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DEATH PEN ALTY.
BY
CHARLES C. BURLEIGH.
*~~~~~~~~~~~~
Sanguinary laws are a bad symptom of the distemper of any state, or at least of its
weak constitution. --BLAC+..I stox E.
*~~~~~~...~~~~~~~~
SECOND EDITION, REWISED.
P H II, A I) E L P H I A .
M E R R I H E w A N D T H o M P so N., P R 1 N T E R s,
No. 7 Carter's Alley.
tº ſº e º sº

The letters “S. L. M. H.” affixed to many of the quotations in this
work, refer to a valuable English work, entitled “Selections from the
Londor, Morning Herald.”
CONTENTS,
# Page.
CHAPTER I. — FXPEDIENCY.
Preliminary Remarks..... . . . . . . . . . . .
Ought crime to be punished by human
hands with death? . . . . . . . . . . . . . . . . . 6
Burden of Proof, Self. Defense, &c. . . 7-9
Ends of Punishment. . . . . . . . . . . . . 1 {}
REFoRM OFF ENDERs. . . . . . . . . . . . . . 11
Death Penalty disregards this... 11-12
“ Murderer not ſit to live”. . . . . . . 13
“Incorrigible”. . . . . . . . . . . . . . . . . ; 13
Disproved by facts. . . . . . . . . . . . . 1 4- 18
I)eath Penalty not reformatory... 18-22
Unphilosophical. . . . . . . . . . . . . . . . 22
Divine Precedent and testimony 22–24
Power of the Gospel. . . . . . . . . . . . . 24
The Alternative. . . . . . . . . . . . . . . . 25
REPARATION For 1 NJURY. . . . . . . . . 26-29
Uncertainty. Reply. . . . . . . . . . . . 29
Danger of icº. Answers 30–33
PREVENTION of CRIME. . . . . . . . . . . . }%
“Most terrible Penalty necessary 5
Proves too much . . . . . . . . . . . . . . .34–37
Death not always most feared. .37–41
Facts in illustration . . . . . . . . . . . . 41-43
“But these are exceptions”. . . . . . 44
Reply from the Objector. . . . . . . . . 44
An important testimony. . . . . . . . . 45
Certainty better than severity.... 45
Death Penalty uncertain. . . . . . . . . 46
Testimony of lawyers, &c. . . . . . . 46–48
Facts and statistics. . . . . . . . . . . . 48-55
Uncertainty after conviction. . . . . 55-58
Cannot be made certain. . . . . . . . . 53
Tempts to perjury. Sways to error 59,60
Makes Punishment capricious... 61
Shuts tender Consciences from
juries, . . . . . . . . . . . . . . . . . . . . . . . . 62
Worse than useless. Demoraliz-
ing. . . . . . . . . . . . . . . . . . . . . . . . . . 63-66
Results of its teachings. Facts 66–70
Influence of Executions. . . . . . . . 7(\-78
Practical Legislative testimony. , 78.9
Character of Executioners. . . . . . 79-82
Death Penalty not needed. . . . . . . 82
Page.
Fſſects of its abolition. . . . . . . . . . 82–836
“Case of Murder different.” An-
SWer. . . . . . . . . . . . . . . . . . . . . . . . . . 37
Facts. Rome, Delhi, Paraguay 87
France, Prussia, England and
Wales. . . . . . . . . . . . . . . . . . . . . . $38
Horse not “behind the cart”. , 89,90
1)enmark, Holland, Bombay. . . 90
Russia . . . . . . . . . . . . . . . . . . . . . 91-95
Belgium . . . . . . . . . . . . . . . . . . . . 95–1 ()1
Tuscany. . . . . . . . . . . . . . . . . . 101-1 ()3
Cheever's Historical Argument... 103-6
CHAPTER II.--JUSTIC E.
“Utility not ground of punishment” 106
Desert of death no proof of right to
kill. . . . . . . . * * * * * * * * * * * * * * * * * * * * 106-1 1 0
Society trains men to crime. . . . . . . . . 11 ()
Danger of irretrievable error. . . . . . 1 11– 16
Cheever's Reply. . . . . . . . . . . . . . . . . . . . . 1 16
Difficult to measure guilt and punish-
ment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Injury to the many. . . . . . . . . . . . . . . . . . J 17
Antiquity and General Prevalence.... 119
CHA PTER III. —SACRED SCRIPTURE.
• ‘Not left to our discretion”. . . . . . . . . 120
Past errors should teach caution. . . 120–21
Presumptive proof. . . . . . . . . . . . . . . . . . 12
“Scripture argument limited”. . . . . . . 122
Testimony doubtful. . . . . . . . . . . . . . . . . 123
Translations vary. . . . . . . . . . . . . . . . . 12,4-95
“Shall” not always imperative. ... 125-27
Consequence of mandatory construc-
tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127–29
Other interpretations. . . . . . . . . . . . . ] 30–34
High authority. Case of Cain, &c. 134-36
Text not now law, if ever. . . . . . . . . . . . 136
Reply to Cheever's Answer. . . . . . . . . 188
Christianity forbids retaliation. . . . 139-42
Sword of the Magistrate. . . . . . . . . . . . 141
Paul's example. . . . . . . . . . . . . . . . . . . . . 142
Sum of New Testament proof. . . . . . . . 143
Mosaic ſaw . . . . . . . . . . . . . . . . . . . . . . . . 143
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . 144

PREF A C E.
IN the following pages I have aimed at usefulness rather than origi-
mality, and have therefore availed myself of the labors of others, when-
ever they would serve my purpose. Some of the topics discussed are
treated in a different manner from what I have seen elsewhere, while
upon others I have but condensed or amplified, or re-arranged the ar-
guments of my predecessors. My object was to give the main reasons
against the gallows within the compass of a work, better suited, by its
size and price for general circulation, than the volumes which have
already appeared on this side of the question, yet somewhat more at
large than they are stated in the few cheaper works which have
been published. Many who do not feel interest enough in the subject
to buy and read so large a book, for instance, as O'Sullivan's admirable
Report to the New York Legislature, or the Essays of Charles Spear,
will read a pamphlet like this, if it be only to see what can be said
against the law of “blood for blood,” and may find here enough to
awaken a desire to inquire farther and examine more thoroughly. If,
it shall thus be the means of helping on in an humble way the pro-
gress of that humane reform whose principles it advocates; and of
hastening, however little, the coming of that time, when the penal
statutes of a “Christian” and “civilized people,” shall have ceased to
be written in blood, I shall be richly repaid for the time and labor
spent upon this task.
For aid in its performance, I am indebted chiefly to the works of
O'Sullivan and Spear, the brief but able Essays of Dr. H. S. Patterson,
the little volume of “Presbuteros,” (understood to be a Presbyterian
clergyman in the state of New York.) and some British publications
filled with facts and statistics, many of them deeply interesting and of
great importance. The two works of G. B. Cheever in defense of the
gallows, written with an ability worthy of a better cause, have also
given me some assistance, as the reader will not unfrequently per-
ceive.
THOUGHTS ON THE DEATH PENALTY.
CHAPTER I.
EXPEDIE N C Y.
The design of punishment is to prevent the commission of crimes and to repair the
injury that hath been done thereby to Society or the individual, and it hath been found
by experience that these objects are better obtained by moderate but certain penalties,
than by severe and excessive punishment: and it is the duty of every government to en-
deavor to reform rather than exterminate offenders, and the punishment of death ought
never to be inflicted where it is not absolutely necessary to the public safety.—Laws of
Pennsylvania. Stat. of 1794.
PRELIMINARY REMARKS.
Among the most important subjects now claiming public
attention, is the duty of society toward its offending members.
It is beginning to be felt more widely and deeply than hereto-
fore, that the criminal is still a man, though a sinful one; that
he has not ceased to be a brother by disregarding the solemn
obligations of his brotherhood. The world has enjoyed, not
altogether in vain, for eighteen centuries, the precepts and
example of the great Reformer; and is learning, slowly indeed,
but it is to be hoped surely, the heaven-taught lesson that it is
better to save life than to destroy; that it is more worthy a
civilized and Christian community to reform than to extermi-
nate transgressors; and that the noblest triumph is achieved
by him who converteth a sinner from the error of his way, and
thus saves a soul from death and hides a multitude of sins.
Many there are already, and the number is believed to be in-
creasing, who think that humanity forbids, and the spirit of
Christ condemns, all punishment aiming at retribution merely,
and that the claims of justice and the divine law can be satis-
1%
6 THOUGHTS ON THE DEATH PEN ALTY.
fied, and the general welfare promoted, without the aid of
bloody penalties;–nay, better so than by them. They cannot
see in a vindictive penal code, or in one of merciless, even
though just, severity—if merciless severity can be just from
erring man—any manifestation of that spirit which breathed
from the dying lips of Jesus a prayer for his murderers who
insulted his death agony with their jeers, “Father forgive
them for they know not what they do ;” or which sent up to
the opened heavens that last petition of the martyr Stephen
for those who stoned him, “Lord, lay not this sin to their
charge.” Hence the earnestness with which the inquiry has
been raised and urged upon the minds of legislators, magis-
trates and people, -
“oug HT CRIME To BE PUNISHED BY HUMAN HANDs witH DEATH !”
This inquiry must be met;-met, not with peremptory tones
of authority exacting implicit submission; not with sneers at
“false philanthropy,” and “sickly sentimentalism,” and “mor-
bid sympathy;” not with an affectation of holy horror at the
infidel presumption which dares to question what has long
been taught as an express divine revelation; not with appeals
to the prejudice which blindly clings to what is, and long has
been, or to the vengeful feeling which, it is to be feared, even
in this Christian land and age, holds but too large a sway in
the general heart; but with calm, deliberate reason, with solid
argument, based on great moral principles and sustained by
an array of established facts. If so it can be silenced or satis-
fied, so let it be; but otherwise its voice can never be hushed,
nor ever the excitement be allayed which it has awakened and
will and ought to keep awake in the public mind. “You can
gain nothing,” says the eloquent Cheever, “in any time of
commotion on a great question, by attempting to withdraw
out of view the great principles around which all the agitation
gathers. That agitation will continue, the elements will for-
ever be disturbed, till those great principles find their proper
place, and rule in all minds.”
THOUGHTS ON THE DEATH PEN ALTY. 7
**
where RESTs THE BURDEN of PRoof
In stating the question for discussion, the advocates of capi-
tal punishment have generally insisted on giving it such a
form as to throw the affirmative, and of course, by the usages
of debate, the burden of proof, upon its opponents. To this,
the latter have commonly assented, rather than not have the
discussion go on; though the more natural shape of it seems
obviously to be that which gives the affirmative to the friends
of the practice called in question. The inquiry before us is
not properly, ought capital punishment to be abolished 1–but
ought it to be inflicted? Its opponents stand on the admitted
their Creator.” That this declaration was meant to be under-
stood in a general, and not an absolutely universal sense, is
freely admitted; and whether it is or is not universally true,
is no part of my present purpose to consider. It will be con-
ceded throughout this argument that the rule is only general;
that it may have exceptions; i. e., that there may be cases in
which it is right for man to take the life of man. But he who
affirms an exception to a general rule, is bound to prove it.
He cannot demand that it be either received as an exception
or disproved. Simple denial is enough to put him upon his
proof, for the generality of the rule is itself opposing proof
enough to make out a first-face case against him. If a man
tells us that sometimes water runs up hill, we may grant the
possibility of such a thing, but are not bound to believe its re-
ality till he gives us evidence of it. So in this case, while we
admit that there may be exceptions to the general inviolability
of human life, it is still our right to demand clear proof of any
particular alleged exception, and till that is given we are under
no obligation either to disprove it, or, for want of counter-
proof, to admit it. The burden of proof, therefore, it will be
seen in this view of the subject, rests on the advocates and
not the opposers of the penalty of death.
our national declaration, that the right to life is among the #
“inalienable rights” with which “all men are endowed by
8 THOUGHTS ON THE DEATH PEN ALTY.
PRO OF MUST BE CLEAR AND STRONG.
Where then is the required proof? Can it be found! The
evidence, be it not forgotten, must be strong and clear, in pro-
portion not only to the weight of the presumption against it
from the opposing general rule, but also to the importance of
the issue, and the greatness of the interest at stake. Life!—
a brother's life!—is what we have to deal with. Life!—with
all its awful sanctity, with its solemnly mysterious relation to
the Great Central Life whence it was breathed into man in the
day when he became a living soul! A brother's life! with
all the trembling, eager hopes and warm desires and social
affections which link it to surrounding life, and reach forth
toward the thronging blessings of this goodly world, its plea-
sant sounds and sights of beauty, the converse of friends, the
bliss of home with its clustering comforts and domestic love,
whatever can give joy in the contemplation, or thrill the soul
with keen delight in the enioyment; its lofty aspirations
stretching their earnest gaze far forward and upward along
the track of unending progress, amid the glorious destinies of
eternity; and on the other hand its fears, a ghastly train,
which gird it round with visions of terror, and drag it down-
ward to the brink of that appalling gulf, whether of annihi-
lation or of everlasting anguish and despair,
“From which recoiling thought in horror turns.”
This, then, is what must be proved. That this most sa-
cred gift of the Creator may be deliberately wrested from our
orother at the bidding of our penal law; that this emanation
of His very life may be placed at the disposal of blind and ſal-
lible human judgments; that it is our right—nay, that it is
our duty—to cut off a fellow man in the midst of his days,
blast his hopes and prospects here, and, for aught we know,
consign him to endless and inconceivable misery hereafter-
a misery which in its lightest moment outweighs all that
could be crowded into an earthly lifetime of unceasing agony,
and which ever goes on increasing at a still increasing rate,
THOUGHTS ON THE DEATH PEN ALTY. 9
through ages on ages of accumulating horrors, the gnawing of
the undying worm, and the burning of fire unquenchable; no
light, no rest, no hope of deliverance or the least alleviation,
while the life of God endures. For this, according to the faith
of the great majority of Christendom, including most if not all
who advocate the penalty of death, is but a faint picture of the
sinner's fate, if he dies impenitent. It must be strong proof,
indeed, one would think, in view of these considerations, which
can establish the assumed exception to the general inviolate
sacredness of human life, in the cases to which the penal code
applies. Again I ask, where is that proof
NOT FOUND IN THE RIGHT OF SELF-I) EFENSE.
It is not found in the commonly assumed right of killing in
self-defense. Whether there is such a right, which is denied
by many, and seriously questioned by more, need not now
be determined ; for granting that there is, the conditions of its
existence are not found in the case before us. Only when the
danger to life is so pressing that it can in no other way be
averted, is the right to kill in self-defense even alleged. But
here is no such danger. The criminal is already in the grasp
of the law, disarmed and powerless, girt around with massive
walls, and guarded by watchful keepers. To kill him now
may be vengeance, or retaliation, but it is not self-defense.
The killing of a personal enemy under such circumstances,
would be called murder. A ruſſian attacks you with intent to
kill. Seeing no way of saving your own life but by taking his,
you strike with that design, but happily the blow only stuns
him. Improving your advantage, you take away his weapon
and bind his hands, so that when he returns to consciousness
he is completely in your power. Can you now thrust his own
dagger to his heart, and plead the law of self-defence for the
deed? Will not the common voice cry out upon you as a mur-
derer, if you do? And why? Because the blow was needless?
The danger which would have justified it had passed away.
But the arrested criminal is more surely in the state's power
than the supposed assailant can be in that of any single captor
10 THOUGHTS ON THE DEATH PEN ALTY,
ENDS OF PUNISHMENT.
But the whole duty of society toward those who break its
laws and disturb its peace, is not summed up, we shall be told,
in the warding off of present, pressing danger. The individual,
it is true, must stop there, for the state stands behind him to do
the rest. Punishment is its work, and the right to punish has
a broader scope than the simple right of personal self-defense.
The necessity and duty of awarding to crime its fitting penalty,
afford the proof demanded of an exception to the general rule,
that man’s right to live is inalienable.
True, if the necessity and duty of a death penalty are made
out; but this is the very point to be settled. And to settle it
aright, we must first inquire, what are the proper ends of pun-
ishment, and then ascertain whether this particlar mode of
punishment is best fitted to the attainment of those ends. I say
best fitted, for it is not enough to prove that it will attain them,
without also proving that no other mode will do it equally well.
No good surgeon amputates a diseased limb which, by judicious
treatment, can be healed without danger or detriment to the
patient’s general health. Justice and humanity both forbid the
infliction of needless suffering; and sound policy concurs with
them in demanding such a penal code as will secure the legiti-
mate objects of punishment, at the least possible cost of life and
enjoyment. If then these objects can be secured as well with-
out, as with a penalty of blood, it is neither wise, humane, nor
just to sully our statutes with that crimson stain.
The great end of penal law is of course to promote the gene-
ral good. But of this the welfare of offenders is a part. Its
purpose is to protect society, but we must not forget that they
are members of society. Penal law, then, should consult their
good as far as it can without perilling the general good. Per-
haps a careful examination will discover that the best means
for each of these ends, considered separately, is the best for the
other, and of course for the one great end which includes them
both.
THOUGHTS ON THE DEATH PEN ALTY. 11
REFORMATION OF OFFENDERS.
Few, if any, at the present day, will deliberately dissent from
that view of the design of punishment which is taken in the
preamble to the Pennsylvania statute of 1794, placed at the
head of this chapter, viz., that it is three-fold;—to prevent the
commission of crimes, to repair the injury done thereby to
society and individuals, and to reform offenders. Indeed, the
opinion is not without very respectable authority for its support,
that the last named is the first in importance. Dymond, in his
truly excellent work on the Principles of Morality, quotes
Seneca as saying, that “the end of all correction is either the
amendment of wicked men, or to prevent the influence of ill
example;” and adds, “by mentioning amendment first, he ap-
pears to have regarded it as the primary object.” Dymond
himself unequivocally so regards it. His language is quite
explicit. “Is it for his own advantage, or for that of others, or
for both,” that an offender is punished “For both, and pri-
marily for his own.” And again, “we should feel toward those
mentally diseased, as we feel toward the physical sufferer—
compassion ; and the great object should be to cure the disease.
No doubt, in endeavoring this object, severe remedies must
often be employed; . . . . . . severe in proportion to
the inveteracy and malignity of the complaint. But still, the
end should never be forgotten ; and I think a just estimate of
our moral obligations will lead us to regard the attainment of
that end as paramount to every other.” That efforts for this
object are no way incompatible with a due regard for the others
mentioned above, but rather help to promote them, as hinted in
the close of my last paragraph, is also his opinion. He thinks
“it can be shown that the good of the public is best consulted
by those systems of punishment which are most effectual in
benefiting the offender himself.”
DEATH PUNISHMENT DISREGARDS THIS END.
Now, it is an objection of great weight against the penalty of
death, that it neglects, nay, worse, that it tends to defeat this

12 THOUGHTS ON THE DEATH PEN ALTY.
certainly important, and, as some think, paramount end of pun-
ishment. It is neither intended nor adapted to promote the
welfare of its victim. Not seeking nor tending to reform him
itself, nor waiting for other influences to work his reformation,
it cuts him off at the appointed day, whether he is penitent and
regenerate, or hardened in sin. True, the sentence is not now,
as formerly, followed by execution within eight and forty hours,
and we may be told that the longer space now given is enough
for repentance and all needful preparation, so it be but well
improved. Grant this, and it proves nothing for the gallows.
This space for repentance is not given by your death penalty,
but by its temporary suspension; in other words, by a depar-
ture so far from its strict enforcement, and an approach by so
much to the ground of it opponents, that we ought to leave in
God’s hand the measure of man’s probation time. Besides,
how are we to be assured that the time between sentence and
execution will be so well improved as to secure the desired re-
sult l—that it will not all be needed to bring about the proper
state of mind for beginning what you call its right improvement
And if it is, must we “quench the smoking flax” just as the
ruddy blaze is about to burst forth If so, then this penalty
does counteract one main design of punishment—thereformation
of offenders. If not, then comes another delay of its execution,
and another step toward the position of its adversaries. Nor is
this all. To put off execution for such a reason, looks much
like offering a premium on impenitence." For the criminal will
be in no haste to show signs of reformation, if he is to live till
he is reformed, and no longer. In either case, the objection
urged in this paragraph is sustained. In dooming a fellow man
to death for crime, we not only inflict a certain and incalculable .
evil on him, and deprive society of one who might yet become
a useful member, but we incur the fearful risk of sending him
unprepared into etermity. “He who shortens a human life,”
says Wilberforce, “puts in jeopardy a human soul.” The
reasons must be cogent which can justify our assuming SO a W-
ful a responsibility.
THOUGHTS ON THE DEATH PENALTY. 13
MURDERERs “Not FIT To LIVE.”
In answer to this objection it has been said, and by a “Doctor
of Divinity,” too, professing to teach the religion of him who
came to seek and save the lost, that the murderer “is not fit to
live.” As if that, even supposing it to be true, were a good
reason for our putting him to death. If unfit to live, he is cer-
tainly unfit to die, and that is a far better reason for allowing
him to live. His living while unfit to, we do not cause, when
we simply let him live. His dying, though unfit, we do cause,
when we kill him for being unworthy of life. And is it not
worse to put than merely to leave him where he is not fit to be 'l
But I deny the alleged unfitness. What unſit to live, when
you tell us the great purpose of life is to prepare for death and
eternity, and none can need that preparation more than the
murderer! As well say the child who cannot read and write
is unfit for the primary school, or the sick man for the hospital,
and the ministrations of medical skill. The very malignity of
his moral disease is a strong reason why he should live as long
as God will let him, and have all possible opportunity to recover
his soul's health. “For to him that is joined to all the living
there is hope,” and of that hope why should we deprive him
“INCORRIGIBLE.”
But the murderer is beyond hope, it is replied. His moral
malady is incurable. The deep depravity which can prompt
his bloody deed is beyond the reach of reformation. A bold
speech this to utter concerning a fellow-man' Who gave us
power to read our brother's soul, and pronounce with such
authority concerning his character, and fate for this world and
the next l—or to limit the Holy One, and say to his redeeming
love, “thus far shalt thou come, but no farther l’’ Is there not
mercy with him, and plenteous redemption, (Ps. cxxx. 7,) even
for the chief of sinners' Hath he not said, even to those whose
“hands are full of blood,” that “though your sins be as scarlet,
they shall be as white as snow; though they be red like crim-
son, they shall be as wool?”—(Isa. i. 15, 18.) Is not his pro-
mise sure, to the robber, the oppressor, and the shedder of

2
14 T II OUGHTS () N THE DEATH PEN A LTY.
blood, that if they will turn from their sins and do that which is
lawful and right, they shall surely live, and their transgressions
which they have committed shall not be mentioned to them 1–
(Ezek. xviii. 10, 22.) And would he mock them with invita-
tions of forgiving mercy which he knew they could never
accept Nay! the assertion that a murderer cannot be re-
formed is a libel on his boundless grace, and a contradiction of
his manifold recorded promises.
Nor is it less at variance with all sound philosophy of the
human mind and the testionny of experience. The corrigibility
of other criminals is not denied, and, if it were, abundant facts
would refute the denial. Hardened offenders have been
changed, by the use of appropriate means, to virtuous men and
useful citizens; and why should not like influences work the
same change upon the murderer! “His heart not differs from
another's heart” in natural texture; nor is it always more de-
praved than any other. No broadly marked distinction severs
the guilt of murder from that of every other crime. The shades
of sinfulness blend with each other, from the deepest to the
lightest; and murder has often sprung, no doubt, from less de-
pravity than has impelled, in other cases, to crimes of less
degree. Or even if the guilt were always proportioned to the
grade of crime, these differ not enough, the highest from the
next, to justify so wide a variance in their penal treatment, as
seeking to reform in one, and in the other to exterminate.
DIS PROVED BY FACTS :—FROM SCRIPTURE.
In support of this conclusion I appeal to history, sacred and
profane. Both must be thrown away before we can pronounce
the murderer incorrigible. One case of murder with which all
readers of the Bible are familiar, has seldom been outdone in
atrocity—taking into view all the attending circumstances. The
relation of the parties, the murderer's high standing and former
character and religious training and peculiar spiritual privi-
leges, the occasion of his crime, the manner of its commission,
and his immediate after-conduct, all went to aggravate in no
common measure its enormous guilt.
The victim —a loyal subject and valiant soldier murdered by
THOUGHTS ON THE DEATH PENALTY. 15
his king, and at the very moment when his valor was devoted
to the service of the murderer, who took advantage of his loy-
alty and courage to bring about his death, and yet escape sus-
picion. The murderer;-one raised to the royal office as a
man after God’s own heart, favored with large and frequent
communications of the divine will, and well instructed in the
written law; a holy bard, moreover, inspired with the spirit at
once of poetry and religious devotion. The murder;-perpe-
trated to hide another crime, almost as black, against its un-
suspecting victim, whose very zeal and self-denial in the cause
of his king and country and religious faith had unconsciously
defeated the only other plan of concealment which could be
devised.—(See 2 Sam. xi. 11.) And then how promptly, when
the deed was done, its guilty author, with no more delay than
accustomed forms and some regard to appearances imposed,
seized on the prize which lured to its commission.
If ever any crime, in its intrinsic character and attendant cir-
cumstances, afforded proof of incurable depravity in its perpe-
trator, does it not seem to have been given in this 1 Yet
David's penitence for this very crime poured itself out in a
pathetic psalm, so eloquent in the natural language of sincere
repentance, that contrite souls in all succeeding ages have
found it the utterance of their own sorrow under a sense of sin.
Take another case from the sacred record. Read on one
page the story of the young man who stood by, consenting to
the death of the first Christian martyr, and kept the raiment of
them that slew him ; made havoc of the church of Christ, shut-
ting up the saints in prison, and when they were put to death
giving his voice against them; persecuting Jesus, and slaying
him afresh in the persons of his chosen representatives, and
reddening his hands continually with innocent blood. Then
turn the leaf, and as the other page reveals the Christian
graces of the great Apostle to the Gentiles, tells of his toils and
sufferings and achievements in the gospel ministry, recounts
the proofs that he was “mot a whit behind the very chiefest
Apostles,” but rather “labored more abundantly than they all,”
and recites his grateful testimony, “this is a faithful saying and

