Essay on the subject, in which the arguments for the abolition which have been approved by this state, are copied as a text. A society in Paris has followed the example. The several periodical papers of France, England, Germany, and Holland are filled with disquisitions for the most part highly approving of the plan of abolition; but none, as far as I have perceived, even of those who doubt its success, discouraging the experiment as a dangerous one.

If this principle is retained in our code, it dates back to the vote of approval, and secures to us a name among nations to which our relative population or strength would not, for ages, have entitled us; a distinction more honourable than any that wealth or power or advancement in any other science could give-and I need not observe to the enlightened body I address, how much of that distinction possessed by a country is reflected back upon its citizens; and in what degree, while they promote the honour of the nation, they augment the happiness of the individuals who compose it. It is the firm persuasion that both will be increased, in an incalculable degree, by the measure in question, that induces me to press it again on the consideration of the legislature, and to add a very few reflections to the arguments which were, on a former occasion, considered as conclusive. I then(a) expressed an opinion that the right to punish by death, might be established in cases where the importance of the object to be obtained, and the necessity of inflicting it in order to attain that object, could both be sufficiently shown; but my argument denied the existence of such necessity. On reviewing that part of the report, I think it requires some elucidation.

Existence was the first gift of Omnipotence to man. Existence, accompanied not only by the instinct necessary to preserve it, and to perpetuate the species, but with a social (not merely a gregarious) disposition, which led so early to the formation of societies, that unless we carry our imagination back to the first created being, it is scarcely possible to imagine, and certainly impossible to trace, any other state than that of the social-it is found wherever men are found, and must have existed as soon as the number of the species were sufficiently multiplied to produce it. Man, then, being created for society, the Creator of man must have intended that it should be preserved; and as he acts by general laws, not by special interference, (except in the cases which religion directs to believe), all primitive society, as well as the individuals of which it is composed, must have been endowed with certain natural rights and correspondent duties, anterior in time, and paramount în authority, to any that may be formed by mutual consent. The first of these rights, perhaps the only one that will not admit of dispute, is as well on the part of the individual as of the society, the right to continue the existence given by God to man, and by the nature of man, to

Louisiana, which member of a federation, as Geneva is, has given to itself good laws without consulting her neighbours on the subject, giving them a noble and wise example to follow, and not fearing that a mild legislation would attract criminals. It is to be hoped, that this example will be followed by us." And he adds,-" It is easy to make this experiment. All the world will approve it. The glory will be reflected on the whole nation, and history will certainly make honourable mention of the people which shall first renounce a practice no longer required by necessity, which alone could excuse it.”

(a) Report to the Plan of a Penal Code, p. 31.

the social state in which he was formed to live: and the correspondent mutual duty of the individual and of the society is to defend this right; but when the right is given, the means to enforce it must, in natural as well as positive law, be admitted to be also given. If then both individuals and the society have the right to preserve their several existence, and are, moreover, under the reciprocal duty to defend it when attacked, it follows, that if one or the other is threatened with destruction, which cannot be averted but by taking the life of the assailant, the right, nay more, the duty to take it exists: the irresistible impulse of nature indicates the right she has conferred, and her first great law shows that life may be taken in self-defence. It is true the aggressor has the same right to exist; but if this right were sacred while he was attempting to destroy that of another, there would be co-existing, two equal and conflicting rights, which is a contradiction in terms. The right, therefore, I speak of, is proved; but both in the individual and in society it is strictly defensive-it can only be exerted during that period when the danger lasts, by which I mean when the question is, which of the two shall exist, the aggressor or the party attacked, whether this be an individual or the society: before this crisis has arrived, or after it has passed, it is no longer self-defence, and then their rights to enjoy existence would be co-existent and equal, but not conflicting, and for one to deprive the other of it would be of course unjust.

Therefore, the positions with which I set out seem to be proved. That the right to inflict death exists, but that it must be in defence, either of individual or social existence(a); and that it is limited to the case where no other alternative remains to prevent the threatened destruction.

