ART. III.—1. Report in Favor of the Abolition of the Punishment of Death by Law; made to the Legislature of the State of New York, April 14, 1841. By JOHN L. O'SULLIVAN, Member of the Assembly from the City of New York. Second Edition. 1841. 8vo. pp.

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2. Punishment by Death: its Authority and Expediency. By REV. GEORGE B. CHEEVER. Second Edition, with an Introduction by HoN. THEODORE FRELINGHUYSEN. New York. 1843. 12mo. pp. 156. 3. Essays on the Punishment of Death. By CHARLES SPEAR, Author of "Titles of Jesus," "Essays on Imprisonment for Debt," &c. Fourth Edition. Boston and London. 1844. 12mo. pp. 237.

Or all forms of government, a republic stands most in need of laws, and of power to execute them. If it be not a government of laws, it is no government at all. Where the people are sovereign, and every man a law-maker, there is the greater need that they make and sustain laws which all will acknowledge, a tribunal to which all must submit. Such a tribunal presupposes a system of restraints and penalties. Penal consequences must be annexed to the violation of law, and some certainty must attend these consequences, or the whole is unmeaning and useless, if not pernicious.

These are axioms. And yet, with these on their lips, a large portion of the people of this republic are talking and acting in direct opposition to them, or entire disregard of their meaning. They are retaining laws in their statute-books which are never enforced; they are withholding that public expression which alone gives strength to law; they are erecting tribunals which the laws neither recognize nor allow ; in one quarter, they anticipate even the judgment of the law by a violent execution; in another, they overawe both judgment and execution by their antipathies or sympathies ; while everywhere, at times, they suffer local interests and excited passions to control, if not to defy, the operation of all laws. This is one view of existing facts. In another direction, there is an increase of the opposite feeling, a jealousy, loyalty, and conservative energy, roused by this very tendency to lawlessness, and as yet holding it in check. Which will

prevail ultimately is not our inquiry. Every one must see that nothing will be gained by pushing to extremes in either direction. If one class think to supersede law, and to find something better even than a Christian government, their destruction is sure. If the other class resolve to see no good in any change, ascribing all dissatisfaction and attempted reform to weak understandings or the worst motives, they may hasten that which they fear. And to both extremes there is, as usual, a tendency. Nothing can surpass the soft sentimentality and one-sided condolence which some persons express in reasoning upon crime and the criminal, complaining of the severity of laws, and tracing all offences to physical disease or unavoidable influences. The charge of malevolence or cruelty in our common jurisprudence, the appeal to pity those who suffer, however justly, the attempt to connect all crime with misfortune rather than guilt, and the disposition to screen the murderer under the plea of insanity, are symptoms which might in themselves be overlooked as indicative only of an unsound mind, did they not strike at the highest truths and eternal distinctions.

But this is not the only extreme. There is another, which seems to us as false, if not as dangerous. It is the grave attempt, stimulated evidently by the opposite folly, to defend our penal code by the first ever given to man; to urge the oldest severities, not only as justifications, but commands, for all after ages; to show, as more than one writer has lately attempted to do, that the divine injunction to take the life of the murderer stands on equal authority with the Decalogue, and that to repeal it would be as wicked and fatal as to disregard those ten commandments; even to argue that Christ's repeal of the Jewish penalties and retaliations was not on account of their injustice, severity, or incongruity with his own religion, but because they had been abused. Indeed, we have seen recently, in the resolutions of some religious body, the broad assertion, that the Mosaic code has never been repealed; though we have not yet seen any attempt to reinstate its thirty capital offences, including witchcraft, adultery, blasphemy, man-stealing, blood-eating, and Sabbath-breaking. We have seen it asserted that Christ himself reenacted the legal penalty of death for murder, when he said, "All they that take the sword shall perish by the sword." It is declared that the death-penalty is in accordance with

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the very mercy of the Christian religion, if not demanded by its great object; inasmuch as a short term of life is more likely to bring the doomed convict to repentance, while protracted life, though in confinement, would lead only to abuse. Yet more, it is declared that the divine enactment of the law of "life for life" prepared the way for, and helped the efficacy of, the death of the Son of God. Mr. Cheever, in the book whose title we have placed at the head of this article, says, "God would prevent the cheapening of human life, in order that the value of the sacrifice of Christ's life might not be diminished in men's estimation. In very truth, had no law ever been promulgated annexing the penalty of death to the crime of murder, it is not too much to say that the sacrifice of Christ upon the cross would have lost, in men's minds, something of its dignity." And a writer in the Biblical Repository for July, 1843, reasons in defence of the punishment of death from the government of God thus" HE visits transgression with uncompromising retribution. He did not spare even his own Son."

