1. It is said, "It results from a right of self-preservation. If one attempts my life, I may protect myself, if necessary, by taking the life of the aggressor; and why may not society thus also protect itself?" I answer, when A. defends his own life against the attack of B., the danger to that life of A. is immediate, and it is his own life that he defends.-It admits of no delay; so, if society interposes between the parties in such a case, and finds it necessary to take B's life to preserve A's, the analogy is good. But who would tolerate the idea, that in a state of nature, when one had killed A's friend, and when the efforts of A. and the friend had been ineffectual to prevent it, still A. had a right to follow the slayer and take his life? Suppose a stronger case.--The law of nature between father and child is so imperative, that a father is excused in killing the assailant of his child. But suppose the child is dead, and the father hunts up the murderer and takes his life. Is this justification or revenge? And is not this the principle upon which societies act? Is the tie between society and its members, so much stronger as to justify the aggregate in measures, which amount to revenge if committed by the individual?

2. It is also said, "When the right of society is once admitted to punish for offences, it seems difficult to assign any limits to the exercise of that right."

We answer, it is not difficult to ascertain that limit. It is found in the origin of punishments. It is found in the want of power in men as a social community, to go further in punishing individuals, than the individuals separately could themselves go, in a state of nature. It is found in the unanswerable position of Beccaria, "That the laws are only the sum of the smallest portions of the private liberty of each individual, and represent the general will, which is the aggregate of that of each individual. Did any one ever give to others the right of taking away his life?"

3. It is said, "Life is no more the gift of God, than any other personal endowment, or right."

True, but unlike some other endowments and rights, it cannot be disposed of by the possessor. Personal liberty is a natural right; and one may bind himself to slavery for a given time. The right to enjoy property, lawfully acquired, is a natural right; and yet the law, by force, transfers it from the debtor to the creditor. But life cannot be given up, or transferred, because one of those endowments over which the VOL. III.-NO. 6.

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Deity has given man no power, except by suicide, which, as before shewn, the law ranks with the highest offences, and which is a power without a right.

4. It is said, a power to reject a man from society is inherent to its organization; and for the higher offences, you should reject him by death, because that is the only means by which to place it out of the power of the criminal to of fend in like manner again.

This is false reasoning, because not based on facts. A man is as essentially rejected from society when imprisoned, as when hanged; and if by imprisonment, this object in the administration of preventive justice is attained, the infliction of death is unnecessary. That persons escape from prison, but may not from the grave, is no argument. It only shews, that prisons are sometimes weak, while the grave is forever secure of its victim.

Again, unless it were absolutely certain, that a man was condemned justly, in every instance, should it not be part of the economy of the law, to give every opportunity for time to correct an improper conviction? The instances of men being convicted on presumptions, and even positive testimony, which time has disproved, are not rare. If, instead of taking the life of a convict, in such an event, he were confined to prison, the innocent would be avenged. But what boots it to the family of one led to the gallows, that in after years the suspicions which rest on the character of the dead man, are removed? The injury done is irreparable; and the law occupies, in such cases, but the position of an assassin. It has slain the innocent, in mistake, for the guilty! Awful consequences like these, should always be avoided, in a criminal code; and they cannot be, while the affections of men exist as they do, except by the abolishment of capital punish

ment.

The conclusion of the whole matter, to end with the assertion we begun with, is revenge; and "a war of a whole nation against a citizen, whose destruction they consider as necessary or useful to the general good:" and as said by the humane author of "Dei Delitti e delle Pene, the exercise of a power not found in the right on which the sovereignty and laws of a State are founded."

One other idea upon this subject. If the punishment of death is based upon the same principle of necessity which excuses one for killing his adversary, when his life is in

danger, why not apply to the State, the same rule which governs its citizen. The law is, if the life of one be in danger, he must kill if he would be excused, at the very instant of that danger. If he goes out of danger, and then returns upon the aggressor, and slay him, it is murder, because revenge. So if one, aggrieved in so great a degree as to be presumed to possess no reason, slay his fellow, it shall be excused; but if his blood have time to cool, and reason reassert her sway, it is revenge, and therefore murder. Let us apply these principles to the State. The aggressor's life is not taken at the moment, when the assault upon his fellow can be prevented, but after the act committed. The execution is not done at the moment when it may be supposed the blood of men is heated with the occurrence. But the law takes its time to let all things cool. The criminal is taken to prison. A long array of ceremonies, useless to him, are gone through, and an imposing pageantry gotten up. The Judge insults the criminal, with an eloquent detail of his miseries, and a great crowd assemble to see his last sufferings. He is hanged by the neck like a dog; and there ends the whole parade! This looks very like revenge!

