ARE ANY OF THE PUNISHMENTS OF CIVIL LAW LEGAL SANCTIONS, EXCEPT THE PUNISHMENT OF DEATH?

Prevalent errors to be considered. -- All evil employed in punishment not penal sanction of supreme law -- How to decide what is the supreme law. -- Civil government does not require virtuous benevolence. -- Overt action cognized. -- Assumption in favor of every subject. -- Reward given by the State. -- How viewed as a sanction. -- Penalty how considered as a sanction. -- Malum in se and malum prohibitum, in one respect no transgression of civil law. -- Malum in se. -- Many overt acts which are prohibited, not considered as violations of the supreme law. -- Burglary and robbery. -- Falsely assumed that civil law assigns punishment according to a just moral estimate of offences. -- Diversity In degree of penalty. -- The enactments under consideration not enforced by legal sanctions. -- Punishment of death.

 

 

BEFORE I proceed to the argument on this point, there are several errors in respect to the nature of civil law, its requirement and sanctions, which I deem it important to correct. That which I regard as the most serious, and which is occasioned by others, consists in confounding the penal sanction of the supreme law of the State, with that kind of natural evil which civil legislation employs, in the form of punishment, to prevent the violation of certain particular legislative enactments. The assumption is common, that this kind of evil, called the punishment or penalty of the particular law, is a legal sanction, and as it is employed merely as so much motive to secure conformity to the particular law or enactment, the inference is, that the same thing is true in respect to the penal sanction of the supreme law of the State, and indeed in respect to the legal sanctions of every moral government. To this error as their source, I cannot doubt that the peculiar views of the Universalist and the Infidel respecting the sanctions of God's moral government are to be traced. It is then of essential importance that we form just views of the supreme law of the civil State, if we would clearly discern the difference between this law, which as I maintain is the only law of the State that has legal sanctions, and those particular legislative enactments which have no legal sanctions.

 

By the supreme law of the State, I mean that law which is essential to the government of the State as a moral government, and the sum of whose requirement of every subject is disinterested benevolence to the State, or an elective preference of its highest happiness for its own sake. Or to speak more particularly, I mean. that law which claims disinterested benevolence to the State from every subject, on the authority of the governor or government, and which on the same ground forbids the opposite disposition or principle of action.

 

In deciding what the supreme law of the State or of its government ought to be, we may view every one as a distinct and separate community. It is true that every State with its government is in fact one of many great communities in the empire of God, and under his rightful dominion. Contemplating it under this aspect, and supposing its highest happiness to be inconsistent with that of the whole, the great. law of benevolence to the universe would require such sacrifice of its wellbeing as would be necessary to the highest happiness of the whole. But if we suppose its highest happiness to be consistent with that of the whole, then the governor ought, without qualification, to aim to secure its highest happiness by requiring every subject to prefer this end to every other that can come into competition with it as an object of preference. This supposition, at least as a general principle, with its consequence, is undoubtedly, as it ought to be, universally assumed as just. We may therefore view the State, for our present purpose, as a distinct and independent community, and its moral governor in deciding on the supreme law, as sustaining no other or higher relation than that of the guardian and promoter of the highest happiness of this temporal community. This law must be that which we have described as requiring of its subjects disinterested benevolence to the State.

 

This benevolence must be distinguished from that higher principle toward God and his sentient creation which is the sum of all virtue or moral excellence. The latter is in no respect the subject of civil legislation. Civil government is indeed an ordinance of God, nothing being more manifest than that it is his will that men should exist in society, and be controlled by that influence which we call civil government, as the necessary means of their highest temporal well-being. But civil government, like the institution of marriage, respects the interests of earth and time. It is no part of the function of the civil ruler to make or to attempt to make his subjects religious by law. He has in this relation no concern with claiming or enforcing benevolence to God or to the sentient universe. The entire function of his office is, by his authority, to bring every subject to conform to the law of benevolence to the State, and thus to secure its highest happiness as a temporal community. It is true indeed that every subject who is disinterestedly benevolent toward the State, knowing his higher relations toward God or the sentient universe, may also be so toward the latter; and he who is disinterestedly benevolent toward the latter, is so toward the former. But the civil ruler, as such, has no concern with the conduct of his subjects in this higher relation.

 

Again: the governor, in deciding the question of obedience or disobedience to this law, takes cognizance of overt action not indeed, as many seem to suppose, as constituting obedience or disobedience, but only as the decisive proof of obedience or disobedience to the law. This law, in the estimation of the civil ruler, is obeyed by the subject who by overt action furnishes no proof that he is actuated by the principle opposite to that which the law requires. It is disobeyed, in his estimation, by him only who shows that he is actuated by the principle opposite to that which the law requires. Hence in deciding the question of obedience or disobedience, we have this important principle:-Every subject who cannot be proved by overt action to be governed by the principle of hostility to the state, which is forbidden in the supreme law of the State, is to be considered and treated as an obedient subject: -- or thus: no subject who cannot by overt action be proved to be actuated by this principle can be considered and treated as a disobedient subject.

