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of Mr. Miner. The “Appendix” will by no means be found the least interesting. There are many personal adventures, and particular memoranda relating to the original families of the valley, which are especially interesting to their descendants. And here, too, is a just tribute of respect to the forefathers of the present generation of the Wyoming people. Of “Mrs. Myers,” the daughter of Thomas Bennet, who was in Forty Fort at the time of the battle, Mr. Miner makes very respectful mention. As this lady is our mother-in-law, we ought to feel, and do feel, personally obliged to our friend for a tribute of respect which he doubtless considers a piece of sheer justice. This lady is still living, and though eighty-three years of age, and has not seen the sun, nor the faces of her children and grand-children smiling around her for the last twelve years, being entirely blind, yet she enjoys the unimpaired exercise of her intellectual faculties, and converses as intelligently as ever of the scenes of her youth and the stirring events of early times. We have in MS. her whole story, taken from her own lips, from which we have drawn occasionally in this paper. The whole may possibly see the light at some future period; but at what time and in what form we cannot now definitely say.
Art. VII.—Capital Punishment.
We advocate no undue severity in penal legislation. On the contrary, we hail with delight that spirit of philanthropy which has wrought such mighty changes in the penal codes of the Christian world. From the time of its appearance, in the immortal labors of Sir Samuel Romilly, down to its glorious triumph in 1837, we have followed it with a profound sympathy. Through its trials and difficulties, through all its conflicts with ignorance, and sophistry, and prejudice, and passion, and indifference, we have followed it with the most lively interest. We have felt its defeats; we have rejoiced in its victories. Above all, have we rejoiced in its recent, most decisive, and brilliant triumph in the kingdom of Great Britain; by which it has transformed the once bloody code of that great nation, and stricken more than two hundred offenses from her list of capital crimes. And no philanthropist, we think, can fail to rejoice at this bright and beautiful manifestation of the spirit of the age.
. But, like every other great and powerful impulse, it should be restrained within proper limits : "the spirit of the age " should be
kept in strict subordination to the Spirit of God. There is the greater need for this, as having broken loose from a blind admiration of the past, it is in danger of being dazzled and misled by false visions with respect to the future. We have reason for this fear, we think, when we listen to the confident and glowing predictions of statesmen and philosophers in regard to the happy results which are to flow from the entire abrogation of capital punishment. We would pause, then, and consider these prophecies, whether they be true prophecies; whether they appeal to the mere blind feeling of humanity, or to that calm and enlightened benevolence which is the highest attribute of the Christian statesman. This is one of the great problems of the day; and there is no other problem in the whole range of penal jurisprudence more worthy of the deep, calm, patient, and earnest consideration of the philanthropist and the philosopher.
It is well known that the entire abrogation of capital punishment has been advocated by a Beccaria, a Livingston, a Roscoe, and a Dymond, as well as by other names of equal distinction. If they have not shown their cause to be strong, it must be because it is intrinsically weak. Whether they have done so or not, we trust will in some degree appear when we come to examine their arguments. These arguments may be arranged under three general heads :
I. The argument from abstract principles.
I. The argument from abstract principles.- It is contended that no human government has a right to inflict capital punishment. This position is assumed by Beccaria, as well as by other distinguished writers; and he endeavors to determine this question of right by an appeal to what he calls the social compact-a splendid fiction, which may serve to amuse the merely speculative reasoner, who is accustomed to found laws and governments upon pure abstractions, and to regulate all their workings by the rules of logic, without the least regard to actual events, or to the manifold wants and passions of mankind. Governments are not founded upon social compacts, or upon any such airy and unsubstantial formation; they spring up spontaneously and irresistibly from the nature and the necessities of man. In its outward development government may be made to yield, if you please, to the form and pressure of a social compact, to the plastic power of the nation's will; but its foundation hath been established by the same hand which hath laid the foundation of nature itself. If it were necessary, we might easily expose this fallacy—this figment of the brain--this dream of the imagination-by which its foundation and its authority are sought in the abstractions of the closet; but, for our present purpose, we may safely concede to our opponents that civil government is based upon a social compact, from which it derives all its powers.
Granting, then, for the sake of argument, that government is based on a social compact, what is this compact ? and what are its terms ? According to Beccaria and his followers, when men enter into society, each agrees to give up “the smallest possible portion" of his natural liberty, in order that he may the more securely enjoy the rest. He does not agree that his life may be taken away, and therefore he cannot be deprived of it without a violation of the terms of his contract.
This may appear specious; for how plain is the premise, and how irresistible the conclusion: but yet a fallacy must lurk somewhere in the logic. For, if each man has given up only "the smallest possible portion" of his natural liberty, and if society can take from him only what he has agreed to surrender, how can it wrest the whole of that liberty from him by imprisonment for life? Is it not plain, that if society derives all its power and authority from such a contract, it no more has the right to incarcerate the murderer for life than it has to put him to death?
