red the penalty of death, what citizen would accuse, what witness would testify, what assembly of the people would convict, nay, what executioner would be found to present the poisonous cup? We are accordingly told expressly, that these laws were abolished, not by a formal decree, but by the tacit and unrecorded consent of the Athenians.

We make no quotations from modern writers on penal law to this point, for there is not one who has not given his testimony in favor of the position we have taken, and yet, by a most singular incongruity, each of them has a favorite crime to which he thinks capital punishment applicable. "The certainty of punishment," says Dr. Paley, "is of more consequence than the severity. Criminals do not so much flatter themseves with the lenity of the sentence, as with the hopes of escaping; they are not so apt to compare what they gain by the crime with what they may suffer from the punishment, as to encourage themselves with the chance of concealment or escape: for which reason a vigilant magistracy, an accurate police, a proper distribution of force and intelligence, together with due rewards for the discovery and apprehension of malefactors, and an undeviating impartiality in carying the laws into execution, contribute more to the restraint and suppression of crime, than any violent exacerbation of punishment." On this point authorities without number could be quoted, and we refrain from a further examination of the subject, because, we are impressed with the opinion that all agree that crime is more certainly prevented by certainty than by severity of punish ment.

We have now examined, and we believe conclusively proved, both the want of right on the part of the Legislative authority to pass laws authorising capital punishments, and their total want of efficiency as an example: and here we should be willing to rest the case, were we not aware that there are individuals in this community who are ready at all times to put down reason and argument, on this subject, by the often repeated reference to biblical authority. It is the command of God, say they, and therefore, whether we consider it right or wrong, expedient or inexpedient, we are bound to put to death whosoever sheds man's blood. This authority, from having the representation of being of divine origin, has given, for

many years, a sanction to capital punishment. It shall be our duty to examine it with care and candor.

A large class of this community declare that death ought to be punished with death, because we find it recorded in the Old Testament, as a command from God to Noah, "Whosoever sheds man's blood, by man shall his blood be shed." We say that they rest upon this, because we cannot conceive that they place any reliance to support their position upon the laws of the Jews. The laws given to the Jews were made expressly for that people, confined in their operation to them, and the necessity of their observance limited to their information. On this subject Sir Matthew Hale, whose piety was exemplary, remarks: "Although offences against human society be many of them prohibited by the laws of God and nature, yet the punishment of all such offences is not determined by the law of nature to this or that particular kind, but are, for the most part, if not altogether, left to the positive laws and constitutions of the several kingdoms and states. And, therefore, although most certainly, the penalties instituted by God himself among his ancient people, upon the breach of their laws, were with the highest wisdom fitted to that state; and although all laws and instituted punishments should come up as near to that pattern as may be, yet, as to the degree and kind of punishment of offences, they are not obliging to all other kingdoms or states, but all states, as well Christian as heathen, have varied from them."

Those who would require the Jewish laws in this particular to be continued and enforced, because they were given by God to that people, must, to be consistent, desire to see enforced the whole of the Levitical law. If the whole of the Levitical law except this can be dispensed with without disobeying the laws of God, then why can we not, without trespassing upon the province of our Maker, enact any law in the place of this, that we may think proper and expedient?

This reasoning seems to be conclusive, so far as the Jewish law is concerned, and must make the absurdity of the position so frequently assumed appear the more glaring, when we find the advocates of this law opposed to every other law found in the book of Leviticus. But it has been urged, and with much more plausibility, that the first command, "Whosoever sheds man's blood, by man shall his blood be shed," was given to Noah, from whom all men are derived, and is not therefore peculiar to the Israelites. This puts the question in another point of view, and will require from us a short examination.

"I hope I shall not offend any one," says the Rev. W. Turner, in commenting on this text, "by taking the liberty to put my own construction on this celebrated passage, and inquire why it should be deemed a precept at all. To me, I must confess, it appears to contain nothing more than a declaration of what will generally happen; and in this view, to stand exactly on the same ground with such passages as the following: 'He that leadeth into captivity shall go into captivity.' 'He that taketh up the sword shall fall by the sword.' The form of expression is the same in both texts; why, then, may they not all be interpreted in the same manner, and considered, not as commands, but as denunciations. And if so, the magistrate will no more be bound by the text in Genesis, to punish murder with death, than he will by the text in the Revelation, to sell every Guinea captain to our West-India planters."

"I suspect the attachment to death as a punishment for murder," “ ] says Dr. Franklin, "in minds otherwise enlightened on the subject of capital punishment, arises from a false interpretation of a passage in the Old Testament. And that is, 'He that sheds the blood of man by man shall his blood be shed.' This has been supposed to imply that blood could be only expiated by blood. But I am disposed to believe, with a late commentator on this text of scripture, that it is rather a prediction than a law. The language of it is, simply, that such is the folly and depravity of man, that murder in every age shall beget murder."

