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allowed to redress their own grievances. But no man being a proper judge in his own case, the power of enacting punishment is, with the strictest justice and the unerring wisdom of God, transferred from individuals to the sovereign authority. This power was conferred on Adam at his creation, but more distinctly on Noah after the flood. We find Noah exercising the fatherly or sovereign authority over his wicked son: "and he said, Cursed be Canaan, a servant of servants shall he be unto his brethren." But his dutiful and obedient children he blessed : " and he said, Blessed be the Lord God of Shem; and Canaan shall be his servant. God shall enlarge Japheth; and Canaan shall be his servant."* Here we see the universal sovereign exercising the supreme authority, cursing Ham or Canaan for his irreverence and impiety, and blessing the other two for their respectful and dutiful conduct.-God said to Noah and his sons, "Whoso sheddeth man's blood, by man shall his blood be shed." From the general import of these words, and because Noah's sons were joined with him in this commission it has been attempted to be explained away, that this command was given to mankind in general, and not to the sovereign in particular; which makes nonsense of a very solemn and important divine gift: for in that case, any one of Noah's sons had the power of life and death over their father and sovereign, as well as he over them, which would be complete confusion ; there could not then be any judge, because every man would be a judge over his judge! It was a command of obedience to the sons, that was to extend to all generations to the end of the world, and had respect to Noah's sons when they themselves should become sovereigns, in the course of succession to their father's power and authority; whereas, had the commission been given to Noah alone, without associating his sons with him, it might have been construed into a particular grant to him alone, and not to be descendible to other governors after him; therefore the commission is in general terms, "by man shall his blood be shed," that is, by such men, to the end of the world, who shall be justly vested with sovereign authority. These men, Shem, Ham, and Japheth, were well certified of their father's authority over them; it was no new thing to them, it had been established from the beginning, as well by the positive institution of God, as by the dictates of nature and, therefore, it being manifest that Noah had no superior but God only, his authority must have been supreme and absolute over his sons, who were his subjects; and it must follow that the power of life and death was to be executed by Noah over his sons and their children after them, who all constituted his subjects; and whoever inherited his power and authority, inherited likewise the power of life and death conferred on him by God himself, and which through him is inherent in every lawful sovereign, to the end of the world. And the words of the Mosaical law are very emphatical
* Genesis ix. 25, 26, 27.
+ Ibid, ix. 6.
in prohibiting the pardon of murderers: "Moreover, ye shall take no satisfaction for the life of a murderer who is guilty of death, but he shall surely be put to death; for the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it."*
With regard to the particular mode of punishment which may be thought best calculated to defend every individual in his civil capacity from injury, that must be left to the wisdom of the legislature of every country. And it is in vain for any criminal to say, that this or that penalty is too severe for his crime; for it is a maxim of the constitution, that every man consents expressly or impliedly to all the acts of the legislature. The criminal code is, therefore, a constituent part of that original contract into which every man enters when he first becomes a member of society; it was intended, and continued to contribute to his personal safety and happiness, till his own folly brought down its terrible vengeance on his head. As to the end of human punishment: it is not inflicted by way of revenge : for that would be to usurp the prerogative of God, to whom alone vengeance belongeth; "vengeance is mine, I will repay, saith the Lord." Neither is it awarded to make an atonement. For every wilful violation of human laws that are contrary to revelation, is a breach of the moral law; and no human suffering can remove the guilt of the offender, or make whole the law which he has broken. Suffering is the effect of transgression, and it is absolutely impossible that an effect should destroy the cause which produced it for instance, no length of confinement of a debtor, will discharge the debt which he owes. In short, it is from the scriptures alone that we learn how sin can be pardoned, consistently with the divine attributes and government. "Therefore," says St Paul," by the deeds of the law there shall no flesh be justified in his sight; for by the law is the knowledge of sin. But now the righteousness of God without the law is manifested, being witnessed by the law and the prophets; even the righteousness of God, which is by faith of Jesus Christ unto all and upon all them that believe, for there is no difference; for all have sinned and come short of the glory of God. Being justified freely by his grace through the redemption that is in Christ Jesus; whom God has set forth to be a propitiation through faith in his blood, to declare his righteousness for the remission of sins that are past, through the forbearance of God."+
The sole design, then, of the legislature in enacting punishments is to prevent in others the commission of the same crimes in future. This is effected in three ways; either by amendment of the offender himself, in suffering corporeal punishments, such as exile, fines, imprisonment, and the like; or by deterring of others by the dread of example, which gives rise to all open and ignominious punishments; or by depriving the criminal of the
* Numbers xxxv. 31, 33.