 

With these views of the supreme law of the State, we now recur to its sanctions. And first, to its reward. This may be said, in general terms, to consist in the protection of the life, liberty, and property of the obedient subject. By this I do not mean to imply that the subject of the civil law has what some call an inalienable right to life, liberty, and property, in such a respect that the State by law may not require the voluntary sacrifice of these blessings, when such sacrifice is, as it may be, demanded by the public good. Such laws may not only be made, but may in some cases be enforced by penalties which shall deprive the transgressor not only of property or liberty, but of life also. When therefore I speak of the obedient subject, I speak of one who is obedient to law in every form which involves a spirit of loyalty to the State. The true doctrine on this subject is, that civil government is bound to the extent of its power, so far as it shall be for the general good, to protect the life, liberty, and property of the obedient subject, with every other blessing of his earthly existence.

 

If now we contemplate the nature of that reward, which is annexed to the supreme law of the State, and the condition on which it is conferred, we cannot fail to see its peculiar characteristic as a legal sanction. As good in itself, and as the means of good, it is obviously the highest good which a civil government can confer on each obedient subject. It is conferred solely on condition of the subject's obedience to the supreme law of the State. It is therefore a plain and unequivocal expression of the moral governor's highest approbation of obedience to this law. No subject can fail to regard it in this light; nor can he do so without considering it as a decisive manifestation of that character in the lawgiver which alone becomes him as the guardian of a nation's welfare, and which alone gives him the right to rule. He may indeed view it as so much natural good, and as such, a motive to conformity to the claim of law. But he must regard it also as something more; as that which, by manifesting the lawgiver's design to secure the highest welfare of the State, gives majesty to his law, and inspires reverence for his authority. Otherwise all that we call the majesty of law, or the authority of civil government, is reduced to a mere contract or stipulation of so much hire for so much service. But can any man of common sense view a wise and faithful administration of civil government under the simple aspect of such a contract? Is there no reason for submission to the supreme law of the State except to secure the personal benefit of the reward as the fulfillment of a contract made solely for the subject's personal advantage? Plainly, if civil government, or the supreme law which it necessarily involves, is nothing but a stipulation to confer so much good for so much good received, let it be called by its right name. To call it government or law, or to speak of its authority or of its influence as law, is to talk of what has no existence. Who is so ignorant, as not to know that the influence of law, of government, is a peculiar influence -- that when we speak of a king or moral governor as having the influence of authority, we speak of an influence which is fitted and designed to command respect and reverence, to secure confidential and cheerful submission to his will, and to determine and enforce the obligation to obedience; an influence which emanates from the sanctions of his law, as manifesting that character which alone becomes him as the guardian and promoter of a nation's happiness; an influence which gathers around and clothes him with majesty as with a garment? Viewed under this relation, as manifesting this character in the governor, the legal reward is necessarily something more than merely so much natural good as a motive. It necessarily carries with it to every mind the conviction of that character which gives him a right to rule, and thus ratifies, sanctions his authority. Viewed in any other relation, or under any other light, it can produce no such effect. Viewed, as many are wont to view it, merely as so much natural good designed to influence only as a direct motive to secure obedience, it can sanction nothing which can be called authority; it can produce nothing which can be called obedience, and can no more be viewed as a legal sanction, than a stipulated equivalent in traffic, or than any other benefit conferred as the mere dictate of selfishness. But enough has already been said on this point. I only ask, how, without manifesting through this reward his highest appropriation of obedience to the supreme law of the State, the governor could manifest a disposition to govern in the best manner, or be regarded as doing any thing to establish or ratify his authority in the lowest degree?

 

I now proceed to show the same thing in respect to the penalty of the supreme law of the State, as this is distinguished from the penalties annexed to other laws. Here we have the same general error to encounter and to remove -- the error of supposing that the penalties annexed to certain particular legislative enactments, especially to those which forbid such crimes as theft, robbery, burglary, &c., have the same design and are of the same nature as the penalty annexed to the supreme law of the State -- the penalty of death.

