1847.] Construction of qui, quamquam, etc. 433 is followed by the subjunctive. If, in the second place, it expresses inquiry for the reason or occasion of a thing, in which case it is often changed into quid est cur, or quid est quamobrem, the subjunctive likewise follows. It would be unnecessary to cite examples which everywhere occur. § 563. The example, sunt enim permulti optimi viri, qui valetudinis caussa in his locis conveniunt, where the author, by a slip of the memory, has substituted in his locis conveniunt for in haec loca veniunt, Cic. ad Famm. IX. 14. 1, is in direct contradiction to the teaching of our author respecting the construction of convenire in locis $489. The statement should therefore be altered. 564. The subjunctive also follows qui when it has the signification although, in which case tamen follows very often. Cf. Cic. de Orat. I. 32. 145: quin etiam, quae maxime propria essent maturae tamen his ipsis artem adhiberi videram; Ibid. I. 18. 82: V. Matthiae ad Cic. pro Rosc. Amer. VIII. 23. 568. The construction which follows dignus and indignus depends entirely on the sense. So quod follows, Cic. pro Rosc. Amer. L. 147: nisi hoc indignum putas, quod vestitum sedere in judicio vides; so the Acc. c. Infin. also in the same, III. 8: sum vel hoc indignissimum est, vos idoneos habitos. Also in Verr. II. 24. 58; Cic. pro leg. Man. XIX. 57, and in other places. Eximius qui is construed like dignus qui in Cic. Div. in Caec. XVI. 52: te illi unum eximum, cui consuleret, fuisse. 574. Quamquam with the subjunctive is very frequent in Cicero if one regard merely the words without searching for the reasons. Cf. de Orat. III. 26. 101: quamquam illa ipsa exclamatio-sit velim crebra; pro Planc. XXII. 53: quamquam ne id quidem suspicionem coitionis habuerit; pro Sext. XXX. 64: quamquam quis audiret? —in Vatin. XIV. 33: quamquam id ipsum esset novum; pro Mil. XXXIII. 90: quamquam esset miserum, and in many other places. As the mood does not depend upon the conjunction, but rather the conjunction upon the mood; quamquam stands with the subjunctive if the sentence requires the subjunctive irrespective of quamquam. But grammarians do best where they make the manner of thinking and of expressing thought prevailing with a people their rule and standard. § 575. It should have been remarked, that donec with Cicero is exceeding rare. It is nowhere found in Caesar. Our author should have noticed this distinction according to his usual custom. 579. Rem. The distinction between the conjunctions quum and si appears quite manifest in Cic. pro Rosc. Amer. XXXV. 100: Si prodierit atque adeo quum prodierit (scio enim proditurum esse), audiet. § 590. It would seem from this paragraph as if satis est and satis habeo occur with the infinitive perfect only in the silver age. This is however not true. Cf. Cic. de Inven. I. 20. 28: quia satis fuit dixisse, and a little before, si cujus rei satis erit dixisse, and else where. Still it is not frequent in Cicero. § 599. Rem. Here it should have been remarked that the historical infinitive of the passive is exceedingly rare. Although Sallust delighted in this construction, as our author rightly observes, yet the passive with him occurs only in the following few places: Cat. XXVIL (fatigari); Jug. XXX. (agitari); Ibid. LX. (ferri); Ibid. LXXXIII. (trahi). § 607. There are some other interesting examples of the personal construction of several verbs in the passive voice. Cic. pro Sext. LIV. 95: hic accusare eum non est situs. Rem. We may still ask, how dicitur is to be construed when it is not translated by, he is said, but by, it is asserted, or in a similar way. Cf. Cic. de Finn. III. 18. 60: Sed quum ab his omnia proficiscantur officia, non sine caussa dicitur ad ea referri omnes nostras cogitationes, and with a proleptic demonstrative pronoun, Cic. de Finn. V. 24. 72: Atque hoc ut vere dicitur, parva esse ad beate vivendum momenta ista corporis commodorum, sic-; in Verr. IV. 18. 38: De hoc (Diodoro) Verri dicitur, habere eum perbona toreumata. Dicitur must always be followed by an accusative before an infinitive, if a dative is connected with it. De Orat. I. 33. 