"I am strongly confirmed in my sentiments," says Montesque, upon finding the Romans on my side; and I think that punishments are connected with the nature of the government, when I behold this great people changing in this respect, their civil laws, in proportion as they altered their form of government." The regal laws made for a multitude were very severe, but after the expulsion of the decemvirs, almost all the penal laws were abolished. This is exactly the time to which we may refer, what Livy said of the Romans, "that no people were ever more fond of moderation in punishments." And Cicero, in one of his celebrated orations, makes these remarks: "Far, far from us, be the punishment of death, its ministers, its instruments. Remove them not only from their actual operation on our bodies, but banish them from our eyes, our ears, our thoughts; for not only the execution, but the apprehension, the existence of these things, is disgraceful to a freeman, and a Roman citizen."

The conclusion to which we are brought by authority,, entirely sustains our position, that the enforcement of laws which are vindiclive or cruel, is contrary to the spirit of civil liberty, and a violation of republican principles.

"The virtues," says Dr. Franklin, "are all parts of a circle; whatever is humane, is wise; whatever is wise, is just; and whatever is wise, just, and humane, will be found to be the true interest of states, whether criminals or foreign enemies be the subject of their legislation."

Having considered how far cruel and vindictive punishments militate against the spirit of a republican government, we come next in order to examine into the derivation of right on the part of Legislatures to enact laws which authorize the taking of human life.

In order to ascertain the rights which are possessed by a government, we shall have to inquire what rights appertain to individuals in a state of nature, for it will not be controverted at this period of time, that a government can only possess such rights as were possessed by the constituent members of society, before the formation of go

vernments.

From a long habit of submitting to the exercise of licentious power, and a disposition to yield to the supreme authority, we act without reference to right, and surrender our judgments to custom.

There are times, however, when it becomes necessary to refer to first principles, and inquire into the origin of power-when we are justified in looking at the originating principles of government, and tracing their effect through the political system.

Man, in a state of nature, is possessed of every inherent right which can be exercised by himself, and of course of every right that he can delegate to a government. And, as government is the result of a delegation of individual rights, no rights or powers can be properly exercised by government, unless they could have been exercised by an individual in a state of nature. We now arrive at the question, has man the right to take his own life? It will readily be perceived that the answer to this question is all important to the determination of this inquiry; for if it should appear that he does not possess it, then it will necessarily follow that he cannot by possibility, delegate that right to another. If one man has not the right, ten cannot have it, and if ten cannot, ten thousand cannot.

The multitude of parts do not change their essence; it is an axiom in philosophy, that the whole cannot possess a property which does not belong to the parts.

Indeed, it would be

Suicide, in all countries, and at all times, both by the moral senge of the people and the laws of the land, has been considered a crime against nature and society; and even in those countries where human life is held so cheap as to be forfeited for trivial offences, suicide has been reprobated as the foulest crime. an easy matter to shew, that in the nature of things, man cannot possess the right to destroy his own life, but we prefer giving the opinion of the very authority which professes to exercise this right by delegated power. An English writer, of much celebrity, in treating on the subject of homicide, uses the following language: "The laws of England wisely and religicusly consider that no man hath a power to destroy life, but by commission of God, the author of it." This is direct authority. The English jurist declares "that no man can have the right of destroying human life, but by commission of God; not in consequence of human authority, but immediately from God; and, says he, as the suicide is guilty of offence by evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for, the law has ranked it among the highest crimes, making it a peculiar species of felony, and holding him to be guilty of murder, who advises a suicide to destroy himself." The punishment does not

stop here; the grave itself must be made in the highway, and a stake drove through the body as a mark of the high and unqualified condemnatory sentence which the law decrees against this species of crime; and by the Athenian law, the hand which committed the desperate deed is ordered to be cut off, and nailed against the wall, as a warning to all who may be inclined to perpetrate so wicked an

act.

We want no further authority to show in what estimation the right over human life is held in law, an opinion of its sacred character, of its inviolability is expressed in terms not to be mistaken, and suicide is denounced as a most desperate and wicked act, not mala prohibita but mala in se, such an one as no christian man would commit, and even the advising to it is held to be murder. So charitable are the great mass of mankind, in relation to this offence, that they deem every one, who can be guilty of so unnatural a crime, laboring under an aberation of mind. There are few, says Sir Matthew Hale, who commit this offence, but are under the infirmities of melancholy or hypochondriacal distemper, or are madmen, frantic and destitute of the use of reason. Thus we perceive government, by its declaration and acts, denies to individual man the right over his own life. From whence then, we would ask, has government derived it? If, then, government exercise the right to take human life under a delegated power, it is clearly evident, under the construction put upon suicide by government, that it must have been obtained from the people while laboring under a derangement of intellect or under a misconstruction of authority.