Here is another extreme. We speak of it in no sectarian spirit, for no sect is answerable or censurable for such opinions. We give it first as a simple fact, and then as one of many reasons for subjecting this matter to a rigid and candid investigation. We had ignorantly supposed, until recently, that the Scriptural defence of capital punishment was almost relinquished. We find it not only retained, but renewed and enlarged. Now, if there be ground for this, if it be verily an original and eternal command of God, that the murderer be put to death, and its observance be essential to the principle of obedience, the existence of society, and the salvation of souls, then we say, in all soberness, this nation is guilty before God, and hastening to destruction. For not only is the law of God assailed by many who view it differently, but it is constantly set aside by those who retain and declare it. It is not enforced by those who maintain the right, and possess also the power, to enforce it. The murderer is not put to death. He is liable to it, the law requires it, in every State of our union. But in no one of them are half the murderers convicted, or, if convicted, executed. Here, again, is a fact, and it is a very serious fact, independently of its causes. It is worthy the consideration of all, that the highest sanction of our country's criminal law has no uni

form or sure validity. It is something, that, while other of fences beside murder are made capital in nearly every State, their number ranging from two to twenty, it is hardly ever the case that the law is enforced for any crime but murder. This is something, when considered as indicating the progress of opinion in regard to severity, and as tending to weaken the power of law. It becomes momentous in regard to murder, when it is maintained that the death of the murderer is authorized and required by the law of God and the life of society, and yet the murderer is constantly let off, not merely through popular clamor or morbid sympathy, but also through the conscientiousness of jurors, and the laxity of administration, failing to convict, or pardoning or commuting after conviction.

We have here given the material facts, in the present position of the subject. The least that can be said of them, and probably the feeling of all is, that they demand some action. What shall it be? It may be presumptuous in us to say; we attempt it in no spirit of self-complacency, still less of dogmatism or rash innovation. This is not a question of one side, or one argument; nor is it a subject for the imputation of bad motives. It is not to be assumed that the opponents of capital punishment are either wiser or more humane than its advocates. Nor, again, have its advocates. any right to charge upon the opponents a want of principle, as to law or religion. It is pitiful to attempt to identify the proposed reform with moral or social ultraism. Were there no higher principles, there are names on the side of the reform which should save it from that suspicion. We are pained to find even the excellent Chancellor of the New York University, Mr. Frelinghuysen, in his Introduction to to Mr. Cheever's book, lending his sanction to the unjust allegation, worthy of weaker men, that to abolish the deathpenalty would, in effect, if not in design, proclaim "impunity" to murder. We have more reason to charge impunity upon the present system. Against its friends we bring no charge. Its effect we pronounce worse than neutral; uncertain, unequal, ineffectual, and pernicious. We call for proof of the opposite. Our position is affirmative, not negative; conservative, not destructive. We speak for law; we uphold government. We believe man is selfish enough and corrupt enough to require restraints and penalties. We see

a spirit of lawlessness in the land, a tampering with constitutions, and oaths, and liberty, and life, that call loudly for reproof. We maintain the right of society to impose any restraint or punishment essential to its existence. We see not where it is to derive the right to imprison, especially for life, if it have not also the right to take life. But we deny that its right to take life rests upon any positive command of God, or any sure permission. We deny that it finds the least favor in the precepts of Christ, or the spirit of Christianity. We deny that the death-penalty is justified by any experience of its usefulness, or proof of its necessity. And we throw the burden of proof, for each of these points, on the advocates of the present law.

The alleged proof of a divine command or permission lies in a single passage, if we may not say in a single word. "Whoso sheddeth man's blood, by man shall his blood be shed." · Gen. ix. 6. Shall; on that one word, in that one verse, depends the Scriptural argument. Change the word to will, which both the Hebrew and the English language permit, and the passage will express simply the great retributive law of God's providence, that violence begetteth violence; as in the Psalms:-"Bloody and deceitful men shall not live out half their days." But leave the passage as it is; the first part of it will bear a different rendering, though the common version seems to us as natural and probable as any. We admit that the Hebrew future often stands for the imperative; but it does not always stand for it; and whether it does here, or has only the force of the future, as in Cain's assertion, "Every one that findeth me shall slay me," depends on the context, and other considerations. Thus the whole argument becomes an inference; and different men-men, too, who do not differ in their general religious views-draw different inferences from the context, and express opposite opinions as to the passage. Professor Stuart, of Andover, thinks the Hebrew for "shall be shed" is "the most passive form which the language admits." Professor Upham, of Brunswick, says, it has "the indefinite form of the Hebrew future," and finds in it neither command nor permission. Professor Turner, of the Episcopal Seminary, New York, says it may be permissive, but cannot be obligatory. All scholars will allow that the verb is future, and no one can assert more than that it may be im