16 THOUGHTS ON THE DEATH PEN ALTY.
worthy of all acceptation, that Christ Jesus came into the world
to save sinners, of whom I am chief;” let the marvellous trans-
formation teach you what the grace of God can do for the
murderer even of his saints.
Listen Is that the voice of a dying malefactor, incorrigibly
depraved, which peals out with such a full sonorous swell of
solemn joy the triumphant declaration, “I am now ready to be
offered, and the time of my departure is at hand. I have fought
a good fight, I have finished my course, I have kept the faith:
henceforth there is laid up for me a crown of righteousness,
which the Lord, the righteous Judge, shall give me in that
day !” Yes!—if the commission of murder is conclusive proof
of incurable depravity. But who dare say it is 'l Who can
pronounce with certainty of any man, however guilty and de-
praved, that in him is not the germ of a David or a Paul :—
may, of a better than David, a holier than Paul ? Has the foun-
tain of divine grace run dry Is God's arm shortened that it
cannot save 1 Is there now no balm in Gilead, no physician
there 7
FROM OTHER SOURCES.
Instances are not wanting in any age, from that of the peni-
tent robber on the cross, down to our own time, in proof of the
still abiding efficacy of those influences which wrought such
wondrous changes in the ancient day. One of these is related
in a little volume published by the American Sunday School
Union, under the title of “Black Jacob, a Monument of Grace.”
Black Jacob is described in it as an ignorant and worthless
negro, who, after passing through a variety of scenes and ad-
ventures, found himself, at the age of fifty-six, settled in the
State of New York. At that time, in the words of his biogra-
pher, “having cast aside all the restraints of moral influence,
he had become confirmed on land in all the habits of vice con-
tracted upon the sea.” Here he was employed to commit a
horrible murder, the motive of his employers being revenge,
and his, a promise of money. It was long before they could
prevail on him to undertake it, but at last he yielded, and did
the bloody work with the utmost deliberation.
THOUGHTS ON THE DEATH PENALTY. 17
On the trial of his associates he was the chief witness of the
State, and for this reason, and on account of the favorable im-
pression which his deportment made upon the court and audi-
ence his punishment was commuted by the Legislature to
imprisonment for life; and “under the influence of a wisely
kind and liberal spirit of prison discipline,” in the State prison
at Auburn, he became at length “a genuine, humble and de-
vout penitent, and truly exemplary disciple of the Cross.” After
spending ten or eleven years in prison he was pardoned, and
passed the last ten years of his life in the service of a highly
estimable woman in the village of Canandaigua, “having the
general charge of her house and establishment, and fully merit-
ing, by his conduct, the unbounded confidence reposed in him,
during both the absence and presence of the family, which
consisted entirely of ladies.” He was highly esteemed, both
in his social and religious connections, led often in the devo-
tional exercises of the church of which he was a member, and
“by his modesty, consistency, and religious fervor, the practical
excellence and beneficence of his life, and the trusting tranquil-
lity of his death,” proved that it is not impossible to reclaim
even “the most abject in ignorance, the most inveterate in vice,
and the most atrocious” in crime. “Jacob,” says his biogra-
pher, “was a useful Christian. Not a few in this village owe
their conversion, under God, to his faithfulness; and I doubt
not many are ready to rise up and call him blessed.”
I will cite one more testimony against the notion that the
commission of murder is proof of a degree of obduracy and de-
pravity far beyond that of all other criminals. Several persons
are now in confinement for murder in the New Hampshire
State prison; for though the death penalty has not been abo-
lished in that State, it has not been inflicted there, if I remem.
ber aright, for several years. In a letter from the Warden of
the State prison, dated May 5th, 1845, he says, “that class of
prisoners under my charge, confined for murder or homicide,
are as manageable and submissive, and seem to appreciate kind-
ness and good treatment, on an average with any other prisoners
under my charge.” One of the most respectable men in New


2#
18 THOUGHTS ON THE DEATH PENALTY.
Hampshire, a man of high social standing and unquestioned
truthfulness, tells me in a letter relating to the same subject,
that he had talked to three wardens about it, and they all
agreed in opinion that the murderers were generally among the
best behaved and most easily managed prisoners; that this was
the case because their crime most often arose from intemper-
ance, and being taken from alcohol their better nature regained
the ascendency; and besides, theirs was frequently a single
crime, while the thieves and burglars were steeped in corrup-
tion from long association with the worst members of society.
Such is, in substance, the statement of the writer of the letter.”
Now, if such are the facts within the range of his inquiry, such
they may be elsewhere, and it is by no means certain that
every murderer is as much worse than other criminals, as mur-
der in itself is worse than other crimes; still less that the
murderer is to be given over to destruction as utterly incorri-
gible.
DEATH PEN ALTY NOT REFORMATORY.
But enough has now been said in refutation of the absurd
and unchristian notion that a murderer cannot be reformed,
and therefore “is not fit to live.” The objection which this
notion is brought to meet, remains as yet in full force. Another
reply, however, more humame, at least, if not better founded
than the last, demands some notice. We are told by some that
the death punishment is really reformatory in its influence; for
the certainty that life must end at a fixed day, and within a
few short weeks, will quicken the soul to greater diligence in
the needful work, than it would use if the length of its stay
here were unknown.
So argues one of the ablest champions of the gallows. “The
sentence of death,” he says, “might be the very means of our
repentance, while an indefinite respite might be the means of
our never repenting.”
* This will, of course, be understood as only a general statement, and not
of universal application. The writer adds that he has seen instances of pecu-
liar ferocity, amounting to a monomania, and one case in particular of a
poor, ignorant, imbecile creature, who added murder to a host of other crimes.
THOUGHTS ON THE DEATH PENALTY. 19
Then why confine so salutary a discipline to murderers? Do
not other criminals need repentance too ! Is it kind—is it just
—to punish them in a mode which may be the means of their
never repenting —to make the chance of perdition greater as
the crime is less Nay, why stop at criminals & Why not give
all impenitent sinners the benefit of a death sentence, to “be
executed within a few weeks,” and so not only save their souls,
but prevent the crimes—perhaps murders even—which some of
them may very likely else commit This eacclusive sympathy
for the worst class of offenders is more than the enemies of the
gallows ever dreamed of asking for them, or deemed it wise or
right that they should receive. Besides, if this doctrine is true,
will it not—and whether true or false, will not the inculcation
of it—act 9s an inducement to murder Convince the robber of
thief or petty offender—the common sinner, if you please, who
has broken no human law, that his chance for repentance, and
of course for eternal happiness, is “incomparably” greater under
a sentence of death, with several weeks of interval for prepara-
tion, than with “an indefinite respite,” and will he not be strongly
tempted to do the deed which will procure for him that sentence
with all its immense advantages 3
But it is needless to multiply these questions. The argument
which suggests them is mere assumption, unsupported by facts or
philosophy. What proof is there that offenders doomed to die,
do repent and reform more generally than those who are not so
doomed ! If, as Cheever says, it is “incomparably more likely”
that they will, the facts must be abundant proving that they do.
But I believe this is far from being the case. Hnstances are nu-
merous in which that doom seems rather to have hardened the
victim’s heart, or stupified his soul, or awakened vengeful feel-
ings toward those concerned in bringing it upon him, or driven
him to a kind of frenzy incompatible with serious thought; while
those are rare in which there is satisfactory evidence of sincere
repentance between sentence and execution. My narrow limits
will not admit details of particular cases, numbers of which are
on record, going to confirm this remark. Some of these may be
found in Charles Spear's valuable Essays on the Punishment of
Death, and in the able reports on the same subject, made to the

20 THOUGHTS ON THE DEATH PEN ALTY.
Legislatures of New York and Massachusetts, particularly the mas-
terly report of J. L. O'Sullivan to that of the former State; as
well as in other works, both American and foreign. “We
could fill volumes,” says Spear, “showing the deadening, paralyz-
ing influence of this mode of punishment upon those who are
called to suffer.” I must be content with citing the general tes-
timony of some who speak from extensive personal observation.
E. G. Wakefield, who spent several years in prison, estimates
that “in about one case out of four” of capital convicts “no re-
ligious impression is produced, but the prisoner goes through all
the ceremonies of his situation with an air of indifference, being
occupied to the very last moment with the hope of a reprieve.”
He says also, that “on every execution day on which several are
hanged, the chaplain is subjected to outrageous insults from one
or more of the doomed men.” The author of “Old Bailey Ex-
perience,” who had had large opportunities of information on the
subject, says, that “in nineteen cases out of twenty there is no
true repentance; most of them die apparently careless about their \\
former course of life, or of the world to come.” The following
extract is from the same writer. “The valuable time of the
malefactor is wholly wasted in encouraging vain hopes of pardon,
in receiving visits, and in efforts to keep up a determined carriage
to the last day, even on which he flatters himself that it may ar-
rive, and therefore he must not confess. This is the state of mind
of nine culprits out of ten until the eve of the fatal morning,
when fatigued, weak, and worn out with his efforts, the mind be-
comes suddenly depressed with disappointment, corresponding to
the condition of the body; he then falls into a state of stupor and
insensibility, from which it is almost a cruelty to attempt to rouse
him, as it is now too late to make any beneficial religious impres-
sion on him. Sometimes the affair takes quite another turn, and
the malefactor is seized with a frenzy for death, as being the only
road to happiness, when he will smile and talk as if he were the
happiest man in existence.”
The very testimony which Cheever cites as “a striking con-
firmation” of his belief “that there are cases in which death had
been better than life for the spiritual interests of the prisoner,”
- seems to me to tell powerfully against him. It is an acknow-

THOUGHTS ON THE DEATH PENALTY. 21
j- ledgement often made by “the Reverend Mr. Cotton, who had
s been chaplain of Newgate for more than a dozen years,” that he
w does not remember an instance of what he considered sincere
conversion to religious sentiments, except in prisoners who were
executed. A very great show of religious fervor is often made
by prisoners, even from the moment of their entrance into New-
gate, still more after they enter the cells. But in such cases,
when punishment is finally settled at something less than death,
e prisoner invariably behaves as if all his religion had been hy-
pocrisy.” Now it is the strangest kind of logic which, from facts
*like these, would infer the sincerity of those who are executed,
or that “death is better than life for the spiritual interests of the
prisoner.” It amounts to just about this: In every case where
there has been opportunity to test the profession of repentance,
it has proved insincere, therefore the best way to ensure its sin-
cerity is not to allow its being tested at all. To my mind the
facts prove rather the danger of relying in any case on a seeming
º penitence and religious fervor, manifested under the terror of ap-
proaching death, for they show that there is always reason to
apprehend either wilful deception, or what is doubtless often the
case, a complete self-delusion on the part of the convict. To
cut him off in such a state of mind as either of these would argue,
can hardly promote “his spiritual interests;” while, on the other
hand, if time were given him to discern his delusion, or be de-
tected in his hypocrisy, he might yet repent sincerely, and both
prove his sincerity and strengthen the new born principle of
goodness within him, by a life in accordance with its spirit. One
case like that of “black Jacob” is more to be relied upon as proof
of the regenerating and redeeming power of divine grace, than
a thousand cases of death-bed, or condemned cell and scaffold re-
pentance, followed by no test of after life to try its genuineness.
Facts, then, do not seem to prove the alleged reformatory
tendency of the death punishment, or that men are more likely
to repent for knowing when they are to die, and that the day is
close at hand;—as Cheever and some other advocates of the
gallows teach.






22 THOUGHTS ON THE DEATH PENALTY. º
UNPHILOSOPHICAL. r
Indeed, such a notion is at variance with the philosophy"
which themselves inculcate in doctrine and practice on all other k
occasions. When they exhort sinners to timely repentance, *
(which is the professional work of many of them,) they reason "
thus, and very justly and forcibly: “If you delay the work
of preparation for death till old age or disease or some sudden t
visitation of Providence brings you to the brink of the grave,
and the grim “King of Terrors' stares with eyeless sockets into
your very face, the overwhelming fear will paralyze your
powers, and the task which needed your soul's whole strength
will crush you, thus appalled and helpless, into utter despair.
That which is now comparatively easy, while the danger is, or
seems to be, far off, will then be well nigh, if not quite, impos-
sible.” If this is sound reasoning—as none may deny, at
least not those who use it—in the case of common sinners,
guilty of no atrocious crime or outbreaking immorality, how
much more in that of those whose hands are red with innocent
blood, whose souls are dark with the stain of murder " And
shall we set this palsying terror full before their faces, if we
truly desire their repentance and reformation ?
DIVINE PRECEDENT AND TESTIMONY.
But divine example and authority are appealed to on this
point. A writer in favor of the gallows, in the London Quar-
terly Review for December, 1841, says, “it is manifest that
the sudden death of sinners enters into the dispensations of
Providence;” and Cheever reminds us that “it is the declara-
tion of God himself, that because sentence against an evil work
is not executed speedily, therefore the heart of the sons of men
is fully set in them to do evil.”
Then why admit a delay of “several weeks t” If the text
is good against an indefinite delay, which means for just so long
as God in his wisdom may see fit to put off a natural death, is
it not also good against one for a limited period, fixed by the
judgment of short-sighted man " And ought not execution to
follow as “speedily” as possible, that is, instantly, upon convic-
tion But waiving these inquiries;–to the first quotation I


THOUGHTS ON THE DEATH PENALTY. r 23
s »ly, it is also manifest that in the dispensations of Providence,
/ the time of the sinner's sudden death is not fixed and made
f t own to him beforehand. The divine economy differs herein
issentially from that policy on whose behalf it is cited. God
s ves the sinner to the duly balanced influences of hope and
fear. If in many instances death is sent suddenly lest hope
thould grow into presumption, in more it tarries long, and in
all its hour is mercifully hidden, that fear may not become ab-
lect despondency or sheer despair. Had he known that telling
he sinner he must die at a fixed day, within a few weeks,
would make him more diligent in repentance than giving him
—in Cheever's words—“an indefinite respite, uniformly far diſ.
erent from what they are would be his providential dealings
with men. For he has “no pleasure in the death of the wicked,
but that the wicked turn from his way and live,” (Ezek. xxxiii.
11,) and “is not willing that any should perish, but that all
should come to repentance;” (2 Pet. iii. 9.) nor is it likely he
would fail to adapt his means to the desired end. But unfor-
tunately—whether for his credit or Cheever's argument, the
reader may decide,-indefiniteness is the marked characteristic
of the respite he does give to the sinful race of man. The
death penalty then, and mot the “indefinite respite” which its
opponents contend for, is a departure from the divine economy
as revealed in “the dispensations of Providence.”
In these considerations also we have an answer to Cheever’s
citation of the text from Solomon ; or if more were needed in
reply to that, it is amply furnished in the many assurances
which God has given, both in his recorded declarations and in
his Providence, that he does not execute sentence speedily
against an evil work, but that while he will never clear the
incorrigibly guilty, he is ever merciful and gracious, long-suf.
fering, slow to anger, abundant in goodness, a God of patience,
waiting that he may be gracious, full of compassion, kind to
the unthankful and the evil, loving us even when we were
dead in sins, and showering his blessings on the unjust as well
as on the just. (See Ex. xxxiv. 6. Num. xiv. 18. Ps. lxxviii,
38—lxxxvi. 15—cxi. 4. cxlv. 8, 2 Chr. xxx. 9. Isa. xxx. 18.










24 THOUGHTS ON THE DEATH PENALTY.
Mat. v. 45. Luke vi. 35. 1 Pet. i. 3. Eph. ii. 4, 5. Rom.
xv. 5. 2 Pet. iii. 9, &c.) “God commendeth his love toward
us,” says one apostle, “in that while we were yet sinners, Christ
died for us.” And another tells us, “herein is love, not that
we loved God but that he loved us.” Loved us, that is,
when we were hating him. Is all this forbearance, this delay
of retribution, designed to harden men in sin . So thought not
the apostle, when rebuking its despisers for “not knowing
that the goodness of God leadeth to repentance.” (Rom ii. 4.)
Or has the All-wise erred in his choice of means to effect his
purpose " If not—and who will affirm it !—and if he does not
wish “the heart of the sons of men” to be “fully set in them
to do evil,” then this policy of forbearance has no tendency to
such a result, and the champion of the death punishment has
made a wrong use of his text, in employing it to prove that
penalty to be the best fitted to reform offenders.
POWER OF THE GOSPEL.
Nor has his argument done much to magnify his office as a
preacher of the gospel of grace, or to exalt our notion of the
power of its doctrines over the hearts of men. We have been
wont to hear from our religious teachers—and to believe it
when we heard—that nothing can so melt the sinner's heart
and bow his stubborn will, as preaching Christ crucified; tell-
ing the boundless love, and free, sovereign mercy which brought
God's Son from the right hand of the Father, to die for guilty
man. They whom the terrors of the law will but harden into
desperation, we are told, are dissolved into penitence by the
mild appeals of the gospel. “The love of Christ constraineth
us,” said Paul; and it was by holding up that love to view con-
tinually, that he and his fellow-laborers sought to bring evil-
doers to repentance. How full are their writings of allusions to
its excellence and efficacy How they glory in the cross —
the emblem of self-sacrificing love, and, for that reason, “the
power of God and the wisdom of God to them which are call-
ed.” From what deep depravity had some of these been
raised;—fornicators, idolaters, adulterers, thieves, drunkards,



THOUGHTS ON THE DEATH PENALTY. 25
revilers, once; but now, washed and sanctified and justified in the
name of the Lord Jesus! (1 Cor. vi. 9–11.) And has the gospel
lost its ancient power Are those displays of love beyond de-
gree which it records, no longer mighty through God in sub-
duing rebellious souls Must the gallows supplant the cross—
or be invoked in its aid—as a means of grace " Of old, God
drew the sinner back “with cords of a man, with bands of love.”
(Hos. xi. 4.) Has modern improvement found the halter a bet-
ter “cord” for such a purpose Or do the learned teach, per-
chance, that they are both the same " It would almost seem that
the propositions questioned here must all be true, judging from
the reasonings by which some attempt to prove the reformatory
operation of the punishment of death. But, not convinced as
yet that they are true, I still must doubt the fitness of that cause
to work out any such benign effect.
THE ALTERNATIVE.
Granting, however, for the sake of argument, that, what
with the incitements of your death sentence, and what with
the influence of religious counsel and instruction,-the crimi-
nal is brought to sincere repentance; that he has been born
again, has put off the old man with his deeds, and put on the
new man, which after God is created in righteousness and
true holiness; in a word, that he has become a child of God
and an heir of heaven. And will you kill him now, just when
our revarend doctors teach us “he is fit to live?”—just when
his life begins to be a blessing to mankind? Do the godly so
abound that the world has already enough and to spare? And
are you willing to incur the responsibility of shedding the
blood of saints?—of dooming to your gallows those for whom
the Righteous Judge has laid up a crown of glory and made
º ready a mansion of eternal bliss"
º There is no escape from this alternative. According to
your own doctrine, your death penalty either cuts its victim
off in his sins and sends him, unprepared, to meet the retri-
butions of eternity, and welter in the lake of fire where are
weeping and wailing and gnashing of teeth forever; or it slays





26 THOUGHTS ON THE DEATH PENALTY.
one who has the divine promise that in his righteousness he
shall live, (Ezek. xviii. 22,) pulls down a temple of the Holy
Ghost, hews away a member of Christ's body, casts out the
salt of the earth to be trodden under foot of men, and drags
from the world one of those whom the world most needs, and
over whom there is greatest joy in Heaven.
And then, too, when you point to the regenerate murderer
beneath the gallows, as a trophy of Redeeming Love, and talk
in eloquent and rounded periods of the riches of that abound-
ing grace in which so vile a sinner has found salvation, how
will the scoffer at all holy things deride alike its efficacy and
your pretended trust therein! How will the infidel cry out
with sneering tone,—“Aha! and this then is your conſidence
in the power of your religion! You dare not trust your
boasted monuments of grace to the experience of life and its
temptations, or risk a few years trial of their sincerity, lest
they should turn out arrant hypocrites or deluded victims of
superstition?” Thus by reason of your manifest inconsistency
shall the way of truth be evil spoken of, and perhaps the feet
of some be turned away from it, who else would have found
by sweet experience that it is indeed a way of pleasantness
and a path of peace.
Will it be said in reply, that death is no loss but rather gain
to him who is prepared to die, and therefore sending him from
this world to a better, does the repentant murderer no harm 1
The murderer might urge the same excuse, whenever he has
killed a good man, and it would serve us just as well for going
on in the work of slaughter, till earth is emptied of all whom
death would take to heaven. The absurdity of its legitimate
consequences is refutation enough for such an answer.
REPARATION FOR THE INJURY.
But something else must be considered, besides the welfare
of the evil doer. To repair the injury his crime has done to
society or the individual is one important part of the design of
punishment, according to the doctrine of the Pennsylvania
statute, and an object, I may add, of too much moment to be
disregarded in any wise system of penal legislation. If it can




THOUGHTS ON THE DEATH PENALTY. 27
be attained, either wholly or in part, the plainest common
sense seems to teach us that it ought to be. Reparation to
the injured individual, it is true, is in the case of murder en-
tirely out of the question; but reparation to society,+partial
if not complete, need not and should not be so regarded. Yet
the penalty of death has no such object in view. On the con-
trary it prevents its attainment, by cutting off the offender
before he has had time—and generally before he has become
disposed—to make amends for the mischief he has wrought.
How can the loss of one life be repaired by the destruction of
another ? The murdered man is not reanimated, nor his
powers and opportunities for usefulness restored. You cannot
transfer to his senseless corpse the vital principle which you
have snatched from the murderer's living body. The ex-
tinguished lamp is not relighted by quenching the flame of
another. Society has regained nothing which it has lost, by
throwing away a portion of what it still possessed.
What reparation, then, can any penal system offer for the
injury done by murder? I answer, the possibility of reform-
ing even murderers has already been shown. Let your penal
treatment aim at this, and it may be the means of changing a
worthless, and worse than worthless, into a useful member of
society, a desperate evil doer into an active promoter of the
general good, a monster of wickedness into a virtuous man, a
“black Jacob” into a “monument of grace,” or a Saul of Tar-
sus into an apostle Paul.
Who can estimate the amount of wholesome influence
which one such conversion may exert 1 Who can say that
the reformed murderer will not be one of the most effective
preachers of righteousness, both in word and practice 1 The
simple fact that one so lost in sin has been sought out and
saved, how will it strengthen the hands of all who labor for
the world's redemption—cheer their hearts with a growing
trust in the almightiness of God’s free grace, and the cleansing
efficacy of that “fountain” which is “ opened to the house of
David, for sin and uncleanness!” And may it not awaken in
some other hardened transgressor a thought of his own duty
to repent and forsake his evil way, and a hope that there is

