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Nations, that, if a man commits a crime in one nation, and flees to another, he cannot of right be pursued into that other, nor can he be punished there. A man may be degraded; he may be criminal ; he may be cast out from the bosom of society ; but still he is a man; and if, by his crimes and his attempt to escape, he has lost his civil rights, there are still some rights of nature, which cling to him in virtue of his humanity. And one is the right of escaping from those, who he has reason to believe will destroy him, if he do not escape. We are bound to recognize this right in the pursuit of a supposed criminal; and particularly so, as in every well ordered government every man is regarded as innocent, until he is taken, and brought before a competent tribunal, and proved to be guilty. Before we can inflict upon him the retribution, which his crime demands, we are bound to understand the nature of the crime, not only the proof of the alledged facts, but all mitigating and aggravating circumstances. Perhaps he committed the crime under dreadful and unheard of provocation ; perhaps he was artfully led into it by another ten times more guilty than himself ; perhaps he has done it under the influence of a momentary passion and is already the subject of a sincere and deep repentance; and under such circumstances, as well as under all other circumstances, he has the right to escape ; he is indeed a fugitive and a vagabond, but like Cain he is a fugitive and a vagabond in the earth ; he is under no obligation to surrender himself, if he can make his escape without injury to others. On the contrary, it is his duty to escape, if he anticipates that Society would not do him perfect justice, such as God and his own conscience would approve.
The question then returns, where society gets its right of putting men to death ? And the answer is, No where. This pernicious system is to be regarded as one
of the thousand usurpations, that have been introduced by mistake or by cruelty, and which are rendered venerable and sacred by lapse of time. Like the use of the rack, the trial by ordeal, the enslavement or destruction of prisoners taken in war, the poisoning of wells and fountains, and other pernicious and unlawful practices, which were once authorized and perhaps considered essential to the existence of society, the time is coming, when it will be condemned by the good judgment and the humane feelings of mankind, and wholly renounced as both inexpedient and wrong.
CHAPTER TWENTY THIRD.
PRACTICAL EVILS OF CAPITAL PUNISHMENTS.
Some of the evils attending the infliction of capital punishments have already been referred to. There are other incidental evils, which could not without some confusion be introduced into the main argument; but which are undoubtedly entitled to some consideration, in forming a proper and just estimate of this subject. These will now be noticed as briefly as possible.
1,— One of the difficulties attending the infliction of Capital punishments is this. Witnesses are unwilling to testify, and juries are unwilling to convict, where the penalty is known to be death. This difficulty is not limited to those persons, numerous as they are, who have
made up their minds, that the punishment of death is unlawful. There are many others, who have not formed a decided opinion on this subject, but are merely perplexed and doubtful. It is obvious, however, that in this situation they are almost as unwilling as those, who are entirely satisfied of the unlawfulness of capital punishments, to become the instruments, either directly or indirectly, of bringing this penalty upon the accused, especially when the evidence in the case, as it commonly is, is circumstantial. This difficulty is increasing; it is based in human nature, and therefore has in itself the elements of increase ; and it is confidently anticipated, that ere long the system of capital punishments must cease in North America, if for no other reason, because it cannot be carried into effect.
II,—Another difficulty, attending the system under consideration, is that Capital punishment is always and necessarily a punishment in the highest degree ; it is wanting in flexibility ; it cannot adapt itself with sufficient precision to the precise nature of the crime; it is not susceptible of diminution and expansion ; but is always one and the same. It is unquestionable, that this is a great practical evil, from which other forms of punishment are in general wholly free.—If, for instance, we punish a man by taking his property, the amount taken may be greater or less ; it may be five dollars, or ten dollars, or a hundred dollars, adapting itself with a very high degree of precision to the actual amount or intensity of the crime. And again, if we punish the criminal by confining him in prison for a term of time, that term of time may be longer or shorter ; it may be a week, or a month, or a year; it may vary with the countless variations in the shades of guilt. But Capital punishment from its very nature admits of no contraction or expansion, of no addition or diminution. The
criminal either lives or dies ; suffers the whole, or suffers nothing.
III,-Another great evil attending the system of Capital punishments, and one closely connected with the evil which has just been pointed out, is, that, where the punishment is once inflicted, there is no possible alleviation of it, no recall, no remedy. As the administrators of justice are fallible, a preference ought to be given to that form of punishment, which, in case of error in its infliction, is susceptible of modification. If, for instance, a man is imprisoned on the alledged commission of a crime, and is afterwards discovered to be innocent, it is one advantage of the punishment of imprisonment, that he can be restored to society, and some reparation can be made.
His property, if it has been taken from him, can be recovered ; there can be a full repayment of all his pecuniary losses. And not only this, a thousand sympathies can pour their ample consolations into his wounded heart. But not so, when the punishment of death is inflicted ; there is no possibility of recall or of alleviation ; what is then done is done forever.
IV,—There is another, a fourth evil, less tangible, less visible, less the subject of common measurement and common reflection, but which nevertheless is a real evil, and a great one. It is, that the infliction of capital punishments tends to lower the estimate of human life. By the laws of the Romans the public executioner, (for capital punishments were inflicted upon slaves, when they were not permitted to be inflicted on the citizens,) was forbidden to appear in the Forum or to have a house in the city, not only because men feel a natural abhorrence in beholding such a character, but also that the minds of the people might not be familiarized to the idea of violating and extinguishing human life.* How differ
* Principles of Penal Law p. 327, Cicero pro Rabirio.
ent the state of things in some other countries! The time has been in England, as we have already had occasion to notice, when no less than 160 distinct crimes were capital ; in the reign of Henry the Eighth, two thousand persons are said to have been annually executed; probably a much greater number were annually put to death under the forms of law in Paris and the other cities and towns of France during the French Revolution. Can there be any doubt, what the effect of such a state of things must be? The mass of the community must inevitably draw the conclusion, that human life is but of little consequence; that the distinction between man and the brute animals is chiefly speculative and ideal ; that man is but a dog ; and that to smite him down with an axe or the guillotine is only turning a few ounces of blood out of its natural channel. How conducive the prevalence of such an idea will be found to public morals and to domestic happiness, we leave to each one to judge.
V - Another evil is, that the system of capital punishments furnishes a strong and undue temptation to the exercise of the pardoning power. In every well ordered government the right of pardoning will be lodged somewhere ; it is indispensable. But the frequent exercise of this right is generally considered by writers on politics and jurisprudence as decidedly injurious. It tends to perplex public sentiment, to confound the distinctions of right and wrong, and to disturb the regular course of justice. The system of capital punishments stands accountable for a large share of these unpropitious results. The magistrate, with whom the important power of pardoning is lodged, often feels, that the infliction of such an extreme penalty would be inappropriate and unjust, even if the criminal were guilty of the charge alledged against him. It is frequently the case too, that the crim