The magistrate “beareth not the sword in vain; for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” From this acknowledgment of the lawfulness of coercion on the part of the civil magistrate, an argument has been advanced in favor of war. It is said, that by parity of reasoning, coercion is also lawful in the suppression of the violence which one nation uses towards another.
Some men talk as if the principles which we maintain were subversive of all order and government. They ask us—Is the civil magistrate to stand still and see lawless violence ravaging the land? Is the whole fabric of human society to be dissolved? We answer, No; and that whencesoever these men may have derived their terrors, they are not chargeable upon us or upon our principles. To deduce even a plausible argument in favor of war from the permission “to execute wrath upon him that doeth evil,” it is obviously necessary to show that we are permitted to take his life. And the right to put an offender to death, must be proved, if it can be proved at all, either from an express permission of the Christian Scriptures, or, supposing Christianity to have given no decisions, either directly or indirectly, from a necessity which knows no alternative. Now everyone knows that this express permission to inflict death is not to be found; and, upon the question of its necessity, we ask for that evidence which alone can determine it—the evidence of experience: and this evidence, the advocate of war, has never brought, and cannot bring. And we shall probably not be contradicted when we say, that that degree of evidence which experience has afforded, is an evidence in our favor rather than against us.
But some persons entertain an opinion, that in the case of murder, at least, there is a sort of immutable necessity for taking the offender’s life. “Whoso sheddeth man’s blood, by man shall his blood be shed.” If anyone urges this rule against us, we reply, that it is not a rule of Christianity; and if the necessity of demanding blood for blood is an everlasting principle of retributive justice, how happens it that, in the first case in which murder was committed, the murderer was not put to death?
The philosopher, however, would prove what the Christian cannot; and Mably accordingly says, “In the state of nature, I have a right to take the life of him who lifts his arm against mine. This right, upon entering into society, I surrender to the magistrate.” If we conceded the truth of the first position (which we do not,) the conclusion from it is a sophism too idle for notice. Having, however, been thus told that the state has a right to kill, we are next informed, by Filangieri, that the criminal has no right to live. He says, “If I have a right to kill another man, he has lost his right to life.”56 Rousseau goes a little farther. He tells us, that in consequence of the “social contract” which we make with the sovereign on entering into society, “Life is a conditional grant of the state:”57 so that we hold our lives, it seems, only as “tenants at will,” and must give them up whenever their owner, the state, requires them. The reader has probably hitherto thought that he retained his head by some other tenure.
The right of taking an offender’s life being thus proved, Mably shows us how its exercise becomes expedient. “A murderer,” says he, “in taking away his enemy’s life, believes that he does him the greatest possible evil. Death, then, in the murderer’s estimation, is the greatest of evils. By the fear of death, therefore, the excesses of hatred and revenge must be restrained.” If language wilder than this can be held, Rousseau, I think, holds it. He says, “The preservation of both sides (the criminal and the state) is incompatible; one of the two must perish.” How it happens that a nation “must perish,” if a convict is not hanged, the reader, I suppose, will not know.
I have referred to these speculations for the purpose of showing, that the right of putting offenders to death is not easily made out. Philosophers would scarcely have had recourse to the metaphysical abstractions if they knew an easier method of establishing the right. Even philosophy, however, concedes us much:—“Absolute necessity, alone,” says Pastoret, “can justify the punishment of death;” and Rousseau himself acknowledges, that, “we have no right to put to death, even for the sake of example, any but those who cannot be permitted to live without danger.” Beccaria limits the right to two specific cases; in which, “if an individual, though deprived of his liberty, has still such credit and connections as may endanger the security of the nation, or, by his existence, is likely to produce a dangerous revolution in the established form of government—he must undoubtedly die.”58 It is not, perhaps, necessary for us to point out why, in these suppositious cases, a prisoner may not be put to death; since I believe that philosophy will find it difficult, on some of her own principles, to justify his destruction: For Dr. Paley decides, that whenever a man thinks there
