You may have heard the arguments on the opposite side (many of which I confess are powerful) with the desire; prompted by benevolent feelings and Christian statements, to find them conclusive; and therefore I am well aware, that I stand in the condition of the Tragedian, who performs the part of a distasteful Tyrant, Ñ however well he may enact the part - he cannot hope to enlist the fine feelings of the audience for him.
In performing my task [ ] must of necessity address my argument to your cool judgment, and make my appeals to your self-love; for it is chiefly to the desire of self-preservation in its most extended sense, that all our Laws, owe their main support.
Every law ought to [support] the three following propositions. 1. The object should be to produce Good or to avert Evil. 2. [ ] Penalties, must be equal to the accomplishment of its objects. 3.
In the first place I wish you to notice that the word "punishment" in law, has no connection with resentment or revenge; but that however severe some punishment may seem, benevolence not cruelty gave them existence; It was to preserve the many against the few that capital punishment in certain cases became the law of the land; and, the history of most nations supports the belief that they all began at first with mild punishments; such as allowing the murderer to purchase his pardon, [ ] that they continued the use of this and similar practices as long as the safety of civil society would admit; and that nothing but dire necessity forced them at last to the adoption of Sanguinary laws.
When a certain effect is to be produced a cause adequate to it must be sought after; We should deem it foolish to attempt to raise a ton weight by means of a lever which half a ton would break; The Legislator therefore who really wishes to preserve society from the bad passions of human nature, is bound to [oppose?approve?] sufficient obstacles to their exercise, and he who causes an insufficient criminal law to be enacted, is both cruel and foolish; he is cruel to the criminal, because he inflicts useless and unavailing punishment; he is cruel to the rest of the community because he has superadded revenge to the other sufficiently bad qualities of the Culprit, and deprived him of pride, which before had some restraining effect on him.
Criminal Laws must of course be made by that part of Society which is least likely to break them - but such men, who are respectable and who have lived good lives are not very likely to be well acquainted with the secret workings of an evil mind; therefore it would be good policy to offer Freedom and a bounty to any one of the Convicts in our State Prisons who should suggest the best plan of a Law and the most effective mode of punishment for the prevention of any crime by which Society has been injured.
Perhaps they would tell you that all crime proceeds from the desire of gratifying the passions, and that you should direct your punishment against the passions, that you should punish crimes that spring from Laziness by hard work, those from Avarice by deprivation of property - those from Pride by disgrace, and in all cases by such inflictions as are most hateful to the perpetrator.
Although what I have just said may seem like a digression from the subject before us - yet it will not be found useless if it serves to prepare the mind for the adoption of this principle, that all punishments are curative; and intended to remedy or prevent as far as possible, the evils that the worst part of society inflict on themselves and the rest of the Community. Every punishment from the Pillory to the Halter is therefore to be viewed, not as an act of vindicative justice toward the Culprit, but as an act of Providence & future security in behalf of the whole people.
Sickly indeed must be that Philanthropy which weeps over the execution of the Murderer, while it forgets the suffering and death of his victim, and thinks not of the dangers to which pardon would subject the living.
Before we assent to the abolition of Capital punishment, we are in duty bound to devise an equally sure and effectual protection against the tremendous evils, which the uncontrolled passions of Avarice, hatred & revenge might produce. We are under an obligation to prove beyond a doubt, that the punishment of Death is more than adequate, to the prevention of those crimes, which our laws punish Capitally.
We should consider well the great differences among mankind in their moral & physical temperaments, and the infinite diversity of their habits of thinking and acting produced by their education, employments, and situations. A punishment fully adequate to restrain one man of timid nature or possessing a high sense of character and duty, might be wholly unavailing with another of opposite qualities and opinions; But with respect to the Love of Live and fear of Death, mankind are nearly upon a level, all the world over. Notwithstanding the force of education, and the great changes effected by it, in our moral feelings we yet see, that "Skin for Skin, yea all that man hath, will he give for his life." It is therefore beyond doubt that capital punishment presents to the bulk of mankind more terrors and consequently more effectual restraints than any other within the power of Man.