150: Vere etiam illud dicitur, perverse dicere homines perverse dicendo facillime consequi; pro Mil. V. 12: Sequitur illud, quod a Milonis amicis saepissime dicitur, caedem-senatum judicasse contra rempublicam esse factam, although the accusative before the infinitive is here to be considered as depending on sequitur. The nominative before the infinitive, after dicitur, is also to be found, e. g. in Cic. pro Sext. XVII 39: C. Caesarinimicissimus esse meae saluti ab eodem quotidianis concionibus dicebatur. Here two passages may be given containing compound tenses. Cic. Orat. IX. 29: qui-ab Aristophane poëta fulgere dictus esset, and Ibid. IX. 27: ii sunt existimandi Attice dicere. § 612. In the sentence, non vales, non audes esse uxor, the unclassical vales should be stricken out. Moreover nescire fre quently occurs thus with Cicero, as we may learn from § 610. Cf. pro Mil. XXII. 75: nescis inimici factum reprehendere. So 1847.] Capital Punishment. 435 also scire, e. g. de Orat. II. 22. 91: sed tamen ille nec deligere scivit; and discere, e. g. de Orat. II. 16. 70: etiamsi haec nunquam separatim facere didicisset, and perdiscere; Ibid. 69: qui hominis figuram pingere perdidicerit. An example of a peculiar use of an infinitive after possum may here be mentioned. Cic. pro Caecina XVII. 50: Potest pulsus, fugatus, ejectus denique; illud vero nullo modo potest, dejectus esse quisquam. This whole passage after the proleptic illud is very peculiar. 613. Cupio is not followed by ut in Cicero. Here also belongs cogito in this sense. Cf. Sic. pro Sext. XXXVIII. 81: siquidem liberi esse cogitaretis; Ibid. 82: ut-Graecum illum suum-occidere cogitarint; pro Mil. XX. 53: qui ipsius loci spe facere impetum cogitarat. Various peculiarities might be mentioned here, but we must limit ourselves to the citation of one passage which renders the distinction of the different constructions after concedere very clear. Cic. pro Rosc. Amer. XIX. 54: Verum concedo, ut ea praetereas, quae, quum taces, nulla esse concedis. 614. Nihil antiquius habeo is followed by the infinitive in Cic. ad Famm. XII. 29. 3: Nihil ei fuisset antiquius, quam ad Capitonem-reverti. 615. Rem. Suadeo with the accusative before the infinitive is found in Cic. pro Arch. VI. 14; pro Caecina V. 10; with the infinitive only de Finn. II. 29. 95: thus admonere in Verr. I. 24; monere de Finn. I. 20. 66. [To be concluded.] ARTICLE II. CAPITAL PUNISHMENT. By Daniel R. Goodwin, Professor of Languages, Bowdoin College, Brunswick, Me. [Concluded, from No. XIV. p. 323.] [It is due to the writer of this Article, and to the readers of the Bibliotheca, to say, that the whole of the Essay was prepared some months before the publication of the former part, and for a destination quite different from its appearance in this Review. If therefore the following portion should seem when taken by itself, to wear too much of a political aspect, we trust it will be excused, partly for the sake of this apology, and partly for the sake of its connection with the more strictly Theological portion which has preceded it. We have not thought it best altogether to omit the portion which follows, because, although considered in relation to the general principles involved, the former part of the discussion is by far the most fundamental and important; yet, considered in practical connection with the particular question in hand, we cannot help regarding the branch of that question discussed in this latter part, viz. the point of expediency, as really containing the substantial and decisive portion of the whole argument to all men of impartial minds and plain common sense.] Before proceeding to the argument from expediency, we will first dispose of a few miscellaneous objections which have not fallen directly in our way in the foregoing investigation of the question of right. Capital punishment is wrong because the in nocent are sometimes executed." If innocent men have been recklessly executed, whenever and wherever it may have been done, we shall be the last to say one word in extenuation of the deed. The wilful execution or procurement of an unrighteous sentence of death, knowing it to be such, we hold, of course to be murder, and