 

I have already had occasion to show, with respect to the penalties annexed to some of these particular enactments, that they cannot be regarded as legal sanctions, but must be considered as simply so much direct motive in the loss of liberty or property, to deter from transgression. And here I might ask, if the fine or pecuniary punishment imposed for the neglect of military duty, or for failure to render an annual account or list of one's taxable property, are not legal sanctions designed to sustain the authority of the government; if the transgressor in these cases is not, in the eye of the law, an enemy of the State? If these penalties are designed simply as so much direct motive to deter from transgressing the statute, why are not the same things true in respect to the short imprisonment which is the penalty for petty larceny, or the longer one for forgery, robbery, and burglary? What is there to show that the government esteems one class of these cases as involving hostility to the State rather than the other; or the penalties of one class as legal sanctions rather than the other; or that the penalties in both are not designed simply as so much motive to deter from transgressing the specified enactments? It is true, these penal inflictions differ in the degree of evil which they involve. In some cases the penalty is merely a pecuniary punishment or fine; in others, a fine and a short imprisonment; in others, a short imprisonment only; in others, a longer imprisonment, but limited to a term of years; and in others imprisonment for life. But all this is consistent with the design that each several penalty should influence, as simply so much motive to prevent transgression. At the same time, in each of these cases the essential reward of obedience, the protection of life, is secured to the subject not less than had he not transgressed the particular statute. He is still treated as obedient to the supreme law of the State. How then can he be regarded as an enemy of the State? How can the punishment be designed to express the supreme disapprobation of the government toward such a subject? What can the punishment in every such case be, except so much natural evil in the loss of liberty or property, or of both, designed simply as motive to prevent transgression?

 

But in order to form correct and satisfactory views of this subject, in opposition to what are deemed common errors respecting it, it is necessary to examine these errors; at least so far as to bring if possible before the mind the precise question at issue.

 

In respect to the transgression of civil law, a distinction has been made between a malum in se and a malum prohibitum.

 

Some have maintained a difference between the two kinds of transgression denoted by this language, and others have denied it. As some however have meant one thing by this distinction and some another, the one class has not always denied what the other has maintained. Some have maintained the guilt or moral turpitude of all crimes against the State, who yet have denied that this is the ground on which the State inflicts penalties, at least in all cases. Others, with the same view of the nature of crimes against the State, have maintained that it is the ground of penal inflictions even in all cases. Others, asserting in words the guilt or moral turpitude of all such offenses, but meaning by this merely their tendency to injure the State, have maintained that the ground of all civil penalties is the guilt or moral turpitude of the conduct punished. In view of these different opinions, with no one of which am I satisfied, it is desirable if possible to expose what is erroneous, that we may the more clearly see what is true.

 

For this purpose I remark, that in one important sense of the language, no transgression of civil law is a malum in se. By the moralist who considers man's relations not merely to the State but to the sentient universe, and his consequent subjection to the great law of benevolence toward all, not to love one's country or the highest happiness of the State, is justly viewed as implying the selfish principle, or a principle of hostility not only to the State but to God and his sentient creation; and as such, a malum in se. There is on the part of the murderer or the traitor such a palpable violation of this great law -- there is so much moral wickedness in the case as distinguished from the mere tendency of the act to impair or destroy any mere interest of time, that it is natural to feel strongly the moral ill-desert or guilt of the transgressor, and to conclude without due reflection, that the civil penalty in the case is threatened and inflicted chiefly if not wholly in relation to such ill-desert. But as I have already shown, with the conduct of his subjects in their high relation to their Maker and his sentient creation, the civil ruler has no concern. This law does not require the subject to love the State and to seek its happiness from a principle of disinterested benevolence to all sentient being. He has no right to require such a principle of his subjects, nor to forbid the opposite. The prohibition of the crime of blasphemy, as an offense against God, by civil law, is obviously inconsistent with religious liberty, and transcends the prerogative of the civil ruler. He can require nothing beyond disinterested benevolence to the State. The transgression of this law therefore, cannot be esteemed by him as involving the violation of the great law of benevolence toward the sentient universe, and in this sense a malum in se. It may, and for the most part probably does, involve the violation of this great law, and is, as such a violation, a malum in se. But the civil ruler can know nothing of its nature or relations in this sense. His only concern with it as a civil ruler, is as a malum in se in another relation -- in its relation to the State.

 