28 Thoughts on THE DEATH PENALTy.
yet a chance for his return to the path of virtue and of peace.
Perhaps that hope alone would rouse in many a now despair.
ing soul the slumbering desire for better things, and quicken
it into earnest and successful efforts to escape from the do-
minion of evil. We know not in how many sinful hearts the
germ of penitence needs only one faint ray of hope, one little
moistening drop of encouragement to make it shoot forth into
the tender blade, and in due season bear the full, ripe ear
which angel reapers shall rejoice to gather in. Then why
withhold that genial warmth and moisture, if we can impart
them? Why refuse to try an experiment which, if it should
succeed, will do so much to bless the race of men Why deny
to ourselves the privilege and pleasure of being fellow-workers
with Divine Benevolence in bringing sinners to repentance by
the power of gentleness, long-suffering and forbearance; by the
exercise of a loving and forgiving spirit; by adapting our penal
policy to the purpose of restraining crime without exterminating
criminals, and administering wholesome discipline without in-
flicting merciless retribution ? Would it not be the noblest
reparation of which the wrong admits, to give society, in the
converted murderer, a more efficient protector against crime
than all its hangmen ; one whose example, and warning words,
and timely counsel will teach the innocent to shun the first
approach of evil, reclaim the vicious ere vice hardens into crime,
and reform the criminal before his slight offenses lead him on
to deeds of darker hue 1 The sad experience of his own sinful
life may thus be turned to far better account, than when its bloody
end alone is held up as a terror to all who meditate misdeeds
like his. -
The “Washingtonian” movement in the Temperance cause
has proved that men reformed from drunkenness are among
the most successful laborers in reforming others. “Could not
the same principle be applied to other forms of crime !”—was
the pertinent and thought-suggesting question of the late Dr.
Channing, a man whose clearness of moral vision and wise
benevolence have seldom been surpassed. And why might it
not The little experience which our penal codes have al-
THOUGHTS ON THE DEATH PENALTY. 29
e lowed us in this direction, favors the belief that it may be
r- safely and wisely so extended, and that its application to the
2n crime of murder will enable the penitent offender to do much
towards repairing the injury which he has wrought. “Re-
store unto me the joy of thy salvation, and uphold me with
thy free spirit,” said the repentant murderer of Uriah, “then
will I teach transgressors thy ways, and sinners shall be con-
verted unto thee.” (Ps. li. 12,13.) Is not this the true philosophy?
UNCERTAINTY. —REPLY.
But it is not certain, we shall perhaps be told, that the murderer
will repent and become fit and willing to make the reparation we
desire. True: but neither are we sure that he will not, and there
is some prospect that he may if he has time. When black Jacob's
death sentence was commuted to imprisonment for life, the legis-
lature did not know that in eleven years he would come out of
prison, a new man in Christ Jesus, and for eleven years after would
lead a quiet life in all godliness and honesty, an ornament to the
Church and a blessing to the world. When Saul of Tarsus was
breathing out threatenings and slaughter against the disciples of
the Lord, neither Jew nor Christian could foresee that he was a
chosen vessel to bear the name of Jesus before the Gentiles; and
so unlikely did it seem, that Ananias of Damascus almost doubted
an intimation, from Christ himself, of his conversion. And of not
one sinner who has ever yet repented, since the apple was eaten
in Paradise, was it absolutely known beforehand—save to the All-
knowing—that he would repent. The case of the murderer who
is suffered to live, and is placed under treatment intended to re-
form him, is herein not peculiar. Though it can be said of no par-
ticular instance, that in it our hope will certainly be realized, yet
it is morally certain, reasoning to the future from the past, that
in some instances it will be; and more than probable that the pro
portion of these instances will increase in a growing ratio, with
the greater care bestowed upon the reformation of offenders, when
that is made a prominent object of our penal policy. Then as
the proportion of the reformed increases, their influence on the
mass around will be more widely and deeply felt; crimes will be
fewer and less atrocious, and in the cases which do occur refor-



3*
30 THOUGHTS on TIIE DEATH PENALTY.
mation will be easier; so that a steady progress will be made,
though slow at first yet constantly accelerating, toward that hap-
py state foretold in holy writ, when violence shall no more be
heard in our land, wasting nor destruction within our borders.
Now I object to the punishment of death, that it cuts off entirely
this chance, that in each case, this certainty, that in some out of
the whole number—the criminal will become able and disposed to
repair the wrong which he has done, so far as the nature of it will
allow. It defeats, therefore, one of the legitimate and exceedingly
important purposes of penal infliction, and brings a serious loss
upon society, which society can ill afford to bear.
DANGER OF DECEPTION.—FIRST ANSWER,
But, it may be asked, does not the idea of reparation here held
out, suppose that the murderer must be set at large when he is
thought to be sincerely penitent and reformed ! And would not
this be very dangerous, by reason of our liability to be deceived
Might he not seem to have repented and become desirous to atone
for his offence, while his only aim was to escape restraint and
give a loose once more to his evil passions !
To this, two answers may be given. First, granting all which
the questions imply, they go only against his release, and not in
favor of his execution. Even if all hope of reparation must be
given up, that of reforming still remains, and is much too precious
to be rashly thrown away. Far better that the criminal should
live his natural term in prison solitude, feeling that peace which
flows from genuine penitence, the joy of reconciliation with his
Maker, and the hope which lays hold on eternal life, than that he
should be suddenly cut off in the hardness of his heart, and, for
aught we know, cast headlong to perdition.
Besides, it is not a matter of course that he can make no repara-
tion while confined. Though he could doubtless do more were he
free, yet in his narrow sphere he may find room to lead a useful
life. The inmate of a sick chamber, shut up as closely by disease
as ever convict was by granite walls and bolts of iron, has often
made himself more widely felt for good, than many an active bust-
ling body out of doors. Then why may not the prisoner, if he will
contribute something to the general welfare, and so make partial



THOUGHTS ON THE DEATH PENALTY. 31
if not full, amends for his former evil-doing? By diligence in his
appointed tasks, by his quiet and orderly behaviour, by faithfulness
to every trust reposed in him, by carefully turning to the best ac-
count what liberty the prison rules allow, and all the privileges
which hisgood conduct will not fail to win; in a word, by letting slip
no opportunity of giving proof that he is truly penitent and changed
in heart and life, and earnestly desirous to atone for his misdeed,
he can do a double work for the common good; adding somewhat
to the world's material wealth, in the fruits of his industry, and
far more to its moral wealth, in the influence of his example.
Then, too, if after due probation he should be thought worthy
of the favor and likely to use it well, it would be no way incon-
sistent with so much restraint as safety might require, to grant
him freer intercourse with others, inmates of the prison or not,
than is accordant with the general custom. This privilege, guarded
by prudent watchfulness against abuse, might often be employed to
great advantage in aid of the moral discipline of our prisons, as
well as in sending from them to the world around, the healthy
influence which that discipline is designed to generate. So that
even in perpetual imprisonment the converted murderer might
become a blessing to the world, and win himself a place in that
firmament of glory, where they who turn many to righteousness
shall shine as the stars forever and ever. (Dan. xii. 3.) And
should this be the case but once in a generation, the gain would
be incalculable, and still no loss be risked.
SECOND ANSWER.
Thus far I have admitted, for the sake of argument, that it is
never safe or wise to let the murderer go free, however firm and
seemingly well-grounded is our faith in the reality of his reforma-
tion. But this I now deny. With all our liability to be de-
ceived, the risk of hurtful consequences is less from a discreet and
cautious use of the pardoning power, than from the strict enforce-
ment of the general rule of law in every case. The prospect of
advantage from the reformed offender's life in freedom, outweighs
by far the danger from our possible mistakes in judging of his sin-
cerity. To this, moreover, the common voice assents; for it is
almost universally admitted that the government which has the

32 THOUGHTS ON THE DEATH PENALTY.
power to punish should also have a pardoning power, extending
to every class of crimes. This proves the general belief that it
may sometimes be wisely used. The boldest champion of the gal-
lows would doubtless hesitate to say that it were better every
murderer should expiate his crime by speedy death, than that a
milder policy should sometimes spare a David or a Paul, or even
an humble Jacob Hodges. The most distrustful of a sinner's seem-
ing penitence will be slow to urge that life-imprisonment alone
should be the substitute for death, when he considers what the
world had lost if such a rule had been adopted in these cases, and
remembers too that the thing which hath been is that which shall
be; (Eccl. i. 9,) that human nature is the same it ever was. To
save the lives of such as these, and give them broader scope for
active usefulness than prison walls allow, is it not richly worth
the risk we must incur, of being at times deceived, and showing
mercy now and then to one less worthy
Besides, the necessary risk is not so very great as some seem
to imagine. With the watchful care which would of course be
used by those who are fit to administer any penal code, deception
would be very difficult. The probation would be long enough,
and the tests of sincerity sufficiently searching, to detect hypocrisy
and prevent imposition in almost every instance. But be this as
it may, the risk incurred in giving to repentant murderers, with a
proper caution, opportunity to repair by a better life the injury
resulting from their crimes, is after all no greater than is run—
and ought to be, as all allow—in many other cases.
For example, a man of notoriously bad character, unprincipled,
ferocious and revengeful, yet cunning and skilled in concealment
of his feelings, has been accused of murder. The circumstances
are strong against him, producing a general belief of his guilt, and
..eaving barely room for a reasonable doubt in the mind it may be
of one juror out of twelve. That doubt acquits him, and he goes
at large, hiding perhaps in his inmost heart a settled purpose of
revenge on all who have put his life in peril. Is not that man more
dangerous by far, than one who long ago committed murder, and
has for years been showing every outward sign of penitence and
genuine reformation? The latter may still be a wicked man, but
none believe he is, who know him. The former every body knows
is wicked, and all have reason to believe him bad enough for mur-
º


THOUGHTS ON THE DEATH PENALTY. 33
or. Yet he from whom no harm is seriously apprehended must
ie at once, or be shut up for life, because forsooth he may be
dangerous; while he whom all regard with dread may wander
where he will, and all admit his right to life and freedom. In-
fleed I need not have supposed so strong a case for my compari-
son. No candid mind will question that many a man is now at
large, who though never yet accused of atrocious crime, is felt to
he more dangerous to the public peace, than some who have de-
led their hands with blood, but afterwards have become to all
*appearance thoroughly reformed. Now to be consistent those
'ho would hang or imprison the latter, on the ground that the
inublic safety requires it, must treat the former in like manner.
Nay, must they not go farther, and insist that if a man has once
łbeen furiously insane, he should—though quite restored to reason
—be either put to death or kept in a madhouse for life, because
he may become insane again, and put in jeopardy the lives of
others? Yet these conclusions, all pronounce absurd, and no one
tº dreams of adopting them in practice. Then wherefore make a
chance of danger, never greater, often less, a reason for denying
to reformed offenders an opportunity of making such reparation
as they can to society, for the injury it has suffered at their hands.
PREVENTION OF CRIME.
Two of the three great ends of punishment recognised by the
penal code of Pennsylvania, we have now seen that the penalty
of death entirely disregards, or rather tends directly to defeat.
Its bearing upon that which yet remains, must be the subject of
our next inquiry. Is it the best expedient for preventing crime?
Is it so much the best that, for the sake of its superiority here, we
ought to sacrifice the other ends of punishment 1 If the affirma-
tive to both these questions cannot be sustained by conclusive
proof, then the death penalty must be condemned.
“THE Most TERRIBLE PENALTY NECESSARY.”
That when actually inflicted it will prevent a repetition of the
crime by the same offender, is of course an undisputed point.
But we have seen already that it is not needed for this purpose,
and if not needed it should not be used. Reason and humanity
both approve the sentiment of the Pennsylvania legislature, that
“the punishment of death ought never to be inflicted where it is









34 THOUGHTS ON THE DEATH PENALTY.
not absolutely necessary to the public safety.” If defensible at
all, then, it must be on the ground that it is needed to restrain :
others from the like offense. And such a necessity its advocates
affirm. They tell us that the depravity which can deliberately
plot against the life of man, can be held in check only by the
fear of death. The penalty for murder, says Cheever, should be
“so terrific, strong and overbearing, as to break down all other tº
considerations.” And again, “life being the most sacred of all º
possessions, it is the natural judgment of mankind that you must
guard it by the most terrible of all penalties.” Indeed, a large
part of his argument for the gallows is based on the assumption,
that not to punish murder by inflicting “the most dreadful of all
evils,” is “to take away from the weak and defenseless, that pro-
tection which is their only hope against the ferocity of the mur-
derer.
PROVES TOO MUCH.
Now it seems to me that this reasoning proves too much, if it
proves anything for those who use it. It proves that if a punish-
ment more severe than hanging can be devised, if an evil more
terrible than simple death can be found out, the murderer ought
to be menaced with that. Death, they tell us, is the only adequate
penalty for his crime, because it is “the most dreadful of all evils.”
But simple death, attended with no suffering which is not una-
voidable in its infliction, is not the most dreadſul evil wherewith
he can be threatened. Life may be wrung out of his body by
slow tortures, prolonged through hours or even days of agony, of
which each moment shall seem an age to him who bears it. In-
stead of breaking his neck by a sudden fall, or choking his breath
out by the slipping of a noose, and putting him out of bodily pain
in a few minutes at most, you could wrench his joints asunder one
by one, and strain his muscles each after each upon the rack,
break every bone at measured intervals upon the wheel, nail him
to the cross, or burn him alive in a slow fire, or blend perhaps all
these, and yet more cruel modes of torture, in some newly invent-
ed combination of horrors, if aught adapted to give keener anguish
than all these can be devised by human ingenuity. You might
contrive a punishment from which the criminal would gladly fly
to instant death for refuge. And you ought to do it, if the seve-
rest possible penalty is due at your hands for murder.



THOUGHTS ON THE DEATH PENALTY. 35
Nay more. When all your means of bodily torment are ex-
hausted, another terror yet remains greater than all the rest, which,
herefore, you are bound by your own reasoning to employ.
Hamlet but carried out this reasoning to its fair conclusion, when
finding his father's murderer at prayer, he would not slay him then,
est he should send him straight to heaven; but bade his sword
“know a more horrid hent;
When he is drunk, asleep, or in his rage;
Or in the incestuous pleasures of his bed;
At gaming, swearing, or about some act
That has no relish of salvation in't ;
Then trip him, that his heels may kick at heaven;
And that his soul may be as damn’d and black
As hell, whereto it goes.”
Instead of merely dooming the offender to be hung, then, “with
several weeks intervening between sentence and execution” that
he may prepare to die; with the attendance of religious teachers
and the aid of all reformatory influences compatible with the
death doom, whereby that sentence may become the cause, ac-
cording to Cheever, “ of his eternal salvation;” you ought to
cut him down instantly on proof of his guilt, “ with all his crimes
broad blown, as flush as May;” or if you pause at all, it should be
but till you can take him at some act “which has no relish of
salvation in’t,” and so make your penalty if possible the de-
struction of body and soul together. To him who entertains the
thought of murder, “the law,” as Cheever says, should answer,
“you die for it. * * * * Death temporal and eternal is before
you.” And it should do as much as in it lies to render certain
the result it threatens.
The fear of death alone, you often see, is not sufficient to re-
strain from murder. That penalty is not “so terrific as to break
down all other considerations,” and others more terrific are within
your reach. You must adopt them, or by refusing must strike
out the corner stone of that argument for the gallows which we
are now considering. But you do not adopt them, and you will
not. Your soul would recoil with horror from any such proposal,
seriously made. You would resent as grossly slanderous the im-
Putation that you could listen to it favorably or so much as tole-
rate it a moment. Wholesome severity, you would say, not
barbarism and wanton cruelty, is what we advocate. Thus you
:


36 * THOUGHTS ON THE DEATH PEN ALTY.
virtually concede the fallacy of your reasoning, by rejecting its
legitimate conclusion. - º
Neither—it may safely be affirmed—are tortures banished from
our penal systems now, solely for reasons of humanity. They
would doubtless be unanimously pronounced no less impolitic
than cruel, and their introduction would be thought by all more V.
likely to increase than to diminish crime; to fit men for its com- tº
mission than to deter them from it. Yet they were once regarded
as useful if not necessary instruments of criminal law, and were
largely employed both in trial and in punishment. It would
probably have been thought in former times as dangerous to dis-
pense with the terror of pressing to death by heaping weights on
the breast to compel the accused to plead to an indictment, or
with the rack as a means of extorting testimony from witnesses
or confessions from suspected persons, as it now is to abolish the
death penalty for murder. Charity itself was once in as good
sober earnest talked of in connection with the use of torture, and
that too when no guilt had yet been proved, as benevolence and
humanity are now in association with the gallows. “There was
perpetual care had,” says the minister of Queen Elizabeth in his ac-
count of the State trials in her reign, “and the queen’s servants, the
warders, whose office and act it was to handle the rack, were ever,
by those that attended the examinations, specially charged to use
it in as charitable a manner as such a thing might be.” And those
jurists who adopted it into the penal system of France and other
nations of continental Europe, claimed to have done it “from a
tenderness for the lives of men;” that as “the law could not en-
dure that any man should die upon the evidence of a false, or even
a single witness, the torture was contrived that guilt should mani-
fest itself by a plain confession, or innocence by a stout denial.”—
S. L. M. H., vol. 2, p. 84. The old notion of the expediency
and “charity” of the rack has passed away, and we can wonder
how it ever found a place among any but the rudest savages. Is
it not possible, at least, that the still prevailing notion of the ne-
cessity and benevolence of the gallows, will seem as strange to
our posterity as the other does to us? Especially when, as we
have seen, the argument by which the present notion is defended,
if it were sound, would justify the former, even now.
But it may be said that those who urge the necessity of the


THOUGHTS ON THE DEATH PENALTY. 37
severest possible punishment for murder, do so with the under-
standing that none can be severer than death, unaggravated by
torture or denial of time for preparation, and therefore only mean
to say that nothing less than this would be severe enough; not
that one more severe should be adopted if it could be found.
“Death, and not suffering, is what we contend for,” Cheever
says. I ask in reply, why shrink from torturing the body or
aiming at the soul’s destruction, if these are not more dreadful
evils than that you would inflict Why shudder at the less and
yet deal out the greater If death is no less terrible than these,
then it is too severe or they are not, and either they should be
employed or it rejected. If it is less dreadful, then asking but
for this is an admission that we ought not to guard life “ by the
most terrible of all penalties,” although the less terrible have often
proved unavailing. And if we must stop short of the most ter-
rible, the question is still open, how far short It is not to be
taken for granted that the gallows marks exactly the right place
for halting. Nor do its friends escape the difficulty by saying
that they ask for murder only the severest punishment which
humanity allows, or “ of which heaven has annexed the authority
to human laws;” for it will be replied that humanity forbids the
penalty of death unless its necessity can be shown, and that its
heaven-derived authority yet remains to be proved. I see as yet,
then, no escape from the difficulty here presented;—that the ar-
gument urged in favor of the death penalty is just as good for
bodily torture and express efforts to send the guilty soul to per-
dition; and so, by proving true what all admit is false, discredits
itself, and can no more be trusted than a witness who has sworn
to a notorious lie.
DEATH NOT ALWAYS MOST FEARED.
But farther. Admitting death to be the greatest of all evils,
and—besides that the conclusion of the last paragraph remains
unshaken—it by no means follows that in general it is practically
so regarded, or that the dread of death is the strongest of all mo-
tives. Say what they may—the advocates of blood for blood—
no careful observer can for one moment believe it is. Religious
zeal laughs it to utter scorn, as testify a cloud of witnesses in
every land and age; martyrs to all creeds and almost every vary.
º 4
38 THoUGHTs on THE DEATH PENALTY.
ing shade of faith, true or false, trivial or important; devotees
throwing themselves before the crushing wheels of their idol’s
car; crusaders crowding the gateway of the grave by millions in
their holy wars;–Pagans, Jews, Musselmen, and the countless
sects of Christendom, each choosing death before apostasy.
The love of country, of freedom, of military glory; loyalty to
kings and devotion to warlike chieftains, have often set it at defi-
ance. Witness innumerable scenes of slaughter from Marathon
and Plataea to Bunker Hill and Missolonghi and the environs of
Warsaw. Witness Leonidas and his three hundred, the Roman
Fabii and Scaevola and Curtius and Regulus, the Swiss hero who
made way for his countrymen through the hostile Austrian ranks
by gathering into his own breast as many of their spear points as
his outspread arms could reach, and a multitude beside who have
perilled life with enthusiasm for their country’s good. What cared
the “Tenth Legion” or the “Old Guard” for life in comparison
with their fidelity to Caesar and Napoleon When were there
wanting men ready and eager to seek “the bubble reputation, even
in the cannon's mouth P What enterprise so desperate in the
bloodiest war, but volunteers would join the “forlorn hope” to
attempt it?
What multitudes too have chosen the trade of war, without the
higher motives of patriotism, loyalty, or love of freedom, or even
the less noble one of desire for martial fame; have sold themselves
to slaughter for a paltry hire, and bled in quarrels of which they
neither knew nor cared about the cause or merits! Of the millions
now enrolled in the armies of different nations, and of the myriads
enlisting in them every year, more than nine-tenths are doubtless
of this class. And the very lowness of the soldier's wages proves
how little difficulty is found in buying human flesh as food for
gunpowder.
So, too, how readily will men brave the dangers of the sea,
often from mere love of roving and adventure, and with no pros-
pect of greater gain than could be realized on land. For wages
also but a little higher than could be earned in healthy kinds of
work, laborers enough are willing to engage in those mechanical
employments which are known to injure health and shorten life.
When pestilence has visited our cities, few have fled from it, in
comparison with those whom slight considerations of profit, eco-