In order to judge whether there is any necessity for calling this abstract right into action, we must recollect the duty imposed upon society of protecting its members, derived, if we have argued correctly, from the social nature of man, independent of any implied contract. While we can imagine society to be in so rude and imperfect a state as to render the performance of this duty impossible without taking the life of the aggressor, we must concede the right. But is there any such state of society? Certainly none in the civilized world, and our laws are made for civilized man. Imprisonment is an obvious and effectual alternative; therefore, in civilized society, in the usual course of events, we can never suppose it necessary, and of course never lawful: and even among the most savage hordes, where the means of detention might be supposed wanting-banishment, for the most part, would take away the necessity of inflicting death. An active imagination, indeed, might create cases and situations in which the necessity might possibly exist-but if there are any such, and they are sufficiently probable to justify an exception in the law, they should be stated as such, and they would then confirm the rule; but by a perversity of reasoning in those who advocate this species of punishment, they put the exception in the place of the rule, and what is worse, an exception of which the possibility is doubtful.

It may be observed, that I have taken the preservation of life as the

(a) This explains the part of the report on the Plan of a Penal Code which relates to the comparison between the evil of the offence and the punishment.

only case in which even necessity could give the right to take life, and that for the simple reason, that this is the only case in which the two natural rights of equal importance can be balanced; and in which the scale must preponderate in favour of him who defends against him who endeavours to destroy. The only true foundation for the right of inflicting death, is the preservation of existence. This gift of our Creator seems, by the universal desire to preserve it which he has infused into every part of his animal creation, to be intended as the only one which he did not intend to place at our disposal. But, it may be said, what becomes of our other rights? Are personal liberty, personal inviolability and private property to be held at the will of any strong invader? How are these to be defended, if you restrain the right to take life to the single case of defence against an attack upon existence? To this it is answered: Society being a natural state, those who compose it have collectively natural rights. The first is that of preserving its existence; but this can only be done by preserving that of the individuals which compose it. It has, then, duties as well as rights; but these are wisely ordered to be inseparable. Society cannot exert its right of self-preservation without, by the same act, performing its duty in the preservation of its members. Whenever any of those things which are the objects of the association, life, liberty or property, are assailed, the force of the whole social body must be exerted for its preservation; and this collective force, in the case of an individual attack, must, in ordinary cases, be sufficient to repel it without the sacrifice of life; but in extraordinary cases, when the force of the assailants is so great as to induce them to persevere in a manner that reduces the struggle to one for existence, then the law of self-defence applies.

But there may be a period in which individual rights may be injured before the associated power can interfere. In these cases, as the nature of society does not deprive the individual of his rights, but only comes in to aid their preservation, he may defend his person or property against illegal violence by a force sufficient to repel that with which he is assailed. This results clearly from the right to property, to whatever source we may refer it, and from that of personal inviolability, which is (under certain restrictions imposed by nature itself) indubitably a natural right. 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(a), the question then again 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 the

(a) The existence of danger alone, is not a sufficient justification by the English, nor I believe by other laws for homicide; it must be a danger from which there is no other means of escape.

individuals who compose it have a right to defend, or to defend itselfthat 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.

There is also great force in the reasonings which have been used to rebut that, which founds the right to take life for crimes on an original. contract, made by individuals on the first formation of society. First, that no such contract is proved, or can well be imagined. Secondly, that if it were, it would be limited to the case of defence. The parties to such contract could only give to the society those rights which they individually had; their only right over the life of another, is to defend their own; they can give that to society, and they can give no more. In this case also, therefore, the right resolves itself into that of doing what is necessary for preservation. The great inquiry then recurs is the punishment of death in any civilized society necessary, for the preservation either of the lives of its citizens individually, or of their social collective rights? If it be not necessary, I hope it has been proved not to be just; and if neither just nor necessary, can it be expedient? To be necessary, it must be shown that the lives of the citizens and the existence of society cannot be preserved without it. But can this be maintained in the face of so many proofs? Egypt, for twenty years, during the reign of Sabaco(a)-Rome, for two hundred and fifty years-Tuscany for more than twenty-five-Russia(b), for

(a) Diod. Siculus.

