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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 oue-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

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knows to be popular with certain classes of the community. Such unhallowed influences have played their part before now in the work of legislation. Such miserable mountebanks have climbed up into high places and pretended to utter in the ears of a nation truth that had been sought in the patience and earnestness of love, when they have really had in mind only the advancement of their own private interests. The public can receive no valuable instruction from such men; for though, through a fortunate combination of the public good with their private aims, it should happen that their teachings, in some particular case are true, they will be wanting in the simple sincerity which marks those who only are qualified to teach, who in searching after truth have waited at the posts of her doors, and watched long at her temple gates. But the want of this sincerity may arise from other causes than dishonesty, and we are glad to believe that in Mr. O'Sullivan it has a different origin. He may belong to that class of men who seem to labour under an infirmity of mind, natural or acquired, which disqualifies them from seeing more than a small part of any subject at His temperament may be such as to place his reason too much under the command of his feelings. The weakness of compassion may have led him to shrink from the idea of putting a man to death even for the most horrid crime. Under the influence of this feeling he may have taken up the belief that it was wrong for human justice ever to become the minister of death, and then tasked the talent which he evidently possesses to defend this belief. But whatever may be the cause, the incompetency of any man to discuss and decide great questions in jurisprudence or morals, is evident the moment that he makes it manifest that the belief which he avows and inculcates rests upon other grounds than the truth, the whole truth, and nothing but the truth. Mr. O'Sullivan's opinion is for this reason deprived of all weight as authority. His arguments do not furnish, in all respects, the true reasons for his own belief; inasmuch as it is impossible for any man to cherish the reverence which he professes to entertain for the sacred writings as a revelation from God, and at the same time look upon the Hebrew code as the work of Moses aided by his pagan father-in-law, Jethro; or to believe that imprisonment for life should be substituted for the punishment of death, because being more mild it is more in accordance with the benevolent spirit of Christianity, and being more severe it will

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