HARVARD GULLEGE LILAPKY FROM THE BEQUEST OF 1919 ADVOCATE OF PEACE. No. IV. MARCH, 1835. ARTICLE I. ON THE INFLICTION OF DEATH AS A PUNISHMENT. BY WILLIAM M. HOLLAND, ESQ. PROFESSOR IN WASHINGTON COLLEGE. PUBLIC opinion is divided, as to the expediency of the punishment of Death. Some christian denominations, in a body, disapprove of it, and many persons may be found in all classes of the community, who are unsettled in their opinions of its expediency and justice. Many refuse, altogether, to aid in the trial of capital offences. And where the scruples of jurors are less distinct and operative, there may often be detected in their verdict, a strong reluctance to convict a culprit of an offence which must be expiated upon the gallows. In such cases the discretion of judging the law, as well as the fact, which is given to juries, often contravenes the advisory opinion of the court, and is exerted in a manner not easily reconcileable with the rules of evidence. The court is not always able to impress upon the minds of the jury a clear distinction between their duty as triers of a fact, upon evidence, and the infliction of a penalty by the law, upon a convicted felon. They seem to feel and act as if the sentence of death were a part of their verdict. They do not steadily keep in view the limits of their own agency; which is, merely to determine the fact of the offence and its description. Other departments of our judicial tribunals are required to pronounce the penalty fixed by law upon the convict and to enforce this penalty by the regular ministerial agents. These are nice legal distinctions, not altogether satisfactory to a scrupulous mind; and so long as it is made the duty of the jury, not only to determine what facts are proved, but also whether those facts constitute a capital offence, they must feel themselves to be directly connected with the question of life and death, and will shrink from sustaining a responsibility so solemn. This is a bad state of things. Penal laws should either be resolutely enforced or repealed. An indirect contravention of the statute, by calling murder manslaughter, and misconstruing the meaning of well defined terms, to screen an offender, because the penalty for his offence is repulsively severe, involves a serious question of conscience with a juror who has taken an oath to decide according to the law and evidence. The public judgment ought to be clear; it ought fully to sustain every penal enactment. A repeal of the law itself is far preferable to its practical nullification by some quibble or evasion. It is important, therefore, that public opinion on this subject should be clear and settled; for no penal enactment can be long efficient, in this country, unless its justice is acknowledged by the public voice. If the infliction of death be a suitable and expedient penalty for the offences to which it is now attached by our laws, let the community strongly sustain judicial tribunals in the infliction. Let jurors not shrink from boldly applying the established rules. of the law to offenders, strike where they may. Let no illtimed weakness of feeling, or censurable spirit of mercy, blunt the edge of the sword of justice, and shield from his just deserts the arraigned felon. But if, on the contrary, the shrinking policy of juries be founded in the instinctive promptings of true compassion; if the laws are not executed, because they are palpably at variance with the sentiments of natural justice and the dictates of innate truth, let them be erased from the statute book and their places supplied with more practicable institutes. For our own part, having come to the conclusion that capital punishments are wrong, with no little reflection and painstaking, we ask a candid estimate of the reasons we shall briefly offer for the opinion we hold. In the discussion of this question, certain principles have heretofore been so thoroughly established as not now to need revision. We concede the right, in its fullest extent, of the civil authority, to inflict any punishment which may be expedient. We also believe that the question is untouched by any positive. injunctions in the Old or New Testament. If the frequency of death as a punishment, in the Jewish law, sanctions its adoption by modern legislators; on the other hand the whole spirit of the christian dispensation guides christian law-makers to the mildest inflictions and the most merciful enactments. The question being thus opened, our first remark is, that penalties in general, and death in particular, appear to have been established in many cases, with a wrong aim, and from a misconception of the true grounds of human punishment. Legislators have had three objects in view: 1. Retribution, 2. Reformation of the offender, 3. Security to the community, both present and future. It is not perhaps generally felt that retribution enters largely into penal legislation. The penalty is generally regulated, at least in this country, by the intrinsic malignity of the offence. We often find ourselves admitting the necessity of severe punishments on the ground that the offenders deserve them. But this is a wrong principle to be guided by. Retributive justice is not a function of human institutions! revenge is not the duty of human forms of justice. We have no right to punish any man because he is bad; it is only when his guilt or depravity endangers the security of others that he becomes amenable to human laws. The sin against the Holy Ghost |