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AN ARGUMENT, Against Capital punishments, reported by order of the Judiciary
Committee, in support of a bill abolishing such punishments as to all free persons in the State of Tennessee.
INTRODUCTION. Vanity itself, however great, could hardly induce us to expect to supersede the labors of Montesquieu, Rush, Beccaria and many others, against the improper infliction of capital punishments. We must entirely mistake the foundation of our own learning, and, in a good degree, the sources of our own humane and benevolent feelings, were we not to admit to the fullest extent, the high claims of those distinguished and eloquent advocates in the cause of humanity. They have, however, in writing on many other subjects, condensed their views and arguments on this one, into the small compass of a single chapter, without taking time to enlarge, illustrate and enforce it. This brevity has no doubt arisen from a conviction, that errors accumulated through so many generations, and supported by so many passions of the human heart, could never be overturned. Results, though they have not realized all the hopes of the benevolent, have, by no means, corresponded with their despondence. Next to the general diffusion of knowledge, and the wide extension of religious principles, the enlightened humanity of the age is to be attributed to their generous exertions. They planted the root of that tree whose blossom is now so pleasant to look upon, but whose full maturity must be expected at some future period.
If, in making this further effort in behalf of the few against the many—of the weak and the oppressed against the mighty, should this argument fail to add anything valuable, we will not so much regret our want of success in writing, as we will long deplore the infatuation of society, in continuing to shed the blood of so many human beings. We do not aim entirely at originality; our sole object being to reform society in its habits of thinking and feeling on this important subject, every thing we have either read or heard, which is considered valuable, will be brought forward and insisted on; hence, it should be regarded more as a mere compilation, than an original production.
If men were like the trees of the forest, that die and fall and return to dust again, or, if after death they vanish into eternal insensibility as though they had never been, we would not thus earnestly complain of their destruction. The toils and perplexities of life would then often make it desirable to return to that gross element out of which chance or destiny had formed them.
He who would pierce their clay tenement with a dagger, or destroy it with a pistol, would often perform the highest act of kindness and love. But their souls are immortal, their spirits have been despatched by the great father of spirits on a pilgrimage to earth; their happiness or misery through eternity, depends on their moral state or condition when leaving the world. Who shall say when that pilgrimage shall close ? Shall poor mortal man, himself a pilgrim, shuddering every moment of his life at the dreadful accountability which awaits his own soul, shall he fix the awful period when the spirit of his frail brother-child of the dust, shall return to him who gave it?Surely He, and He alone, knows best when to recall them, who sent them forth, and whose high purposes they were intended to accomplish. The responsibility of extinguishing human life, is the greatest that can be incurred on this side of eternity. This responsibility may be parcelled out amongst so many individuals—the Legislators, the judges and jurors of the country, that none may be able to feel and realize its full weight; yet all should remember that it still continues to exist somewhere; and that every drop of human blood, wrongfully shed, will continue to cry from the ground like Abel's, until Heaven shall
avenge it. To the law-makers, however, of every government, this enquiry is chiefly addressed. They constitute the fountain whence the streams of bitterness and death begin to flow. All the errors of judges, the ignorance of jurors and corruptions of witnesses, are, in some sort, chargeable on them, for attempting to usurp the high prerogative of Heaven, and then delegating it to such frail and imperfect instruments of mortality. The enactment of bad laws by the sovereign, is probably worse than the violation of good ones by the subject; because the first is supposed to act with deliberation, and without any extraordinary inducement to do wrong, whilst the second is often the victim of some sudden and overwhelming passion, which it was scarcely possible for his nature to resist.
Mercy to him that shews it is the rule,
And he that shews none being ripe in years
THE ORIGIN OF HUMAN LAWS.
The world has been much amused with a variety of ingenious conjectures about the original condition of mankind :whether it was a social, or, what writers have commonly called, a state of nature. The Poets of antiquity have often alluded to the latter state, and by their golden, silver and iron ages, illustrated their opinions of it. Historians and moralists also, abandoning their search after facts, have sometimes wandered far into the regions of imagination, and submitted many wild suppositions, instead of the sober realities of truth. Among the writers who have attempted to distinguish, in the human character, its original qualities, and to point out the limits between nature and art, some have represented mankind in their first condition, as possessed of mere animal sensibility, without any exercise of the faculties that render them superior to the brutes—without any political union, without any means of explaining their sentiments, and even without possessing any of the apprehensions and passions, which the voice and the gesture are so well fitted to express. Others have made the state of nature to consist in perpetual wars, kindled by competition for dominion and interest, where every individual had a separate quarrel with his kind, and where the presence of a fellow creature was a signal for battle. *
From both of these conditions, mankind have been supposed to have emerged, and to have formed societies from a great variety of motives,-their fears, their affections, their interests, and in fact, their almost every well ascertained motive of action has been given by some one or other of these writers, as their inducement for forming a regular system of political government.
Against all these theories, in which imagination has been substituted for reality, and the provinces of reason and poetry strangely confounded, the history of man, as given in the Bible, should have been considered as conclusive. In that history, more authentic than all others, he is represented to have been created in a social state:-"male and female created he them." The increase and extension of the first society, its manners, occupations and laws are there given, with a minuteness and clearness that dissipate at once all the hypothesis of which we have been speaking. At the period when the blood of Abel was made to stream around the simple altar of his devotion, settlements had been extended to the land whence his murderer was banished. The decendants of Cain built up cities, resided in tents, became artificers in brass and in iron, and handled the harp and the organ.
The first society of all, planted in a place wholly devoted to the worship of God, needed no human legislation. Its happy members, two only in number, holding sweet and constant communication with their divine Creator, knew of no law necessary to their being, save a single prohibition. It was not until all the blooms of Paradise had withered, and the flaming sword of the cherubim had been planted on its gates, that the restraints of human laws became necessary. Over the first family the father was the natural protector and law-giver, and became so for his wife, by the express direction of the Almighty,
*Furguson on civ. society.
in the malediction pronounced on Eve, “eris sub potestatem tui viri.” It is hardly probable that the authority of the first parent continued over his decendants during the long period of his life, which exceeded nine hundred years, since in that time the population of the world exceeded several millions, and was no doubt scattered over an immense space of country. Did his authority extend over his own children during that period, and they in their turn, become the law-givers for their children? Or did it cease on their arrival at maturity, or whenever they left the domicil of their father?
Reason would suggest the latter as the proper period for the termination of parental authority, and it is certain that it must have been a very slender government which Adam could have exercised over Cain, after he had been driven to the land of Nod. In this view of the subject, the first societies consisted of families, and the first governments were patriarchal. When, however, a number of families, from the ties of kindred, from desire of gain, from a sense of individual weakness, or other motive whatsoever, became associated into one political compact, all patriarchal authority having terminated, they evidently had, and, no doubt, exercised the right of establishing the principles of their association, restricted only by the paramount laws of the Deity. These principles might all be determined at once by express stipulation, or be the result of long continued usage founded on the implied assent of the different members of society. The same rights attach to every government or association of men down to the present day. They extend to the acquisition and protection of property, of reputation, of public liberty, and indeed, to all the lawful objects of political association. The conditions or terms on which these associations are formed constitute their laws, and consist in the voluntary sacrifice or surrender of a certain portion of individual rights for the greater security and enjoyment of the balance. Every individual would choose to put into the public stock the smallest portion possible,-as much only as was sufficient to engage others to defend it. The aggregate of these, the smallest portions possible, forms the right of punishing; all that extend beyond this is abuse, not justice.*