Admitting, as we have done, the truth of the doctrine of a social compact, we may yet deny that Beccaria's view of it is correct. No government should ask the individual member of society in what way, and to what extent, he is willing to be punished for the public good; if all civil authority is derived from consent, it is certainly not from the consent of each and every individual member of society, but from the consent of the majority. Hence, when government is ratified and confirmed by such consent, the individual is bound by its provisions. How bitterly soever he may hate them, and how fiercely soever he may denounce them, he is just as much subject to their control as if they had received his free, full, and perfect consent. His submission does not result from the terms of any contract made by him on his entrance into society ; it is a matter of stern and inexorable necessity. The right to inflict punishment, whether it be imprisonment or death, is not derived from his consent, but from the general consent of the community in which he lives. Indeed, by referring to the individual consent of the criminal, as the foundation of the right to punish, Beccaria deprives law of all its majesty, and reduces civil government to one of the most inconceivably weak and crazy things on earth.
Beccaria also contends, that as no man has a right to take away his own life, so he cannot confer this right upon society. In this argument there is a double fallacy. In the first place, it proceeds on the supposition already noticed, that the rights of government are derived from the individual consent of its members; so that if a man does not consent to its provisions he is not bound by them. Secondly. It proves too much. No man has a right to imprison himself for life; that is to say, no man has a right to seclude himself from society, and thereby incapacitate himself to discharge the duties of the station to which Providence has assigned him; and hence, according to the argument in question, he can confer no such right upon others, and therefore society has no such right. Thus, the argument cuts both ways, and concludes quite as much against the right for which the eloquent marquis himself contends, as it does against that which he so strenuously opposes.
We have not yet done with this famous sophism. What is meant by the expression, that “a man has no right to take his own life?" Does it mean, that he has no legal, or that he has no moral, right to do so ? According to the common use of the words, a man has a right to do anything, no matter how wrong in a moral point of view, against which there is no human law; that is to say, he has a legal right to do it, provided it is not prohibited by the law of the land. If the words are to be understood in this sense, it is not true that a man, previous to his entering into society, has no right to take his own life; for as, in a state of nature, as it is called, there are no human laws, so in the above sense we may say with Hobbes, that each man has a right to all things. And having a right to all things, he may transfer all his rights to society; and thus we may begin with Hobbes in a state of nature, and, using the word right in the above sense, we may construct an absolute and unlimited despotism.
But we suppose the meaning is, that it is not morally right in a man to take his own life; it is evident that the words must be so understood, if we would not make nonsense of them. If this be the meaning, the argument will stand thus :—It is not morally right for a man to take his own life, and therefore he cannot make it morally right in society to deprive him of it as a punishment for the crime of murder ;-a specimen of logic of which few persons, we apprehend, will be able to feel the force.
Again : supposing it to be true that no man has a right, in a state of nature, to take his own life, it does not follow that no other man has a right to take it in case he should become a murderer. And if any other man, or set of men, possessed this right,
it might have been transferred to society, just as well as if he had possessed it himself. It will not do, then, in any point of view, to argue that society has no right to take the life of the murderer, because he had no such right himself, and therefore could not have conferred it upon society. Indeed, this whole argument, which has been a thousand times repeated by the followers of Beccaria, and boastfully held up as a
“demonstration" of the iniquity of the capital punishment, is a most flimsy sophism. When searched to the bottom, it appears to be an attempt to decide the gravest question in the whole range of penal legislation, by a gross abuse of words, by an argument as intensely sophistical as it is in the power of man to invent. Is it upon such grounds that the practice of all ages and nations is to be set at naught, and the penal legislation of the world reformed? For our part, we are free to confess that we have but little confidence in the superior political wisdom of reformers, who are capable of using such an argument on such an occasion.
We have now seen the argument of Beccaria and his followers, from abstract principles, against the right of capital punishment, which he calls a “demonstration" that no such right exists in society. We shall next proceed to consider,
II. The argument from expediency.—"The punishment of death," says Beccaria, “is pernicious, from the example of barbarity it affords." This is very true in regard to minor offenses; but it is urged as an argument in favor of the entire abrogation of capital punishment; and, as such, we object to it. No law is justly chargeable with cruelty or barbarity, unless it is greater than the criminal deserves, or than the good of society demands. All undeserved and unnecessary punishment is cruel and barbarous; but neither of these conditions can be shown to attach to the punishment of the murderer with death. He deserves to die, and therefore, in a moral point of view, his punishment is not cruel : he himself, in most cases, will be the first to acknowledge the justice of his sentence. Before it can be affirmed, then, that such a penalty is barbarous, it must be made to appear that it is unnecessary, that the best interests of society do not require its infliction. This is the broad ground on which the question of expediency must be settled, if we would take a calm and enlightened view of the subject, and not suffer ourselves to be heated and misled by vague and passionate declamations about “cruelty," and “barbarity," and so forth.
Of a piece with such declamations is the practice of bestowing the most exalted eulogiums upon the cause of humanity, in general