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ARTICLE I V.
By S. S. Schmucker, D.D. Professor in the Theol. Sem. of the Gen. Synod of the Evan
elical Lutheran Church, Gettysburg, Pa. The subject of capital punishment has within the last half century, arrested not a little attention both from civilians and divines. The expansive spirit of christian philanthrophy, has diffused much of its influence over the civil and political institutions of Europe and America. Like a guardian angel of our race, it has watched over every relation of human life, and explored successively almost every avenue of human suffering, undismayed by the moral corruption and guilt of criminals, undeterred by the repulsive exhalations of the prison-house and dungeon. It has instructed modern governments to graduate with minuter scales the relative weight, with which their punitive arm should fall on confessed malefactors; it has taught thousands to pause and ponder and hesitate, whether for any amount of crime whatever, even for deliberate murder itself, the life of the criminal can rightfully be touched. The litigated aspects of this question are intimately interwoven with our views of the moral government of Jehovah, whilst their accurate determination must exert an important influence on the interests and duties of every citizen of the republic. The enlightened observer beholds with pleasure in the experimental legislation of our country and of Europe, the progressive influence of christian philanthrophy; whilst at the same time he must regard it as a matter of the highest moment, alike to the cause of criminal jurisprudence and of the christian religion, that this reformation be advocated on grounds consistent with the eternal, unchangeable principles of truth, as exemplified in the moral government of God, that it be conducted without undue precipitancy, that it be not pressed to perilous extremes.
The principal points of practical moment involved in this subject, which may present difficulty to the conscientious mind, are these: Is it lawful in the sight of God to punish the deliberate murderer with death ? May a christian juror sign a verdict, which will subject a murderer to this most solemn penalty ? May a christian judge pronounce the sentence ? In
order that light may attend the path of our investigations, we shall successively direct our attention to the following questions :
1. What are the several designs of penalties ? 2. Which of these is the primary design?
3. Which of the remaining designs, is the preponderant one, in civil government ?
4. Which of the two proposed penalties for intentional murder, is best adapted to effect the primary design of penalties?
5. Have human governments a right to inflict this most effectual penalty, in proper cases, by the light of reason?
6. Have they this right according to the Old Testament? 7. Has this right been revoked in the New Testament?
1. All the legitimate designs of penalties may be resolved generically into three. Their most obvious, natural and universal design, we believe, is to promote the observance of the laws to which they are annexed, by all who are under obligation of obedience to them. But the laws enjoin the discharge of duty and the avoidance of crime; hence this design is sometimes termed the promotion or supporting of the honor of the law, and at others, deterring men from crime. Again, the discharge of their duties by the citizens, advances the public welfare; their avoidance of crime augments the public security ; this design of penalties is therefore also represented as the promotion of the public good, of the welfare of the community.
The second design of penalties, is restitution to the injured party, in all cases when it can be accomplished in consistence with the good of the community.
The third design of penalties is the reformation of the criminal. This design is indicated by the spirit of christian benevolence, and ought to be regarded by legislators in all practicable cases.
2. The inquiry, which of these designs is the primary or most important one, is of great weight on account of its influence on penal legislation; and although so often misapprehended, seems not to be involved in much obscurity, when attentively examined. If the relative importance of these several designs to any given individual, be considered, it seems evident that to restrain a person altogether from violation of the laws, is certainly a greater benefit to him, than to reform him after he has become a criminal; just as the prevention of a disease is ever preferable to its cure. Again, to secure the person and property of an individual entirely from violation, is, for the same reason,
better than to make restitution after that violation has been endured. Hence if this preventive and protective influence were exerted no oftener in the community, than restitution and reformation are, the former would evidently be more important. For argument's sake, however, let us suppose these three designs to possess equal intrinsic value. Their relative importance in a civil community or government, will then be proportionate to the frequency of their occurrence, to the extent to which each one is applicable. And if one be found applicable to all the members of the entire community, whilst the other two are confined to a few, that one must undoubtedly be possessed of a vast preponderance of importance. We assume it as self-evident, that the welfare of two individuals is more important than that of one ; and that this superiority of importance is increased in proportion as we augment the number of persons, whose welfare is compared to that of an individual. Now that penalties were intended to exert and actually do exert their first design in our classification, that is, their restraining and protecting influence on the entire community, by promoting obedience to the laws among all on whom they are obligatory, is evident :
a) From the design of government itself. This, according to the dictates of common sense, and the Declaration of American Independence, is “to protect the governed in the enjoyment of their inalienable rights, life, liberty, and the pursuit of happiness.” But all good government consists in the enactment and successful administration of salutary laws; and the design of a government is attained just in proportion as it succeeds in having the laws universally observed. The universal observance of the laws is therefore also the immediate design of all good governments; and as penalties are attached to laws in order to promote their observance, such observance must be regarded as the direct and primary design of penalties also. In short, the ultimate design of government is the security and prosperity of the entire community ; the observance of the laws is the intermediate design by which the other is effected, and to which it bears the relation of a means to an end; penalties tend to enforce this observance, and therefore become identified in design with the ultimate and grand design of government itself.*
But if one design of penalties is identical with that of govern
Deut. 17: 13. 19: 20. 21: 20, 21.