The chances for escaping detection & conviction and the hopes of Pardon, through the influence of the erroneous feelings of the tenderhearted have been the principal causes why this tremendous punishment has not hitherto produced its full effect.
I am willing to offer that comparatively mild punishments fully executed, are better than severe ones only threatened; yet I must insist, that any kind of punishment which does not prevent the crime or cure the vicious state of mind of the perpetrator, necessarily leaves him in a worse condition; by all the Loss of Character, occasioned by his punishment and by the Spirit of Revenge which his punishment will engender.
Criminal Laws are founded upon expediency governed by experience, and not upon our usual Ideas of Justice. If a man steals my horse, he is to be punished, not for my compensation or revenge; but to prevent horses or other property from being Stolen.
So if a Man commits the Horrid Crime of premeditated Willful Murder - he is to be put to death, not because Justice requires it for Justice like all the other virtues produces immediate Good, and what possible immediate good will another death occasion. But he is to be put to death to prevent his repeating the crime and to deter others as bad as he from committing it.
The punishment of Death therefore is being intended to guard the community against murder and other equally attrocious or equally injurious crimes; it becomes our duty to submit to this terrible dispensation of the Laws until we can derive some other equally effective mode of punishment as a substitute; and even then, the Power of inflicting capital punishment ought to be left in our Court of Justice, until very long experience might sanction its entire abolition from our Criminal Code.
Some philanthropists have gone so far as to deny the right of Society to put a Citizen to death for any crime whatever, because in forming the Social Contract, no man could agree to yield up that life to Society over which he possessed no right himself; none but the giver of life could rightfully take it away.
It cannot be questioned however that it is not only the right, but the duty, of every Man to preserve and defend his own life against any dangers or attacks whatever, and therefore the whole society must in the aggregate possess all the rights vested in the individuals that compose it; Consequently they may as a nation rightfully take the same means to preserve the lives of all, that each one in a State of Nature before any compact was made, naturally possessed in himself; were it otherwise mankind would lose rather than gain security by forming themselves into tribes & nations.
The Social Compact made by a people in a State of Nature just as they were about to form themselves into a Nation, is a mere Idea of Political writers which owes its birth to their own immagination. No such Compact ever has, or can be formed by a set of inexperience uninstructed and pagan independent Savages; and therefore it is not surprising that such writers have mistaken some of the rights which individuals are supposed to have voluntarily yielded to the power that protects them.
In truth the members of Civil Society only held up to the Right of retaliation of injury and the right of doing themselves justice; and this is because it would be utterly unsafe to trust the passions or the reason of injured individuals with any such power.
Therefore the Idea of a man agreeing to yield up his own life to the power of the Laws is entirely fallacious. He never made such an agreement. It is only yielding to a necessity which he cannot avoid, and if it be possible for him to escape, no one would think it wrong for him to do so. No one would think of charging him with a breach of an actual or implied contract.
There is one prejudice that ought not to be wholly discouraged, and that is our predilection for usages that have existed during many centuries and survived countless generations. In behalf of such usages, we may take it for granted, that they are, in their own nature, exactly suited to the general qualities dispositions and propensities of Man in every age and climate.
Now as punishment for crimes has ever been resorted to, as the only effectual remedy for the evils occasioned by them; it would seem that there is something in our nature, which will in all ages, and in any however cultivated state of Society, render the occasional use of it necessary.
What is then the nature of this featherless biped which makes suffering so necessary to his good behaviour? In addition to the desires of other animals he possesses a small share of reasoning power, sufficient to compare the past the present and guess at the possible future, and draw conclusions nine times in ten in favour of what he wishes. He is ever in search of enjoyment or as he calls it - Happiness. Therefore he is always discontented in a greater or less degree. This discontent is the true cause of his desires and actions whether virtuous or vicious; He does not do evil for the sake of evil, but because he seeks his own gratification regardless of the evil he creates. Self love therefore a vicious ill directed, short sighted selflove, aiming at a happiness, but ever missing it, is the prompting cause of every evil action.
