clusively to this branch of our criminal jurisprudence: and, as the punishment of death is now happily confined to the crime of murder, we will limit our argument accordingly.

When Draco was asked why he had adjudged the punishment of death to minor offences, he answered, that the smallest of them deserved death and that he had no severer punishment for the largest. Of late years the British statute-book has been cleared of those enactments which rendered it so analagous to the code of the Athenian legislator; but, in the system of capital punishment for murder, the retributive theory still continues in force. The disposal of human life being a manifest interference with the divine prerogative, it is not surprising that a Christian legislature should seek to justify it by an appeal to Scripture. With reference to the infliction of capital punishment for murder, the text which is solely and universally cited is, the divine declaration to Noah, "Whoso sheddeth man's blood by man shall his blood be shed." But, in considering the application of this passage, we should bear in mind, first, that, even supposing it to be an injunction, since it affects not the divine administration, but only human jurisdiction, the same law is not necessarily applicable to a population of eight souls and to a world of a thousand millions; secondly, that, if this supposed injunction is binding upon us, the other portions of this address are no less so such, for example, as the following," But flesh, with the life thereof, which is the blood thereof, shall ye not eat." But, thirdly, it is unnecessary to interpret the passage an injunction at all: it may properly be regarded as an instructive declaration, that deeds of violence will, in the natural course of things, be followed by a violent retaliation-a truth which the whole history of the world corroborates. In this view of the passage, the language of the Saviour, addressed to Peter, may be regarded as parallel, "Put up again thy sword into its place, for all they that take the sword shall perish with the sword."

But it is further argued that capital punishments were unquestionably ordained under the Jewish dispensation, and that this fact is conclusive against the abstract objection to them on which we intend to insist.

Against this we submit the following considerations. First, That if this argument proves anything, it proves too much, inasmuch as under that dispensation the punishment of death was inflicted for offences which would now, in the judgment of the most rigid, be amply expiated by a month's imprisonment.

Secondly, That the political system, to which our opponents appeal, was a theocracy-a system under which the Divine Being directly superintended and interfered with the secular regulation of his people. It will be obvious to every reader, that we should only weaken our argument by any illustration of the distinction which is interposed like an impassable chasm between the two cases.

The third suggestion we shall offer applies alike to the divine address to Noah and to what may be called the criminal jurisprudence of the Jewish dispensation. To this, and all future ages of the world, the New Testament is the guide of life. It is true that some of the precepts of non-resistance to injury, delivered by the Great Teacher, have been strained and warped from their original reference to Christians as such, and from their relation to the method by which a kingdom not of this

world was destined to be established in its midst, and ultimately to pervade it, and have been distorted into an unnatural application to the conduct of secular life, and to the duties of Christians as citizens and subjects. But, without falling into this error, it may safely be affirmed that the system of retributive justice, an eye for an eye, and a tooth for a tooth, is altogether repudiated by the Founder of the Christian religion that mercy is the twice blessed attribute of that benign and gracious system-and that human life, especially, is, under its auspices, fenced round with a sacred and inviolable barrier. The ancient dispensation was adapted to the infancy of mankind; hence it was in principle dogmatic, and, practically, if we may with reverence use the expression, it was arbitrary. The principles of the Christian dispensation are, on the contrary, distinctly enunciated, and one of its highest distinctions is, that it pays respect to the reason of mankind.

There is another respect in which an appeal to a past dispensation, by proving too much, defeats the cause it is designed to serve. For, under that dispensation, not only was all culpable homicide punished with death, but even the accidental destruction of human life involved the same penalty, unless the unfortunate author of the deed could escape from the avenger of blood, by taking sanctuary in one of the cities of refuge. Nothing can be more hostile to such a system as this, than the principles of the British criminal law. Its category of justifiable homicide is by no means a small one; while the perpetration of homicide by culpable negligence, in sudden anger, in duel, and other modes of personal conflict, is only visited with secondary punishment, under the mitigated designation of manslaughter. Until the homicide of the duellist and the pugilist is regarded and punished as murder, it is worse than futile to appeal to the language of ancient Scripture, which permits of no exception, but, if understood as a divine command, and of perpetual obligation, constitutes all homicide an offence which can only be expiated by blood.