↑ Romans iii. 20-25.
power of doing farther mischief, which is accomplished either by death, perpetual imprisonment, or banishment for life. The measure of human punishments must be left to the wisdom and discretion of the legislature, to enact such penalties as are warranted by the laws of nature and of society. They should be such as seem best adapted to answer the end of prevention, and not of a vindictive nature. The law of retaliation is not a proper mode of punishment; because in various instances it would be more than a compensation; as if a court would award a strong man to strike a weak man who had struck him again, in some cases it would be inadequate to the offence; as if a man were sentenced to lose one of his eyes, who had put out his neighbour's only eye. In other instances it is impossible to apply it; as in the case of theft, defamation, forgery, &c.
There are, however, some general principles to be regarded in allotting a punishment which shall be adequate to the offence. It is necessary to attend to the object of an injury; to the violence of passion or temptation under which it was committed, to the age, education, and character of the offender; with a variety of other circumstances which may extenuate or aggravate the commission of a crime; and must point out the measure of punishment. As therefore punishments are intended for the prevention of future crimes, it follows that those offences should be most severely punished, which are most destructive of the public safety and happiness, and which a man has the most frequent and easy opportunities of committing. Hence, it is in more cases capital for a servant to rob his master than for a stranger. To steal any trifle from one's person privately, of the value of twelve pence, is made capital; but to carry off a load of corn from an open field is punished only with transportation.— Unreasonable severity in the punishment of crimes, is thought by many wise and good men to defeat its own end. They are of opinion that crimes are more effectually prevented by the certainty than by the severity of the punishment; because, when the severity of the law is very great, their execution is hindered by public humanity. A feeling man will decline to prosecute, when he thinks the conviction would be followed by excessive punishment; and a merciful prince, influenced by similar motives, will be often constrained to pardon the criminal, or dispense with a part of the sentence of the law.
IV. HOMICIDE.-It does not fall within the limits of this work to give a specification of all the crimes of which the fallen nature of man is guilty, and for which the laws of every well-governed realm has provided just and salutary punishments. The greatest crime that can possibly be committed against the persons of any of the king's liege subjects, is the wilful taking away of that life which is the immediate gift of God. No man has even the authority to destroy his own life, much less has he the privilege of depriving his neighbour of his except under certain circumstances; when he is either permitted or commanded to do so, by the laws
of nature or of revelation. But as the best action may be debased by the unworthy motives from which it originated; so even the killing of a fellow creature may be altogether an innocent act, if there be a total absence of all malicious intention or premeditated design. And in such cases, under the Jewish dispensation, the divine law provided an expiation. "If one be found slain in the land which the Lord thy God giveth thee to possess it, lying in the field, and it be not known unto thee who hath slain him. Then thy elders and thy judges shall come forth, and they shall measure unto thee the cities which are round about him that is slain and it shall be, that the city which is next unto the slain man, even the elders of that city shall take an heifer that hath not been wrought with, and which hath not drawn in the yoke and the elders of that city shall bring down the heifer into a rough valley, which is neither eared nor sown, and shall strike off the heifer's neck there in the valley and the priests, the sons of Levi, shall come near: (for them the Lord thy God hath chosen to minister unto him, and to bless in the name of the Lord) and by their word shall every controversy and every stroke be tried and all the elders of that city that are next unto the slain man, shall wash their hands over the heifer that is beheaded in the valley and they shall answer and say, our hands have not shed this blood, neither hath our eyes seen it: be merciful, O Lord, unto thy people Israel, whom thou hast redeemed, and lay not innocent blood unto thy people of Israel's charge. And the blood shall be forgiven them."*
The laws of England, therefore, with their usual regard to reason and revelation, very properly contemplate homicide in three points of view; 1. Justifiable: 2. excusable: and 3. felonious.