THOUGHTS ON THE DEATH PENALTY. 39
nomy or convenience have kept at home in the midst of its ravages.
And who is not aware that friendship, affection and mere gene-
ral philanthropy have many a time proved stronger than the fear
of death Damon and Pythias of ancient story are not the only
friends who would have gladly died for each other. Nisus and
Euryalus of the poet’s tale are no improbable creations of a vivid
fancy, but rather truthful portraits answering well to not a few
originals in real life. “The brave old father who answered to
his son's name, and went to the guillotine in his place during the
Parisian Reign of Terror,” was only one of many fathers who
would do the same on like occasions; and very few mothers
would hesitate to peril their own lives for the safety of their chil-
dren’s. Nor is the name of Howard alone associated with self-
endangering and self-sacrificing labors for the relief of human
suffering, where no considerations of friendship, kindred, or per-
sonal acquaintance formed the motive.
What triſling causes, moreover, often lead to duels, not only
between fools and desperadoes, but also between men of sense and
worth, with every thing around them to make life a blessing, and
nothing to drive them to such wickedness and folly but regard for
a foolish “code of honor,” or a dread of sneers and ridicule from
those least worthy of respect, and whom perhaps they thoroughly
despise at heart. How frequently we hear of suicides, sometimes
committed under pressure of severe distress or in the frenzy of
insanity, but in numerous instances with no apparent cause be-
yond the fear of disgrace or want, or it may be the necessity of
changing from a luxurious and elegant style of living, to one of
simple yet substantial comfort, or possibly still less, the mere
vexation of some trifling loss or disappointment.*
WHERE RESTRAINT IS MOST NEEDED.
How far such facts as these go to prove true the saying of Lord
Bacon, that “there is no passion in the mind of man so weak but
it mates and masters the fear of death,” each reader must deter-
mine for himself. But none can fail to see that they have a most
. . . . . ;
* It was stated in the newspapers, not long ago. that a ſarmer in some
part of Pennsylvania, worth two or three hundred thousand dollars, killed
himself because a quantity of clover seed, which he had held back from sale
for some time in hope the price would rise, was sold at last for five hundred
dollars less than he had once been offered for it.
40 THOUGHTS OF THE DEATH PEN ALTY.
important bearing on the question of the efficacy of that fear as a
restraint from crime, when some wild passion is urging on to its
commission. Still more will this be manifest, and still weightier
will their bearing be, when we consider on what class of persons
the repressive force of a penalty for murder is meant to act. They
are generally those who have least in life to enjoy or to hope for,
and most to suffer or dread; least to make it seem desirable, and
most to render it a burden, which for a slight inducement they
would cast away. In Cheever's words, they are “outcasts from
society, beings from whom life is so already deprived of comfort, of
respectability, of happiness, that a jail with its food and clothing
would be almost a relief instead of a punishment.” Is it likely
that to such as these “death would be the most terrific of all
penalties,” when it is so often treated with practical contempt
by the prosperous, the hopeful, the respected and beloved, those
who have most to live for, most to lose in dying?
But the death so often practically despised, it may be said, is
not coupled with disgrace. Death on the gallows is dreaded for
the infamy it brings. Granted; and as Edward Livingston well
asks, “if it be that which makes death dreadful, will it not make
life intolerable? If the suffering of shame cannot be endured in
the short interval between conviction and execution, how can it
be borne spread over a whole life?” If the murderer can feel
shame, the longer he must bear, the more he will dread it; but
if he is shameless, the infamy of the gallows will be no restraint
upon him. He will fear a death of ignominy no more than one
of honor.
We may be told, again, that death derives its terror from the
“dreadful something after death,” with which a guilty conscience
fills the soul, much more than from the fear of losing life and its
enjoyments. True: but the terror must be greater still if drawn
from both these sources, than if from only one ; if, while con-
science alarms with warnings of misery in another world, life
has its present joys and cheering hopes to bind the heart to this.
So felt and justly felt the poet when he wrote,
“How shocking must thy summons be, O death
To him who is at ease in his possessions ;
Who, counting on long years of pleasure here,
Is quite unſurnished for the world to come.”
THOUGHTS ON THE DEATH PENALTY. 41
Now if, as we have seen, the fear of death has often been too
weak to hold men back from sinful deeds, as suicide and duelling
and unjust war and many more, even when it was made up of
both these elements, how can we safely trust it when produced
by only one : Iſ it has not restrained those whom it threatened
with the loss of ease and comfort and many blessings here, as
well as the fearful retribution of hereafter, how can it those to
whom if it holds out the terrors of another world, it seems to offer
on the other hand at least deliverance from the ills of this, in
which “their existence is only a melancholy combination of all
kinds of wretchedness?” It must be less effective in the latter
case than in the former, even were conscience alike sensitive in
both. But this will hardly be asserted. For he who is depraved
enough deliberately to purpose murder, and so hardened against
the influence of all “good motives” that “nothing but fear will
restrain him” must have a moral sense too torpid clearly to
discern and rightly estimate its fearful guilt, or sound a loud
alarm of future punishment. Its accusations will be compara-
tively faint and its warning feeble, and the fear of death which
they awaken in proportion slight. Then, too, such persons pro-
bably so seldom think of another state of being, that its realities
appear at most but dim and distant shadows, and the dread of its
unknown evils will have little force against the pressure of actual
want and misery here, urging them on to crime, whether to get
supply for pinching need, or to avenge their real or imagined
wrongs. And sometimes, even, where the heart seems less de-
praved and conscience has some life and tenderness, a furious
storm of passion will so drown its voice, that certainty of death
and all the consequences conscience prophecies are not enough
to stay the hand from blood. In either class of cases it is plain
the gallows is of small or no avail as a restraint.
FACTS IN ILLUSTRATION.
How else comes it to pass that murder is sometimes committed
without a hope or effort to escape its penalty? Of the ten cases
which occurred, followed by executions, in the state of New York,
within the space of about two years, from 1839 to 1841, five
sprung “from a brutal jealousy of husbands towards their wives,
4*
42 THOUGHTS ON THE DEATH PENALTY.
a passion the most violent and insane that the breast of man
knows, and three from a fierce resentment, having its origin in
injury or ill-treatment, real or supposed.” In six of these eight,
concealment or escape was not attempted. In one the horrid
deed was done in open day, in the principal street of New York
city, the murderer “justifying the act aloud, and avowing his
knowledge of its penalty, and his perfect readiness to encounter
it.” In another, the criminal not only did not try to escape, but
declared his choice of hanging rather than seven years’ imprison-
ment in the penitentiary.f. Another was convicted on his own
confession, made to procure the conviction of a yet more guilty
associate who had instigated the crime. He was willing to be
hung, he said, if she was hung with him. Another tried to kill
himself as soon as he had given his victim the fatal stab. In one
case, the most horrible of them all, the murderer went about his
work with the utmost deliberation; “attended divine service” be-
fore setting out to do it, and when he reached the house of his
victim, kneeled down before entering and prayed that the matter
in dispute might be amicably settled, so that it would not be
necessary to carry out his bloody purpose. He was a church
member, “in regular standing.” After completing his crime in
the presence of witnesses—the wife and aunt of the murdered
man—he started to go and deliver himself up, but becoming weak
from loss of blood by reason of a wound received in the murder-
ous struggle, he stopped at a kinsman’s house and “quietly awaited
his arrest.”
Some of the actors in these dreadful scenes were previously
abandoned and degraded. The former reputation of others appears
to have been fair. Of one, the testimony was that “he was an
*O'Sullivan's Report, p. 58, and Appendix. Twelve convictions followed
by execution, took place within the period mentioned, but in one the evi-
dence leaves hardly room for doubt that the man was insane, and in another
it is more than probable there was no intent to kill, and very doubtful whether,
if there were, it was not in self-defense, or at the worst, of a less grade of
guilt than wilful murder.
+ O’Sullivan relates three cases in which the sentence was commuted
to imprisonment. In one of these, the criminal said, while it was yet
doubtful whether his victim would die or recover, that “he wished he had
killed him,” and thathe would “rather be hung than go to the State prison.”
THOUGHTS ON THE DEATH PEN ALTY. 43
industrious, sober and peaceable man,” though “of a very violent
and strange temper” at times. Of another, that he was a “good-
natured fellow, apparently rather simple and weak.” Of another,
that his “general character was good, as a sober, industrious,
quiet and peaceable man, though occasionally very violent when
provoked to anger;” and that he had the name of a kind man in
the neighborhood.” His victim seems to have been a notoriously
bad man. Of another, that “he was a civil, modest kind of man,
but quick-tempered.” In a fit of jealousy he inflicted the fatal
wounds upon his wife, but during the four days that she lingered
before dying, “he paid her every attention,” and “if it was not
for him,”—as she said to her physician,—“she did not know
what she would do.” Of another it was testified that “his pre-
vious general character was good.” Of another that he was “dull
and stupid, good-natured and peaceable, but excitable.” Of
another, that he was “quiet and peaceable, industrious and trusty.”
Here, then, we have repeated instances in which the fear of
death was utterly powerless to restrain from murder, not only
those most likely to be guilty of it, but also those from whom it
would scarcely be expected. They make up more than half the
cases of that crime committed in the state of New York within
the period through which the examination reaches. Whether an
equally careful analysis of the criminal records for longer periods
and in other states and countries would give a like result, or what
is the proportion of such cases to all which have occurred through-
out this country since its settlement, and in other lands since
crimes and punishments began to be recorded, as we have no
means at present of deciding, each reader must make up his own
opinion. But if these two years in New York are not wide de-
viations from the general rule, then is there little to be hoped
indeed from the restraining energy of the fear of death. Could
we even reach Cheever’s “perfection of jurisprudence,” and make
“murder a suicidal act,” it would afford us still no sure protection,
nor would “ the crime of murder well-nigh cease.” For we see
that in a majority of the cases during that period, it not only
proved in the event to be a suicidal act, but to all practical pur-
poses was so regarded by its authors, at the time of perpetration.
44 THOUGHTS ON THE DEATH PENALTY.
“BUT THESE ARE ExCEPTIONS.”
It will doubtless be replied that these are wide deviations from
the general rule; that of the mass of men, or even of the class by
character and condition most predisposed to crime, a very small
proportion would so lightly value life or treat death with such
contempt. Hardly any one not absolutely insane would do a
deed for which he knew that he must die. Be the temptation
ever so great, the impulse of excited feeling ever so violent, that
assurance would hold back his hand. “It would restrain the
angriest, most passionate malignity.” For it is a general, nearly
universal, truth that “no passion is so strong as love of life. Lord
Bacon’s aphorism is not true.” When life is risked in the at-
tempt to gratify some strong desire, it is not that the fear of death
is mated and mastered, for the choice is not between death with
the gratification sought, and life without it. The man intends
and expects to live, though he takes his chance of dying. “The
passion itself,” which impels him to the risk, “grows out of the
love of life, life in a particular desired way.” If death were the
certain consequence of yielding to its impulse, he would never
yield. So argues Cheever, in common with all who take the
same side of the question.
REPLY FROM THE OBJECTOR HIMSELF.
Unfortunately for this argument, it wants the solid foundation
of facts for its support. That the love of life is not so almost
universally the all-controlling passion, has been already most
abundantly shown, and more proof might be brought if more were
needed. But granting for the moment what is claimed, and
Cheever has himself supplied the answer. When he has said
“no grasp is so tenacious as that with which men hold on to
life,” he adds that “no delusion is more powerful than that which
makes them count upon long years of life in store;” that hand in
hand with love of life goes the delusion that life will be pre-
served, even when for the indulgence of passion it is hazarded.”
The murderer, like other men, in general means and hopes to
escape the danger which he risks. Death at a distant and un-
certain day may be regarded with almost indifference by the very
men who would be overwhelmed with terror if they saw it close
at hand and unavoidable. But it is only this dim, distant view
THOUGHTS ON THE DEATH PENALTY, 45
which acts upon the mind just when restraint is needed; that is,
from the first entrance of the thought of crime until it has be-
come a settled purpose, and is about to take the shape of action.
To argue that this will be an efficient check, because men feel
such dread of death when the bony gripe of the grim skeleton is
on their very throats, may be convenient for a cause which needs
support, but is neither logical nor to a thinking mind convincing
AN IMPORTANT TESTIMONY.
Says E. G. Wakefield, in giving the results of several years
observation within the walls of Newgate, “every man is so prone
to believe in his own superior fortune, that seldom even the mor-
tally sick expect to die on that occasion. Premature death is
the almost certain consequence of hard drinking, yet when does
the fear of death by itself operate as a motive to sobriety Just
so in respect to hanging for crimes. The fear of death is coun-
teracted by self-love and hope, which may be called forth to the
extent of delusion in nearly every mind. It would be difficult to
imagine a more striking instance of the delusive hope of life pro-
duced by the very fear of death, than that which is always to be
witnessed in the cells of Newgate.” After estimating that in not
more than one case out of a hundred after sentence of death, and
probably not one in a thousand before arrest, “the capital crimi-
nal really expects capital punishment,” he adds that “the nu-
merous chances of escape arising in great part from the nature of
the punishment, the calculations of reason and the delusions of
hope excited by fear, conspire to render capital punishment
wholly inefficient for the sole end of punishment. When I en-
tered Newgate I had not a doubt of the efficacy of public exe-
cutions as deterring from crime. By degrees I came firmly to
believe just the contrary. Newgate is the very best place to form
a sound opinion on the subject: that is my opinion, deduced
from all the facts of the case.”
CERTAINTY BETTER THAN SEVERITY.
The familiar maxim that certainty rather than severity makes
punishment efficacious, requires no proof, as it meets with no
denial. Absolute certainty, of course, no human tribunal can
attain in the infliction of any punishment, but unquestionably it
can be more nearly reached in the case of milder ones than of the

46 TIIOUGHTS ON THE DEATH PENALTY.
most severe. The greater the suffering ment ced by your law,
the harder will it be to execute the threat, and more is often lost
in the lessened probability of execution than is gained in the in-
creased terribleness of the penalty. Making the penal statute
too severe, you rob it of its terrors, so that in effect it may be-
come an offer of impunity to transgressors. This, doubtless, is
one reason why torture as a punishment would do, as all allow,
immeasurably more harm than good. Men’s soul’s would so re-
volt at its infliction, that often they would sooner clear the guilty
than doom them to a fate so horrible.
DEATH PENALTY UNCERTAIN.
The same objection, if not in equal degree, lies against the
punishment of death. It is almost proverbially uncertain. The
reluctance of witnesses to testify and of juries to convict, when
life and death hang on the evidence or verdict, has doubtless set
free many a guilty man and sent him back to the haunts of vice,
in which alone he is made welcome, there to sink deeper in de-
pravity, and grow more fearfully adept in crime, when under a
more merciful penal system he would most probably have been
restrained from doing mischief, and brought within the reach of
such reformatory influences as might have changed him to a good
and useful man.
TESTIMONY OF LAwYERS, LEGISLATORs, Etc.
Numerous testimonies might be cited upon this point were there
room. Speaking of French juries, M. Charles Lucas, an eminent
jurist of that nation, says, “there is scarcely a list at the present
day which does not contain men who experience a conscientious
and almost invincible repugnance to send one of their fellow
creatures to the scaffold.” An English writer observes that the
* A statement made in the Selections from the London Morning Herald,
vol. 2, p. 291, affords a striking illustration of this remark. In 1832 an al-
teration in the penal law of France empowered juries to state in their ver-
dicts of guilty that the crime was committed under extenuating circumstances.
When this is done in capital cases, the punishment is commuted to some
milder penalty. Now mark the result. In 1834, the latest period to which
the printed criminal returns of France extended when the Herald's statement
was made, 111 out of 136, i. e., more than four-fifths of the verdicts of guilty
in capital indictments, had the qualifying clause in them which saves the
THOUGHTS ON THE DEATH PENALTY, 4.7
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i
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opposition of a penal system “to the best feelings of the most
virtuous men,” produces a variety of evils, among which is its
leading juries to “look on perjury as an amiable weakness, and
even value themselves on an act which shakes purity and justice
to the very centre.” O’Sullivan remarks that “none who have
ever attended our criminal courts in capital cases, can have failed
to notice the operation of the principle here referred to, in a
manner the most subversive of the ends of justice, and the most
dangerous to the security of the community. None will question
the truth here presented, and none can either compute the number
of criminals who have been let loose on society, scot free of all
penalty, and emboldened and hardened by a first impunity, nor
form any conception of the amount of evil which has had its
origin in this cause, in casting upon the administration of the law
an uncertainty in the last degree prejudicial to all the policy of
penal justice.” And again, “there can be no criminal lawyer
in this State, of any extended practice or observation, by whom
the remark that the uncertainty of conviction for capital offenses
has grown almost into a proverb, will not be received as a truism.
Juries will always be powerfully swayed in judgment as well as
feeling by that horror of shedding blood, which the laws of God
have planted too deeply in the hearts of all to be eradicated,
however it may be weakened, by the influences of any laws of
man. In the clearest cases it is constantly seen they will not con-
vict. They will violate their oaths under a thousand pleas of techni-
cal deficiencies or imperfections of evidence, however immaterial.”
In a series of resolutions adopted nearly thirty years ago by the
Common Council of London, it is stated that some jurymen sub-
mit to fines rather than serve where they think the punishment
of death ought not to be inflicted; others acquit the guilty, or
mitigate the offense so as not to expose the criminal to death.
offender's life. Nearly all these were cases of homicide, for by the French
law scarcely any other offense, except political ones, is punishable with death.
The Herald adds that six of the remaining twenty-five received a cornmutation
of punishment, so that only nineteen, less than one-seventh of the whole
number, suffered death. A strong case has occurred within a few months.
A woman who, by cruel treatment, murdered her step-child, two and a half
years old; having broken its bones thirteen times, and when they healed, at
last resorted to starvation, was found guilty with extenuating circumstances.
48 THOUGHTS ON THE DEATH PEN ALTY.
In 1830 a petition was presented in the British Parliament,
from the foreman of seven out of eight Old Bailey Grand Juries
of that year, and more than 1100 merchants and others, who
had served, or were liable to serve, as jurors. It prayed for an
amendment of the criminal law, and testified that in its present
state, “juries felt extremely reluctant to convict where the penal
consequences of the offense excite a conscientious horror on their
minds, lest the rigorous performance of their duty should make
them accessory to judicial murder. Hence a most unnecessary
and painful struggle is occasioned by the conflict of the feelings
of a just humanity with the sense of the obligations of an oath.
Witnesses also are frequently reluctant to give evidence, lest
they might bring upon their consciences the stain of blood, and
thus criminals who under a more rational code would meet the
punishment due to their crimes, escape with complete impunity.”—
S. L. M. H., vol. 1, p. 167. Brougham presented it in the House
of Commons, remarking that “it was worthy of attention for the
reasons it contained, but more especially on account of the au-
thority of the petitioners; for who were so competent to speak
of the scruples of juries as they who had felt those scruples.”
The same year a petition was presented from more than a thou-
sand bankers, of 214 cities and towns, who say that they “find
by experience that the infliction of death, or even the possibility
of that infliction, prevents the prosecution, conviction and punish-
ment of the criminal;” and they “earnestly pray for that pro-
tection which they would derive from a more lenient law.”—
S. L. M. H., vol. 1, p. 40.
FACTS AND STATISTICS FROM OFFICIAL SOURCES.
A writer in the Edinburgh Review, alluding to the former
severity of the British laws against forgery of bank notes, says
that “they would have gone on to this day hanging by whole-
sale” for that crime, “if juries had not become weary of the con-
tinual butchery and resolved to acquit.” J. S. Taylor, an Eng-
lish barrister, in a work published in 1830, states from official
papers laid before Parliament, that “during nine years ending in
1828, of 708 persons committed on the capital charge of forgery,
no less than 334—nearly half—got off; while of 558 committed
THOUGHTS ON THE DEATH PENALTY. 49
on the minor charge, not capital, only 57, or a little more than
one-tenth, got off.” The law of death for forgery, after having
been once repealed, was re-enacted in 1830, and continued nomi-
nally in force for two years; but “public opinion was so far re-
spected,” says the London Morning Herald, “that no execution
ever took place under it.” Lord Holland, in an able protest
against the re-enactment of that law, affirmed that “capital
punishments rarely hinder the commission of a crime, but pre-
vent its detection.”
Lord Suffield, in a speech in Parliament in 1834, stated that
“the well known reluctance to prosecute while the penalty con-
tinued capital, had prevented the commitment of a large propor-
tion of criminals who now no longer escape punishment on that
account;” and that “in the next place, the proportion of convic-
tions had increased” for those crimes which had ceased to be pun-
ished with death. He then referred to the Parliamentary returns
as showing that “in every hundred persons committed for crimes
no longer capital, the average number convicted is seventy-two,
the same proportion as in the aggregate of offenses heretofore not
capital, while the average for those remaining capital were only
forty-seven in each hundred commitments, twenty-five escaping
by acquittals, produced by the severity of the law.”—S. L. M.
H., vol. 2, pp. 225–6. The same speaker declared that “he held
in his hand a list of 555 perjured verdicts, delivered at the Old
Bailey in fifteen years, beginning with 1814, for the single of.
fense of stealing from dwellings, the value stolen being in these
cases sworn above forty shillings, but the verdicts being ‘to the
value of thirty-nine shillings' only. It deserved remark, that
when the legislature raised the capital indictment to five pounds,
in June, 1827, the juries raised their verdicts to four pounds,
nineteen shillings, thus still keeping it low enough to save the
offender’s life.”
Some of the cases were like these, A woman was proved to
have stolen a ten pound note—that or nothing. The jury found
her guilty of stealing under forty shillings. A man was convict-
ed of stealing a pocket-book containing bank notes to the amount
of eighty pounds, and drafts to the amount of twenty;-verdict,
guilty of stealing thirty-nine ºiling. The same verdict was
ſº
50 THOUGHTS ON THE DEATH PENALTY.
given in the case of a woman convicted on her own confession
of stealing gold coins to the amount of sixty-three shillings, and
other money to the amount of forty-four. A man who had ac-
tually sold for twenty-five shillings the goods he had stolen, was
found guilty of stealing four shillings and ten pence, five shillings
being in that case the amount which would have made his crime
capital.” These will serve as specimens of the whole.
The London Morning Herald, commenting upon an array of
facts drawn from public documents, comes to the conclusion, that
“if we look for a certain number of years at the comparative
number of executions and acquittals for the crimes of house-break-
ing and burglary, we shall find that as these executions dimin-
ished, the facility of conviction was generally increased, and
when the executions were increased, the facility of conviction
was diminished. Here we have manifest proof that shedding hu-
man blood is a serious obstruction to the course of effective jus-
tice.” The same journal states, on the authority of Parliamentary
returns, that in three years ending in 1833, out of two hundred
and seventy-seven charged with arson, a capital crime, only
seventy-eight were convicted, being but 28 per cent., whereas
on non-capital charges the general average of convictions is 72
or 73 per cent.
In London and Middlesex in 1827-8–9, for six offenses, all
capital at that time, and for which forty-two persons were exe-
cuted, the average convictions were only fifty-seven out of every
hundred committals. In 1830–1--2, when for three of the six
none were executed, and for the other three only five in all, the
average of convictions was 62 per cent. of the committals. In
1833, when none of them were capital, the convictions were 72
per cent. of the committals. “This,” adds the Herald, “accounts
for the gradual decrease of those crimes which were once capital
but are so no longer. . . . . The cruel mode of punishment by shed-
ding human blood . . . . . excited more sympathy for the offen-
der than respect for the law.” In 1827 ninety-one persons were
* O'Sullivan cites from 4 Dallas' Rep. a case which occurred in Philadel-
phia, of a boy who was tried for arson, then a capital crime, and acquitted,
but being then tried for a misdemeanor on the same facts and evidence,
was found guilty.
º
THOUGHTS ON THE DEATH PENALTY. 51
committed in England and Wales for forgery, then capital. Of
these, only forty-six were convicted. In 1833, when it was not
capital, ninety-one were committed, and of these, sixty-two were
convicted;—a third more than in the former period.
witHGHTSON'S TABLES.
According to tables compiled with great care from official docu-
ments, by Thomas Wrightson, of London, the acquittals on capital
charges in England and Wales during seven years ending in
1831, were twenty-eight out of every hundred commitments.
On charges not capital, eighteen, or more than a third less.” In
London and Middlesex during the same period, the acquittals on
capital charges were forty-four out of a hundred commitments;
on not capital, twenty, or less than half as many. The per cent.
of acquittals in cases not capital, it will be noticed, is nearly the
same in both lists, while in the capital, the proportion is much
larger in the latter than in the former. Now this fact, taken in
connection with another given in the tables, is a strong confirma-
tion of the argument which these statistics have been cited to sup-
port. The executions in England and Wales were only five out
of a hundred of the convictions; in London and Middlesex, ten
out of a hundred. Hence, doubtless, the greater difficulty to con-
vict in the latter than in the former.
The first of the following tables gives the proportion of acquit-
tals to commitments, and of executions to convictions for robbery,
burglary and housebreaking in England and Wales during a pe-
riod of twenty-one years, ending in 1830; the second that of ac-
quittals and executions for the same crimes in England and Wales,
and in London and Middlesex during seven years ending in 1831.
Robbery. Burglary. Housebreaking.
I. Eac. Jłcq. Ea. Jłcq. Eac. •Acq.
First 7 years, 14 to 100. 36 to 100. 18 to 100. 27 to 100. 8 to 100. 22 to 100.
Second ‘‘ 12 * * 31 * * 6 * * 23 & 4 1 * * 16 & 8
Third $ 8 6 * * 37 st 3 * * 21 st 1+ 4 & 19 < *
* “These acquittals do not include persons against whom ‘no bills’ were
found, or those who, though committed, were “not prosecuted.’” S. L. M. H.
vol. 2, p. 96. So that the proportion of those who escape conviction because of
the severity of the law is doubtless much greater than appears from the state-
ment of acquittals.
52 THOUGHTS ON THE DEATH PEN A LTY.
Robbery. Burglary. Housebreaking.
#s Eac. Acq. Eac. Acq. Eac. Acq.
Eng. & Wales. 5 “ 37 - 4 3 * * 22 * * 1 * * 18 “
I,ond. & Mid. 13 “ 49 8 * * 34 5 * * 1 * *
Thus it appears that, whether we compare crime with crime,
or period with period, or region with region, (save one exception
in the second case, viz.: robbery in the third period,) the larger
the proportion of executions, the smaller is that of convictions, and
vice versa. More executions and more acquittals for robbery than
for burglary, for burglary than for house-breaking. More execu-
tions and more acquittals in the first period than in the second, in
the second than in the third. More of both in London and Mid-
dlesex than in all England and Wales. These facts certainly aſ-
ford strong ground for the conclusion that the punishment of death
does, as Lord Holland says, rather prevent the detection of crime
than hinder its commission.
AMERICAN EXPERIENCE,
William Bradford, formerly Attorney General of Pennsylvania,
testified, forty years ago, that “the experience of America does
not contradict that of Europe.” Among other proofs of this, he
mentions that when horse-stealing was punished with death in
New Jersey, “the unwillingness of witnesses to prosecute, the
facility with which juries acquitted, and the prospects of pardon,
created hopes of impunity which invited and multiplied the of.
fense.” The North American Review for January, 1845, bears
witness to the same difficulty of conviction in capital cases, as still
existing. “The reluctance to take life under any circumstances,
impels the jurors to avail themselves of the slightest doubt, and
the accused is acquitted, though he has committed an unprovoked
murder, attended with circumstances of shocking barbarity.”
The following statement of the number of prisoners tried in the
Court of Oyer and Terminer for the City and County of Phila-
delphia, on the charge of murder, manslaughter, burglary, arson,
rape and highway robbery, from 1795 to 1845, is carefully com-
piled, by the clerk of the court, from its records; acquittals and
convictions being separately stated. -
Mur. 1st deg. 2d deg. Mansl. Burg. Arson. Rape. H. Robbery. Total.
Convicted 10 29 38 256 20 7 23 383
Acquitted 72 18 65 S1 19 23 228
* *
* *
------ * *
Total. 72 10 20 50 321 51 26 46 611
THOUGHTS ON THE DEATH PENALTY. 53
Whence it appears that there were,
In all, Capital cases, Not capital,
Charges 611 111, or 18 + per cent. of all. 500, or 81 + per cent, all.
Convicted 383 10, “ 2} € $ & 4 373, “ 97} + { { { %
Acquitted 228 72, ‘‘ 31; -t- § { § { 156, “ 68% * { § {
Showing that while of all the charges more than 18 per cent
were capital, and less than 82 per cent. were not, of all the con.
victions, less than 23 per cent. were capital, and more than
97; per cent. were not. And the acquittals on capital charges
were to all the acquittals, almost twice as many as the capital
charges were to all the charges. Of 111 capitally charged, only
ten were capitally convicted; 72 were acquitted, and 29 were
convicted of a crime not capital. But of 500 charged not capi-
tally, 344 were convicted and only 156 acquitted. That is, while
on capital charges only 9 per cent. were capitally convicted,
only 35 per cent. convicted at all,” and 65 per cent. were acquit-
ted; the convictions on charges not capital were 68 4-5ths per
cent., and the acquittals only 31 and 1-5th per cent.
Not only is conviction, as we see, far more certain in the gene-
ral average of charges not capital than in capital cases, but the
same is true of every particular charge included in that average,
although in some of them the difficulty of proof–aside from what
grows out of the character of the penalty—is in the nature of
things certainly no less, if it is not even greater than in the case
of murder. Rape, for instance, is perhaps harder to be proved
than almost any other crime. Arson, too, must always of neces-
sity be so secretly committed as to render conviction very diffi-
cult. Yet as to certainty of conviction, these and all others named
in the table, stand in striking contrast to the capital charge of
murder. Convictions of rape were 27 per cent. of the accusa-
tions; arson, 39 per cent. ; highway robery, 50 per cent. ; man-
slaughter, 68 per cent. ; burglary, about 80 per cent. ; being re-
* The reason of so few non-capital convictions on the general charge of
murder, doubtless, is that where the killing, if done at all, must have been pre-
meditated, it cannot be brought in murder in the second degree, but the jury
must either convict of the capital crime or acquit. Hence, reluctant to doom
a fellow-man to death, they often acquit on the plea of insanity, or for insuffi-
cient proof, where they would quite probably convict were the penalty less
{)
54 THOUGHTS ON THE DEATH PENALTY.
spectively about 3, 4}, 5}, 7}, and almost 9 times as large a pro-
portion as that of capital convictions to charges of murder.
That the experience of the country at large differs not widely
from that of this district may be reasonable inferred, in the ab-
sence of opposing proof, and is probable from such facts as we
know. Men have been acquitted in repeated instances when the
belief of their guilt was general and strong in the public mind.
Take for example the cases of Avery and Tirrell in Massachusetts,
and Robinson in New York, which made so much noise when they
severally happened; also that of Mercer, tried at Woodbury, N.J.,
for the murder of Heberton, and acquitted on a plea which pro-
bably few believe was legally sustained. Some advocates of
hanging ascribe the murder perpetrated by Boyd, at West Ches-
ter, Pa., in May, 1845, to the acquittal of a man named Peace,
tried there for murder a few days before, and generally thought
guilty by those who heard the trial. If he was so, it is a case in
point for my present argument; and the inference of the gallows-
champions as to the bearing of his acquittal upon the crime which
soon followed, is in harmony with the conclusion I aim to estab-
tablish.* Instead of proving that the gallows is a check on crime,
it tends to show that, by increasing the difficulty of conviction, it
holds out a prospect of impunity which emboldens evil-doers in
their lawless deeds.
When a jury and the public bring in conflicting verdicts, it sel-
dom can be known which has the truth; but sometimes guilt has
come to light after an acquittal. “Buffalo Bill,” a noted desperado
at the west, just before his death in the spring of 1845, confessed
a murder of which he had been once acquitted. He stated also
that one M'Lean, who had been acquitted of the same offense, aided
in its commission. The acquittal of M'Lean was at a new trial
granted after he had been once convicted. Three juries ſailed to
agree, before a fourth acquitted him. Hence it seems probable that
there was proof enough to have convicted him at last, had not the
* A letter from an intelligent spectator of Peace's trial says, Boyd listened
• ‘constantly and attentively to the evidence and arguments of counsel. When
the verdict was rendered, I believe he was heard to remark that it was
impossible for a jury to convict a man of murder.” It also states that “no
doubt was left in the minds of those who heard the trial, that had the punish-
ment been other than death, Peace would have been found guilty,” and that
unquestionably his acquittal emboldened Boyd to the dreadful deed.
THOUGHTS ON THE DEATH PENALTY. 55
penalty been death. But be that as it may, abundant evidence
has now been given, that frequently the harshness of the penal
code defeats its execution, through the unwillingness of its ad-
ministrators to stain their hands with blood.
UNCERTAINTY NOT REMOVED BY CONVICTION.
Nor is it only by the reluctance of jurors and witnesses to be-
come parties to what they deem judicial murder, that the admin-
istration of the law of blood is made uncertain. The leniency of
judges and executive magistrates also concurs with that cause to
produce the same effect. Not only, as we have seen, are convic-
tions obtained with greater difficulty in capital than in other
cases, but when obtained they are by no means uniformly followed
by execution. If they were, how could the hope of escape by
pardon or otherwise be so general that, as E. G. Wakefield states
from his own extensive personal observation in Newgate, not
more than one convict in a hundred, even after sentence of death,
really expects capital punishment! It seems likely for several
reasons that the pardoning power would be more freely used in
capital cases than in others. Sympathy with the criminal and
his friends and relatives, which would naturally be the stronger
the more dreadful the evil about to be inflicted; a dread of send-
ing a fellow-soul to eternal misery, and a hope that time may
work repentance unto life; a fear of making the terrible mistake
of cutting off and putting beyond the reach of reparation one
who may afterward be found to have been innocent; a belief
that public sentiment, influenced by these considerations, will
more readily approve an exercise of mercy in such cases, than
where the penalty is milder and involves less fearful conse-
quences;–these and perhaps other causes will combine to bring
about that result.
FACTS IN PROOF.
A few facts out of many which might be cited will serve to
confirm this opinion. A petition presented to Parliament in 1830
states that in England and Wales, during seven years ending with
1826, the executions were 528, an average of 75 a year, and the
capital convictions, 7,656, or 1,093 a year. “This relaxed exe-
cution of the law,” it adds, “in inflicting the sentence on only