ment itself, namely to promote the welfare of the whole community by encouraging universal obedience to the law; it cannot long be doubted whether this design is more important than restitution to the injured party, or the reformation of the criminal; unless we can doubt whether the welfare of the whole community is more important than that of a few individuals. The criminal and the injured party are but as one to ten thousand, when compared to the whole community; and if in the imperfection of human institutions, the interests of some must be in any degree overlooked, which will rarely if ever be the case, it is an obvious duty to choose the less of two evils, to prefer the interests of the many to that of the few.
b) A gain, that the design of penalties is to influence the whole community and not the injured or the criminal only, is evident from their intrinsic nature. They are equally adapted to exert their restraining and motive power on the whole community, and possess no peculiarity that has special reference to particular individuals. The principle in human nature to which they appeal, and on which they depend for their motive power in regulating our actions, is a principle inherent in our mental constitution, and common to every member of the human family, the desire of securing our own happiness and of avoiding pain. The mental nature of criminals is essentially like that of all other men. In the incipient stages of vice and crime, they do not differ from the residue of the community who are restrained by these penalties from further advances in sin. All the influence of penalties in preventing crime in each individual instance, is therefore exerted prior to actual violation of law and the incurring of the penalty : and even the murderer himself may in many previous cases have been deterred by these penalties from committing the very crime, for which at last he is sentenced to suffer. Now in an intelligent government we may safely infer, that the end for which any set of means have a manifest and peculiar adaptation, is the one for which they were designed. Hence as penalties have such manifest adaptation to influence the whole community, they were intended for that purpose.
c) That penalties contemplate the whole community as the appropriate subjects of their influence and not especially those who become criminals, or who fall victims to the crimes of others, is evident from the fact, that in all civilized nations, it is deemed necessary, that the penalties should be made public as ex
tensively as the law itself. The publication of penalties to those whom they are not designed to affect will be admitted to be superfluous and unnecessary. Hence, if the reformation of the criminal or restitution to the injured were the only designs of penalties, it would be unnecessary to publish them to the whole community at all. But their publication to the whole community is judged necessary, by the common sense of all civilized nations, hence they must be designed to influence the whole community.
It may, therefore, be pronounced incontestibly evident, that penalties do refer to the whole community and contemplate the good of the whole. It has moreover been said, that the influence which they are intrinsically calculated to exert on all, both criminals and others, in deterring them from crime, is equal in degree. Hence their restraining influence on each individual of the millions, who constitute the entire community, is as important as the restraining influence which they exert on one of the few criminals prior to liis crime. That design of penalties therefore which contemplates the prevention of crime in the whole community is incomparably more important than the two, which affect only a few individuals, after they have violated the laws. And again, as the prevention of a man from becoming a criminal, is at least as beneficial, as his reformation after he has been guilty of crime, the prevention of crime in millions of the community is vastly more important than the reformation of a few. The fact too that the infliction of penalties rarely does produce genuine reformation, diminishes the relative value of their reforming influence. And eternity will decide whether even in the case of the criminal himself, the restraining influence of the penalty, which in many previous occasions preserved him from the crime into which he at last fell, is not in the aggregate of criminals, of more moral value, than the few cases of genuine reformation which occur in prisons and penitentiaries.
Still further to illustrate this point, for it is a highly important one, let us suppose that our government should wholly abandon the two inferior designs of penalties.
Let us suppose that the little effort, which has been made to reform the inmates of our jails and penitentiaries were discontinued, and not one criminal were reformed by the punishment inflicted. Let us further suppose, that in those cases (far less numerous than they ought to be) in which restitution is made in the form of damages, the