But who is benefitted? The State?-Certainly not. She loses a robust citizen, who would do her much service, by the labor of his hands, if alive. The person slain ?—He is beyond compensation. The crowd?-Example is lost upon them. But take the other side, who loses?

Go to yon miserable woman, and her poor orphans, who for the dead body of an unfortunate husband and father, are indebted to the tender mercies of the law, and ask them, who loses!

We believe, that a spectator who views a criminal hanged, is less impressed with the consequences of crime, than he who sees one daily laboring in the service of the State in prison; aud for one who remembers the execution of an offender with a feeling of hatred for the offence, there are a thousand who look upon such scenes as the result of vindictive power in the law, and who mourn the fate of the criminal as a murdered man. If instances are necessary to sustain this position, they are found in the history of trials in every criminal calendar. Let us name a case, well known, and often reviewed-that of Dr. William Dodd, who committed a forgery upon the Earl of Chesterfield. Notwithstanding the great efforts made to obtain a pardon for this

person, he was executed. The necessity of an example was alleged as a reason, why the pardon was refused. Has this execution effected the great object of punishment? Has it enabled men to see more clearly, the consequences of crime? We think not. The capital punishment of this individual, has been most severely criticized by men, as an instance, where the law was more guilty than the victim. It is true, his forgery cannot be defended, but the punishment was unnecessarily severe; and, perhaps, no person who saw the occurrence, no one who now reads it, but did then express, and now feels, more of sympathy for the sufferer, than respect for the law, or aversion for the offence. An instance too has but lately occurred, which is a complete refutation of the argument, that capital punishment exercises a solemn or salutary influence over the minds of spectators. The assembly of persons who met to witness the execution of Colt in New-York, if the account of the matter in the papers is true, were actuated by every feeling but that which can profit by example. They evidently viewed the approach of the last moment allotted for the execution, with exultation; the announcement of his suicide, with disappointment bordering upon madness, and inciting to acts of disgraceful violence. Men whose moral thoughts are properly exercised, and who gain lessons of virtue, in every infliction of the law, do not act or speak as did that assemblage of men.

A learned writer, (Edinburgh Review, vol. 19,) refuses to notice any of the objects assigned for public inflictions of punishment, but the effect which they may produce upon the spectators, and through them upon the rest of the community; for, he says, "this object bears so great a proportion to the whole end of punishment, that he may disregard the remaining object." And "this," he continues, is to be effected, "by proving to the public this proposition-whosoever commits this offence, is sure of being thus punished,;" which is nothing more than enforcing the certainty of punishments.

Now this proposition is not proved by the punishment of death; for, no man who sees the sentence of death inflicted, is any more convinced that the next offender against the same law, will be certainly punished in the same way, than is he assured that the same Judge will preside, or the same jury try the facts.

The very severity of the punishment, opposes its certainty ; and as often as men are governed by the sympathies and pre

judices of human nature, as often as the interpretation of the law, receives the impressions of a Judge's opinions, as a man, so often will every verdict, present a different result. The experience of every lawyer, much engaged in criminal business, supports the assertion, that juries every day acquit men, or at least commute the offence, because of the harshness of the penalty referred to.

This point gained, that the penalty of death cannot deter men from the commission of crime, every thing in the argument is gained. For, who on the ground of following an established custom in criminal jurisprudence, would wish to add to the tables of bloodshed, with which the public authority stands charged in the history of judicial administration ? A slight view will show, in awful boldness, the appalling statistics of capital punishments. During the reign of Henry VIII. seventy-two thousand persons died by the hands of the common executioner, at the rate of two thousand each year. In Elizabeth's time, four hundred were executed each year; and Lord Keeper Bacon declares that this diminution was not the fault of her Majesty.

A noble lesson was taught by that law of the Grecians, which forbade a man to slay himself, on the ground, that he had no right to deprive the State of a citizen. Had society always evinced this regard for the lives of men, how much more beautiful and innocent would have been the records of history? But the social state has been moistened with human gore.

"Duris ut ilex tonsa bipennibus
Nigræ feraci frondis in Algide
Per damna, per ceudes, ab ipso
Ducit opes animumque ferro."

Our author passes in review before us, the various descriptions of crimes and offences; suggests valuable hints to aid a reformer; and his book closes with a discourse of Brissot, "Le Sang innocent se venge."

But we cannot conclude our review of this work, without alluding further to one or two subjects of reform, which, it seems to us, our own criminal law demands imperiously. One of these is the practice of allowing the State's advocate to conclude the argument of the cause.

In this country where popular declamation has so great an influence, and where it enters so largely into the pleadings at the bar, we are satisfied the concluding address to the jury