But we will leave the religious aspect of this question, and invite attention to its moral and social bearings; and the first argument we will adduce against capital punishments is, that it is absurd in principle for a fallible tribunal to pass an irrevocable decree. It is but very rarely that the crime of murder is committed before innocent witnesses, and consequently the guilty party can only be ascertained by his own confession; otherwise, an approximation only to that result can be obtained by evidence of an indirect and circumstantial kind. Hence arises a fearful liability to mistake, owing to the fallibility alike of witnesses, jurors, and judge. In many cases, the witnesses are under the strongest motives to perjury, and, even where this is not the case, the darkness of night, the disguise and probable silence of the murderer, the frequent similarity of individuals, both in person and carriage, and the infinite diversity of accidents which make up circumstantial evidence, and which may frequently concentrate upon an innocent person, combine to present a frightful liability to error. The result of all this, in the not unfrequent execution of innocent persons, not only forms a subject so painful that the mind shrinks with horror from its contemplation, but is pregnant with various and collateral mischief. It throws discredit upon the law itself, and destroys all confidence in its administration. It alike

discourages prosecutors, witnesses, and jurors, from the prosecution of their duty, and plunges innocent men, with an almost wanton recklessness, amidst the possibilities of an awful and irrevocable destiny. It was publicly stated, a short time ago, by Sir Fitzroy Kelly, who, though a candid, is still a decided, opponent of the views we are advocating, that, in his experience at the bar, no fewer than twenty persons had been executed whose innocence of the crime for which they suffered was conclusively established when it was too late. In aggravation of this fact, it is painful to surmise that a much larger number may have perished on the scaffold during our own times, whose memory has never been vindicated by the discovery of the guilty party, in whose place they suffered. We have in our recollection an instance, which we have every reason to believe is a case in point. Within the last four or five years, a commercial traveller was executed at Taunton, for the murder of a gentleman, who was sleeping in the same hotel. The convicted man had previously borne an irreproachable character, and the evidence on which he was condemned was of a very indirect and doubtful kind. The unhappy man prepared himself for death with the most becoming humility and penitence, fully acknowledging his sinfulness and ill-desert, but most solemnly denying to his last breath the slightest privity to the crime for which he suffered. We have been informed by a very intelligent gentleman, who was also travelling on business, that for many weeks he heard this case daily discussed by many who had known the prisoner, and who had most minutely acquainted themselves, on the spot, with all the circumstances. He states, that, though he has heard hundreds of intelligent men state their opinions, not a doubt was ever expressed of the innocence of the convict, and of that fact we ourselves have never had the shadow of a misgiving.

This, we say, is not only a crime but an error; it is not only wicked, but absurd; inasmuch as there is no imaginable proportion between the perilous functions which the administrators of the law undertake, and the degree of sagacity and knowledge essential to their right performance. In the absence of these qualifications-qualifications which lie without the limits of the faculties of man-our highest criminal jurisprudence is a mere lottery of death. We have said that legal punishment has reference, not to the criminal himself, but to the interests of the community by whom the law is made and for whom it is administered. Were it otherwise, the punishment of death would bear a character of unmingled vindictiveness. To escape this charge, it is pretended that capital punishments are perpetuated from a consideration of their salutary influence on society at large. We believe, and shall endeavour to show, that in this point of view, also, the system is, at all points and utterly, indefensible. For, in the first place, one grand purpose of the administration of law is the reparation of injuries sustained. How is this effected by the execution of a murderer? Were he suffered to live, the compulsory labour of his life might afford some compensation to survivors for the injuries inflicted by his crime. The death of the criminal

is no compensation to the family; and, if the vengeance of the law afford them any gratification, it gratifies only a class of feelings, which are none the less vicious, because unhappily they are almost universal.

