the act of his own consent or free will; that it usurps the prerogative of heaven. Stretch the principle a little further, and allow us to ask in return, whether any villain ever gave up of his own free will the right to imprison him, or to confiscate his property; and the argument, thus carried to its full extent, annihilates every species of punishment. But the laws, the government, do not ask his consent. Their only query is, does the safety of the public call for a capital sentence: if it does, they pronounce it; if it does not, his life is spared. This notion of compact has already been treated at such length, as to supersede further comment. What bearing religion has upon the question, will be subsequently considered. It is also asserted, that the fear of death will not stop the man of desperate passions, that the hardened ruffian is deterred by no penalty in prospect. There are undoubtedly some men whose career of diabolical crime is arrested by no terrors, but the mass of mankind have different feelings, and it is upon that mass that the laws are designed to operate. But the frequent infliction of capital punishment, it is said, takes away their influence; and to attach death to the perpetration of numerous offenses, which are of secondary enormity, levels all distinctions of criminality. Very true, and therefore inflict the penalty upon two or three crimes at most, and the evil is avoided. But imprisonment for life is a more frightful evil in prospect than death, the suffering of a moment only. This we dedeny, and we appeal for confirmation to the universal sentiment of mankind. But innocent men are sometimes condemned, and there is no restoring power to call back the lives which have been thus. legally sacrificed. Is it not better then that ten or a hundred guilty persons should escape than that one innocent man should suffer? Innocent men, we reply, have at times been executed without question, and it is also without question that, in every country where law is properly administered, the fact has been exceedingly rare. More lives are destroyed by intemperance in the United States during a single month, more were destroyed in each of our serious engagements during our late war with Great Britain, than all the lives of innocent men which have been taken away by the impartial sentence of law in our country from its first settlement, and than all in addition that will thus be taken away, for ten centuries to come. But swell the evil to the utmost verge of probability, it is still far less an evil that one innocent man should thus suffer, than that the ten or the fifty murders should be perpetrated in consequence of the abolition of capital punishments, which are now prevented; and such we solemnly insist would be the fact. When an innocent man has thus suffered, all that can be said is, that Providence has seen fit to take away, by a painful and disgraceful exit, one, whom a few years more would have necessarily carried to the tomb; but abolish the punishment, and you sacrifice to a moral certainty many,

very many valuable lives, that would otherwise be spared to the community. The truth is, that many of the arguments against capital punishments derive their force from evils incident to very different states of society from our own; and the strong coloring of imagination, the impulse of a sickly compassion, are introduced to dazzle and beguile. Death in its very nature is an evil, and its infliction by the sentence of the law is a solemn and awful spectacle, but in this, as well as in all other questions of legal and moral philosophy, the calm decisions of the judgment, not the wanderings of fancy or passion, are to be our guide. When we are told then of the thousands who have been victims to arbitrary judges, who have been murdered by legal violence in times when popular frenzy or regal oppression has governed the tribunals; what bearing, we ask, have such examples upon the polity of our own country? Here crimes are clearly and precisely defined, punishments are mild, justice holds an impartial balance, law is enacted by a fair representation of the people, and neither oppression nor violence can affect the tribunals. The slightest interference of a co-ordinate department with the judiciary, would shake the country to its center; and popular commotion, the only species of excitement to be dreaded in our republic, will not be felt in the sanctuaries of law. When we are told again of the eighty or the hundred crimes which are made capital in England, and which involve him, who cuts down a hop-band or steals a piece of calico from the manufactory, in the same fate with the parricide and the traitor; we ask again, why cite these bloody statutes, as affecting the criminal codes of the United States? The humane legislation of our different states abhors such prodigality of human life. In all of our statute books, but few offenses are rendered capital; in many, but two or three; and in some, but one. When we are also informed how depraving and hardening is the frequent spectacle of executions, how soon,when thus inflicted, they lose most of their terrors; we answer, the remark is undoubtedly just, but why apply it to a state of society where executions are rare, where they are attended with all the solemnity and order that belong to them, and where their actual effect is the proper effect? When we are informed once more, that juries become compassionate to the criminal, and that thus crime escapes unpunished from their reluctance to expose him to the sentence of death; we reply once more, that in most cases juries will do their duty, and that the danger of occasional impunity to the guilty ought not to make the lives of the community less secure. If we are told in fine, that, admitting these considerations to be in whole or in part inapplicable to the present state of our country and of its laws, still the time may come when the sanguinary legislation and the corrupt institutions and policy of Europe may cross the Atlantic; we answer in fine, that we are legislating for ourselves, that pos

terity are perfectly competent to take care of their own interests, and that no one who deserves the name of a statesman, will abandon his own age or country to devise a penal code for distant lands or future ages.

The direct argument that capital punishments are in certain cases lawful and expedient, receives no small support from the fact that the almost universal opinion of wise men and legislators has thus pronounced them. Where a question in ethics is plainly decided, or where the preponderance of one scale is very strong, there the argumentum ad verecundiam is introduced to turn the scale with but little effect. But where the balance is in equipoise, and such we submit to be the case after the notice that has been taken of preceding objections, the concurrence of the great mass of enlightened philosophers and statesmen has very great weight. This vast majority are advocates for the occasional infliction of the penalty of death. In modern times, in diverse countries, in the age of wisdom and humanity, after the experience of many centuries, where neither power nor bribe can stifle the investigation or the discovery of truth, in a word in all those circumstances which conduce to a just decision of the question, these advocates have maintained the affirmative. Change if you can the condition and texture of society, make social man the inhabitant of some visionary sphere where his passions and propensities shall be conformable to his new residence, and then we admit that all these opinions, all this legislation, shall go for nothing; but while man is what he is, is it the part of reason, of policy, to disregard them? On all other subjects, we at once acknowledge the force of this consideration, and there is no reason why we should here refuse.