In this view of the subject the present question is not, whether he who violates any law of the State, either a law which forbids murder, or one which forbids petty larceny, or one which forbids turning to the left when meeting another on the highway, acts morally wrong in the sight of God, or in the court of conscience -- in other words, violates the great law of benevolence toward all sentient being. The civil law has no concern at all with this question. Further, the present question is not whether the executive or overt act involved in the violation of every enactment of the State tends in some limited degree to impair the well-being of the State; that it has this tendency is readily conceded. But the present question is, whether the lawgiver or moral governor of the State considers the subject, whatever law of the State he violates, as therein violating the supreme law of the State, and thus guilty of a malum in se in relation to the State. When one violates a law whose penalty is death, as the law which forbids treason or murder, the government confessedly considers him as transgressing the supreme law of the State. Does the government form the same estimate of him who violates any other law, or any law whose penalty is not death? The violation of the law which forbids treason or murder, or of any law whose just penalty is death, it is conceded is a violation of the supreme law of the State, involving a principle of action fatal to the well-being, and even to the existence of the State, and is therefore in the view of the government a malum in se in relation to the State. But is this the view which it takes of the violation of any law to which it has not annexed the penalty of death? Does it view the executive or overt act involved in the violation of any such law as proof of a principle of hostility to the State? or does it view it merely as a malum prohibitum -- a violation of a rule designed by some penal evil annexed as simply so much motive to prevent the forbidden action as in some limited degree injurious to the State, and this without the least reference to, or implication of a principle of hostility to the State on the part of the violator? This is obviously the question at issue; and to show that the violation of a civil law not having the penalty of death, is not in the view of the government a violation of the supreme law of the State, is to show that it is simply a violation of such a rule of action as I have now described: to show that it is not a malum in se in relation to the State, is to show that it is merely a malum prohibitum.

 

I remark then, that the bare statement of the fact carries its evidence on the face of it. It is one of the most obvious and familiar facts, that the overt act forbidden by any such civil enactment as we now speak of, is not considered by the government either as the violation, or as the proof of the violation of the supreme law of the State. What civil government entitled to respect ever esteemed such an overt act as evincing the same malignant principle of action toward the State which is evinced by the overt action involved in treason or murder? The principle which refuses to perform military duty, or to turn to the right as the law directs, or which steals a melon from a garden to gratify the appetite, or a ribbon from the shop to adorn a head-dress, is not in the eye of the civil law the same that would spread anarchy and death through the State. It may be, indeed-probably often is -- in the view of God and of truth, such a principle. But the civil law -- the government of the State -- does not, nor is it authorized so to esteem it; nor does it intend that its subjects should so esteem it. Nothing plainly would be more abhorrent to the universal sense and reason of men than that it should be so considered. Nothing would more justly provoke revolution than such a practical estimate of these offenses by the government of a State. These acts then are not in the eye of civil law mala in se in relation to the State, but simply mala prohibita.

 

But it may be asked, is it so in respect to the violation of all this class of legislative enactments; particularly is it so in respect to the act of robbery or of burglary? I answer by asking why it is not so in these cases? Is it that these acts involve a peculiar degree of moral turpitude scarcely less than the overt acts involved in treason and murder? Be it so; but with this the civil law has no concern. It has no right to, prohibit it or to require its opposite as such. Here lies the great imperfection of civil government compared with a moral. government, administered by omniscience. It has no unerring insight into the human heart, and is therefore utterly disqualified to determine so great a question, as whether a man is benevolent or selfish in his high relations to his Maker and his sentient creation; or whether one according to this standard is a good man or a bad man. If its decisions respected this question, it would be obliged in some supposable cases to determine that to be murder which would not be murder. For who shall say that the good man (as many believe David to have been when he killed Uriah) may not, in the eye of the civil law, commit murder? If this be so, then even the crime of murder, as viewed by the civil law, does not necessarily involve the opposite of the benevolent principle toward God and his sentient creation. It can be viewed as involving at most the opposite of the benevolent principle toward the State. Benevolence toward the State as a limited affection may be perfect; that is, it may be a disposition to sacrifice every thing which can come into competition with its object -- in a mind, which in relation to the universe, is perfectly selfish -- just as benevolence in a parent, or in one of a company of highwaymen toward a limited community, may be perfect in a perfectly selfish mind. And yet such benevolence toward the State would be, and must be regarded by the government as perfect obedience to the supreme law of the State. The civil law therefore can require, in respect to the principle of action, nothing but benevolence toward the State, and this may be either that which is dictated by that higher principle of benevolence to all sentient being, or it may be merely a limited and therefore a selfish principles merely selfish benevolence toward the State. Of course civil government in annexing its penalties to the laws against robbery and burglary, and indeed against treason and murder, has no concern with the moral turpitude of these crimes. The only thing which it knows and contemplates as crime, is crime against the State; and the only crime against the State which is a malum in se, is one which involves a principle of action hostile to the welfare and existence of the State, and is proved to be such by overt action which tends to destroy the State. The only question then is this -- does the overt act in robbery or burglary evince in the eye of the law this principle of hostility to the State? Does either of these crimes in the view of civil government involve the same principle of action in relation to the State, which is involved in treason or in murder? This we think will not be pretended in regard to the neglect of military duty, nor in regard to an act of petty larceny. But how does robbery or burglary differ in this respect from either of these violations of law? Only as they tend to diminish the public good in a greater though still in a limited degree; a degree however which still falls immeasurably short of that in which the principle involved in treason or murder tends to diminish it. The direct mischief of petty larceny, of robbery, and of burglary is in one respect the same -- the loss of property by its rightful possessor. Robbery and burglary in some cases may be justly regarded as tending indirectly to greater evil, especially as awakening a reasonable apprehension of the loss of life. Neither however, correctly defined, involves an intent to kill. Neither, in the view of the law, involves a principle of hostility to the State, nor is inconsistent with that benevolence toward the State which constitutes obedience to its supreme law. The law still throws its protection around the life and the property of the transgressor, thus giving to him the essential reward of an obedient subject to the supreme law of the State. It may deprive him of liberty for a term of years, or for life, and thus properly inflict upon him a severer penalty than it inflicts for minor offenses of the same class. Still he is considered and treated as essentially an obedient subject. He is not considered as actuated by a principle hostile to the welfare and existence of the State, nor as disobedient to the supreme law of the State. There is no proof, nothing which can be regarded as proof, that he is. His offense is not viewed by the government as a malum in se in relation to the State. The penalty he incurs is not designed as a legal sanction -- designed as a direct proof and ratification of the authority of the government. On the contrary, his offense is plainly viewed by the law simply as a malum prohibitum. Its punishment is designed to deter from transgression merely as so much motive. Nor is there any principle by which the civil law can form any other estimate of either of the crimes under consideration, or of any other of the same class, which would not require that it should form the same estimate of an act of petty larceny, or of neglecting to perform military duty.

