spirit of its Teacher, have united, with a savage depravity, in perpetuating the law of revenge, and claiming blood for blood; but the heart of civilized society, still true to the instincts of its nature, insists upon the sacredness, the inviolability, of human life, and demands that the problem is not fully solved, until all the Draconian features of the criminal code are stricken out, and the gallows and the guillotine are buried with the thumbscrew and the rack, the faggot and the stake, in the tomb of medieval barbarism.

The most strenuous advocates of the death-penalty justify it only upon ground of its absolute necessity. The question, Has society, under any circumstances, the right to take life? is by no means settled. The doctrine, as laid down by Blackstone, is, undoubtedly, the correct one: "the state has exactly the same power, and no more, over its members, as each individual member had, naturally, over himself and others." Has any individual, "naturally," the right to take away his own life, or that of another? This is asserted; but it has not been proved; and, when the assertion is made the basis of the right, in society, to deprive any or all of its members, of life, from considerations of supposed expediency merely, it should be proved, and the burden of proof rests upon those who make it.

It is alleged, that each individual makes, with the state, a contract, in accordance with which he agrees, for certain considerations, to yield to society the right, in certain contingencies, to be determined by itself, to take his life. The brief but conclusive answer to this is, that the individual cannot grant to the state a right which he himself never possessed. Until he possesses the right to kill himself, he cannot delegate to society the right to kill him. "When we surrendered to society the smallest possible portion of our liberty," says Mr. Rantoul, in his very able report to the legislature, in 1837, "to enable us the better to retain the aggregate of rights which we did not surrender, did we surrender our title to that life with which our Creator had endowed us? Is it to be considered that we have continued to hold the tenure of our earthly existence at the discretion or caprice of a majority, whose erratic legislation no man can calculate beforehand? While our object was to

preserve, as little impaired as might be possible, all our rights, -which are all of them comprehended in the right to enjoy life,—can we have agreed to forfeit that right to live while God shall spare our lives, which is the essential precedent condition of all our other rights? Have we entered into any such compact? The burden of proof rests upon them, whose opinion it is, that we have.

"Let it be shown that mankind in general, or the inhabitants of this Commonwealth in particular, have so agreed to hold their lives as a conditional grant from the state. Let it be shown that any one individual, understanding the bargain, and being free to dissent from it, ever voluntarily placed himself in such a miserable vassalage. Let there, at least, be shown some reason for supposing that any sane man has, of his own accord, bartered away his original right in his own existence, that his government may tyrannize more completely over him and his fellows, when all the purposes of government may be amply secured at so much cheaper a price. In no instance can this sacrifice be implied. It must be shown by positive proof to have been made; and, until this is undeniably established, the right of life remains among the reserved rights which we have not yielded up to society."

The discussion, however, of the abstract right of society to take life, may well be waived. Few men expect to be hanged; and hence, most men find little difficulty in deciding questions involving the rights of others, while they entertain no idea that the decision will ever, practically, affect themselves. Besides, so difficult of removal are the teachings of early education, and so inveterate are established prejudices, and so liable are social habits to be mistaken for natural laws, that arguments in favor of the abstract inviolable sacredness of human life fall back like arrows from an impenetrable shield. The condensed rays of the sun of truth must melt the shield, before the giant error can be successfully assailed. The state, until convinced by indisputable facts, that the death-penalty is not only inexpedient, but unsafe and dangerous, will pay little heed to abstract arguments, and in each case, as it occurs, will settle the Gordian difficulty with the despot's argument, the sword.