We will repeat that if it is wrong in a state of nature, or morally wrong at any time in an individual to destroy his own life, it must be equally wrong for him to authorize any one else to do it. If he can not authorize one individual to do so foul a deed, neither can he authorize ten thousand individuals. We again ask, if man does not possess the right, how can he delegate it? We think the conclusion irresistible, from the foregoing, that government does not possess the right over the lives of its citizens by delegation; and if it does not possess it by delegation, then we appeal to republican principles to prove that it is an unwarrantable exercise of power.

The next question which we have to consider, naturally follows the one which has preceded it, for if it shall appear that a necessity exists for inflicting capital punishments, the right will of necessity be yielded.

It has been said, and with much truth, that the plea of necessity is the reason of tyrants, and all experience has shown, that the most horrid crimes have been committed and the grossest outrages inflicted, upon the mere pretence that precaution and prudence neces sarily demanded it. In considering the question of necessity, we are naturally led to inquire into its origin, or the right pre-existing, which man may possess to take the life of his fellow under the plea of necessity. Self preservation is not only a man's right, but his duty. He is, as we have shown, bound to protect that life which his creator has given him in charge, and for which he is responsible. To protect himself is the first law of nature; it is instilled into his being, and is connected with his existeuce. It may with propriety be called an instinctive action, which propels him to do, without the aid of reflection or reason, whatever is for the preservation and promotion of life.

"Nature," says Vattel, "has given man a right to use force, when it is necessary for his defence, and the preservation of his rights, and this principle is generally acknowledged; reason demonstrates it, and nature herself has engraven it on the heart. Most men will naturally defend themselves and their possessions : happy if they were as well instructed to keep within the just limits which nature has prescribed to a right granted only through necessity."

Governed by this natural right, the municipal laws of every country have permitted the sacrifice of life in cases where the necessity of the case appeared to require it, but beyond that they would not go. The necessity must also appear very apparent; the English law, as well as our own, having provided that when an attack is carried beyond what the law of self-preservation requires, it is a trespass upon the law of nature, and consequently obnoxious to punishment by the authority which is offended. The party assaulted must flee as far as he conveniently can, or as far as the fierceness of the assault will permit him, and then, in his defence he may kill his assailant. And this, says Puffendorf, is the doctrine of universal justice, as well as of the municipal law.

The right thus to take life, is founded in the very reason and nature of things, and naturally follows the right of self-defence. Every right is in itself perfect. If it be the right of one individual to preserve his life by force, it is necessarily the right of another. If it be the right of both individuals so to preserve their lives against

the assault of the other, then it necessarily follows, that the one who passes the line of self-defence, and becomes an assailant, violates the natural right of the other, and is an aggressor. Hence natural rights authorise such acts only, as have an immediate tendency in their nature to prevent an injury. They authorise no destruction to deter, no example to terrify, and no gratification of vindictive feelings. The right of self-defence being the right of every individual, every person must possess it equally; and if we admit for a moment that any person possesses the right to carry force beyond the resistance of aggression, we must perceive that we allow might to assume the place of right, and acknowledge what has so often been denied, that the natural state of man is war—a state of all others the most unnatural.

In a state of nature, then, man did not possess the right to take the life of his fellow, except in self-defence. Since nature, says a writer on the law of nations, has given to man the right of using force only when it becomes necessary for their defence and the preservation of their rights; and since society is founded upon the delegation of certain natural rights, it necessarily follows, that society is not authorised to use force in any case where it would not have been right for an individual to have exercised it. The cause which a state may require to exercise the right of force, particularly when its consequences are fatal, should be governed by the same circumstances, and be deducible from the same facts, as those governing individuals in a state of nature. Government is the recipi

ent, the guardian, the lawful protector of the rights of all its citizens, as well of those who have violated its laws, as of those who have observed them. Men by offending do not lose their rights, neither is it or can it be necessary to deprive any man of his rights for the purpose of doing justice to another.

The necessary conclusion to which we are drawn by the argument growing out of the right of self-defence, is, that neither an individual or society have the right to take human life unless all other resources fail. If then we can imagine a state of society so rude as to be unable to hold a dangerous member in cofinement, or prevent him from doing violence to its members, we must concede the right, through necessity, to inflict capital punishment. But if, on the contrary, the power to confine, and by that means restrain, is to be found in the government, then we cannot for a moment concede, that the necessity which will justify the horrible alternative, exists. [A. No. 187.]

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