the part of the legislature. As a general rule, humanity forbids such punishments to be applied to any hut crimes of very great enormity, and danger to individuals or the state. If any crimes can be effectually suppressed by moderate means, these ought, certainly, to be first resorted to. The experience, however, of most nations, if we may judge from the nature and extent of their criminal legislation, seems to disprove the opinion so often indulged by philanthropists, that moderate punishments are sufficient to suppress crimes, and that capital punishments are rarely necessary. The codes of most civilized nations abound with capital punishments. That of Great Britain, a nation in which the public legislation has a deep infusion of popular opinion, is thought to be uncommonly sanguinary. Blackstone, in his Commen

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taries (vol. iv, 18), admits that, in his time, not less than one hundred and sixty crimes were, by the English law, punishable with death. In the code of the U. States, only nine crimes are so punishable, viz., treason, murder, arson, rape, robbery of the mail, fraudulent casting away ships, rescue of criminals capitally convicted during execution, and piracy, one species of which is the African slave-trade. In the codes of the several states of the Union, still fewer crimes are generally punishable with death. It remains yet to be proved, whether the general mildness of our penal code has afforded us any greater security against crimes than exists in other nations. Hitherto, the temptations to commit them have been less here, than in other countries less abundantly and cheaply supplied with the necessaries of life. It is still a question, fit to exercise the solicitude and ingenuity of our statesmen and philanthropists, whether we can safely carry on so mild a system in a more corrupt and dense state of society. If we can, it must be by a very sparing use of the power of pardoning; so that the certainty of absolute, unmitigated punishment shall follow upon the offence. Beccaria, with his characteristic humanity and sagacity, has strongly urged that the certainty of punishment is more important to deter from crimes than the severity of it. At present, there is great danger that the pardoning power, in our free forms of government, will, in a great measure, overthrow this salutary principle. Its exercise, therefore, ought to be watched with the greatest jealousy and care, lest the abuse of it should lead to the introduction cither of absolute impunity for offences, or of more extensive capital punishments. It will probably be found, from the experience of most nations, that capital punishment ought not wholly to be dispensed with. On the other hand, it may be safely affirmed, that there is no positive necessity to apply it to a very large number of crimes. Treason, murder, arson, piracy, highway robbery, burglary, rape, and some other offences of great enormity, and of a kindred character, are not uncommonly punished in this manner; but beyond these, it is extremely questionable whether there is any necessity or expediency of applying so great a severity. Still, however, as has been already intimated, much must depend upon the opinion and character of the age, and the prevailing habits of the people, and upon the sound exercise of legislative discretion. What may be deemed uselessly severe in one

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DEATH, age or country, may be positively required by the circumstances of another age or country.

4. As to the manner of inflicting the punishment of death. This has been different in different countries, and in different stages of civilization in the same countries. Barbarous nations are generally inclined to severe and vindictive punishments, and, where they punish with death, to aggravate it by prolonging the sufferings of the victim with ingenious devices in cruelty. And even in civilized countries, in cases of a political nature, or of very great atrocity, the punishment has been sometimes inflicted with many horrible accompaniments. Tearing the criminal to pieces, piercing his breast with a pointed pole, pinching to death with redhot pincers, starving him to death, breaking his limbs upon the wheel, pressing him to death in a slow and lingering manner, burning him at the stake, crucifixion, sawing him to pieces, quartering him alive, exposing him to be torn to pieces by wild beasts, and other savage punishments, have been sometimes resorted to for the purposes of vengeance, or public example, or public terror. Compared with these, the infliction of death by drowning, by strangling, by poisoning, by bleeding, by beheading, by shooting, by hanging, is a moderate punishment. In modern times, the public opinion is strongly disposed to discountenance the punishment of death by any but simple means; and the infliction of torture is almost universally reprobated. Even in governments where it is still countenanced by the laws, it is rarely resorted to; and the sentence is remitted, by the policy of the prince, beyond the simple infliction of death. In Prussia, where atrocious criminals are required, by the penal code, to be broken upon the wheel, the king always issues an order to the executioner to strangle the criminal (which is done by a small cord not easily seen) before his limbs are broken. So, in the same country, where larceny, attended with destruction of life, is punished by burning alive, the fagots are so arranged as to form a kind of cell, in which the criminal is suffocated by the fumes of sulphur, or other means, before the flame can reach him. In England, in high treason, the criminal is sentenced to be drawn to the gallows, to be hanged by the neck, and cut down alive, to have his entrails taken out and burned while he is yet alive, to have his head cut off, and his body divided into four parts, and these to be at the king's

disposal. But, generally, all the punishment is remitted by the crown, except the hanging and beheading; and when it is not, by connivance of the officers, the criminal is drawn on a hurdle to the place of execution, and is not disembowelled until actually dead. In other cases, the punishment is now simply by hanging, or, in the military and naval service, by shooting. In France, formerly, the punishment of death was often inflicted by breaking the criminal on the wheel. (Damiens was torn to pieces by horses, after he had been tormented with red-hot pincers, and had suffered other horrid tortures.) The usual punishment now is beheading by the guillotine. In cases of parricide, the criminal is conducted, barefooted, and covered with a black veil, to the place of execution, where his right hand is cut off just before he is beheaded. In Austria, the general mode of punishment is by hanging. In Prussia, hanging is rarely inflicted; but the usual punishment is beheading with a heavy axe, the criminal's head being first tied to a block. In other German states, the uncertain mode of execution by the sword still exists. Sand was executed in this manner. It should be remarked, however, that, in Germany, hanging has always been deemed the most infamous sort of punishment; and the sentence has often been commuted for beheading by the sword, as a milder mode of punishment. In the U. States of America, hanging is the universal mode of capital punishment; and, indeed, the constitution of the U. States contains a provision, declaring that "cruel and unusual punishments shall not be inflicted." In China, murderers are cut to pieces; robbers, not. In Russia, the punishment of death has been frequently inflicted by the knout. In Turkey, strangling, and sewing the criminal up in a bag, and throwing him into the sea, are common modes of punishment. In the Roman code, many severe and cruel punishments were prescribed. During the favored times of the republic, many of these were abolished or mitigated. But again, under the emperors, they were revived with full severity. In the ancient Grecian states, the modes of punishment were also severe, and often cruel. But the most general mode of punishment, in ordinary cases, seems, both in Greece and Rome, to have been by hanging. Whether the ancient Greek mode of capital punishment, by taking poison at such hour as the condemned party should choose, has ever been adopted in any modern nation, we