It is the selflove of Man therefore we must address when we wish to wish to impel him towards virtue or restrain him from vice, and in order effectually to restrain him from crime we must make use of the strongest and most constantly acting passions which he possesses, that being the only one which will be sure to govern all the rest.
Fear, is this master passion both in the well instituted and the ignorant in the civilized and the savage; and whether it be the fear of mental or bodily suffering - the fear of shame - the fear of confinement Labour & deprivation, or the fear of Death, it is to this quality chiefly, we must point the artillery of our Laws, if we would effectually curb the tormenting desires of the most wicked part of our Species.
It is the protection of Life and what we are instructed to value equal to life itself that we expect to Secure by the infliction of Capital punishment; It never can be expected therefore that any wise Legislature acquainted with the human passions will ever consent to erase from our Criminal Code the punishment of Death for the crime of Premeditated Willful murder. Surely it is better that a few should die, than that many should perish. Nay, it is even better for the Criminal himself, for what prospect of Happiness or amendment remains for the Murderer if by perpetual Slavery or other supposed adequate punishments he be suffered to exist in a Society which he has offended beyond the hope of pardon, and which must as long as he lives views him with Hatred Contempt and alarm. Indeed the truly wretched Man must himself wish for Death, and exclaim my punishment is greater than I can bear. The anguish of a guilty conscience, which is the punishment ordained by Heaven, is deemed by my fellow Creatures too mild for my [turpitude]/ they fear, they hate, they despise me, and thus, even should my imprisonment or Slavery not be for life they will have cut me off from all society, and I shall forever be deprived of the means of supporting life peaceably or honestly. They will treat me as an enemy to their race and as one devoid of human feelings - hereafter whether I am a Prisoner or a Slave or a Free Man I shall be able obtain my living only through suffering fraud on violence; And this living torture they inflict on me, because their tender benevolent feelings cannot endure the Idea of Capital punishment; too well I know that to prolong life is the strongest of human desires; Yet this desire is always connected with the anticipation or hope at least of the usual degree of happiness. But alas! what happiness can there be for me where every human eye would dart reproach and indignation to drive me from paths of virtue usefulness and honest fame.
Better by far to have died on the Gallows with the eyes of ten thousand curious or Sympathising spectators, instantly gazing upon the fate of a man of uncontrolled passions and vicious education; and who lament at the same time they acknowledge the indispensable necessity of executing the most terrible, though not the most cruel Law which is in any sufficious degree capable of controlling the worst passions of the worst men.
But now my fate is sealed; the Law of my country has done its worst. I have nothing more to hope, it is some consolation that I have nothing more to f[ear]. I have now a license for Crime because further punishment awaits n[ot]. The world is my enemy and I am the worlds. I must and I will treat mankind as they treat me, and make them know sooner or later that a murderer is never to be d[ ].
After I have suffered sufficiently they must entirely forgive and forget my crime; or else never suffer me to live among them. Death or banishment are the only mild punishments in the present state of Society, that my country ought to inflict upon me - and they shall find ere long that imprisonment or slavery [are] cruel for me and too dangerous for themselves.
Thus I have endeavoured to lay before you in as brief a manner as possible a fear of the [ ] arguments that may be brought in support of the Spirit of our Penal Laws, although I cannot say much in favor of the grand display and mode of a public execution; which only serves make the Criminal feel his own importance and the Spectator to forget the nature of his crime.
The People ought never to see the actual death [of a ] Malefactor. But they may know the very moment when the Law is fully executed, by the firing of three heavy cannon in succession, which will have all the good effect through the power of imagination; that a public execution is intended to proclaim.
I now close my argument with the following axioms, which will apply to most men, especially the ignorant or ill educated.
Where the natural consequences of crime are not of themselves sufficient to overcome temptation, the terror of Legal punishment must superadd it.
The terror of Legal punishment ought always to be more than barely sufficient for this purpose, as they degenerate into cruelty.
The greatest Crimes are usually produced by the Strongest Passions stimulated by the greatest temptation; Therefore the punishment should not only be certain and speedy, but great and terrible, to Control such passions & overcome such temptations.