56 THOUGHTS ON THE DEATH PEN ALTY.
one in fourteen convicted offenders, tends to encourage the com-
mission of crime, by the uncertainty of punishment.” A speech
in Parliament by Wm. Ewart, in 1832, states that in 1831 the
capital sentences in England were 1,601, the executions, 52;
only one in nearly thirty-one sentences. For crimes affecting
property, sentences 1,108, executions 23, or but one in forty-
eight. For all others, including murders and all crimes of vio-
lence, 493 sentences, 29 executions; being, even for this class of
offenses, only one in seventeen. So that after sentence of death,
each offender of the lower grades, had, on an average, 47
chances, and each of the higher, sixteen, that he would not be
hung, to one that he would.
During seven years ending in 1833, the proportion of execu-
tions to convictions for housebreaking, then capital, was one to
91; in 1831, one to 517, in 1832, one to 146.” For stealing in
a dwelling house, capital also, one in 62. In 1832, convictions
59, no execution. James Harmer, a London criminal lawyer of
great experience, said at a public meeting in 1830, to petition
for a removal of the death punishment from crimes against pro-
perty, that he could “produce a thousand cases in which prose-
cutors, witnesses, jury, and not unfrequently the Judge, conspired
to defeat the law” on account of its severity. In France the capi-
tal sentences in 1831 were 108, about one-fifteenth as many as.
in England the same year; executions, 25, nearly half as many,
or more than 7 times as large a proportion to the sentences. The
English death sentences for the highest grades of crime were more
than 4% times all the French, yet executions for the same grades
were but 16 per cent. more ; about one-fourth as many in pro-
portion to the sentences. This shows in a strong light the greater
certainty of executing a milder code. Yet even in France less
than one-fourth of the death sentences were executed, so each
sentenced offender's chances to escape the guillotine were more
than three to one.
“The prospect of pardon” is among the causes mentioned by
Bradford, of the “hopes of impunity” cherished by horse-thieves
* In London and Middlesex, during those two years, 122 were convicted,
none executed.—Select. Lond. Morn. Her. ii. 95.

THOUGHTS ON THE DEATH PENALTy. 57
in New Jersey, while their crime was capital in that State. So,
too, he says, when forgery was capital in New York, “public
sentiment revolting against this severity, very few were exe-
cuted,” although the crime was oftener committed, and more were
convicted of it, than in Pennsylvania where the penalty was
milder. The same writer relates a case which strikingly illus-
trates this point, that the criminal’s hope of pardon will be stronger
as his sentence is more severe. Two men convicted in Pennsyl-
vania, one of robbery and the other of burglary, were permitted
to choose between the sentence of the old law which was death,
and that of the new, just enacted, which was imprisonment for
life. They chose the former, taking the risk of death with the
chance of pardon, rather than the greater certainty of the other
penalty. One was pardoned, the other executed.
The last fifty years’ experience of the city and county of Phila-
delphia is well worth glancing at in this connection. The facts
which I state are from the same source as the statistics of that dis-
trict given on a former page. Of the 111 persons charged with
murder in the period mentioned, only ten, as we have already
seen, were capitally convicted. Three of these were pardoned,
two died before sentence, and only five were executed; being but
half the convicts, and only 4% per cent, or one in twenty-two, of
the indicted. Judging from these facts, then, a man accused of
murder, and actually arrested, indicted and arraigned, has twenty-
one chances of escaping the gallows, to one of reaching it; and
even after conviction, has as many chances of escape as of execu-
tion. But this is not all. The experience of the latter part of
the period shows that the proportion of executions to convictions
and charges is becoming less, seeming to prove a growing repug-
nance to inflicting the death penalty. Since 1825 the charges of
murder have been 77, capital convictions eight, executions only
three, or 37% (instead of 50) per cent of the convictions, and less
than 4 per cent., or about one in twenty-six of the charges;
making the chances of escape nearly twenty-five to one after in-
dictment, and five to three after conviction. And for white of
fenders the prospect of impunity is still greater. In fifty years,
from 1795, of six white persons capitally convicted, only two
were put to death, making the chances of escape after conviction



58 THOUGHTS ON THE DEATH PENALTY.
two to one, or, without reckoning upon one man who died before
sentence, three to two. In the last twenty years no white person
has been executed. Of four convicted capitally, three were par-
doned, and one died before sentence. Even had he been hung,
which it is not certain that he would have been, the chances of
escape would still stand three to one; not only a large proportion
but a large increase on former years; showing which way thing:
tend as well as how they have stood. And such being the chances
of impunity after arraignment, and even proof of guilt, what
must they be before arrest or suspicion?
More need not be said in proof of the uncertainty of the death
punishment. That those who meditate crime will count upon
this uncertainty, and be emboldened by it to execute their wicked
purposes, is an inference to obvious not to be drawn by every
reader.
DEATH PENALTY CANNOT BE MADE CERTAIN.
It will perhaps be replied, that if criminals escape unpunished
for the reasons here given, the fault is not in the penal code, but ||
in jurors and witnesses who violate their oaths, in judges and ru-
lers who abuse their power of showing mercy. That the remedy
therefore is to be found not in abating the penalty, but in chang-
ing the state of feeling in those who are to enforce it ; impressing
them with a deep sense of their solemn obligation to administer
the law truly and faithfully as they have sworn to do, and of their
guilt if they fail of this and stain their souls with perjury. In-
stead of yielding to the public sentiment, which virtually annuls
the law, we should aim to correct that sentiment and enlist it on
the side of a rigid enforcement of the law. “Throw away your i
absurd reasonings,” says Cheever, “and make the execution of
the penalty of death for murder absolutely certain, and its re-
straining power is immeasurable.”
This I have already shown reasons for doubting; but suppose
it were true, how is the penalty to be made “absolutely certain?” .
So long as men retain their natural horror of shedding human
blood, and feel it, if a duty, an exceedingly painful one, they,
will be ever ready to let in doubts of its being a duty, and to :
avail themselves of every pretext to avoid its performance. That |

THOUGHTS ON THE DEATH PENALTY. 59
very sense of the sacredness of life, from which arises their ab-
| horrence of the crime, will make them shrink from taking life to
punish it; and as the latter feeling is proportioned to the former,
the more enormous they regard the guilt of murder, the more re-
| | luctant will they be to award it a punishment which clashes with
the same feeling whence has grown their estimate of its enormity
and the more painful the struggle between conscience and feel-
ing, or rather between conflicting dictates of conscience—one
sustained and the other opposed by the sentiment of humanity—
when they are called upon to inflict such a punishment. Even
when they cannot quite justify themselves to their own con-
sciences, they will often feel that the sparing of life is a less evil
than straining a point of law, or exaggerating the force of a cir-
| cumstance in a prisoner's favor.
TEMPTS TO PERJURY.
True, they ough not to forswear themselves, and if they can
conscientiously take part in administering the law as it is, they
are bound to speak truly and act uprightly and legally, be the
consequences what they may. But what men ought to do and
# what they will do, are unhapily not always the same. It is a
poor consolation to those who suffer from crimes occasioned by
that impunity which a severe law produces, that the ministers of
the law were in fault for not enforcing it. And it is worth a
serious inquiry, whether much more is not lost than gained, both
to the public safety and the cause of justice and good morals, by
adopting a penal code so stern as to tempt to the violation of oaths
and official duty, in the very name of benevolence and regard for
the common good, if not of justice also. The greater the evil of
this kind of “pious perjury,” the more unwise to hold out such
a temptation to its commission as shall give it, in the public re-
gard, almost the seeming of a virtue. It is no slight objection
therefore against the punishment of death, that it so often pro-
duces this effect; whereby it does a threefold mischief; giving
impunity to crime, lessening the general respect for law and its
ministers, and lowering the standard of public morals.
: The evil cannot be cured by homilies on the duty of magistrates,
jurors and witnesses, so long as penal law is needed to restrain



60 . THOUGHTS ON THE DEATH PEN ALTY.
from murder; for the law must be administered by men as they
are, imperfect and accessible to temptation ; and while the general
tone of morals is so low, that in the class which needs penal re-
straint some are depraved enough to be murderers, there will be
in the class which administers the law, many who are not—might
I not say, few who are —firm enough always to sacrifice feeling
to principle. Society is not divided into classes distinct and
broadly separated from each other: but one melts into another
from the best to the worse, the character of each modifying that
of every other. If in a winter day we find the cold air in the
farthest corner of the room growing colder or continuing cold, we
know that the warmer air about the fire is becoming less warm or
no warmer, for any increase in the warmth of this would have
appeared in the lessened cold of that. So is it with the different
moral grades in the community. The deep depravity of the worst
class argues, in general, some moral deficiency in the better classes.
Hence we infer that while there is atrocious.*ime to punish, the
hands which must punish it are only comparatively pure, and as
no accurate line can be drawn between grade and grade of imper-
fection, it cannot but often happen that the execution of the law
will depend on those whose principles are worthy of only a quali-
fied confidence at best;-and whom it is highly impolitic to try
with any strong temptation which can be avoided. The legislator
who disregards this truth is unfit for his office. “It is most dis-
creditable to any men intrusted with power,” says a British
writer, understood to be Lord Brougham, “when the governed
turn round upon their governors and say, your laws are so cruel
or so foolish that we cannot and will not act upon them.”—
Edinburgh Review, vol. 45, p. 70.
SWAYS HONEST MINDS TO ERROR.
But granting that this objection can be removed; that by due
care to reform public sentiment it may be brought to pass that
none employed in executing the laws will ever break an oath or
acquit where due proof of guilt is seen, or show mercy without
good apparent cause. Still punishment will be less certain and
crime will have more chances of escape under the code of blood,
than under one of less severity. An erroneous verdict is by no









THOUGHTS ON THE DEATH PENALTY. 61
means of course a perjured one. The most honest mind will be
unconsciously influenced by a dread of being instrumental in a
brother's death. Probably few jurors knowing that on their ver-
dict hangs the life of a fellow-man, can keep their judgments per-
fectly impartial. On most men who have anything approaching
to a just appreciation of the worth of human life—without which
no man is fit to be a juror—the thought would weigh heavily and
continually, bending them, even when they were not aware,
towards a favorable construction of everything urged on the
prisoner's behalf, and disposing them to welcome every doubt and
shadow of a doubt which could be cast on the evidence against
him, insomuch that often they would come sincerely to believe
that they ought to acquit on the ground of insufficient evidence,
when, had the penalty been lighter, the case would have been
clear enough for conviction. And all this without their being
conscious of any improper bias or dishonest intent.
MAKES PENAL ADMINISTRATION CAPRICIOUS.
Then again, the impunity so often caused by too severe a code,
sometimes produces a reaction of feeling, from which another se-
rious evil springs. When crime after crime has gone unpunished,
some unwonted atrocity startles the public mind into a transient
frenzy of revengeful feeling, which so precipitates the course of
judicial proceedings, that in every case occurring while it lasts,
suspicion well nigh passes for proof, conviction treads on accu-
sation’s heel, and the punishment which guilt escaped so often,
falls now perhaps on innocence, or if on guilt, yet with a weight
far greater than is deserved. The mercy granted to so many who
have abused it, is now denied to those to whom it would be wisely
shown, and who would doubtless well requite the boon by their
repentance and amended life. Or an offense not more atrocious
than many were before it, but committed by some wretched out-
cast without “respectable connections” or wealthy friends, may
draw upon his head the bursting of the cloud which the unpun-
ished crimes of others have charged with its fiery bolts. Severity
is for a time the order of the day, till the discovery, it may be, of
some fatal mistake, or the natural subsiding of the vindictive fever,
brings back the former lenient disposition with its consequences.



















62 THOUGHTS ON THE DEATH PENALTY.
Thus between action and reaction of the popular feeling, so long
as men's judgments are liable to be swayed by sympathy and
passion, the penal law, if harsher than their unexcited mood ap-
proves, will pursue in practice this vacillating course, unsettling
so men's faith in its stability that when cruel it will inspire no
wholesome dread and awe, and when mild it will win no grate-
ful and loving respect.
SHUTS TENDER CONSCIENCES FROM THE JURY-BOX.
It will not, perhaps, be out of place to mention here another
reason for doubting the wisdom of the punishment of death.
While, as we have seen, it unfits for their station—in part at
least—some who serve as jurors, it hinders many others from
serving, who are among the best fitted by mental and moral cha-
racter for the duties of the jury-box. There are men, generally
of clear heads and sound hearts, who have too much regard for
truth and right to render a false verdict under any circumstances,
and too much reverence for the sacredness of human life to sit
in trial on any case wherein a true one might doom a fellow
man to death. Of their services, therefore, in the most impor-
tant cases, this bloody penal system robs their country altogether.
Scarcely a capital trial occurs, in which the difficulty of im-
panneling a jury does not reveal the existence of this class, and
prove it a very numerous one. In one case in New York, several
years ago, O'Sullivan states that before twelve jurors could be
found to serve, ten were excused on the ground of conscientious
opposition to capital punishment for any cause. At the trial of
a murder case in Chester, Pa., in 1845, “seventeen of our most
intelligent citizens,” says the county paper, avowed the same
scruples. In Dover, N. H., the same year, a jury to try one
Andrew Howard for murder was not made up till about seven
hundred persons had been set aside. How many for the reason
we are considering, I am not informed, but no doubt a large pro-
portion of the whole number. In the case of Andrew Kleim,
tried about the same time, in New York city, for arson and mur-
der, after the pannel was exhausted, it was necessary to summon
talesmen, and nearly a whole day was spent in filling up the
jury. So too in the cases of Nicholas Gordon in Rhode Island,

THOUGHTS ON THE DEATH PENALTY. 63
and McCurry in Maryland, the same kind of difficulty was expe-
rienced. In Gordon’s case it is said not a man could be found
in the whole city of Providence willing to sit on the jury. But
the truth I am proving is too notorious and generally admitted to
need the multiplying of examples and evidences. And it forms
too strong an objection to the death penalty to be lightly set aside,
especially when it is considered that the cause of the difficulty
alluded to is growing every day, with the wider and yet wider
spread of the feeling and conviction that man has not a right to
punish crime with death. For the harder it is to get jurors of
the best class of citizens,—the thoughtful, conscientious and hu-
mane,—the more likely is the law to be ill-administered; and this
effect will in its turn be the cause of the law's falling into still more
general disrepute, whereby again the difficulty which caused it will
be enhanced, and thus by their mutual influence aggravating each
other, dislike of the law and defectiveness in its administration
will continually increase the evil already complained of; that
uncertainty of execution which makes the penal statute compa-
ratively powerless for good, and productive of incalculable mis-
chief.
WORSE THAN IN EFFICIENT FOR GOOD,
If this course of reasoning has accomplished what it aimed
at, the candid reader is now convinced that the punishment
of death has not the restraining efficacy which its advocates
claim for it; that the terror of its threatenings is more than
counterbalanced by the doubtfulness of their fulfilment and
the greater chance of entire impunity which it creates; and
that this uncertainty of execution is not only an evil necessa-
rily and therefore inseparably connected with the system, but
one also which is growing, and in the nature of things must
continue to grow till the system itself—unless sooner abolish-
ed—shall have sunk under its weight. But the inefficiency
of the penalty for good is not its worst feature. It does posi-
tive and serious harm. Failing to give us the protection which
it promises, it tends to weaken if not to break down the best
and surest safeguard against crime which can possibly exist,
A dread of the consequences can never be so effectual a restraint

64 THOUGHTS ON THE DEATH PEN ALTY.
from evil doing as an abhorrence of the deed. The former con-
templates something separate from the crime, and which there-
fore men will persuade themselves they can escape; but the
latter is fixed on that which cannot be severed from the crime,
and of course can be shunned only by shunning that. “It is
not by the fear of death,” says an eminent English judge, Sir
W. Grant, “but by exciting in the community a sentiment of .
horror against any particular crime, that we can hope to deter
offenders from committing it.” The best preventive of mur-
der, then, is a healthy moral sentiment among the people, and
especially a deep reverence for the sacredness of human life.
The legislator who would act wisely for the protection of
society, must adopt the policy best calculated to cherish these,
and must scrupulously avoid whatever tends to check their
growth. It should be his aim to set the nation’s moral stan-
dard high, and in particular “to maintain and magnify, by every
means in his power, the great idea of the inviolability of the life of
man.” Where this idea is most carefully inculcated, there
will murder be least frequent, and indeed it may be safely as-
serted that there will be the fewest crimes of any kind.
This truth is strikingly exemplified by the Society of Friends.
Its members have been educated to regard the life of man as
too sacred to be destroyed even in personal or national self-
defense. And how exceedingly rare is the arraignment of a
Quaker for crime ! A murder, by one of that Society, is, in
this country, I believe, a thing unheard of. One has indeed
been lately committed in England, but it set the whole island
agape with wonder, and the columns of the newspaper press
ran over with comments upon so marvellous and unexpected an
event. Yet the Friends are no where more than a small fraction
of the whole community, and their character and tone of feeling
cannot but be affected more or less by the prevailing sentiment
around them ; as the cool spring water, gushing up from the
bottom of some sun-heated pool, receives a portion of the
warmth of that through which it rises, although retaining still
enough of its own coolness to be readily distinguished. Were

