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keep pace with our intelligence. Let learning and religion go ever hand in hand; and the works of the Creator be always employed to illustrate and extend the glory of the Redeemer.
ART. VII.-1. Report relating to Capital Punishment, presented to the House of Representatives of the Commonwealth of Massachusetts, Feb. 22d, 1836. pp. 96. Svo.
2. Report on Capital Punishment, presented to the Assembly of the State of New York, April 14, 1841. pp. 164. 8vo.
THE subject of criminal jurisprudence has, of late years, attracted much attention, and the effect has been a gradual amelioration of the penal codes of most civilized nations. Were it our task to unfold the causes which have conspired to produce this favourable change, we should certainly name as the very last and least among them all, that which Mr. Rantoul, the author of the Massachusetts Report, places first, the influence of Jeremy Bentham. So long as we believe that men are possessed of a moral nature, that in its workings makes them acquainted with pleasures and pains of a higher order than the gratifications of the palate or the pinchings of cold or hunger, we never can be persuaded that Benthamism can be the means of any extensive or enduring benefit to mankind. It would be such a miracle as might almost compel us into blank scepticism, if a philosophy of the lowest and shallowest order, that contemplates man only as the first of animals, and the universe only as the largest and best of machines, should supply such truths, motives and means, as would suffice for the substantial improvement and elevation of the human race. Whenever we are satisfied that this has actually occurred we shall deem it a fact sufficiently startling to lead us to examine, anew, the nature of man, and the character of the truths by which he is to live. In the mean time we shall remain in the belief that any wise and beneficent provision for the interests of men, must be derived from some higher source than a philosophy that is adequate in its legitimate scope, only to the care of cattle.
Our object, however, is not now to trace the true causes of the reformation which criminal jurisprudence has undergone, but simply to mark the fact. This reformation has been more extensive and striking in England than in any other country. The criminal code of England, as it stood thirty years ago, attached the punishment of death to more than two hundred different offences, many of which were of a comparatively trivial character. Thus it was a capital felony to steal property to the value of five shillings privately from a shop, or to the value of forty shillings from a dwelling house, to steal to the amount of forty shillings on any navigable river, to steal privily from the person, or to steal from any bleaching ground in England or Ireland. A still more sanguinary act, passed under the reign of Elizabeth, made it a capital offence for any person, above the age of fourteen, to associate for a month with gypsies. The latest instance of the execution of this last act, was under the reign of Charles I.; though Lord Hale mentions that as many as thirteen persons had, within his time, suffered death under it, at a single assize. When these severe statutes were enacted, it was doubtless intended that their penalties should be faithfully executed, as no sensible men would ever make laws without the design of carrying them into effect. But as the exigencies of commerce, trade, or manufactures, which had seemed to call for this bloody protection passed away, or as experience demonstrated the inexpediency of so sanguinary a code, and an enlightened public sentiment revolted from its cruelty, its provisions fell gradually into disuse. Under the reign of Henry VIII. Hollinshed states that not less than two thousand persons perished annually under the hands of the executioner. But during the seven years, from 1802 to 1809, the average number of executions for each year was only nine and a half; and these were chiefly for the gravest offences. During this same period eighteen hundred and seventy-two persons were committed to Newgate, for privately stealing in shops and dwelling houses, but of this whole number, only one was executed. The evidence of these and like facts, would be conclusive to any American mind, that the English system of penal law, interpreted according to the intention of its founders, had become obsolete. But it affords a curious illustration of the conservative tenacity with which English politicians clung, more a few years since than now, to the institutions of their ancestors, that
whenever it was proposed to amend their criminal laws by the light which experience had shed upon their operation, their very blunders were forthwith praised as excellencies. Thus Paley exalts the wisdom which had planned a penal code by which severe punishments are denounced, while, in the great majority of cases, only mild ones are inflicted. And when Sir Samuel Romilly commenced, in 1807, his efforts to reform the criminal code, by removing sundry minor offences from the list of capital felonies, where they remained for no other purpose than to illustrate the "wise provision of our ancestors," by which they had affixed to certain crimes a penalty which, in the altered state of society, it was deemed expedient never to inflict, he was visited with abundant reproach, and denounced as a rash and daring innovator who was seeking nothing less than the destruction of the entire system of English jurisprudence. This profound jurist, by the most untiring efforts, protracted through several successive sessions of Parliament, was able to carry only three of the bills which he introduced, by which the acts were repealed which inflicted the punishment of death upon persons stealing privily from the person, stealing from bleaching grounds, and stealing to the amount of forty shillings on navigable rivers. But in 1837, such has been the influence of the movement party in England, bills were brought into Parliament, and carried through without difficulty, by which the punishment of death was removed at once from about two hundred offences, leaving it applicable only to some aggravated forms of burglary and robbery-arson, with danger to life-rape-high treasonand murder and attempts to murder. By a subsequent act, the crime of rape was taken out of the list of capital offences, leaving the criminal law of England, so far as the punishment of death is concerned, in as mild a form as it bears in most countries.