1. Justifiable homicide is of various kinds; it may be such as arises from some unavoidable necessity, without the consent of the will of the perpetrator, who is therefore without any blame: as, when the law requires it, one, by virtue of his office, puts another to death, who had forfeited his life by the laws and verdict of his country. This is an act not only of necessity but of duty; and is therefore not only justifiable but commendable when the law requires it. But the law must require it, otherwise it is neither justifiable nor commendable: therefore, wantonly to kill the greatest malefactor, an attainted or outlawed felon or traitor, with deliberation, uncompelled and extra-judicially, is murder. And further, if judgment of death be given by a judge unauthorized by a lawful commission, and execution be done accordingly, the judge is guilty of murder. And on this account, although Sir Matthew Hale accepted the place of a judge of the common pleas under Cromwell's government, yet he declined to sit on the crown side at the assizes and try cases of life and death.
* Deut. xxi. 1-8.
And his reason was, that, Cromwell being a usurper, he could not give a valid commission; and, therefore, executions under his authority were cases of murder: but as disputes concerning civil property must be decided in the worst of times, he acted as a judge in civil cases during the whole of the usurpation. Also judgment, when legal, must be executed by the proper officer or his appointed deputy; and if another person do it of his own accord, even though it be the judge himself, it is held to be murder. And farther, it must be done agreeably to the sentence of the court; for if an executioner beheads one who is adjudged to be hanged, or vice versa, it is murder; because he is merely ministerial, and therefore only justified when he acts under the authority and compulsion of the law. Again, homicide is justifiable when it is committed to advance the public justice; as when an officer in the execution of his office, either in a civil or a criminal case, kills a man who resists him. So, likewise, if a man is killed in attempting to commit a robbery, or in breaking open a house in the nighttime, the slayer only commits a justifiable homicide, and the law considers that he has done a commendable rather than a blamable act. Indeed it is a constitutional maxim that one may lawfully kill another who forcibly attempts to commit any crime that is punishable with death. The law justifies a woman who kills one in an attempt to ravish her; also a husband or father, if he kills a man who attempts to commit a rape on his wife or daughter, but not if he detects them in adultery by the female's consent, because the firs forcible and felonious, but the latter is not.
2. Excusable homicide is of two sorts; either by misadventure or upon a principle of self defence. Homicide by misadventure, is when one in doing a lawful act kills another without any intention of hurting him. As if a parent or a master or an officer, in moderately correcting a child, apprentice, or soldier, should happen to occasion his death, it is only a misadventure, because moderate correction is a lawful act. But neither the manner nor instrument, nor measure of the correction must exceed the bounds of moderation and reason; otherwise, if death ensue, it will be murder, or manslaughter at the least, according to circumstances. A tilt or tournament, the martial diversion of our warlike ancestors, was an unlawful act; and so are boxing and fencing, the succeeding amusements of their posterity; and therefore, in the former case if a knight, or in the latter a pugilist or fencer, should kill his antagonist, such killing is felony or manslaughter. But if the king either command or permit such diversion, it is then only a misdemeanour, because the act is lawful. To whip another's horse whereby he runs over a child and kills him, is held to be an accident in the rider, because he had not done any unlawful act; but it is manslaughter in the person who whipped the horse, because the whipping was a trespass and at best a piece of idleness of inevitably dangerous consequence. And, in general, it is manslaughter and