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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 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, 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 theʻlaw-givers for their children? Or did it cease on their arrival at maturity, or whenever they left the domicil of their father?
*Furguson on civ. society.
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.*
gument, however convincing-no eloquence, however moving, is sufficient to ensure obedience to either the moral or social law. This is true of our species in every age and under every condition, whether dwelling in caves, in tents or in cities. Hence, the necessity of that branch of public policy usually called the criminal law. Temporal punishments operating on the senses of mankind, producing pain of body or anguish of mind, have been universally resorted to. These punishments may clearly extend to the privation of all social benefits and advantages. These, society gave, and can, therefore, take away. Hence, banishment was a frequent punishment under the Grecian and Roman governments, as transportation is at this day by the laws of Great Britain. Can they, however, be rightfully extended to the destruction of human life—to the dissolution of that union between soul and body, ordained by the Almighty, and too mysterious for mortal comprehension?
THE EXPRESSED OR IMPLIED ASSENT OF INDIVIDUALS, The right of society to deprive any of its members of life, is claimed on the ground of his actual or implied assent to that condition of the social compact at the time of his admission into it. It must be evident that an actual assent has but rarely, if ever, been given. Governments have never been organized at once, with all their laws, civil and criminal, in full maturity. Their origin is commonly hidden in the darkness of antiquity, where no record can be seen to inform us what were the ceremonies of their commencement. The American governments constitute a proud and striking exception, in the time and manner of their origin; but in none of these has an actual assent been given by the citizens to the laws, either civil or criminal. When or where have they ever been assembled to giye such an assent?
The right in question must, therefore, chiefly depend on the implied assent of individuals--from their continuing in society after they have arrived at the age of sound discretion. At such an age, it were almost impossible that man should leave society. His social habits which the law has encouraged—his ties of kindred, which the law has commanded him to regard, even forest or the desert. In such a state of moral duress, will the law exact even an implied promise to its obedience-obedience too, even unto death ?
Suppose, however, such an assent given--nay, more : suppose an actual assent given, in proper person, by every individual member of a community, that certain crimes should be punished with death; I ask, have they a right to give such an assent, or to enter into such a stipulation? They have no right to authorize others to do that which they are not authorized to do themselves. No man ever had a right to take away his own life ;-it is not his own to take--it is the high and unalienable gift of his Maker! Who, then, should dare to extinguish that vital flame which God has kindled? Who shall dare impiously to war against the purposes of Heaven, and with his hands reeking with his own blood, rush, uncalled for, into the presence of Deity? The dagger, the pistol, the poisoned chalice, and the halter, have, indeed, achieved many suicidal conquests, but not until all the high born faculties of their victims lay prostrate in derangement. If our life ever become a burden to us, our crimes and follies have made it so; and we should so live, that in deep repentance we might atone for them. No argument can be necessary at the present day to establish the proposition,—the command of the Decalogue—“thou shalt not kill;" many precepts of our Saviour and his Apostles, and all the first principles of our nature are opposed to suicide, and nothing in favor of it but downright insanity. In some countries the laws attempt, even, to punish it as a crime. The body of him who comes to a voluntary death, is drawn on a hurdle and pierced with a stake; his memory is rendered infamous, his family disgraced, and his estate forfeited.* Since, then, no individual, whether living alone on some distant island, or residing in the crowded city of civilized life, has any right to take away his own life, I ask, how can he delegate that right to another? How can he hand over the halter to society and say, here it is, although I have no right to use it myself, yet you