In our own country the only offences that are punishable with death, in the great majority of the states are treason and murder; and as treason against a particular state is a crime that cannot well be committed so long as our present national compact survives, the punishment of death may be considered as practically attaching only to murder. The wilful and malicious destruction of human life, the greatest crime which man can commit against his fellow man, is distinguished, as it ought to be, from every other crime, by the direst penalty known to the law. No one will deny
that the severest punishment which it would be right or expedient for society to inflict for any offence, should be appropriated to this greatest of all offences. But the question has been raised, both in England and in many of our own States, whether society have the right in any case to take away human life, or whether having the right, some punishment milder, and equally efficacious, might not be substituted for this dread resort. Scarcely a year passes in which petitions are not sent in to some of our legislatures, praying for the abolition of capital punishment; and of late the friends of this proposed change in our penal laws seem to have been specially active. Their efforts have produced so much effect that it is plainly incumbent upon those who are opposed to the innovation, to state and vindicate their dissent.
In canvassing the arguments of the advocates for the repeal of capital punishment, we shall confine the discussion to the case of murder. Whatever doubt may exist as to the expediency of punishing any other crimes with death, we have no doubt that it is both the right and the duty of society, to accept of no price, to make no commutation for the life of the murderer. The strength of this conviction has not been, in the least degree, impaired, by a dispassionate consideration of the reasonings contained in the two reports to the legislatures of Massachusetts and New York, both of which advocate strenuously the entire abolition of capital punishment.
Neither of these reports contains any facts or arguments which would afford much food for thought to one who had previously read Mr. Livingston's report on the same subject to the legislature of Louisiana, in which the same views are advocated; nor would either of them commend itself by its style and manner to a truth-seeking spirit. They display more of the anxiety and heat of the special pleader, than of the calm fairness of the earnest inquirer after truth. There is in both of them, but more especially in Mr. O'Sullivan's report to the New York legislature, a confident array of mere plausibilities and an anxious grasping after every thing which can be made to wear the semblance of aid to his cause, which indicate too plainly the interested advocate of a foregone conclusion. If the efficacy of the punishment of death as an example to deter others from the commission of crime is to be impeached, Mr. O'Sullivan finds no difficulty in proving that solitary imprisonment for life is really
a more dreadful punishment than death; but this does not hinder him in another part of his argument from advocating the abolition of capital punishment on the ground of its needless severity. If a remote fact lying far back upon the very borders of the deluge seems to lend him any countenance he presses it at once into his service without inquiring into its accuracy, or properly considering its relevancy to the case in hand. There is an utter want of that kind of guarded and cautious statement which ought to mark the reasons for an impartial judgment formed from a comprehensive survey of the whole question. We are persuaded that no one can read his essay without feeling as if he were listening to the intemperate and one-sided argument of a hired advocate, rather than to the candid summing up of a judge. It is not in this temper or with this spirit that great questions in jurisprudence should be approached. It is not in the exercise of such gifts as these that they can be adequately discussed, or wisely settled. He who undertakes to give utterance through the solemn voice of law, to the sentiment of justice upon a question which affects most deeply the interests of a wide community, should make it evident that he feels himself engaged in a work too sacred to admit of that kind of trifling with truth which might be tolerated in defence of a client upon trial. He who would innovate upon an institution, established in all lands and perpetuated through all ages, may be fairly expected to show his competency for the task, by that high bearing which, resulting from consciousness of well considered aims, and the dispassionate conviction of truth, cannot subsist for a momeut in connexion with the evasions and subtleties of sophistical argument.
We are persuaded that Mr. O'Sullivan has greatly underrated the intelligence and moral sense of the community, if he supposes that an argument upon one of the gravest questions that can come before a legislative body, can maintain at one time the gratuitous cruelty of a punishment, and at another dwell upon the greater severity of the proposed substitute, without at once divesting its author's opinions of all influence with thinking men. Such inconsistency does not entitle us to charge him with dishonesty. We cannot rightfully infer that he is defending a conclusion which he kuows to be wrong; or that without caring whether it is right or wrong, he is secking to make for himself political capital, by espousing and advocating an opinion which he
VOL. XIV.NO. II.