over himſelf or others. Which has occaſioned ſome to doubt, how far a human legiſlature ought to inflict capital puniſhments for poſitive offences ; offences againſt the municipal law only, and not againſt the law of nature ; ſince no individual has, naturally, a power of inflicting death upon himſelf or others for actions in themſelves indifferent. With regard to offences mala in ſe, capital puniſhments are in ſome inſtances inflicted by the immediate command of God himſelf to all mankind ; as, in the caſe of murder, by the precept delivered to Noah, their common anceſtor and repreſentative[1], “ whoſo ſheddeth man's blood, by man ſhall his blood be ſhed. ” In other inſtances they are inflicted after the example of the creator, in his poſitive code of laws for the regulation of the Jewiſh republic ; as in the caſe of the crime againſt nature. But they are ſometimes inflicted without ſuch expreſs warrant or example, at the will and diſcretion of the human legiſlature ; as for forgery, for theft, and ſometimes for offences of a lighter kind. Of theſe we are principally to ſpeak : as theſe crimes are, none of them, offences againſt natural, but only againſt ſocial, rights ; not even theft itſelf, unleſs it be accompanied with violence to one's houſe or perſon : all others being an infringement of that right of property, which, as we have formerly ſeen[2], owes it's origin not to the law of nature, but merely to civil ſociety.
The practice of inflicting capital puniſhments, for offences of human inſtitution, is thus juſtified by that great and good man, ſir Matthew Hale[3] : “ when offences grow enormous, frequent, and dangerous to a kingdom or ſtate, deſtructive or highly pernicious to civil ſocieties, and to the great inſecurity and danger of the kingdom or it's inhabitants, ſevere puniſhment and even death itſelf is neceſſary to be annexed to laws in many caſes by the prudence of lawgivers. ” It is therefore the enormity, or dangerous tendency, of the crime, that alone can warrant any earthly legiſlature in putting him to death that