THOUGHTS ON THE DEATH PENALTY. 65
the same sentiment which pervades that Society, as care-
fully instilled into the general mind, it would doubtless be
stronger everywhere than it now is among Friends, and why
should not crime be then proportionally rare 1 Much less
frequent than now, at all events, it certainly would be.
DEMORALIZING,
But this moral improvement of the community, this growth of
a solemn sense of the sanctity of human life, the death penalty,
instead of promoting, positively hinders. It is demoralizing in
a fearful degree. It teaches directly too low an estimate of the
worth of life; and by hardening the heart, benumbing the finer
feelings of the soul, familiarizing men with the thought and sight
of man-killing, prepares them for the commission of crimes of
violence, whenever temptation beckons or passion drives them on
in that direction. Thus it comes to pass that, in the emphatic
words of O’Sullivan, “the executioner is the indirect cause of
more murders and more deaths than he ever punishes or avenges.”
He is in effect a sort of public teacher both of the doctrine and
practice of murder; and, in the school over which he presides,
are but too many apt scholars for his instructions to prove un-
availing. The pupils who throng so eagerly his gory Academe,
will interpret and apply, each in his own way, the principle in-
culcated there by every instance of that deliberate judicial
slaughter, to which its gloomy shades are consecrate.
When the grim philosopher of beam and cord has taught—as
every act of his ‘profession’ does teach, with the ºnction of the
whole people and all the immeasurable power º collective
moral influence to give the lesson weight, that human life has
no inviolate sanctity; that whoever has done a deed evincing a
given degree of depravity in himself, or inflicting a given amount
of suffering upon another, deservesto die, and it is not only right
to kill him but wrong to let him live; neither he nor ‘we, the
people, who have authorized his teaching, can set bounds to
the applications which will be made of the principle. We may
purpose to monopolize for the state the business of life-taking, and
he may mean but to do our bidding and earn his fee; but every
learner of our lesson will hº his own notion of the uses to

66 THOUGHTS ON THE DEATH PENALTY.
which it can be turned, and it will soon be seen that to open the
sluices of blood is easier than to close them. “Sow an execu-
tion and reap a crop of murders,” is a proverb whose meaning is
as true as it is terrible.
One inan may think, while maddened with jealousy, that the
wretch who has poisoned his domestic joys by seducing the wife
of his bosom into conjugal infidelity, has inflicted a deeper injury
on her and him, and has shown himself more depraved, than if
he had shed that blood while yet pure in innocence, which he
has now sullied with the foul taint of sin. Another may deem
that he who has betrayed the trusting love of an artless maiden,
and left her to disgrace and misery and polluting vice, has reveal-
ed a darker soul, and done a greater wrong to his victim and to
society, than if his steel had pierced the heart which his wiles
deceived and led astray. Another may believe that the slanderer
by whose venomous breath his fair fame has been blasted and his
“life’s life lied away,” has wrought more harm and displayed
intenser malignity than if he had destroyed life instead of repu-
tation. For is not life less precious, in the esteem of multitudes,
than good name, “the immediate jewel of the soul,” than virgin
purity and stainless honor, the sacredness of marriage faith and
that domestic peace which cannot survive its violation ? Nor is
it only the privation of these blessings, which is often deemed a
sorer calamity than death itself, and, when it is the work of
human agency acting with deliberate evil intent, a proof of
deeper depravity than sometimes moves to the commission of
murder. Thiſ catalogue of injuries which are so regarded, some
by one class and some by another, and some perhaps by nearly
all, might be drawn out to an indefinite length.
NATURAL RESULTS OF ITS TEACHINGS.
Here then we stand. Our penal code indoctrinates the popu-
lar mind with the belief that nothing but death can atone for
guilt so heinous as that of murder, that blood alone can wash out
the stain of blood. This belief receives continually the solemn
sanction of legislative and judicial authority, and is ever and anon
impressed with fresh force by the deliberately set example of
the whole community acting in accordance with it. Meanwhile

THOUGHTS ON THE DEATH PENALTY. 67
no penalty is provided, or if any but comparatively a light one,
for offenses against man’s innate sense of right, outrages upon his
strongest and most excitable feelings, which many if not most men,
as has been observed, deem more atrocious in their character,
more pernicious in their effects, and the marks of more utter
wickedness in their authors, than even murder itself;-at all
events than some instances of murder. What wonder then that
the sufferers sometimes take the work of retribution into their own
hands, and carry out the principle and spirit of the law to cases
which its letter has failed to reach ; imitate the example set by
the community, where reasons stronger in their belief than exist-
ed for the setting of it, urge to its imitation “If it is wrong to
let the murderer live,” will they naturally argue, “still more
must it be wrong to let him live whose crime is worse than mur-
der; and since the law, by some strange omission in its framers,
has no provision for applying its own principle here, we will
! supply its lack.” Their minds may not always go regularly
through a process of reasoning like this, but the substance of it
will be felt, if its details are not systematically thought.
Thus the practice of judicial killing educates men to deeds of
blood, and often perverts the noble and generous feelings of the
soul to wrong directions, or stimulates them to an excess which
works out most calamitous results. For unquestionably noble
and generous in its original nature is the feeling which prompts
our earnest reprobation of the slanderer's or seducer's black enor-
mity of wickedness, and doubtless many a murder has been per-
petrated under the influence of this feeling, misdirected by the
training which the penal code has given it, and over-excited by
the state’s repeated example of destroying life for crime; inso-
| much that the offender has esteemed himself the stern minister
of justice, and perhaps a self-devoted martyr to her cause. If his
impulse is not purely a mistaken sense of right, as probably it
seldom if ever is, still it will seem to his mind, perturbed by a
| deep feeling of its wrongs, to be no more alloyed with vengeance
than society’s own retaliation. Nay, that example may have
given him the notion that the spirit of revenge is no alloy of
justice, but a portion of the pure and precious metal; or perhaps
the very temper of the sword of retribution, needful to keep its


68 THOUGHTS ON THE DEATH PENALTY.
edge from turning when it smites the evil-doer. In view of
such effects of the punishment of death, well has “the great
Roman philosopher-orator” exclaimed in words so often quoted,
and worthy to be quoted yet much oftener, “Away with this
cruelty from the state Allow it not to prevail any longer in
..he commonwealth' It has not only the fatal effect of cutting
off so many of your fellow citizens in a most atrocious manner,
but hath even banished from men of the mildest disposition the
sentiment of mercy, by the familiar practice of slaughter.”
FACTS CONFIRM THE ARGUMENT.
Facts might be cited in abundance, were it needful, to confirm
the argument here offered. Among the cases related in O’Sulli-
van's Appendix, are “several remarkable instances of the effect
of this great example held out by the practice of society, sanc-
tioning the idea that man can, for the offenses he may commit,
‘ deserve to die” at the hands of those whom his acts, otherwise
inaccessible to punishment, may have wronged.” In one, the
murderer of his wife coolly declared that “he had a right to do
it,” that “he had done it for ample cause, for her unfaithfulness
to him,” and that “any one else would have done the same
thing for similar provocation.” Another who had killed his
wife for a like reason, said that, “anybody who would do as she
did ought to die.” A third, guilty under similar circumstances,
said, “he should go to the gallows in as good a cause as ever man
went.” Another, who bore the character of a “kind man in the
neighborhood;” “sober, industrious, quiet and peaceable;” and
whose victim appears to have been a very bad man, had been
heard to say before the murder, “he has done things bad enough
to be shot.” And yet another openly avowed as the reason for
his act, “the insufficiency of the law to reach his controversy,”
on account of which he had determined “ to take the law into
his own hands.” To these may properly enough be added the
case of James Eager, executed in New York city in May, 1845.
His crime was committed to avenge the supposed seduction,
and punish the supposed seducer of his wife.
The bloody tragedy which agitated the public mind so strongly
in Philadelphia and its neighborhood some years ago, and which
THOUGHTS ON THE DEATH PENALTY. 69
must be still painfully fresh in the memory of all, may justly be
ascribed, I doubt not, in a great measure to that pernicious influ-
| ence of the bloody penal code which we have been considering.
| Indeed, so generally was the atrocious deed in that case recog-
| nized as an act of retribution in accordance with the prevailing
public sentiment, that the homicide's acquittal on the plea of
insanity, (the only one which gave the slightest foot-hold for a
| defense,) was greeted with almost universal applause; though I
apprehend it would be hard to satisfy an unbiassed mind that the
plea was really sustained by such evidence as the law esteems
| sufficient.
The case of Beauchamp, which occurred, I think in Kentucky,
more than twenty years ago, is another in point. An account of it
was extensively published at the time, and according to my pre-
sent recollection, this was its substance: A high-spirited young
woman, with a keen sense of honor, “which felt a stain as more
painful than a wound,” had been seduced and forsaken by a man
of wealth and consideration, whose standing was among the most
i respectable in the region where he dwelt. While she brooded
over her wrongs, and nursed in secret the purpose of revenge,
Beauchamp became acquainted with her, loved her ardently, and
made her an offer of marriage. Unwilling to practise on him
the deception of silence, or let him ignorantly link his fate to
that of one so dishonored, she frankly told him of her grief and
shame, and dissuaded him from urging his suit. But his affection
was too strong to be so turned aside, and he persisted in his offer,
which at length she promised to accept, if he would first wash
out the stain from her honor with the blood of her betrayer. In
& the frenzy of his love and burning indignation, he agreed to the
! dreadful terms, and faithfully and fatally performed his part of the
contract, by stabbing the seducer, at a late hour in the evening on
the threshold of his own door, whither he had summoned him by
a knock as of some one seeking admittance. As none but his
instigator knew any cause for suspecting him, it was thought he
might have escaped detection, had he left his victim to die, un-
knowing whence or wherefore the blow had come. But wishing
him to be aware that it was such a blow of vengeance as, when
the state strikes it, is called retributive justice, he revealed his
























70 THOUGHTS ON THE DEATH PENALTY.
name and motive to the dying man, who lived long enough t
disclose it, and thus the whole affair was brought to light.
Not unlike this in some of its features, though different i
others, was a case in Missouri, which is related in the first volum
of L. M. Child’s excellent “Letters from New York.” In th
case seduction, dishonor and desertion provoked the murder, bu
it was perpetrated by the hand of the injured woman hersel
The remaining details of the story illustrate a point to which
shall have occasion to refer hereafter.
INFLUENCE OF EXECUTIONS.
Now he must be strangely dim in vision, it seems to me, wh
sees not, in the cases here recited, clear proof that at least amon
the causes of atrocious crimes, is the kind of education which ouri
bloody penal system is giving to the public mind; that to th
low regard in which it holds the life of man, the idea it incul
cates of the rightfulness of its destruction on account of crim
the callousness of heart which repeated inflictions of death are
calculated to produce in the beholders, and its general hurtfu
influence on men's principles and character, is justly to be ascribe
a large proportion of the murders and other deeds of violence, as:
well as of offenses of the lower grades, perhaps, which we all have
such frequent occasion to deplore. ~~
“The punisment of death, even were it a useful one,” said a
speaker in the French National Assembly, “can never compen-
sate the infinite evil it causes in its general moral injury to th
character of all men.” In the words of the able and widely o
servant editor of the London Morning Herald, “frequency o
executions in any country is generally followed by a proportionate
increase of crimes of violence and blood. When the Legislatur
lightly estimates human life, the people are apt to undervalue:
it.” “We stand out among the so-called enlightened nations,”
says the London Economist, “in most unenviable relief, as the
hanging nation; and we have more criminals for our population.
than any people among whom records of crime are kept.” In a
petition sent to Parliament in 1830 by the Society of Friends in
Ireland, they testify that “the inefficacy of the punishment of |
death in preventing the commission of crime is proved by long
|


















THOUGHTS ON THE DEATH PENALTY, 71
and mournful experience, and the continued prevalence of crimes
of an aggravated character in those districts where public execu-
tions are most frequent, is a fact of unequivocal import.” And
again, “so far from a salutary effect being produced by these
dreadful spectacles, they have a powerful opposite tendency, .
tº e º ſº º º and prepare the way for the commission of future
deeds of violence.”
A writer, who describes an execution which took place in
Paris in 1836, and which he seems to have witnessed, expresses
a fear that the influence of the criminal’s example of coolness and
self-possession, would be “most pernicious on the class to which
he formerly belonged, and that we may shortly hear of the com-
mission of such crimes in this country as are not to be prevented
by the fear, or even the certainty of what is vulgarly considered
he severest of all punishments.” On which the Morning He-
ald remarks, “this fear seems to have since been realized; crimes
of violence appear to have become more frequent in Paris since
he use of the guillotine has been revived.” S. L. M. H. ii, 294.
| Lord Holland, in his protest presented to the British House of
| Lords in 1830 against the bill to revive the death-penalty for
forgery, declares that the offense was more “more frequent” since
“than before the punishment of death was annexed to it.” Ib. i.
| 63. The London Morning Herald states that while the Bank of
| England “used to hang up men in dozens for forging their one-
| pound notes, the forgery rapidly increased;”—Ib. ii., 119., and
that “formerly in England, when all or nearly all cases of con-
viction for highway robbery were followed by the inexorable in-
fliction of the punishment of death, that crime was far more fre-
quent, and was usually accompanied by more circumstances of
cruelty, than since public opinion has caused the infusion of a
comparative degree of lenity into the practical application of the
| law.” Ib. 198. H. H. Woolrych, author of a “History of Capi-
tal Punishments,” speaking of a period when mercy was rarely
extended to the last mentioned offense, says that “travelling on
the highways was very hazardous, and it was almost unsafe to
walk the streets.” S. L. M. H. ii., 198.
What kind of moral influence is exerted by the “wholesome
example” of an execution, may be gathered from the following














72 THOUGHTS ON THE DEATH PENALTY.
facts and testimonies, a small portion only of what might be of
fered were they needed. E. G. Wakefield gives it as the resul
of his observation among the convicts in Newgate, that upon har
dened offenders the execution makes no impression, while it i
apt to convert the merely dishonest into the most violent an
reckless of criminals.” T. F. Buxton, the well known philan
thropist, said in a speech in Parliament in 1819, “it is notoriou
that executions very rarely take place, without being the occa
sion on which new crimes are committed.” A pickpocket, h
added, told the Chaplain of Newgate “that executions were th
best harvests he and his associates had.” At the hanging of tw
men in England, for pocket-picking, forty arrests were made fo
the same crime. At an execution in York, (Eng.,) in Decembe
1844, and a still later one in London, pickpockets were detecte
plying their trade at the foot of the gallows. A traveller i
England thus concludes a description of an execution which h
saw there in 1834: “Altogether the scene was so disgustingly bru
tal, that I cannot choose but shudder at its remembrance, even
after the lapse of nine years.” A speaker at a Missionary meet
ing in London in the summer of 1845, said he “had begun the
day with a strange sight at the Old Bailey,” and continued, “as
to the moral effects of hanging, you should have watched the
mob. All that is licentious and filthy and abominable, was done
under the very gallows tree.” -
A statement published the same summer, in an Ipswich, (Eng.)
paper, gives token of the esteem in which the moral influence of
the gallows is held by some even who are not yet ready to pull
down the horrid engine. It is, in substance, that several convicts
being in Ipswich jail, under sentence of death, one of whom was W.
to die before the others, the townspeople despatched “an earnest
petition to the Secretary of State,” asking, not for pardon or com- §:
mutation of sentence, but “that the prisoner, Mary Sheming,
might be respited until the execution of the two Howells and
Shipley, in the hope that the town might be spared the infliction
of two public eacecutions.” That they had cause to dread the fre-
quency of such scenes, may be judged from the fact that on the
Monday after one of them was enacted, “the magistrates spent
several hours in investigating charges of drunkenness and theft,











THOUGHTS ON THE DEATH PENALTY. 73
&c., by persons who came “to see the poor man hung.’” On the
day of the execution at Aylesbury, (Eng.) the same year, “the
streets were thronged with drunken quarrels and ruffianly fights,”
and that night an innkeeper near, “was robbed of his watch and
money by some of the pupils who had come from this moral les-
son of a public execution.”
“We constantly hear,” says Dr. Dodd, “ of crimes not less
flagitious than those for which the criminal is to die, perpetrated
at the very place and moment of his punishment.” He was
himself at a later period guilty of a capital offense, forgery—
and suffered death. One of the jury which convicted him, was
executed on the same gallows, for the same offense, within two
years afterward. Fauntleroy, who died for the same crime, first
conceived the idea of committing it, while returning from an
execution. A man “of great mental power and superior educa-
tion,” who was tried for the same offense, told E. G. Wakefield,
who relates the fact, that the first thought of committing forgery
occurred to him while witnessing the execution of Fauntleroy.
Of 167 convicts under death-sentence, questioned by T. Roberts,
a clergyman of Bristol, England, 164 had been spectators at ex-
ecutions. A London magistrate testified before a parliamentary
committee, that the day after one Wheller was put to death in
London for passing forged notes, a woman with whom he had
been living, took a quantity of forged notes from the very room
where his body lay, and delivered them to her associates for cir-
culation. The witness added, he “had no doubt this was one
case of many others.” A similar case was related at a public
meeting in England, on Buxton's authority. A widow, whose
husband had just been executed for issuing forged notes, was in
... the act of taking from under his body and selling to an associate,
some of the paper which he had been hanged for circulating,
when an alarm was given of the approach of the police. She
had but time, before their entrance, to hide the notes in the
mouth of the corpse, where they were found by the officers.
Crimes of violence and executions are both rare in Scotland.
But on the 18th of October, 1837, one Wm. Perrie was hung at
Paisley, and a number of murderous assaults followed almost im-
me diately in that neighborhood. On the 25th a woman was

7
74 THOUGHTS ON THE DEATH PENALTY.
murdered and thrown into the Clyde. The same day a man dis-
appeared under circumstances which went to show that he must
have been murdered. November 11th, a game keeper on an es-
tate in the vicinity, shot two poachers whom he could not over-
take in their flight. On the 26th, a man was fired at and danger-
ously wounded, between Paisley and Greenock. “It appears,
therefore,” says the Glasgow Argus, in relating these facts, “that
the execution of Perrie, if it has produced any effect, has been a
provocative to crime.”
NOT CONFINED TO EUROPE.
Neither is this demoralizing and crime-generating tendency
of the death punishment confined to the other side of the Atlan-
tic. The evidence is hardly less clear and strong, that its cha-
racter and effects are the same in our own country.
In the language of O'Sullivan's Report to the New York Le-
gislature, “to the demoralizing effect of public executions on tº
the public mind, a testimony perfectly unanimous seems to be
borne by all who have given the subject any consideration.”
The Southern states of the Union have generally harsher penal
codes than the Northern, awarding death to more offenses;* in
them also, murders, duels, bloody quarrels, renconters with deadly
weapons, and all manner of crimes of violence, are notoriously
far more frequent than in these. Though this comes in part
from other causes, yet doubtless the severity of southern penal
legislation contributes largely to the result. But we need not
go south for proof that the gallows is an engine of moral evil
incalculable. The North affords it only too abundantly.
A Report to the Legislature of Maine in 1835, speaking of a
recent execution in that state, says that “they from whom we
have most reason to fear crime, made the day one of drunken-
* According to a statement prepared for Spear's Appendix, by a lawyer in
Boston, the capital crimes in the thirteen free states average two to each
state; murder being capital in all, treason in nine, arson in three, and rape in ;
one. In the thirteen slave states, the average, omitting those which are capi-
tal only when committed by slaves, is four to each state, or, including all
more than ten to each state. A man has lately been hung in North Carolina
for stealing a pair of suspenders.
i
S














THOUGHTS ON THE DEATH PENALTY. 75
ness, profanity, . . . . . . . . quarrelling and fighting;” inso-
much, “that it became necessary for the police to interfere, and
the jail, just emptied of a murderer, threw open its doors to re-
ceive those who came to profit by the solemn scene of a public
execution.” Robert Rantoul's Report to the Massachusetts Legis-
lature in 1836, mentions that the brother of a man hung in 1825
at Worcester for rape, shortly after attempted to commit the
same offense; and that “very lately in Ohio, on the day when
a man was executed for the murder of his wife under circum-
stances of particular cruelty, another man near the place of exe-
cution murdered his wife in the same manner;” and adds, “this
is by no means the only instance where the crime seems to have
been directly suggested by the punishment intended to prevent
it.”
The story of Lechler's execution in 1822, at Lancaster, Pa., is
probably familiar to most of my readers. The usual scenes of
vice and brutality were witnessed at it, and crime flourished
rankly, as is its wont, in its favorite soil, the execution ground.
Twenty-eight offenders of various grades were committed to
Lancaster jail that night, and many others escaped, “ or the jail
would have overflowed.” One of the spectators on his way
home, murdered another, and was arrested and his limbs confined
with the same irons “which had scarcely been laid off long
enough by Lechler to get cold.” When Strang was hung, in
Albany, (about twenty years ago, I think,) for shooting in cold
blood a worthy citizen of that place, one Levi Kelly was pre-
sent, having come sixty or seventy miles to see the execution.
He was “a man of respectable connections, and correct morals,
at any rate not distinguished for immorality of any kind.” In
less than a fortnight afterward, he too committed murder, and,
like Strang, by shooting his victim. Two persons convicted of
murder were executed at Columbus, Ohio, early in 1844, in the
presence of more than 12,000 spectators. The editor of the
Columbus Journal, who was on the ground a few minutes, says,
“we witnessed this day more drunkenness, more brutality, and
more calculated to degrade men in the estimation of their fellow
beings, than we ever beheld in one day, save on a similar occa-
sion.” Very similar was the account given by a paper in
76 THOUGHTS ON THE DEATH PENALTY.
Hagerstown, Md., of an execution in that place, about a year
before.
A SINGLE YEAR’s EXPERIENCE.
In 1845 the death-penalty was several times inflicted in this
country, and every instance added strength to the proof of its
depraving influence, and its tendency to stimulate rather than
check the spirit of murder. On the 3d of January, Thomas Bar-
ret was hung in Worcester, Mass., for rape and murder. On the
14th another murder was committed within a few rods of the
gallows, and not long after a rape, in the same county, and only
a few miles from Worcester. About the middle of March, two
cases of manslaughter occurred in the neighboring county of
Plymouth, less than a day's travel from Worcester, and a murder,
about the first of April, within half a day’s travel of that place,
though in the adjoining state of New Hampshire. Six weeks
later, a murder was committed at New Bedford, Mass., making
in a little more than four months no less than four capital offenses,
and two cases of homicide, not capital, all within less than a
day’s journey of the last execution, all but one in the same state,
and two in the same county. Two homicides followed, in Wor-
chester county, before the end of summer, and, in the fall, oc-
curred in Boston, the terrible tragedy of blood which has made
the names of Albert J. Tirrell and Maria Bickford so notorious.
On the 18th of April, Samuel Zephon was put to death in
Moyamensing district, Philadelphia, for murder. In that same
district a man was murdered the next day, and an infant child,
before a week had passed. “The district, instead of being awe-
struck and solemnized” by the execution, says a Philadelphia
paper, “was for several days afterward converted into a pande-
monium. The spirit of violence and ruffianism was never so
rife. Revelry and riot assumed unbridled license. The annals
of Philadelphia have seldom, if ever, exhibited a Sabbath so
stained with drunkenness, disorder and confusion, as that follow-
ing the Friday of the execution . . . . . . . . For several days
that district was the theatre of almost incessant fighting, in which
a number of persons were severely injured, and the lives of many
others were jeoparded.” On the 25th of May, one of the most
horrible murders on record in our country, was perpetrated at
West Chester, less than twenty-five miles from Philadelphia,


