edifice of our constitution. They did not expect that their laws would not want revision, any more than the laws of their forefathers, for they must have well perceived the absurdity of such a proceedure, which would, if every generation had followed it, have left nations in the hands of a king, wielding a rod for a sceptre, and applying it perhaps in the same manner, as did the first British father to his refractory children. It was not by following this line of conduct that they gained the Magna Charta, the Bill of Rights, the Habeas Corpus Act.
That there are cases where the death of the offender is necessary, is not what we mean to deny—Murder is a crime so heinous, so horrible, and one so above the reach of any other punishment that we think in this case, death necessarily should follow death. Some, however, have doubted, amongst others Beccaria, whether we should not inflict death in the case of conspiracy against the country and in the case of rebellion. This case at first seems to admit of doubt. It is said that the welfare of a whole nation depending on the stability of its government, and that an attempt to disturb it not injuring one but many, should induce us to inflict death, in order to deter others more quickly; thus cruelty to one being indeed mercy to the many whom it deters, and proving the welfare of all whom it saves. In cases of anarchy, in cases where all law is laid aside and the appeal is made only to the sword; there, as right and wrong have indeed nothing to do with the question, we cannot pretend to talk of the right of death—since no right is acknowledged but in cases, where the laws yet have sway. Where the sovereign yet rules over a willing people, we think that death would be useless and hence unjust; for would not perpetual imprisonment answer every purpose, if the majority of the nation was against the disturber of its peace? and if it was not so, it would not be the decapitation of one or many, that would fulfil the purpose of the weaker side.