The common consent, the instinctive sentiment of civilized men, has also, if we mistake not, recognized the fitness of punishing at least one offense with death. The voice of mankind proclaims that the murderer should be deprived of his life. Human life is not only the greatest of blessings, but it is the gift of heaven which comprehends all other gifts, and whatever threatens its continuance is instinctively regarded as the most terrible of dangers. Men seem every where to admit, without the aid of argument or persuasion, that the homicide is the common enemy of his race, and that their own safety demands that he should be rendered incapable of repeating his crime. Upon his forehead, his fellow men behold the same brand that was fixed upon the forehead of Cain, but it affords no such special exemption, as Providence saw fit to extend to the first murderer; its sentence is only that, which Cain pronounced as his own natural and necessary doom. His crime has at once by its very nature made him an outcast from his species, has shorn him as a deadly excresence from the body of society, and has thus anticipated the penalty, which almost every

criminal code awards as his desert. Now it is not too much to assert, that this natural judgment of the mind, this sentence which the impartial voice of reason and of conscience pronounces from their inmost tribunal, ought to be regarded as right and fit in itself; as lending a solemn sanction in principle, to what civilized nations have decreed in fact. If this common consent had been as strongly given against the expediency or the lawfulness of the punishment, in the case specified, should we deem it proper to reject it as a nullity? Is it then proper to reject it, when declaring the punishment to be expedient and lawful?"

In our preceding remarks we have endeavored to support the position that the cardinal object of law is the welfare of society, and that the agency of penal law in promoting this welfare is exerted in the prevention of crime. Applying this principle to the point now in question, we maintain, that no punishment is so effectual to prevent the commission of crime in certain cases as death. As life is the sum of all good, so death-the extinction of life, is the consummation of all evil. Whatever tends to prolong or secure the former, is instinctively welcomed as the greatest of benefits: whatever announces the approach of the latter, is as instinctively shunned as the direst calamity. An attempt to prove the universal existence of such feelings would be an attempt to prove the existence of what is taught us by our intuitive perceptions, and would only merit the ridicule it would be sure to receive. In the savage and the philosopher, in the child alike with him who totters over the grave, in the villain as well as the most virtuous of men, in either sex and in every character and condition alike, the pulsations of nature beat in perfect accordance, the language of the heart is precisely the same. Nor is it the instinct of intelligent beings only. What other explanation shall be given of that mysterious dread of death which is found throughout the brute creation; of the tenacity with which the animal clings to existence, and the ferocity with which it defends it? In the humblest as well as in the loftiest rank of animated being, we learn the uniform decree of Providence, that life is the choicest of his blessings, and selfpreservation the strongest and most natural of propensities. Acting upon these principles as admitted at once and by all, the penal codes of almost every ancient and modern nation have attached a capital punishment to certain offenses; and this legislation speaks another doctrine equally just, that those men, who are in danger of perpetrating crime, are the most sensible to the fear of death. "If there be any thing that shakes the soul of a confirmed villain, it is the expectation of approaching death."* There are persons without question, whom physical and moral temperament, or the force

of controlling circumstances have enabled to overcome this spontaneous dread; but they are not often to be found among villains, nor among those whom the sword of law only deters from becoming villains. It is in a far different class, among men of high moral energy, men of keen and honorable sensibility, men whose hopes have been overwhelmed and swept away by the resistless current of calamity; and not among those, who are hardened by groveling appetites and coarse sensations against all fear but that of near and physical sufering. Threaten the latter class with perpetual imprisonment, as the sentence of their guilt, and you speak a language which they cannot understand. The distant and protracted future, the existence slowly vanishing away within the walls of a prison, is to them an unreal existence; its infamy has no terrors, its pains no reality. But show them death and the gibbet, where the present evil stares them full in the face with all its collected horrors, and they turn pale at the sight of any thing that can make them pale, they shrink from crime if any thing can make them recoil. Offer to such men when under sentence of death, confinement for life in the most frightful of dungeons as a commutation, and they shrink back at once from the precipice; they welcome, and they ever will welcome with alacrity, the substitution.

But to all that has been advanced in illustration of the lawfulness of capital punishments, there is a numerous class who thus reply. We concede the force of the argument, and if it were a question submitted to earthly legislation, we should wave our opposition. But the right to take away life for any offense has not been granted to human tribunals by the Deity; and, if it was once granted, it has long since been resumed. The precepts of Christ, the whole scope and spirit of the New Testament, which are the only guide for modern lawgivers, clearly prohibit the infliction of the penalty. Let us look then at the bearing of religion upon the argument.

The only modes in which the will of God can be ascertained by men, upon this as well as upon all other subjects, are by the dictates of reason, or by a direct communication of his pleasure-in other words, by revelation. We have already noticed the suggestions of reason. Before inquiring what is the light furnished by the scriptures upon this matter, it is proper to make a preliminary observation. If God has not only explicitly justified, but required the forfeiture of life as a penalty, by a precept embracing the human race in its obligation; then the repeal of the precept must be equally explicit and comprehensive, to vindicate the abolition of the penalty. What then is the precept? As soon as the last waves of the deluge had

- Swift's Digest, Article, Criminal Law.