THOUGHTS ON THE DEATH PENALTY. 77
On the 6th of June another murder was committed in Philadel.
phia, followed immediately by the suicide of the murderer;
making in just seven weeks, four murders and one suicide, (not to
mention the many less offenses,) all but one within a half hour's
walk of where Zephon suffered to deter men from crime. And
on the 6th of July a man killed another in a fight, at Phoenix
ville, Chester County, within thirty miles of Philadelphia.
The hanging of James Eager, in New York, on the 9th of May,
has already been mentioned. He had not been dead forty-eight
hours, when a murder was committed just across the river, at
Hoboken, in which several persons were supposed to have been
concerned. It was followed in a few days by another in Passaic
County, N.J., not thirty miles from New York city. Before the
end of the next month, two men committed murder or man-
slaughter in that city, upon a porter, while quarreling with him
for the carrying of a trunk.
On the 27th of June, H. W. M’Curry was executed at Balti-
more, in the presence, it is said, of 15 or 20,000 people. Though
the law requires executions to be in the jail yard, clearly mean-
ing to make them private, yet to gratify a depraved public curi-
osity, the gallows was raised high enough to be seen from with-
out. “The scene,” says one who had his information from an
official spectator, “was a mournful exhibition of the depravity of
the human heart. Every eminence which commanded a view of
the gallows, was crowded with men, women and children. Every
window from which the spectacle could be seen, was filled with
eager and anxious faces. Vice stalked forth in its gaudy and vul-
gar attire; and, side by side, went with it, those who were taught
the lessons of virtue, and hoped they practised them. In the
midst of the crowd, while they were anxiously waiting for the
death scene, and even while the poor man's soul was struggling
in the pangs of mortality, rude jests were passed around: horrid
oaths were uttered; contentions, quarrels and fights were going on.”
Later in the year, Henry W. Green was executed in Troy,
N. Y., for the murder of his wife committed soon after the execu-
tion of one Wm. Miller, at the same place. Charles Spear, who
visited Troy while Green was in prison, states that “five persons
had been put in jail there, charged with murder, since Miller's exe-
1 *
78 THOUGHTS ON THE DEATH PEN ALTY.
cution, though all were not found guilty.” Within a few day
after Green’s execution, another murder was committed in Troy.
Believe who can that these are only so many “remarkable
coincidences.” It must at all events be conceded that they tell
not much for the alleged restraining influence of the gallows; and
impartial minds, I apprehend, will hardly fail to see in them a
proof that it promotes the growth of crime.
PRACTICAL LEGISLATIVE TESTIMONY.
A strong confirmation of our belief on this point is derived from
the practical testimony of no less than nine legislative bodies in
this country, those of the six New England states, New York,
Pennsylvania and Maryland. By forbidding public executions
and requiring that the strangling of malefactors shall hencefor-
ward be done within the prison-yard, before a few chosen wit-
nesses, they have emphatically attested the hurtful moral tendency
of the spectacle heretofore exhibited, and thus effectually refuted
the argument for hanging, on the ground of its necessity or useful- W.
ness as a warning example. For not they who would most need
such a warning, were it useful, are the chosen witnesses of the
hangman's work; but rather those whose mature age,” respectable
character and standing, and established principles, are supposed
to have rendered them least accessible to its evil influence.
But while the Legislature has borne witness to the existence of
the evil, it has applied no remedy, or at best a partial one. Per-
haps less harm is done by a private than a public hanging; but,
if so, the difference is one of degree alone. The most pernicious
element in the death-penalty is left untouched. It still betokens
the sovereign people's low esteem of human life, and so still
teaches, by the state’s example, that disregard of its solemn sanc-
tity, which, more than any other cause, endangers it. True, all
the heart-hardening, soul-depraving details of the infliction are
not seen, but how easily and how vividly may they be imagined.
When it is known that on a certain day they are to be ex-
hibited to a chosen few, the brains of multitudes will be at work
on that suggestion, and many a fearful picture, darker or less dark
*In Pennsylvania, the statute making executions private, expressly forbids
the presence of minors.-Pa. Laws Stat., April, 1834.
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THOUGHTS ON THE DEATH PEN ALTY. 79
as is the soul of him who draws it, will stand in grim distinctive-
ness before the mental eye. To that eye, granite walls and gates
of iron-studded oak are transparent as plate-glass; or rather, when
it is diseased by sin, are magnifying and distorting lenses, dis
colored with such stains of horror as are congenial in each case
to the beholder’s heart, and through which he will gaze upon the
scene with an intensity of eagerness proportioned to the strength
of his propensity to crime. -
The knowledge, like the sight of an execution, will do most
harm precisely where we have already most to fear. To the
orderly and quiet,_those who are neither tempted nor disposed
to lawless deeds,-its image will be comparatively faint, and soon
will fade away, as their various lawful callings claim their
thoughts. But they who by character or circumstances are pre-
disposed to crime, will brood over it and dwell long on each re-
volting feature, and become in the contemplation more hardened
and desperate; thus suffering much of that very moral detriment,
which in the actual beholding of the tragic show, it is admitted
they are likely, if not certain, to receive. The executions men-
tioned a few pages back as having taken place in 1845, were
private, all but one, yet we see how like were their results, so
far as they appear, to those of former times which were in public.
As O'Sullivan has well said, therefore, “all the arguments of
policy and humanity which dictated the abolition of the public
spectacle, command us to abolish the execution itself.”
CHARACTER OF EXECUTIONERS.
Another striking proof of the demoralizing effect of capital
punishment, is ſound in the character which has almost univer-
sally been borne by the executioner, and the estimation in which
his office has been held in every age and country. Of all terms
of reproach, nay, of utter loathing and contemptuous hate, his
title has been ever deemed the strongest. What name so vile, what
calling so abhorred, as that of hangman? The holders of that
office have generally been hard-hearted, brutal and depraved, to
a proverb, if the world’s unanimous testimony can be believed.
Grave literature and light, and the every day talk by fireside and
wayside, speak all one language on this theme. When the great
80 THOUGHTS ON THE DEATH PENALTY.
“ poet of nature” would give words to the most indignant con-
tempt of an insulted woman toward one who had disparaged the
object of her love, he makes her tell him,
“Thou wert dignified enough,
Even to the point of envy, if 'twere made,
Comparative of your virtues to be styled
The under-hangman of his kingdom.”
So, too, “these hangman's hands” is the reproachful designation
applied by Macbeth to his own hands which had just “murder-
ed sleep, the innocent sleep.” As if “these murderer's hands”
had been too weak a phrase to satisfy his bitter self-abhorrence,
and the other were the strongest which even his keen remorse
could dictate.
The well known philanthropist, Wm. Ladd, states that in
Spain executions have been delayed for months, because no one
would incur the disgrace of acting as executioner. Sometimes
none could be obtained but a condemned criminal, hired with the
offer of his own life, beside the usual fee, to take away another's.
And then nobody would approach him to pay him his price, but
the priest had to throw the purse as far as he could, when the
poor wretch would snatch it up and hurry from the shuddering
execrations of the bystanders. In some parts of this country it
is customary for the hangman to wear a mask, that he may not
be known.
Now is it likely that the holders of this office would have been
so uniformly in all times and countries the objects of this strong
disgust, had not some cause been given in the character which
they have generally exhibited; and if such has been the hang-
man's character, what must be our inference as to the nature and
tendency of the calling which has formed it ! What, but that it
is in the highest degree baneful to every humane feeling and all
pure moral principles? And can it be wise to require by law the
continuance of a business so demoralizing 1
A REPLY STATED AND ANSWERED.
If it be said that the notorious depravity and debasement of
public executioners is not an effect of their business, but is owing
to the fact that those selected for it were already vile, I answer,
THOUGHTS ON THE DEATH PENALTY. 81
then it is a proof that the calling has been always and every-
where regarded as congenial with that character, and so it be-
comes the general testimony of mankind to its pernicious moral
influence; for nothing can be plainer than that a practice con-
i genial with depravity will tend to deprave; to make the good
º bad, and the bad worse.
It is moreover at least a strong presumption against the penalty
of death, that its infliction is an office which the best men shun
and the most debased most readily assume. They in whom dwell
those Christian graces which Jesus specially commends, (Matt.
# v. 3–9,) and they too who would ſain stand fair among their
i fellow-men, or hold the chiefseats in the synagogues, shrink from
the bloody work instinctively, and undertake it, if at all, but as a
painful sacrifice of feeling to a sense of duty; while those who
care for neither principle nor reputation, nor the happiness of
others, are prompt in its performance, nothing loth perhaps to
have the state’s authority and pay for gratifying that destructive-
ness which the state's example cherishes and helps to make inor-
dinate. When it was seriously proposed, a year or two ago, by
certain petitioners to the Massachusetts Legislature, that if the
punishment of death must be inflicted as a God-commanded duty,
the clergy should be appointed hangmen in their several districts,
what an outcry of displeasure arose from all the champions of the
gallows, that so gross an insult had been offered to a worthy, pious
and respectable class of men. This shows how a true instinct
will often get the better of a false theory, ere its holders are aware.
It is one of many emphatic attestations which might be cited of
the truth we are considering, that they who are or would be
thought pre-eminent in goodness, abhor the office of the execu-
~ tioner, and would lose their self-esteem and the respect of others
by willingly accepting it. Then why should they uphold a sys-
tem which makes that office necessary 4 “I know of no clearer
rule of moral conduct than this,” says Lord Nugent, in an able
speech at a public meeting lately held in England, “never com-
mand what you would be ashamed to do.” * -
We have now seen that the influence of the death-penalty is
injurious upon all classes; that it hinders the criminal's reforma-
tion, demoralizes the spectators of its infliction, depraves and



82 THOUGHTS ON THE DEATH PENALTY.
|
brutalizes the executioner, hardens the common heart, makes hu-
man life more cheap, and fails of giving that protection from atro- |
cious crime, for the sake of which its evils are endured. In a
word, it answers none of the proper ends of punishment, but
rather tends to defeat them all.
DEATH PENALTY NOT NEEDED. tº
To this, it is repliéd, that bad as things now are, they would be [.
worse without the gallows; that the evils we deplore are not its
fruits, for though it does not quite prevent, it checks and lessens
crime. If some men are “so steeled in wickedness that they i
would murder even with the fear of death before them, much tº
more will they murder when that fear is taken away.” So
Cheever positively asserts. But assertion is not proof, and if it
were, in this case it is met with just as positive assertion on the
other side. Let facts decide which has the best foundation. Al- |
though the trial of mild and humane treatment of offenders has
never yet been made under circumstances so favorable to its suc-
cess as we may reasonably hope to see hereafter, still we may
safely say experience has already proved that life and property, º
the public peace and private rights, can be protected quite as well;
and quite as strong a check be held on all degrees of crime, with- tº
out, as with the terror of the halter. Here is a portion of the §§§
testimony whereby this truth is shown.
EFFECTS OF ITS ABOLITION.
Lord Holland, in his protest, quoted from already upon other
points, alludes to the abrogation of the penalty of death in several
countries and for a variety of crimes within the 70 years preced-
ing, and says, “in no one instance does it appear to have been
followed by any increased frequency of the crime. The laws
have generally been invigorated by such wholesome relaxation.”
It appears from official returns in England, cited in Parliament
by Lord Suffield in 1834, that during three years, ending in
1833, the prosecutions for offenses which ceased in 1830 to be
capital, exceeded by but two per cent. those of three years ending
in 1829, while for those still capital the increase was 44 per
cent., although there is reason to believe that many more of the
latter class than of the former went unprosecuted. Indeed, J.






THOUGHTS ON THE DEATH PENALTY. 83
Harmar, an experienced criminal lawyer in London, testified in
1830, that of those crimes against property which were punish-
able with death, “the cases prosecuted bore no proportion to
H those in which no prosecution took place.” It is therefore
| highly probable that the increase of prosecutions after mitigation
tº of the penalty would have been much more than two per cent.,
| if the number of offenses had been the same; and consequently
is that, as Lord Suffield inferred, the change produced “a decrease
of the actual perpetration of crime,” while those still capital
rapidly increased.
# In 1832 and 3, with twelve executions in England for high-
way robbery, the committals for that crime were 776; in 1834
5 and 5, with no executions, only 719.-S. L. M. H. ii, 358. The
committals for forgery in England and Wales in 1827–9, 3
years, when the penalty was death, and fifteen suffered, were
213; in 1830—2, with a milder penalty, 180. Ib. 220. In
1816–20, 5 years, when 94 were executed, 645, (though “mul-
titudes escaped prosecution;”) in 1831–5, 5 years, only 351,
though few if any went unprosecuted.—Ib. 109. Prosecutions
for forging bank of England notes, in 1826–30, with five execu-
tions, 85, or 17 a year; in 1831–5, when the offense was not
capital, 34, or less than 7 a year.—Ib. Introd. 11. A table now
before me, compiled from Parliamentary returns, compares the
committals in England for seven offenses of the grades next be-
low murder, in periods of varying length from two to ten years,
while they were capital and executions frequent, with those in
periods exactly equal in each case since death has ceased to be
their punishment, or has been very rarely inflicted. It shows
that in the former periods, with 241 executions, the committals
were nearly ten per cent. more numerous than in the latter with
but 13 executions. That this decrease of crime was owing to
the mitigation of the penalty seems clear from this; that those
offenses not included in it continued at the same time to increase.
The commitments in England and Wales during nine years
ending with 1835, for offenses not capital, increased 10 1-5th
per cent.; for those continuing capital,—with 330 executions,—
increased 31 4-5ths per cent, or nearly thrice as much as the
non-capital; and for those which ceased to be capital in 1832–3,












84. THOUGHTS ON THE DEATH PENALTY.
after increasing—with 119 executions—till the change of penalty
decreased in the remaining 3 years over 9 per cent.—S. L. M. H. i
Intr. p. 9. During twenty-one years, ending with 1834, all th
executions in the first 7, were 694; second 7,494; third 7, 35
Convictions of murder, 141; 66 113; << 105;
Ib. 7. Thus, while the number of “deterring examples” ſel
more than 45 per cent., murders, instead of multiplying, decreas-H
ed more than 25 per cent. In 1837, no execution had taken
place in London and Middlesex, in a population of 1,360,000
for nearly four years; yet this “ disuse of the scaffold was attend
ed with a considerable diminution of crime, as the Parliamentar
returns prove.”—Jb. 359 and Intr. 2. In 1828–30, the commit
tals for crimes then capital, with 53 executions, were nearly 1
per cent. more—in proportion to population and general increas
of crime, 40 per cent. more—than for the same crimes in 1834—6
with no executions.
IN THIS COUNTRY.
The facts in our own country bear a like testimony. Willia
Bradford said, in 1795, he could not learn that those crime
which were then capital in some states and not in others, or ha
been so but were not then, were “any better repressed by th
punishment of death than by a milder penalty.” Horse-stealing,
capital in Virginia, was “of all crimes the most frequent” there
New Jersey tried punishing it with death till 1769, and revive
that penalty in 1780, but after a few years experience “wa
obliged” to give it up at the bidding “ of humanity and sound
policy.” Forgery was more frequent in New York, where i
was capital, than in Pennsylvania, where it was not. Counter-
feiting continental bills of credit, capital in Pennsylvania, wa
much more frequent there than in Connecticut, where it was not
In two years the cases of it were almost as many as of all kind
of forgery not capital, in fourteen. Since the revolution twelv
persons had been indicted for arson, a capital offense, and only
two of any other kind of malicious burning, not capital; although
the former term takes in a much smaller class of acts than the
latter.


















THOUGHTS ON THE DEATH PEN ALTY. 85
ity | In Massachusetts, the average of executions, from 1780 to
.."f 1845, was 62-5ths for each period of five years. Five periods
. went beyond the average, rising to 11 in each period; seven
| 0. came short of it, falling to 34-5ths in each. Now for the com-
ſell parative effect of greater and less severity. In the periods
asſ immediately following those above the average, murders in-
...] creased from 10 to 17, or 70 per cent. In the periods following
00, those below the average, when executions were but about one
third as frequent as in the other periods, murders decreased
from 22 to 18; i. e. to less than half as many as they would
have been, had they increased as fast as in the periods follow-
ing more frequent executions.
'3. S6 So long ago as 1776, the wisest men of Pennsylvania had
begun to doubt the wisdom of a code so bloody as the State
then had, and to think there might be other checks to crime,
no less efficient than the hangman's cord. The Constitution
framed that year by a Convention, of which Franklin was the
an President, required expressly, (ch. ii. section 38,) that “the
º penal law shall be reformed as soon as may be, and punish-
&Cl
ments made in some cases less sanguinary, and in general
ºf more proportioned to the crimes.” Section 39 declared, that
* “to deter more effectually from the commission of crimes by
continued visible punishment of long duration,” and to make
sanguinary punishments less necessary, houses ought to be
provided for punishing by hard labour those who shall be con-
victed of crimes not capital,” &c. In 1794 the former of these
sections was obeyed in the passage of that memorable act by
which the penalty of death was done away for every crime
W8S
ot * This notion of the efficacy of long continuance in penal treatment has
d been often brought to view, by friends of reform in penal legislation. “Our
sensibility,” Beccaria says, “is more easily and durably excited by compara-
tively faint but repeated impressions, than by a violent, but passing emotion;”
and hence he argues that an example of imprisonment at hard labour will
restrain more powerfully from crime than will the death of a delinquent.
And Dr. Forde, for a long time Chaplain of Newgate, remarks that “when
the criminal is dead, both the crime and the punishment are soon forgotten;”
adding, “let him live and labour, and the public may benefit by his example,
while he is making some atonement for his crime by his industry,” &c.







86 THOUGHTS ON THE DEATH PENALTY.
but murder in the first degree. And I have it from the lips of
Judge Bouvier, of the Court of Criminal Sessions for the City
and County of Philadelphia, who had examined the officia
records with express design to learn the facts upon this point
that those offenses from which the terror of the gallows wa
withdrawn, became less frequent after than they were befor
the change.
“CASE of MURDER DIFFERENT.” ANswer.
But we are told that these facts do not prove it safe to tak
the penalty of death from murder. They only show it to be
needless, or, at most, pernicious, when affixed to lower crimes
These it has often multiplied and aggravated, because its se
verity was so generally felt to be out of all proportion to their
desert, that it could seldom be enforced; hence it encouraged
hopes of absolute impunity. Not so with murder. There the
fitness of the punishment to the offense is felt by all, and its
infliction will be sure, and so its terror efficacious.
Unfortunately for this argument, it has been shown already
by abundant proofs, that, whether for the want of such a feel.
ing of its fitness, or for other reasons, the punishment of death
is very far from being certain of infliction in the case of
murder; and if a strong reluctance to inflict proves that it is
felt to be too harsh, and that for this or any other cause it
does more harm than good, and can be safely done away, and
ought to be, then all this has been proved as certainly in this
case as in that of any other crime. Moreover, this can hardly
be the only reason for the failure of the gallows to deter from
less offenses, for it was quite as unsuccessful and yet more in
jurious, when no such reluctance seems to have been felt, and
executions were an every day affair. Though 72,000 “great
and petty thieves,” as Hume relates, were put to death in
England in one sovereign's reign, and 19,000 in another's, yet
this wholesale slaughter was no check on crime; but at the
very “time of doing execution . . . . . . for terror
and example of evil-doers, people persevered in their felonious
sleights and devices.”















THOUGHTS ON THE DEATH PENALTY. 87
Now if the terror of this punishment cannot restrain the less
bold wickedness which deals in smaller crimes, can it control
the hardier and more daring depravity which impels to murder 1
If the less temptations which lead to slight offenses are too
strong for it, can it overcome the greater which incite to deeds
of blood? In the words of Livingston, “will it master the
strongest passions and counteract the most powerful motives,
while it is too weak to prevent the indulgence of the slightest
criminal inclination "" And if its abolition, as to minor crimes,
is found not only safe but positively beneficial, why may it
not be safe even in the case of murder"
FACTS TOUCHING THIS CASE, ROME. DELHI, PARAGUAY.
But we need not—however reasonably we might—infer the
latter from the former proposition, for it stands, and firmly too,
upon its own foundation of appropriate facts. The experiment,
whenever tried, has uniformly proved successful. While for two
centuries and a half in ancient Rome no citizen could lawfully be
put to death for crime, “the Republic,” as Montesquieu states,
“was not the worse regulated, and no injury was done to the police.”
In a work entitled, “East India Selections,” Metcalfe, the British
resident at Delhi in 1815, writes, that in that district “they
never punished with death,” and that, “it was in no degree ne-
cessary.”—S. L. M. H. i. 276.
About two hundred years ago a few Jesuit missionaries began
to teach Christianity and the arts of civilized life to the savages
of Paraguay; formed them into a settled, orderly community, and
raised them from the rudest barbarism, to a good degree of civili-
zation. A work entitled, “Hampden in the Nineteenth Cen-
tury,” in speaking of them, says, “respected and beloved almost
to adoration, a few Jesuits presided over some hundred thousand
Indians. A few magistrates, chosen by the Indians themselves,
watched over the public tranquillity and secured obedience to the
law. The sanguinary punishments frequent under other govern-
ments were unknown. An admonition from a Jesuit, a slight mark
of infamy, or on some singular occasion a few lashes with a whip,
were sufficient to maintain good order among these innocent and
happy people.”

88 THOUGHTS ON THE DEATH PENALTY.
FRANCE. PRUSSIA, ENGLAND AND WALES.
In France a decrease of executions for murder, from 352 in
five years ending with 1829, to 131 in the next five years, (and
for all other crimes, from 80 to 22,) was attended with no in-
crease, but rather a slight diminution of the crime. The accusa-
tions fell from 1182 in the former, to 1172 in the latter period.
In Prussia no crime but murder is punished with death. While
executions decreased in the 15 years ending with 1834, from 54
in the first five years, to 33 in the next, and 19 in the last; con-
victions of murder fell from 69 in the first, to 50 in the next, and
43 in the last; or from about 14 to 84 yearly. In 1832–4 the execu-
tions were but 6, or 2 each year, the convictions of murder only
22, or 7; each year, very little more than half the yearly average
of the first period with its 11 executions a year. In England and
Wales, according to a return of committals and executions for
murder, made to Parliament in 1843, the committals in 1837–42,
with only 50 executions, were fewer by 62, or about 15 per
cent., than in 1831–6, with 74 executions; by 60 than in
1825–30, with 75 executions; by 56 than in 1819–24, with 91
executions; and by 93, or more than 25 per cent., than in 1813–18,
with 122 executions. In the same return is a table of commit-
tals, convictions and executions for murder, in London and Mid-
dlesex, for 32 years from 1810. In the first 16, when all were
executed, the convicts were 34. In the next, with 17 executions
—just half as many—they were but 27, or more than one fifth
less; and the committals were less than half as many as in the
former period, and only 36 per cent of what they would have
been, had they kept pace with the growth of population. Both
the crime decreased and convictions became more certain; for
while committals fell away more than half-in proportion to
population, nearly two thirds—the proportion of convictions al-
most doubled.
If we compare the number of convictions and executions for
murder in Prussia, in a given period, with those in England for
the same, we have another proof that with the milder penal sys-
tem life is safer rather than less safe. In 1820–34 the yearly
average of Prussian executions was 7, convictions almost 11; of
English executions, about 13; convictions almost 16. In the last
§
;
§


THOUGHTS ON THE DEATH PENALTY. 89
7 years of this period the contrast is still stronger, the average of
Prussian executions being a little over 4; convictions, not quite
9; of English executions, nearly 12%, convictions 15. Thus,
whether we compare period with period, or country with country,
the result is the same ; decrease of executions is attended with
decrease of crimes; the less bloody the code, the fewer the mur.
ders.
“THE HORSE *” mot “ BEHIND THE CART.”
Our inference from facts like these, that no death-penalty is
needed to repress the most atrocious crimes, Cheever facetiously
calls “not exactly the cart before the horse, but the horse behind
the cart.” The diminution of murders, he contends, is not caused
by, but causes the decrease of executions. This would sound
plausible if death attended every conviction, for then the mur-
ders must decrease before the executions could ; though even then
the lessening of the latter in one period, would no doubt be one
cause of the decrease of the former in the next. But the notion
seems absurd that a decrease of murders from 14 to 73 a year, or
only 47 per cent, as in Prussia for example, caused executions to
decrease from 11 to 2 a year, or more than 81 per cent.; though
all the while a large proportion—22 per cent. at first and at last
73 per cent.—of all the convicts went unexecuted, and murders
and executions were diminishing more rapidly while the propor-
tion of unevecuted murderers was increasing. Not for want of
convicts, certainly, were executions diminishing, when only 50
out of 69 were put to death; or 33 of 50; or 19 of 43, or finally
but 6 of 22. As Cheever holds that to let a murderer live is to
encourage murder, the crime—to suit his theory—should have
been more frequent, and not less so, as it was, in each successive
period; because in the preceding one, from one-fourth to three-
fourths of the convicted murderers were allowed to live. So, too,
in London and Middlesex the decrease of murders from 34 to 27
could not have caused the executions to diminish from 34 to 17,
—from all to five-eighths of the convicts; but the escape of three-
eighths from the halter should, on Cheever's theory, have caused
more murders in the second period than in the first, when none
escaped. Yet we see there * not so many;-not half so
|