 

But it may be said, that the violation of any law of the State involves a principle of action equally remote from a spirit of loyalty to the government, and equally hostile to the welfare and even to the existence of the State, with that involved in treason or murder. I have no occasion to depreciate the evil tendency of the principle or of the overt act involved in any of the violations of civil law. Let it then be admitted, that in a just moral estimate -- in that estimate which truth makes and which God will make -- forgery, robbery, burglary, petty larceny, and all other offenses against civil law, violate those civil rights on which the security and well-being of human society depend; that as the legitimate consequence, all industry and trade must decline, the sources of subsistence fail, the authority of law and with it the only foundation of society be subverted, and the country be deserted and reduced to desolation; that as he who is unjust in the least is unjust also in much, so he who commits any, the least offense against the State, is actuated by a principle which tends to lay waste human society and human existence; I say let it be admitted that in a just moral estimation all this is true; but the question returns, does the law does the government of the State form this estimate of things; or rather, are they authorized to form this estimate of it? Is the overt act proof of such a principle? If so, why are not all these offenses placed on a level in respect to penalty? If the object of penalty is the same, and this object is to support the authority of law, why is not the same penalty which is necessary for this purpose in one case necessary in every case? If such is the estimate of any of this class of crimes, then it is the estimate of all of them, and the petty thief and the burglar in the eye of the law, and according to the only just estimate by the civil ruler, deserve the same penalty, nay, more; he who pilfers the most trivial article from a shop-door is in the eye of the law as truly an enemy of the State and proves himself to be so, as he who betrays his country to a conqueror to be desolated by his armies. The government of course which does not visit every diversity of offense with equal penalty, even with that which is necessary to sustain its authority, is recreant to its trust. And yet, plainly no government that should do this could command the respect and confidence of its subjects, or be regarded by them otherwise than as in the highest degree oppressive and tyrannical, and as having no authority.

 

But the error we are opposing rests entirely on the assumption, that civil government proceeds in annexing its penalties to laws according to a just moral estimation of offenses; for in no other estimation can these offenses be equalized in their evil tendency. Viewed in their tendency to bring detriment to the State, as this tendency pertains to the overt action or to the principle involved, it is obvious that they are not equally injurious. That they are so in the tendency which pertains to overt action will not be pretended: that they are so in the tendency which pertains to the principle, is no more credible according to the mode in which civil government judges and must judge of the principles of action. It can judge of these, only as they are manifested through the medium of executive or overt action. It can decide that a principle of hostility to the State exists, only when the overt action is such as to be the decisive proof of such a principle; and they can decide that the overt action is the decisive proof of such a principle, only when the overt action cannot be accounted for by being traced to any other principle. Can then the overt acts of neglecting military duty, of pilfering from a shop, of taking a man's purse on the highway, or of entering his house by breaking a window or a door and plundering it of its plate, be traced to no other principle than that Of hostility to the government and the State? Do such transgressors of law manifest the same deadly principle of hostility to the happiness and the existence of the State, as that of the traitor and the murderer? Is such the estimation of the principle formed by an enlightened civil government or community? Would not such a judgment be wholly unauthorized -- flagrantly unjust? Cannot the overt action involved in any of these minor transgressions be accounted for consistently with a principle of obedience to the supreme law of the State, from the weakness of the principle and the force of temptation? Does not every enlightened government thus account for them? Do not the penalties for such offenses inflicted by every such government place this point beyond all dispute, by showing that nothing is aimed at by these penalties except the mere prevention of crime?

