At nine o’clock this morning, the Class read a forensic disputation: I had written in the course of the vacation as follows.
Whether the infliction of capital punishments, except in cases of murder be consistent with equity?1
Had the question admitted other exceptions, or had it admitted none, I should have felt a greater degree of diffidence, in maintaining the affirmative. It has frequently been doubted by men who reason chiefly from speculation, whether it were equitable to punish any crime, with death, Sovereigns have attempted to abolish capital punishments entirely, but this scheme, like many others, which appear to great advantage in, theory has been found impracticable, because it has been attended with consequences very injurious to society; but if it be acknowledged, that death is the only equitable atonement which can be made for the commission of murder, I cannot see, why other crimes, equally, and perhaps still more, heinous, should not deserve a punishment equally severe. The question naturally occurs here; what is the end of punishment? Certainly, to give satisfaction, to the injured, and to insure the safety of individuals and of Society: but as the man who falls by the hand of an assassin, cannot receive satisfaction; the punishment in that case, must be inflicted only for the benefit of Society in general. No one, I presume will deny, that Treason is a crime, more dangerous to a community, than murder; as it threatens the destruction of each individual, as well as of the whole commonwealth: to inflict a milder punishment therefore upon this crime, would be destroying that proportion, in which alone, justice and equity consist. The celebrated Montesquieu observes, that the punishment should always derive from the nature of the crime, and consist in the privation of those advantages of which the criminal should have attempted to deprive others. He confesses however, that in many cases, this would not be effected: most frequently the man who robs the property of another, possesses, none himself, and therefore a corporal punishment, must supply the place of confiscation. Those who plead in favour of a lenient system of punishments, may engage the passions of their hearers, by expatiating upon the virtues of benevolence, humanity and mercy: far be it from me to derogate from the excellency of those exalted virtues; but if mildness in punishments instead of deterring men from the commission of crimes, encourages them to it, the innocent, and virtuous part of the community, who have surely the greatest claim to the benevolence of a legislator, would be the greatest sufferers.
It is customary with persons who disapprove of capital punishments, to say that confinement during life to hard labour, would be a punishment, much more severe, than immediate death, and that a criminal thereby, might be rendered useful to Society, whereas a dead man is entirely lost to the community. A zealous student in surgery might deny the latter part of this proposition; but I shall only reply, that admitting confinement and hard labour for life, to be a more rigorous atonement for a crime, than death it will not follow, that it is equally terrifying, and this ought to be the principal object of a legislator. The addition of confinement will be but a small restraint to the greatest part of mankind who know, that whether innocent or guilty, they must depend upon hard labour for their subsistence. But Death is more or less terrible to all men; I have frequently heard persons who supposed themselves in perfect security, express the most intrepid contempt of death, but I conceive their philosophy would be somewhat deranged if the prospect of a sudden, and violent dissolution were placed before them. In such a situation all mankind would reason like the criminal represented by the inimitable Shakespear, as being condemned to die.
Ay, but to die, and go we know not where,
To lie in cold obstruction, and to rot;
This sensible, warm motion, to become
A kneaded clod, and the delighted spirit,
To bathe in fiery floods, or to reside
In thrilling regions of thick ribbed ice,
To be imprison’d in the viewless winds
And blown with restless violence round about
The pendent world;—’tis too horrible!
The weariest, and most loathed worldly life,
That age, ache, penury, imprisonment
Can lay on nature, is a paradise
To what we fear of Death.2
Mr. Wigglesworth gave a public lecture this afternoon. We danced in the evening at White’s chamber.
1. JQA’s draft of the disputation, dated 11 Jan., contains no major changes (M/JQA/46, Adams Papers, Microfilms, Reel No. 241).
2. Measure for Measure, Act III, scene i, lines 117–125, 127–131.