Waiving, therefore, any discussion of the question of the abstract right of the state to take life, it is admitted, that the right is to be exercised only when absolutely necessary to the existence and well-being of society. The state possesses precisely the same right, in this respect, as the individuals who compose it, no more, no less: and this is, the right of selfdefence, to be secured with the smallest possible injury to the individual or community who threatens it. The settled principle is, that the individual shall be driven to the wall before he is justified in taking the life of his assailant. The danger must be imminent and inevitable. The same principle applies to society. Mr. Livingston, in his unanswerable argument against capital punishment, says: "As the injury threatened may not admit of compensation, the individual may use force to prevent the aggression; and if that used by the assailant endangers his life, the question then becomes one of self-defence, and the same reasoning applies which was used to show the right of taking life in that case. But where the individual attacked can, either by his own physical force, or by the aid of the society to which he belongs, defend himself or his property,-when the attack is not of such a nature as to jeopardize his own existence in the defence of them, if he take the life of the aggressor under these circumstances, he takes it without necessity, and consequently without right. This is the extent to which the natural law of self-defence allows an individual to go, in putting another to death. May any association of individuals inflict it for any other cause and under any other circumstances? Society has the right only to defend that which individuals, who compose it, have a right to defend,--to defend itself that is to say, its own existence,—and to destroy any individual, or any other society, which shall attempt its destruction. But this, as in the case of individuals, must be only while the attempt is making, and when there is no other means to defeat it; and it is in that sense only that I understand the word, so often used, so often abused, so little understood,―necessity. It exists between nations during war, or a nation and one of its component parts in a rebellion or insurrection; between individuals during the moment of an

attempt against life, which cannot otherwise be repelled; but between society and individuals organized, as the former now is, with all the means of repression and self-defence at its command, never. I come, then, to the conclusion, in which I desire, most explicitly, to be understood, that, although the right to punish with death might be abstractedly conceded to exist in certain societies and under certain circumstances, which might make it necessary, yet, composed as society now is, these circumstances cannot reasonably be even supposed to occur; that therefore no necessity, and of course no right, to inflict death as a punishment, does exist.”

The question then arises, Is the infliction of the punishment of death necessary as a measure for self-protection or self-defence? Here, again, surely the burden of proof devolves upon those who assert the affirmative, to establish the right of infliction as a terrible necessity. Suppose the social fabric of Massachusetts were to be organized, de novo, out of the same materials which now compose it, without any of the time-honored usages of the dark ages, and without any of the conservative spirit which regards it as the chief end of man to stand still and hold back, but with all the intelligence, all the experience, all the benevolence, of the nineteenth century; human life not valued as among the nations from whom we have borrowed our criminal code,-when the laws were made by privileged classes for the masses, and gave to the few absolute control over the lives of the many, and the life of the slave, serf or villein was a contemptible thing,-but human life, with all its attractions, all its endearments, all its responsibilities, regarded as a sacred trust. Suppose, in such a state of things, some reckless innovator, some rash reformer, were to propose the penalty of death for certain offences,-would not he be called upon to prove, unanswerably, the necessity of a punishment so revolting to the instincts of the community? Who would try the dreadful experiment upon an assertion—a presumption? The same necessity, which alone would justify the original enactment of the death-penalty, must now be shown for its continuance. We cannot shelter ourselves behind the legislation of the past. The question comes to us, a new question to-day:

Must we continue to put our brethren to death? The voice of innocent blood, shed in all ages, calls to us from the ground, not for vengeance, but to implore us to send no more innocent victims to join the innumerable caravan at the bar of eternal justice and mercy :

"To plead like angels, trumpet-tongued, against

The deep damnation of their taking off."

It devolves upon the advocates for the continuance of the infliction of the death-penalty, to prove, 1st, the right of society to take away life; 2d, that society is unsafe without it; that, wherever practised, it has worked well, restraining and diminishing crime, and exerting happy influences upon social life, and wherever abolished, the result has been an increase of crime and of social evils, resulting from the removal of a salutary restraint. Nothing of this kind has been done.

On the other hand, if the burden of proof is thrown upon the opponents of the death-penalty, we think it can be satisfactorily shown, 1st, That the right to take life, to say the least, is doubtful; and the universal principle of morals is, when one side is doubtful and the other safe, to take the safe side.

2d. That society is unsafe under the operation of the law inflicting death. It has always and every where failed, and, instead of diminishing crime, it has always, and just in proportion to the frequency of its infliction, been accompanied and followed by an increase of crime.

3d. That the abolition of the death-penalty, wherever tried, has always succeeded; and that just in proportion to the reduction of the number of capital offences, the number of crimes has been diminished.-But we are met at the outset with an argument which, to most minds upon superficial examination, seems conclusive: we are told that the punishment of death is not only justified, but made imperative, by the express command of God. This argument, it is admitted, if it cannot be met, is conclusive. Reason and experience must alike yield to "Thus saith the Lord;" but it may be doubted whether the divine law, as written in the Bible, ever contradicts either the conclusions of human reason, which is the law of God written upon