 

Again: this view of the particular enactments is further confirmed by the diversity in the degree of their penalties, and the grounds of this diversity. Were the design of these punishments to uphold the authority of the government, no reason can be given why the same penalty should not be inflicted, however diverse the cases. On the contrary, the most decisive reason exists why the penalty should be the same in degree in all cases; for the degree of penalty necessary to this end in one case is necessary in all cases. Instead of annexing these penalties on this principle, every wise civil government greatly diversifies them, and without the remotest reference to this principle, and entirely on other grounds. One ground is the tendency of the offense to bring detriment to the State; another is the facility with which the crime can be perpetrated; and another is the facility of escape by the perpetrator. These things are consistent only with the supposition, that the principle which regulates these punishments, is their necessity for preventing the violation of these statutes by the influence of motive only. Accordingly, in some cases the violation of one of these statutes, which is far less injurious in its direct result than the violation of another, is visited with a severer penalty. No enlightened civil government in annexing a penalty to any one of these statutes, proceeds on the principle of preventing absolutely its violation and the mischief which in a single instance it brings to the State; but is guided also by the frequency with which the violation is likely to occur, increasing the severity of the penalty as may be requisite to diminish the frequency of the offense. In some cases it even proceeds on the principle of not punishing at all, especially when the crime can be prevented by other means with greater success. In other cases these punishments are designed chiefly as reforming influences. Such are the principles which pervade the whole system of penal jurisprudence in respect to the class of statutes under consideration; and they show that their violation is not regarded by the government as a violation of the supreme law of the land or as a malum in se in relation to the State, but as a malum prohibitum; that the design of these penalties is not directly to sanction the authority and sustain the majesty of law, but merely to prevent the violation forbidden by so much motive.

 

Once more: these particular enactments are not enforced by any thing which can be properly called legal sanctions. No reward whatever is promised to obedience to this class of enactments, either directly or indirectly, which can be properly called a legal sanction. It cannot be said that the protection of life, liberty, and property is made to depend on conformity to any one of them, for the subject who disobeys any one of them is entitled to this reward in every substantial respect. He is as fully protected in respect to his life, the essential legal reward of obedience to the law of the State, as had he not transgressed the statute; while he ii deprived of liberty, or property, or both, only in some limited degree, which is requisite to create a suitable motive to obedience. The degree of liberty or property which he loses by transgression, is all that he would possess and enjoy by obedience, and all that can be called the reward of obedience in the case. Put this merely cannot be regarded as sufficient to give, nor as designed to give authority to the law of a State. It cannot have nor be supposed to have any other influence than that of so much motive to secure obedience, and therefore cannot be a legal sanction. That reward which has the influence of a legal sanction is given, in every substantial respect, to the transgressing subject. It is given virtually, given in principle, so given to every subject, that he is truly esteemed a rewarded subject who, whether he has violated one of these particular enactments or not, cannot be proved to have violated the supreme law of the State. Every other subject is Considered by the civil law as an obedient subject, and rewarded accordingly. Unless he can be proved to have violated this law, he is considered and treated as an obedient subject, whatever other law he may have violated. Obedience therefore to any one of these enactments receives no reward which can be called a legal sanction. Again: no one of these enactments is enforced by any punishment which can be properly called a legal sanction. This will not, we think, be pretended in respect to those whose penalties consist in some slight pecuniary punishment, or even in a few weeks of comfortable imprisonment. If it be claimed in respect to any of the punishments under consideration, it will be in respect to imprisonment for life. This penalty to a man who loves liberty, and who has possessed and enjoyed it under the institutions of a free government, and especially who has learned to form those lofty notions of it which so much pains is taken to cherish and to exaggerate -- notions in which one identifies himself and his liberty with the millions of his country and their liberty through all generations to the end of time -- to such a man imprisonment for life. would be a grievous penalty. Liberty to him has afforded its rich and manifold blessings -- blessings which need no exaggeration to be highly prized. It is a blessing greatly increased in his estimation by habitual enjoyment, and the loss of it is justly ranked among the sorest calamities of earth and time. For these reasons however, the penalty of imprisonment for life is seldom, perhaps never, incurred by such a man. For the most part at least it is incurred only by those who, by its loss, scarcely incur an evil to deplore, but rather make a change for the better. Their food, their lodging, and their raiment -- all essential supplies of their wants, are more sure, more comfortable, more abundant; their society more congenial, their friendships more intimate, their real character and reputation less burdensome, their standing so nearly that of equality as to be no longer irksome, either through envy or a sense of degradation; in short, for the most part it seems not too much to say, that imprisonment for life, to its proper subjects, is almost an improvement of their condition and an increase of their enjoyments. So much truth is there in this, that it is a common remark concerning one of this class of men in the confinement of the strong walls of his prison, "He is better off than were be at liberty." I make these remarks not to undervalue the blessing of civil liberty to those who know how to use and enjoy it, but to show how comparatively inferior, not to say insignificant a thing it is to that class in the community who put it at hazard by the commission of crime; which shows, by the way, how ignorant of the principles of human action are those pretended reformers of social life, who exalt the influence of imprisonment for life to prevent the murderer's work above that of the penalty of death. I charitably hope the former would suffice to deter them from the crime of blood, who are so powerfully restrained by a thousand other influences. But how they forget, that if there be any thing that shakes the soul of a confirmed villain, it is the expectation of approaching death; the prospective horrors that give such a wrench to the mental organs, as to crush the rising purpose of blood.

