CHA P. V.

SECT. I.

Of the Neceffity of inflicting Capital Punishments.

MANY urge the neceffity of fan

guinary Laws, and plead the origi

nal confent of mankind to their inftitution, with their implied and tacit consent to their continuance. But thefe pleas do not prove them to be either juft or expedient.

How many favage and abfurd customs, which prejudice once idolized as facred, are now happily abolished? Such is the inveteracy of habit, that it will give a fanction to the most unnatural and horrid practices. We read of Indian nations who used to feast on the bodies of their deceafed relations. When Darius afked thefe fa

vages, on what condition they would confent to burn their dead, after the Grecian fashion; they affured him that no inducement whatever could prevail on them to adopt fuch a practice. When, in like manner, he demanded of the Grecians, on what terms they would agree to feed on their deceafed friends, after the Indian cuftom; they received his proposition with horror.

It was thought neceffary among our rude German forefathers, to facrifice cap, tives taken in war; and general affent gave a fanction to the inhuman cuftom. But the present age is too polished and refined, not to hold this favage practice in abhorrence.

We need not, however, refort to fuch diftant inftances to prove the triumph of custom over reafon and humanity. Scarce two centuries have elapfed, fince, under the establishment of Law, and the fanction of Religion, a practice prevailed in this coun try, of burning thofe brave but unfortunate Martyrs

Martyrs to opinion, whom the interested perfecutions of popish bigots marked out for facrifice under the name of Heretics. Nay, it was no longer fince than the 29 Car. II. (not one hundred years ago) when the last badge of religious perfecution in this country, the writ de Hæretico comburendo, was abolished; but the practice of burning heretics ftill prevails in thofe countries where religion is impiously perverted to blind the understanding, and to harden the hearts of its votaries against their fellow-creatures.

These abfurd, unnatural and brutal practices are, however, justified on the footing of neceffity, and in many places have obtained general affent, and received the fanction of Law. But no neceffity, no general affent is of force against the Law of Nature. There are immutable and eternal relations of things antecedent to all human institutions, which fix fuch certain boundaries to right and wrong as no Laws whatever can either limit or extend.

The violation of Law, fays Gordon, does not conftitute a crime where the Law is bad,

but the violation of what ought to be Law is a crime even where there is no Law. The effence of right and wrong does not depend on words and claufes inferted in a code or statute-book, much lefs upon the conclufions and explications of lawyers, but upon reafon, and the nature of things antecedent to all Laws. In all countries, Reason is, or ought to be, confulted before Laws are enacted; and Laws had better to have never been made where it is not confulted. fon is, in fome degree, given to all men; and Cicero fays, whoever has Reafon has right Reason; that Virtue is but perfect Reafon; and that all nations having Reason for their guide, all nations are capable of arriving at Virtue.

Rea

Laws therefore must be founded on Reafon, otherwife they are ufurpations on the natural rights of mankind: and no general affent, or fuppofed neceffity, can give them that validity which they do not derive from their own juftice and expedience.

An obligation from one individual to another to do an illegal or immoral act, by the

Law

Law of the land is void in itself: and by the fame reafon all obligations to public Laws are void, when they are repugnant to the unalterable principles of right reafon and moral.

virtue.

SECT. II.

The fame fubject continued.

FA

ARTHER, with respect to the neceffity which is the grand argument for Capital Punishments, it may be observed from experience, that what was, and in fome places ftill is, deemed neceffary, has among us been found to be inexpedient and inhuman; and we perceive that the abolition of fuch barbarous cuftoms is attended with no inconvenience, but, on the contrary, productive of infinite improvement.

In truth, we are apt to be fwayed too much by political maxims, and the pretended neceffity of things: there are many principles in the administration of govern

ment