But it is still more important to consider the main argument of the

*

advocates of capital punishment, namely, that the terror of the penalty operates to prevent the repetition of the crime. We are thoroughly convinced that this position is falsified by the aggregate experience of the civilised world. Excessive severity of punishment has ever been the resort of cruel and arbitrary men. It prevails universally in those despotic states, whose governing principle is to uphold their sway by striking terror into the minds of their subjects. Yet all experience proves that the greatest severity is ineffectual. In those countries remarkable for the lenity of their laws, the inhabitants are as much affected by slight penalties as those in other countries are by severer punishments. Montesquieu remarks "Robberies on the highways were grown common in some countries. In order to remedy this evil, they invented the punishment of breaking on the wheel, the terror of which put a stop for a while to this mischievous practice. But soon after, robberies on the highways became as common as ever." Indeed, the same principle is laid down in our own statute-book, and in a part of it where even the keenest inquirer would think it scarcely worth while to seek it; for, in the statute of 1st Mary, cap i., we read-"That the state of every king consists more assuredly in the love of the subject towards their prince than in the dread of laws made with rigorous pains, and that laws made for the preservation of the commonwealth, without great penalties, are more often obeyed and kept than laws made with extreme punishments." This principle is corroborated by the unerring testimony of history. It has been truly observed, that frequency of executions in any country is generally followed by a proportionate increase of crimes of violence and blood. When the legislature lightly estimates human life, the people are apt to undervalue it. Laws of a vindictive character consecrate, as it were, the principle of revenge; and we cannot wonder that the more ignorant portion of the people emulate the example of the law, by the wanton or revengeful shedding of human blood. Laws of a mild character teach mildness to the people. Under such laws, the popular mind has not that practical education to deeds of violence which cruel examples produce. Revolutions are always most bloody in countries whose laws have most familiarised the people with spectacles of vengeance, and in every state the scaffold draws its victims from the brutalised crowds that surround it. This is so natural a result, that it might well have been anticipated. Even the most degraded of mankind have a natural and instinctive respect for the sanctity of human life. This, however, like every other good principle, may be deadened by habitual violation. The most humane members of the medical profession become, as the creatures of habit, insensible to the horror of the most fearful surgical operations; and it is hardly to be expected that those whose moral feelings are never cultivated at all, should frequently view the violent extinction of human life upon the scaffold, without coming to a habit of mind in which the guilt of murder and suicide is outweighed by considerations of gain, revenge, and despair. A Christian minister, now no more, informed the writer that he had attended upwards of sixty criminals in their last moments at the gallows, and that he had learned from all these men, with only one or two exceptions, that they had frequently witnessed executions

* "Morning Herald," 1835.

themselves. "The punishment of death," says the Marquis Beccaria, "is pernicious to society from the example of barbarity it affords. If the passions or the practice of war have taught men to shed the blood of their fellow-creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible, as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws which detest and punish homicide, should, in order to prevent murder, publicly COMMIT it themselves?"

Our argument receives further corroboration from the criminal statistics of those countries where the punishment of death has been abolished. In Belgium, for example, during the five years ending with 1804, 235 criminals.were executed for various crimes, and 150 persons were convicted of murder; while, under the more humane system, which obtained during the four years which ended with 1834-a period, let it be recollected, immediately succeeding the Belgian Revolution of 1830, during which the administration of justice had been considerably relaxed -not one execution took place, and the accusations of murder only amounted to 41, out of which the number of convictions are not mentioned in the returns now lying before us.

From these facts, then, we deduce the following conclusions: First, That the amount of capital crimes increases with the amount of capital punishments. Second, That the sanguinary system increases the temptation to crime by increasing the reluctance of the humane to prosecute, of witnesses to give conclusive evidence, of jurors to convict, and of judges to affirm the sentence of the law. And, thirdly, That where death punishments have been abolished crime has rapidly decreased.

That the faith of the legislature in the efficiency, and even in the propriety, of capital punishments, has ever been feeble and wavering, is shown by two constitutional provisions; and which is the more mischievous of the two, it would be difficult to determine. The one is the discretionary power permitted to judges, and the other the prerogative of pardon vested in the crown. The first of these, in proportion as it is exercised, obviously neutralises the advantages of the trial by jury. Under this arrangement, nothing is left to the jury but to decide upon the prisoner's guilt or innocence, while his life and liberty, and the interests of the public, in so far as they are involved in his punishment, lie at the caprice of an irresponsible individual. Who can tell how much the fate of many a man depends upon a twinge of the gout, or a fit of the spleen, in the judge? how much upon his natural humanity or severity of disposition?

Every assize furnishes proof of the folly of this system. The case of the Birds, acquitted, under the direction of Mr Justice Talfourd, of the slow murder of their servant-girl, in Devonshire, will be fresh in the recollection of every reader; and two other recent cases, in which this power has been somewhat strangely exercised by Mr Baron Alderson, one of the most learned judges on the bench, have probably attracted the notice of many beside ourselves. The first occurred on a trial for murder at Durham, in which the jury found the prisoner guilty, but recommended him to the mercy of the Crown. The judge inquired, as usual, the grounds of the recommendation, and was informed, in reply,