 

In view then of the comparative insignificance of imprisonment for life in the estimation of those who are likely to incur the penalty, I ask, can it operate or be designed to operate as a legal sanction? Is it, with all the blessings which it leaves unimpaired, a direct and decisive expression, of that disapprobation which is demanded for the violation of the supreme law of the State? Can it be supposed to be intended as such an expression? It may indeed serve to show indirectly, and when the want of it would show the contrary, that the governor is not indifferent to the welfare of the State. But is it such a direct and decisive expression of abhorrence as is due to rebellion against the State? Plainly, the penalty shows that the government does not so esteem the crime; that the crime is not in the eye of the law a malum in se, but a mature prohibitum, and that the penalty is designed to influence as so much motive, and not as a legal sanction.

 

With this view then of the punishments annexed to the particular statutes under consideration, I now recur to the penalty of the supreme law of the State, which is death. And here I cannot but remark what I think is strikingly shown in what has been already said, how exceedingly prone men are in forming opinions on the present subject, to overlook the main facts, even every thing which essentially belongs to the subject. What account, in their various theories and speculations concerning civil offenses and their punishments, has been made of the supreme law of the State and of its penal sanction? And yet if there is a moral government over the State, there is such a law involved in the very nature of such a government; and if there is such a law, it has its peculiar penal sanction, and if it has its peculiar legal sanction, that sanction, in view of the preceding discussion, must be the penalty of death. Death must be the penalty of the supreme law of the State, or that law has no penalty. What then is the nature and design of this penalty? I answer generally, that death to mail as a being of earth and time, is justly regarded as the supreme evil, and as such is annexed to the supreme law of the State for the purpose of supporting the authority of that law; that is, as a penal sanction, or as the direct and decisive proof or expression of the lawgiver's highest disapprobation of disobedience. The general proof of this is, that if this be not the design of this penalty, then the supreme law of the State has no sanction, and of course has no authority. The penalties annexed to other laws, those particular enactments whose violations are merely mala prohibita, are not as we have seen legal sanctions are in no respect designed to support the authority of government as the direct and decisive proof of it. If therefore this is not the design of the penalty of death, then there is no penalty whatever annexed to law with this design. The law of the State has no sanction. There is, and can be no evidence in the form of penal sanction of the governor's authority. Whatever provision he may have made by other statutes for the welfare of the State, he has furnished no direct and decisive proof of his authority in the form of the requisite penal sanction. On the contrary, by his failure to furnish this proof, he furnishes decisive proof that he has no authority or right to rule, and thus creates on the part of his subjects the right of revolution. There being no penal sanction, there is of course no law and no government. Nor can any penalty of the supreme law adopted by an enlightened civil government, which is less than the penalty of death, be a penal sanction. The reason is, that every other penalty involves, as we have seen, the essential, virtual reward of obedience, viz., the protection of life, and to a greater or less extent other blessings. The lawgiver therefore, by annexing any less penalty than death to the supreme law of the State, becomes the patron of rebellion against the government of the State. Whether therefore the penalty of death be fitted or adapted to the end specified or not, it is either designed to answer this end by the moral governor, or he does nothing to support his authority; but does that which in his own view, and in that of his subjects, unless disqualifying ignorance is his apology, utterly subverts his authority. If either himself or his subjects regard his authority as supported by the requisite penal sanction, they must regard it as supported by the penalty of death, as the direct and decisive expression and proof of that supreme disapprobation of disobedience which is necessary to his authority.