And the celebrated Dr. Adam Clark, in his commentaries on the words of Christ, "He that taketh up the sword shall perish by the sword," says, that the general meaning of the verse is, they who contend in battle are likely, on both sides, to become the sacrifice of their mutual animosities.

Indeed, if we are to consider the text referred to as a positive law, and one that must be enforced at all hazards, how can we view the case of Cain. He certainly was a shedder of man's blood, and that in the most aggravated and depraved manner; but we do not find that the Almighty took blood for blood: and yet the blood of Abel is said to have cried to him from the ground. But, on the other hand, he does not even mention the penalty of death as due to the crime, but pronounces a curse upon him, which Cain declares will cause every one who shall find him to slay him. Does the Almighty allow this to be the case? Does he give his life into the hand of his fellow? Does he command all those who are disposed to [A. No. 187.]

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fulfil his will, and obey his commandments, to inflict the penalty of death upon a most wanton, ruthless and abandoned murderer? Are any of these requirements made? So far from it, that He who is the sole arbiter of human existence, He who is charged with having commanded us to kill, not only does not make this command, but for the sure protection of the life of the murderer, set his mark upon him, lest any one finding him should slay him, and declared that whosoever slew Cain, vengeance should be taken on him seven-fold.

The Almighty, in this instance, at least, has not given a very strong evidence in favor of the usual interpretation of this passage of scripture. But if we may be permitted to take it as a practical illustration of the text, we should feel justified in saying, that it fully bears out the construction given to it by the authorities we have quoted, to wit: that it simply means to declare, that murder will beget murder, and that the exclamation of Cain, that "every one that findeth me shall slay me," is an illustration of the tendency of human passions to return injury for injury, blood for blood. But the interference of the Almightly is an equal illustration of the attributes of the Deity, in opposition to the impulses of human nature. The arm of mercy is at once extended; the immortal ægis is sent before him as a protection against the avenger of blood; and the voice of the Eternal is constantly proclaiming, vengeance is mine, I am the creator and preserver of all things; in my right hand are the issues of life and death.

The believers in the command thus given, must, by the foregoing, be satisfied, that so far from it being the will of the deity, that he has declared, both by precept and example, " thou shalt not kill.” But what shall we say to the believers in the christian dispensation; shall we be required to prove that old things are done away, and that all things have become new; that the law of an eye for an eye, injury for injury, has given place to the doctrines of charity, long suffering, and the returning of good for evil? Shall we be called upon to show that violence was not a part of the religion established by Christ, and that he came to introduce the doctrines of pardon and forgiveness? The followers of Christ, of all other men, have the least pretext to sustain this law; not a portion of their creed can be found, which does not directly militate against it; not an action of their great leader which does not inculcate doctrines utterly at war with the idea of capital punishment. And we are warranted in saying that whether we look to the laws of nations, as

exemplified in the principle of self-preservation, or to the laws of God, as declared by the old and new testament, we are equally admonished to "do unto others as we would wish that others should do unto us."

"Laws," says Dr. Franklin, "which inflict death for murder, are in my opinion, as unchristian as those which justify or tolerate revenge; for the obligation of christianity upon individuals, to promote repentance, to forgive injuries, and to discharge the duties of universal benevolence, are equally binding upon States."

The law punishing murder with death, is in all its essential features, a law of retaliation, and this brings us to the consideration of the next subdivision of this subject.

Blood for blood is the doctrine of capital punishment, and yet we have it constantly asserted that it is not the object sought by the law. Blackstone says, "that the end or final cause of human punishment, is not by way of atonement or expiation for the crime committed, for that must be left to the just determination of the supreme being." The law of retaliation then by name is denounced, and has been repeatedly condemned by the law givers of almost every nation, on the ground assumed by the English jurist, that punishment is not intended as an act of retributive justice on the individual, but as a prevention of future offences of the same kind.

The laws of most countries denounce the lex talionis, or law of retaliation, as impolitic and unjust, and scarcely a law-giver since the christian era has been found, hardy enough to establish it. It may be found in the Koran, but even there, it does not extend to all caIn England, a statute was passed in the 37th year of Edward 3d, enacting," that such as preferred suggestion to the king's great council, should be put to surities of taliation." But, after one year's experience, this punishment of taliation was rejected, and imprisonment adopted in its stead.

ses.

Beccaria, and several other writers of distinction, have contended that the punishment due to the crime of which one falsely accuses another, should be inflicted on the perjured informer.

The law of the twelve tables of Rome, never condemned to retaliation, but when the injured party could not be satisfied in any other manner. And we may remark, that retaliation is only another