given on the mysterious mountain, promulgated from the bosom of a dark cloud, amid thunder and lightning; they were intended to strike terror into the minds of a perverse and obdurate people; and as one means of effecting this, the punishment of death is freely denounced for a long list of crimes; but the same authority establishes the lex talionis, and other regulations, which those who quote this authority, would surely not wish to adopt. They forget, that the same Almighty author of that law, at a later period, inspired one of his prophets with a solemn assurance, that might with propriety, be placed over the gates of a penitentiary; and confirmed it with an awful asseveration,—“ As I LIVE, saith the LORD GOD, I have no pleasure in the DEATH of a sinner, but rather that he should TURN FROM HIS WICKEDNESS AND LIVE." They forget too, although they are Christains who use this argument, that the divine author of their religion, expressly forbids the retaliatory system, on which the punishment of death for murder is founded; they forget the mild benevolence of his precepts, the meekness of his spirit, the philantropy that breathes in all his words, and directed all his actions; they lose sight of that golden rule which he established, " To do nothing to others that we would not desire them to do unto us;" and certainly pervert the spirit of his holy and merciful religion, when they give it as the sanction for sanguinary punishments. Indeed, if I were inclined to support my opinion by arguments drawn from

religion, the whole New Testament should be my text, and I could easily deduce from it, authority for a system of reform as opposed to one of extermination. But although the legislator would be unworthy of the name, who should prescribe any thing contrary to the dictates of religion, and particularly to those of that divine morality, on which the Christian system is founded, yet it would be not less dangerous, to make its dogmas the ground-work of his legislation, or to array them in defence of political systems. In a government where all religions have equal privileges, it would be obviously unjust; it would lessen the reverence for sacred, by mixing them with political institutions, and perverting to temporal uses those precepts which were given as rules for the attainment of eternal happiness.

Secondly. The practice of all nations, from the remotest antiquity, is urged in favor of this punishment; the fact, with some exceptions, is undoubtedly true, but is the inference just? There are general errors, and unfortunately for mankind, but few general truths, established by practice, in government and legislation. Make this the criterion, and despotism is, by many thousand degress on the scale of antiquity, better than a representative government: the laws of Draco were more ancient than those of Solon, and consequently better; and the practice of torture quite as generally diffused, as that of which we are now treating. Idolatry in religion, tyranny in government, capital punishments, and inhuman tortures in juris

prudence, are co-eval and co-extensive. Will the advocates of this punishment admit the force of their argument in favor of all these abuses? If they do not, how will they apply it to the one for which they argue?

The long and general usage of any institution gives us the means of examining its practical advantages or defects; but it ought to have no authority as a precedent, until it be proved, that the best laws are the most ancient, and that institutions for the happiness of the people are the most permanent, and most generally diffused. But this unfortunately cannot be maintained with truth; the melancholy reverse forces conviction on our minds. Every where, with but few exceptions, the interest of the many, has from the earliest ages been sacrificed, to the power of the few. Every where, penal laws have been framed to support this power, and those institutions, favorable to freedom, which have come down to us from our ancestors, form no part of any original plan; but are isolated privileges which have been wrested from the grasp of tyranny; or which have been suffered, from inattention to their importance, to grow into strength.

Every nation in Europe has, during the last eight or ten centuries, been involved in a continued state of internal discord or foreign war: kings and nobles continually contending for power; both oppressing the people, and driving them to desperation and revolt. Different pretenders, asserting their claims to the

throne of deposed or assassinated kings; Religious wars; cruel persecutions; partition of kingdoms; cessions of provinces; succeeding each other with a complication and rapidity that defies the skill and diligence, of the historian to unravel and record. Add to this, the ignorance in which the human mind was involved, during the early and middle part of this period; the intolerant bigotry, which from its close connection with government, stifled every improvement in politics as well as every reformation in religion; and we shall see a state of things certainly not favorable for the formation of wise laws on any subject; but particularly ill calculated for the establishment of a just or humane criminal code. From such legislators, acting in such times, what could be expected, but that which we actually find; a mass of laws unjust, because made solely with a view to support the temporary views of a prevailing party; unwise, obscure, inhuman, inconsistent, because they were the work of ignorance, dictated by interest, passion and intolerance. But it would scarcely seem prudent to surrender our reason, to authorities thus established, and to give the force of precedent to any of the incoherent collections of absurd, cruel, and contradictory provisions which have been dignified with the name of penal codes, in the jurisprudence of any nation of Europe, as their laws stood prior to the last century. No one would surely advise this; why then select any part of the mass, and recommend it to us, merely because it has been

generally practised? If there is any other reason for adopting it, let that be urged, and it ought to have its weight; but my object here is to shew, that from the mode in which the penal laws of Europe have, until a very late period, been established, very little respect is due to them merely on account of their antiquity, or of the extent to which they have prevailed. If the criminal jurisprudence of the modern and middle ages, affords us little reason to revere either its humanity or justice; the ancient world does not give us more. The despotism of antiquity was like that of modern times, and such as it will always be; it can have but one character, which the rare occurrence, of a few mild or philosophic monarchs does not change and in the laws of the republics, there was a mixture of severity and indulgence, that makes them very improper models for imitation. Yet in Rome, for about two hundred and fifty years, from the date of the valerian law, until the institutions of the republic were annihilated by the imperial power, it was not lawful to put a Roman citizen to death for any crime; and we cannot learn from history that offences were unusually prevalent during that period; but we do know that when executions became frequent, Rome was the receptacle of every crime and every vice. It must, however, be confessed, that we have not sufficient information to determine whether the frequency of capital punishments was the cause, or the effect of this depravity.