 

The next question respects the adaptation or fitness of the end aimed at on the part of the governor. Is it adapted or fitted directly and decisively to express and prove his highest disapprobation of disobedience to the supreme law of his government? And here assuming it to be, as it undeniably is the penalty of this law, there can be no ground of hesitation in regard to its fitness to the end designed but one -- viz., that death without torture is not, in strictest accuracy of speech, the highest degree of natural evil which the governor can inflict for disobedience. Hence it may be inferred, that it is not inflicted as the direct and decisive expression and proof of his highest disapprobation of disobedience to his supreme law, but as, merely so much direct motive to deter from disobedience. Admitting that in the strictest use of language, death is not the highest degree of -- evil possible in the case, there are three suppositions to be made and considered. One is, that on this account it is not viewed either by the governor or his subjects, according to the true mode of judging in the case, as any expression and proof of his disapprobation of disobedience whatever, and that it is not designed to be such an expression by the governor, nor to be so regarded by his subjects. On this supposition it follows, that civil government is not in the lowest sense a moral government. There is nothing in it, either in the view of the governor or of his subjects, which answers to the idea of authority. There is no evidence from the penalty, and therefore none from any source, that he has the least degree of disapprobation of disobedience, and therefore none that he has a right to rule; but decisive proof that he has no such right. Another supposition is, that the governor and his subjects, according to the true mode of judging in the case, regard the penalty as expressing some degree of disapprobation of disobedience, but not the highest. On this supposition there can be no ground of confidence in his character -- no ground for believing that possessing both the judicial and executive power, he will not sacrifice the State, rather than sacrifice the life of the traitor that wars on its welfare and its existence. To test the truth of this, let the fact be supposed, that he refuses to execute the traitor or the murderer, because he is his friend or favorite, or even his son, and would public sentiment reproach him merely for not employing so much motive to deter others from the crime; or would it react on his character, and pronounce him in this respect disqualified for his office, and having no authority? A third supposition is, that according to the true mode of judging in the case, both the governor and his subjects regard the penalty of death as a direct and decisive expression of his highest disapprobation of disobedience to the supreme law of the State, and as such a legal sanction. This plainly is the only supposition consistent with any thing on the part of the governor which can be regarded as authority; or with the doctrine that civil government is a moral government, in that sense in which all men ought, and in which common sense does regard it as a moral government.

 

But here the question arises, how can the penalty of death without torture, be justly or properly regarded as a direct and decisive expression of the governor's highest disapprobation of disobedience? I answer, that death, in the common conceptions of all men, is the supreme evil to man. It is, as it were constantly, in common speech, and of course in the common conceptions of meet, distinguished as the greatest of evils to man considered as a being of earth and time. It is emphatically familiarized as such to all minds. The idea of it is an idea of so great are evil -- when it occurs, its object so absorbs thought, by its own magnitude and certainly, that suffering as an attendant circumstance is unthought of as enhancing the evil. The moral governor conforms to this universal and familiar conception of the human mind, and when he would impress every subject with his highest disapprobation of disobedience to his supreme law, he makes that evil which in their common and familiar conceptions is signalized as the greatest, the supreme evil, the expression and the proof of his disapprobation. What so natural, what so fitted to his design? He knows their conception of the evil, and is sure of the judgment which they will form of the degree of his disapprobation of disobedience to his law, when thus measured by death as its penalty. They know how the language ought to be interpreted. He knows how it will be interpreted. By making death, which is universally regarded as the supreme evil to man as a being of earth and time, he shows himself the mortal enemy of rebellion against his throne, and in the most, or rather, in the only natural, obvious, and impressive mode, manifests the highest disapprobation of disobedience to his supreme law, which he can feel toward any object which can come into competition with it as an object of disapprobation. He thus shows the feelings and the character on which his authority depends.

 

Thus I have attempted to show, that the view which has been before given of the nature of the legal sanctions of a perfect moral government, is substantially that which is entertained by men, of the sanctions of the supreme law of the State. If we find in the wisest administration of human government some occasional departures from the rigor of the principles contended for, still the principles themselves are most distinctly recognized. Every such departure is so obviously the result of the necessary imperfection of a human administration, in connection with the comparative inferiority of the interests to be protected, not to say of its corruption, as clearly to show that no such departures can mar the moral administration of an infinitely perfect Being, (whose kingdom is an everlasting kingdom, and of whose dominion there is no end). Here no departure from the exact principles of truth and righteousness can result from weakness or error, or indifference to the end to be accomplished. The magnitude of the interests concerned, the value of the law as the means of securing these interests, the ill desert of transgression, the relation and the authority of the lawgiver, and the sanctions of his authority, are to be estimated not by the standard of earth and time, but by that of eternity. And what can truth, and wisdom, and goodness demand, in the government of a kingdom, where every act of every subject is virtually either the perfect happiness or perfect misery of all; what but a fall and unqualified manifestation of the benevolence of Him that sitteth on the throne, in his highest approbation of right, and his highest disapprobation of wrong moral action? How can such a manifestation be made except through natural good and natural evil as the sanctions of his law?

 

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