murder of the most atrocious die. It adds to the common enormity of the crime the character of a treacherous and nefarious attempt against the mo ral basis on which the whole fabric of human society reposes. Hence the Jews are properly stigmatized in the New Testament as the murderers of our Lord; although his crucifixion took place according to all the forms of law. Further, we maintain that all possible precaution against error ought to be taken in capital cases; and a capital sentence never passed or executed so long as there is any reasonable doubt of the guilt of the accused.1 1 By "reasonable doubt of guilt" we do not mean mere uncertainty, for absolute certainty is not to be expected; we mean a reasonable ground for be lieving that the innocence of the accused is not altogether improbable. "La certezza, morale non è che una probabilità, ma probabilità tale che è chiamata certezza, perchè ogni uomo di buon senso vi acconsente necessariamente per una consuetudine nata dalla necessità di agire, ed anteriore ad ogni speculazione. La certezza che si richiede per accertare un uomo reo è dunque quella che determina ogni uomo nelle operazioni più importanti della vita. Ma questa morale certezza di prove è più facile il sentirla che l'esattamente definirla."-Beccaria; dè delitti e delle pene; sez. 14. 1847.] Abuses of the right of Punishment. 437 All cases of unjust executions whose occasion falls under these two heads, viz. false testimony or want of due caution in weighing the evidence, are cases of abuse. They prove nothing at all in regard to the right, except that, like all other rights, it may be abused. Other cases, if there are any, which do not fall under either of these two heads, are to be ascribed to the necessary fallibility of human judgments; and, if they prove that therefore, there is no right to inflict capital punishment upon the murderer, they prove that there is no right to inflict any punishment or in any way to administer legal remedies, until human justice can be raised above all liability to human error. It cannot be denied that more caution, as a matter of fact, is taken in capital cases, than in any other, whether civil or criminal; so much so, that the exceeding difficulty of obtaining a conviction for murder is constantly urged against the expediency of capital punishment by its assailants. Let them agree upon their indictment. They have busied themselves of late most strenuously in making up all the cases that can be discovered or surmised of unjust executions for whatever crime and arising from whatever cause, and are apparently endeavoring to make the world believe it the ordinary rule that no sooner does a capital trial come on than, by some inexplicable fatality, both judges and jury are seized with such a headlong desire to hang somebody, anybody but the right man, that they always convict the innocent and acquit the guilty.1 The cases of injustice which they allege are depicted in the most glowing colors and form a great part of the staple of most of their essays on this subject, interspersed here and there as the spice and spirit of the whole. But such things are addressed to men's feelings and imagination much more than to their reason; and would be appropriately answered by frequent pictures of horrible murders and massacres. Let them sift their cases and see how many of them are cases of real, unavoidable error; and then let them show that a liability to error in this case invalidates the 1 We have heard a good woman urge it as a personal objection to capital punishment, that she lived in bodily fear of being one day hung in her innocence. People commonly think it more important to be protected from being murdered, as the greater danger of the two. Montesquieu has well said: "C'est mal raisonner contre la religion [on toute autre chose,] de rassembler, dans un grand ouvrage, une longue énumération des maux qu'elle a produits, si l'on ne fait de même celle des biens qu'elle a faits. Si je voulais raconter tous les maux qu'ont produits dans le monde les loix civiles, la monarchie, le gouvernement républicain, je dirais des choses effroyables."-Esprit des loix. Liv. XXIV. ch. 2. |