(b) As I use no historical fact with a desire that it should go for more than it is worth, it is but proper to say, that I have never relied so much upon the example of Russia as upon the others to which I refer; because, although I have been able to procure no precise information on the subject, I am yet inclined to believe, that the punishment of the Knout was preserved as an equivalent to that of death in many cases, and to death in its most horrid form. It is thus described by Howard: "I saw two criminals, a man and a woman, suffer the punishment of the knout. They were conducted from prison by about fifteen hussars and ten soldiers. When they arrived at the place of punishment, the hussars formed themselves into a ring round the whipping post. The drum beat a minute or two, and then some prayers were repeated, the populace taking off their hats. The woman was taken first; and after being roughly stripped to the waist, her hands and feet were bound with cords to the post, a man standing before the post to keep the cords tight. A servant attended the executioners, and both were stout men. The servant first marked his ground and struck the woman five times on the back. Every stroke seemed to penetrate deep into the flesh. But his master thinking him too gentle, pushed him aside, took his place, and gave all the re

twenty-one, during the reign of Elizabeth-are so many proofs to the contrary. Nay, if those are right who tell you that the penal laws of Spain were abrogated by the transfer, this state itself gives an unanswerable proof that no such necessity exists; for if those laws were not in force, it is very clear that there were none imposing the penalty of death, from the time of the transfer in December 1803, to the 5th of May 1805, when our first penal law was passed. Yet during that period, when national prejudices ran high, when one government had abandoned and the other had not yet established its authority, there was not, I believe, a single instance of murder, or of any attempt to destroy the order of society. So that one argument or the other must be given up. Either the Spanish laws existed, or we ourselves furnish a proof that a nation may exist, in peace, without the punishment of death. Societies have then existed without it. In those societies, therefore, it was not necessary. Is there any thing in the state of ours that makes it so? It has not, as far as I have observed, been even suggested. But if not absolutely necessary, have its advocates even the poor pretext that it is convenient; that the crimes for which it is reserved, diminish under its operation in a greater proportion than those which incur a different punishment? The reverse is the melancholy truth. Murder, and those attempts to murder which are capitally punished, have increased in some of the United States to a degree that not only creates general alarm, but by the atrocity with which they are perpetrated, fix a stain on the national character which it will be extremely difficult to efface. I might rely for this fact, on the general impression which every member of the body I address must have on this subject; but as the result is capable of being demonstrated by figures, I pray their attention to the tables annexed to this report, in which, although they are far from being as complete as could be wished, they will see an increase of those crimes that demonstrates, if any thing can do it, the inefficiency of the means adopted and so strangely persisted in, of repressing them. The small number of executions compared with the well authenticated instances of the crime, shows that the severity of the punishment increases the chance of acquittal; and the idle curiosity which draws so many thousands to witness the exhibition of human suffering at the executions; the levity with which the spectacle is beheld, demonstrates its demoralizing and heart-hardening effects; while the crimes committed at the very moment of the example intended to deter from the commission, shows how entirely inefficient it is. One instance of this is so remarkable that I cannot omit its detail. In the year 1822 a person named John Lechler was executed at

maining strokes himself, which were evidently more severe. The woman received twentyfive and the man sixty. I pressed through the hussars, and counted the number as they were chalked on a board. Both seemed but just alive, especially the man, who had, however, strength enough to receive a small donation with some signs of gratitude. They were conducted back to prison in a little wagon. I saw the woman in a weak condition some days after, but could not find the man any more." The enlightened successor of Alexander is pursuing, with energy and zeal, a reform in the laws of the empire, which his great predecessor begun. It will, without any doubt, put an end to such scenes as Howard has described; and this code, if completed according to the humane and liberal views of the emperor, will be a monument more glorions than any that was ever erected to a conquering monarch.