90 THOUGHTS ON THE DEATH PENALTY.
many, judging from the committals. In all the other cases I have
cited, and generally, perhaps always, in those relied upon by op-
ponents of the gallows, a like analysis will show with equal
clearness that the decrease of executions was not caused by that
of murders.
But we have other facts which prove more clearly still, if pos-
sible, the fallacy of Cheever's argument. A table in the Parlia-
mentary return of 1843, just now referred to, compares those
years since 1810 in which all convicted of murder were put to
death, with an equal number of years in which the smallest pro-
portion were so punished. In the former they were 66; in the
latter, 83 were convicted, 31 executed, the sentences of 52 com-
muted. Now for the effect. The committals for murder in the
four years following those where all were executed, were 270;
in the four following those when only 37% per cent. were execut-
ed, 222, or 48 less. “After invariable executions the crime in-
creased nearly 13 per cent.; after commutation,” in 62% per cent.
of all the cases, “it decreased 17 per cent.” A series of tables
in the same return, by comparing the commitments for murder at
different periods in 1834–42, shows a decrease of 2 per cent. in
the years following the execution of all convicted; of 35 per
cent. in those following commutation; of 32 per cent. in those
following acquittals on the plea of insanity; and of 23 per cent.
in those following committals with no convictions.—Whence,
says the London Morning Herald, “it appears, that murder flour-
ished most under a system of invariable executions; more then
than with commutations of sentence; more than under acquittals
for insanity, or even under a total failure of justice through the
acquittal of all charged with the crime.” If farther proof were
needed that Cheever's witticism lacks the point of truth, and his
argument the basis of fact, it may be found in such statistics as
have been given on former pages; showing that while crimes
once capital became less frequent when more mildly punished,
those still continuing capital, have, under circumstances in all
other respects the same, increased, and sometimes rapidly.
DENMARK. HOLLAND. BOMBAY.
Howard says, in his work on prisons, that the adoption of a
milder penalty than death for child-murder, in Denmark, “had



THOUGHTS ON THE DEATH PENALTY, 91
greatly diminished the frequency of the crime.” A speaker in
the British Parliament in 1812 said, that when he was in Am-
sterdam in 1802, but two persons had been capitally punished
there for many years. Imprisonment and hard labor had been
substituted, with “most beneficial consequences.”
During seven years, from 1804, while Sir James Mackintosh
| was Recorder of Bombay, the death punishment was wholly dis-
continued there, yet, as he stated in his parting charge to the
Grand Jury in 1811, the capital crimes were little more than
one-third as many in proportion to the population, as in the seven
years from 1756, with 47 executions; and the murders were but
one-third as many as in the last seven years before his adminis-
tration. “This experiment,” he added, “has therefore been
made without any diminution of the security of the lives and
property of men. Two hundred thousand men have been go-
verned for seven years without a capital punishment, and without
º an increase of crime.” “If the experiment ever was to fail,”
| says T. Lennard, in a speech in parliament, “its failure might
have been expected in such a place—a crowded Iñdian sea-port,
of a mixed and shifting population.” Yet even there its success
was complete.
RUSSIA.
The penalty of death as part of the ordinary penal law, was
done away in Russia more than a century ago, by the empress
Elizabeth. Her successor Catharine in adopting the same
policy, in her new code of laws, attested in these words her
conviction of its wisdom, as proved by twenty years experience.
“The twenty years' reign of the empress Elizabeth gave the
fathers of the nation a more excellent pattern than that of all
the pomps of war, victory and devastation.” Since then, that
penalty has been inflicted in Russia on only two occasions, in
both for rebellion against the government. And so satisfactory
has been the result of its abolition, that in the early part of
the present emperor's reign the wise reform was extended to
Finland, until then under the laws in force when it was a
Swedish province. Count de Segur, on his return from an
embassy in Russia in 1791, declared that country to be one of

92 THOUGHTS ON THE DEATH PENALTY.
those in which the fewest murders were committed, adding
that Catharine had several times said to him, “we must punish
crime without imitating it; the punishment of death is rarely
anything but a useless barbarity.” O’Sullivan says, “the
Russian representatives in this country with whom we have
conversed, have borne a similar testimony as to the com-
parative infrequency of murders, in view of the vast multitudes
and rude character of the population; and stated that all the
intelligent public opinion there is perfectly settled on this
subject, no one thinking of returning to the death punishment.”
OBJECTIONS ANSWERED.
Cheever, to escape the force of this example, tells us “it is
said by travellers that the code of Catharine has been long
since disused.” What travellers say so, he does not inform
us, or whether they are of that class whose tales have made
“the traveller's license” a significant phrase. But that the
fact is otherwise, at least so far as capital punishment is con-
cerned, we have sufficient evidence. In a volume of “Travels
in Kamschatka and Siberia, &c., by Peter Dobell, councillor
of the court of the Russian Emperor,” published in 1830, the
superiority of confinement and hard labor over the fear of
death as a preventive of crime is inferred from the example
of those countries which have tried the system; and “countries
of a longer civilization” are bidden to “blush, that Russia
should teach” them “the celestial principle of reforming de-
praved morals not by the sanguinary execution of inexorable jus-
tice, but by the mild precepts of heavenly mercy.” A Russian
in this country stated in 1845, through the Boston Atlas, that
“the abolition of capital punishment in Russia is real, and
not, as intimated [in another Boston paper] a mere deception.”
George M. Dallas, speaking from his own observation and the
testimony of statesmen, jurists, &c., with whom he associated
during his late residence in that country as American Minister
at the Imperial Court, confirms the most favourable accounts
which have been given of the happy results of the abolition,
and the general satisfaction with which the present system is
regarded there. None with whom he conversed, ever dreamed,

THOUGHTS ON THE DEATH PENALTY. 93
he says, of going back to the old system. The laws, he adds,
are of the mildest character, and their effects are seen in the
character of the people. Barbarous as they were before the
mitigation of their penal code, its mildness has wrought such
a change that they are now among the mildest and most peaceable
people he has ever seen. Such is the substance of his state-
ments, lately made in conversation, with the understanding
that it was to be made public.
Cheever speaks of the “terrible punishment of the knout,
accompanied sometimes with the cutting out of the tongue,”
as being “often death,” and having “all the terror, with more
than the cruelty of death.” No doubt the knout can be, and
sometimes is, so administered as to be terribly severe, but that
it generally (or anything approaching to frequently,) produces
death, or is more cruel than death, I have never seen the
slightest proof, either in Cheever's work or elsewhere; while
there is evidence to the contrary. Moreover-which is more
| important to our present argument, however severe it may
have been, or is, it is less so now than before the death penalty
was abolished.
The Russian writer in the Boston Atlas, quoted above, says,
“its infliction is always judicial, preceded by a formal trial
and regular sentence. In no circumstances can it be applied
without the solemn judgment of a legally constituted tribunal.”
He adds that even the emperor cannot inflict it on a subject,
without violating the laws. “It is officially applied, in cases
of felony, and in no other way whatever, and though keenly
painful and extremely distressing, it does not kill; the settled
policy of the government being to punish enough as a warning,
and yet preserve the life of the criminal. It causes no per-
manent injury, and is the means of saving many lives which
would be destroyed in other countries.” The clergy and
nobility are, by the fundamental law of the empire exempted
from it, and from all corporeal punishment,” and where it is
inflicted, “the marimum, which even in the early part of
Catharine's reign was but fifty lashes, is now so reduced that,
º in 1829, five lashes only were given to a criminal who, by
§
§
%
&
§
§













94 THOUGHTS ON THE DEATH PENALTY.
robbing a church, had committed sacrilege, viewed by the
Russians with hardly less horror than murder itself.” It is ſ
only “in those very rare instances in which a criminal, by a
second murder, falls into the hands of justice, that the life.
preserving policy is suspended, and he is left to take his t
chance.”
Cheever tells us that Dr. Baird, a traveller in Russia, well ac-
quainted with the emperor, “believes” the death penalty “was
taken away, not from the opinion that it did not prevent crime,
or was not the most effectual penalty, but because the power was |
so shockingly abused by irresponsible nobles and corrupt courts.”
It was therefore “reserved as a power of the throne only.” Per-
haps the clear and positive testimony of the empress Catharine,
as to why the change was introduced into her code, will weigh
as much upon unbiassed minds, as Dr. Baird's belief. She says,
in the “Instructions” under which the code was framed, “expe-
rience proves that the frequent repetition of capital punishment t
never made men better. If therefore I can show that in the or-
dinary state of society, the death of a citizen is neither useful nor
necessary, I shall have pleaded the cause of humanity with suc-
cess.” She affirms distinctly that “while the laws bear peaceful
sway, under a form of government approved by the united voice of
the nation . . . . . there can be no necessity for taking the life of
a citizen;” such an act being needful only in times of revolution or
anarchy, “when disorder and confusion usurp the place of laws.”
There is nothing of the reason assigned to her act by Dr. Baird's
belief, nothing of a power reserved for the throne only. What
Cheever says about the power of death being kept “solely at the
discretion of the king” is nothing to our present argument, unless"
he can show that, by reason of the monarch's absolute authority, ſº
murderers in Russia have as much reason to expect death, and do
as much expect it, as if it were still the legal penalty of their
crime. But he does not assert this, and could not without con-
tradicting all the testimony we have on the subject. The law
of the empire is, that murder shall not be capitally punished, and
that law is respected and enforced by the emperor, be his power|
to do otherwise what it may.
The sum of the evidence then is, that the abolition of the death
.




THOUGHTS ON THE DEATH PENALTY. 95
| punishment is real, that it has proved satisfactory both to rulers
and subjects, that under the milder code the character of the people
has improved, and though other cruel penalties are still sometimes
| inflicted, they are less frequent and less severe than formerly, so
that the change has, on the whole, been decidedly beneficial.
Cheever calls it “a slander on our admirable institutions, and
a contempt of our common sense, to point an American to such
an example” as that of “barbarous and despotic” Russia. “Our
common sense” deserves contempt, if this appeal to national pride
and prejudice can pass with it for argument. Our higher civili-
zation and generally better institutions increase our chances of
success in that humane experiment, which, even among a less
enlightened people, works so well; and are therefore added reasons
for our trying it. It were indeed “a slander on our admirable
*H institutions,” to say we need a bloodier penal code than Russia;
and “a contempt of our common sense,” to try to dissuade us
from imitating what is good in the example of a less favored na-
| tion, by boastful allusions to our general superiority.
BELGIUM.
In Belgium the penalty of death, less and less often used
since 1800, though not in form abolished, has been practically
set aside since 1830, by commutation of all capital sentences,
to imprisonment at hard labor. Joseph Hume stated in Par-
liament, in 1837, that he learned from the superintendent of a
prison in which was a large number of capital convicts, that
“from his experience” this measure “tended greatly to soften
the disposition of the mass of the people.” In 1826–9, with
17 executions, the accusations of murder were 45; in 1831–4,
with no executions, only 41. An official abstract of executions
and capital convictions in 35 years beginning with 1800, shows;
—in the periods ending respectively with
1804, 1809. 1814, 1819. 1824. 1829, 1834.
Executions, 235 88 7 1 26 23 22 mone.
All Cap. Con. 353 152 113 71 61 74. 43
Of Murder, 150 82 64 42 38 34 20
Whence it appears that as executions decreased, capital crimes
diminished; insomuch that from over 70 a year, of which 30



96 THOUGHTS ON THE DEATH PENALTY.
were murders, when the executions were 47 a year, they fell q
to less than 9 a year, of which but 4 were murders, when none d
were executed. Edward Ducpetiaux, Inspector General of the Ji
Prisons in Belgium, shows in his “Statistics of the Death or
Penalty,” that the yearly average of murders in 19 years end. 1.
ing with 1814, with 28 executions a year, was 21; in the next i th
15 years, with less than 5 executions a year, not quite 8; and re
in the 5 ending with 1834, with no executions, only four, g;
And he considers it as proved by experience, that the punish. | ré
ment of death “is useless, unfit as a means of prevention, the ci
object of general and continually growing repugnance, and th
can be replaced by safeguards more efficacious;” adding that m
“to combat and refute these propositions, denial will not suf. f 0.
fice, but facts must be met with facts, figures with figures, and
it must be proved that the laws of blood still find their justifi. a
cation in their necessity.” That the decrease of executions ſ
was not, as Cheever would have us think it, merely an effect w
of the decrease of crimes, seems plain from this; that in no
period more than two-thirds, in several less than half, and in
one, not 30 per cent. of all the capital convicts were put to
death. The fallacy of his argument is shown, if possible, still
more clearly, if, in these periods, we compare the years next
after those of the greatest severity, with those next after the
least bloody ones. For example, the average of executions in
1798, 1801–2, was 63 a year; more than double the yearly
average from 1795 to 1814; and the average of murders in the
next years, 1799, 1802–3—was 40 a year, or nearly double
the yearly average of the whole 19 years. In 1814, 20, 26,
’29, '30, '32, the average of executions was only 13 a year;
less than half the yearly average from 1814 to 1833; and the
average of murders in the next years, 1815, '21, ’27, '30, 31,
'33—was only 2% a year; or but three-eighths of the yearly
average of this second 19 years.
CHEEvER's view.—REPLy.
But Cheever contends that the case of Belgium tells “trium-
phantly in favor of Capital Punishment.” To prove this he


THOUGHTS ON THE DEATH PENALTY. 97
quotes from a Report on the administration of criminal justice
during the years 1831–4 made in 1835, by the Minister of
Justice. One of its statements, which he cites and comments
on, is that in that period “six poisonings, 60 infanticides, and
119 assassinations were attempted or consummated, of which
the authors were never discovered.” But he does not add this
remark of the Minister himself, contained in the next para-
| graph: “However, we must be careful not to exaggerate these
| results; accurate calculations cannot be based on facts whose
criminality might have disappeared or have been modified, if
they had been subjected to a judicial investigation; nor can we,
f moreover, draw from them any inference regarding the increase
f of crime, in the entire absence of any information respecting the
undetected offenses in the antecedent period.” For aught which
appears, these might have been as much more numerous be-
fore than since the change of penal policy, as the statistics
| already given have shown the accusations and convictions of
murder and other capital crimes to have been.
Cheever farther states, on the authority of the same Report,
I that crimes in general had increased since the change; having
risen from one in 6560 inhabitants in 1831, to one in 6476 in
1834. He shows particularly a considerable increase of as-
saults and batteries and police offenses. Now, instead of
proving that the experiment of mildness was a failure, does
not this fact leave room for the very opposite conclusion 1
The argument for a mild policy would seem rather strength-
ened than shaken, if commutation of the death-penalty was
followed by a decrease of capital offenses even while crime in
general was increasing. But Cheever affirms, and tries to
prove from the Report, that murder also increased. The
yearly average of murders from 1826 to 1830, he says, was 36;
and from 1831 to 1834 was 42. “In 1829, when capital pun-
ishment was executed,” he adds, “only 11 persons were con-
demned to death; in 1830, only 4; in 1831, when the punish-
ment began to be commuted, it rose to nine, but in 1834, to 28.”
The reader is left to infer, as he naturally would, from these
figures thus arranged, a progressive decrease of crime before,




98 THOUGHTS ON THE DEATH PENALTY.
and a progressive increase, since the change of punishment.
He certainly would not suspect that the yearly average of death
sentences in four years after the change, was actually about
two per cent. less than in the four years last before it; that in
the first three since commutation began, it was less than half |
as large as in the first three of the last five preceding, which
Cheever has chosen for his comparisons; over 32 per cent, less
than in the last three of those five; and about 38 per cent, less |
than in the whole five. Yet such is the plain truth, which he
keeps out of view by omitting part of the document he quotes
from. The capital sentences in the five years, 1826–30, were
severally 13, 17, 22, 11, 4; being 67 in all, or 54 in the last
four of these five. In the four years, 1831–4, they were 9,
(of which only 3 were for murder,) 9, 7, 28, 53 in all. In the
first three years after the change they were 25; in the last ||
three before it, 37; being 48 per cent. more, when the average
of executions was more than four a year, than when none were
executed. And even taking in 1834, with its large increase
of sentences, the number was nearly two per cent. less, in the
first four years of the milder system, than in the last four of
the penalty of blood.”
But the suddenness of the increase, from 7 to 28 in one
year, forbids our ascribing it to the mitigation of penalty, for
that had been followed by a much less increase in 1831—a
diminution, indeed, if we reckon only the sentences for mur-
der—by no increase in 1832, and by a falling off of 22 per cent.
in 1833. So different an effect in 1834 must have some other
cause, and though it were unknown, we might fairly omit that
* This is on the supposition that Cheever's statistics are correct so far as
they go; which seems doubtful. They differ from the official document of
the Belgian Legislature, and from the statement of Ducpetiaux, Inspector
General of Prisons in Belgium. Both these authorities expressly say there
were no executions in 1830; Cheever makes the commutation begin in 1831,
Taking their statement instead of his, we have in the last four years before
the change, 63 death-sentences; in the first four after it, 29; the latter being
about 54 per cent. less than the former. And even including the large in-
crease in 1834, the yearly average is nearly 28 per cent, less in the first five
years after, than in the last four before the change.
i
t
!

THOUGHTS ON THE DEATH PENALTY. 99
t6'.
2
year, in computing the influence of the change. It is not un-
known, however, or at all events, enough is known to prove
that it was not the milder punishment. In the first place, 4 of
the 28 were military condemnations, and should not be counted
among the results of the civil administration. Of the remain-
ing 24, it appears, partly from official documents, and partly
from statements made in the Belgian Legislature, as cited by
O'Sullivan and by Robert Rantoul, Jr., that only two were for
murder, five for assaults with intent to kill, two for arson, and
| fifteen for crimes committed “long before,” by a band of rob-
bers broken up in that year, after it had “long baffled public
justice.” Thus in 1834 were brought to punishment not only
the offenses of that year, but probably those of many preceding
years. Some of them might have been, and very likely were,
committed under the old dispensation of blood. And possibly,
while their commission was not, their detection and punish-
ment might have been an effect, in part, of the lessened harsh-
ness of the penalty;-a cause which we have seen has often
produced such results. Be this as it may, the facts rightly
stated evidently fail to justify Cheever's inference, and his
attempt to draw it from them, is, as O'Sullivan well observes,
“much as if in the regular annual estimate of a family’s
expenses for living, made with a view to judge of the economy
of a system, were included a sudden and extraordinary loss,
which at one blow should sweep away the income of several
years.”
From Belgian statistical tables, “ of unquestionable accu-
racy,” Rantoul shows that the prosecutions for capital crimes,
in the five years last before executions ceased, were 846; in
the five next after, 626; less than three-fourths as many as in
the former period. Prosecutions for murder, homicide and
poisoning, fell from 213 in the former, to 186 in the latter
period, or 128 per cent.; for arson, from 35 to 28, or 20
per cent.; for all other capital crimes, from 598 to 416, or
more than 30 per cent.
The alleged increase of murders, from an average of 36 a
year while the death-penalty was executed, to an average of

100 THOUGHTS ON THE DEATH PENALTY.
42 a year after it ceased, if real, is subject to a considerable
deduction on the same account as the death-sentences of 1834,
already spoken of, since these were of course included in the
average of murders since 1831. What remains—even if
nothing else could be thrown into the scale against it—would
by no means be enough to outweigh the mass of statistical
evidence already offered on the side of lenity. Still less then
can ‘it do so, when its weight is farther lessened by two
important considerations hitherto unnoticed.
First; the punishment of death is still nominally in force in
Belgium. Its infliction is prevented by mere executive cle-
mency, and not by that solemn legal recognition of the sacred-
ness of life, which protects it most effectively by instilling a
reverence for its sanctity into the general mind, and thus banish-
ing the spirit of murder. The penal code still teaches the de-
moralizing and dangerous doctrine, that, for so much evil done
and so much depravity shown, a man ought to die; although
he can otherwise be restrained from doing harm, and perhaps
be healed in due time of his depravity. The failure of the
Belgian experiment, therefore, would weigh but little for,
while its success would be a most powerful argument against
the penalty of death.
Second, when that experiment was tried, the country was in
a condition very unfavorable to its success. “The antecedent
period had been one of tranquillity and peace, under the well-
ordered and disciplined administration of one of the ablest sove-
reigns of Europe.” Then came a military revolution and a vio-
lent separation from Holland; and immediately after this the
period of the experiment began. During a part of it, the war
with Holland was still raging, making the people familiar with
bloodshed, depraving their hearts, rendering human life cheap in
their eyes, and producing “ that disturbance of the tranquil pur-
suits and prosperity of industry, which is usually found to be
fruitful in crime.” It would be strange indeed, if, under these
circumstances, crimes of violence did not multiply. Here are
causes enough for a greater increase than Cheever claims to have
discovered, and that he found no greater, goes far to prove the
salutary influence of the change of penalty.
fr
th
R
.
{
{
ſ|8W
THOUGHTS ON THE DEATH PENALTY. 101
Thus, in the words of O'Sullivan, it is “sufficiently clear, even
from the report of a Minister of Justice who went into his office
the avowed opponent of this reform, that the Belgian experience
has been decidedly favorable to it.”
TUSCANY.
In 1765 the punishment of death was abolished in Tuscany,
imprisonment at hard labor for life taking its place. The result
was, as the Grand Duke Leopold testifies, in an edict issued
twenty-one years afterward, that “instead of increasing the num-
ber of crimes, it considerably diminished that of the smaller ones,
and rendered those of an atrocious nature very rare.” A
Report to the French Chamber of Deputies in 1830, alluding to
this subject, says, “the mildness of the penal legislation [in Tus-
cany] had so improved the character of the people, that there
was a time when the prisons of the Grand Duchy were entirely
empty.” Edward Livingston states, on the authority of “a
gentlemen who resided five years at Pisa,” a Tuscan city, that
“only five murders had been perpetrated” in the Grand Duchy
“in twenty years since the abolition.” He adds that in Rome,
where “the manners, principles and religion of the inhabitants
are the same,” and where death, inflicted with great pomp and
parade, is the penalty for murder, sixty murders were committed
in three months, in the city and vicinity.” Even our own coun-
try, whose moral and religious character we are wont to regard
as so superior to that of any European land, presents a striking
contrast to Tuscany at the period we are noticing. Massachusetts
and New Hampshire have together but two-thirds as many peo-
ple as Tuscany; yet in less than five months after Barrett was
hung at Worcester last winter, the murders in those states were
three-fifths as many as in Tuscany during twenty years. So
were they, too, within two months after Eager's execution, in
New York city and a territory around it not larger than Tuscany,
with not one-fourth as many inhabitants. Pennsylvania had four-
fifths as many, in seven weeks after Zephon's execution; though
its population is about the same as that of Tuscany. That is, in
proportion to time and population, the murders in Massachu-
setts and New Hampshire wer; times as numerous as in Tus-


102 THOUGHTS ON THE DEATH PEN ALTY.
cany; in Pennsylvania, 120; and in New York city and vicinity,
300 times as numerous. The Marquis of Pastoret, Vice President
of the French Chamber of Peers, says, the happy effect of abo-
lishing the death punishment in Tuscany, was a fact so fully re-
cognised when he wrote, [in 1790) that he could not think of
seeking means of proving what no one thought of disputing.
While he lived in that country, he often heard the people praise
“ the mildness of their laws, and the efficacious influence it had
in diminishing the number of crimes.” Count Sellon, of Geneva,
remarks upon this statement, that it “corresponds with those of
all the travellers who go abroad to acquire knowledge, and is
confirmed by Professor Pictet, in his letters from Florence.” M.
Berlinghieri, late Minister of Tuscany at Paris, says that the hu-
manity of Leopold's penal legislation “was attended with the
most satisfactory results. . . . . . . . Crimes of all kinds were
much more rare during that period than either before or after.”
And Carmignani, a distinguished professor of criminal law in the
University of Pisa, bears a like testimony to the good results of
the measure.
ALLEGED FAILURE. ANSWER,
Yet in the face of all this evidence Cheever treats the experi-
ment as a failure, and asserts that “it has been found necessary
by experience, probably from the increase of crime, to return to
capital punishment.” Not a shadow of proof is offered to sus-
tain his guess; doubtless because he had none to offer. He does
indeed quote “an American resident of Florence” as saying that
in one year there were more murders in Tuscany than in all the
United States; which, if true, shows a change most lamentably
for the worse since the death-penalty was restored, and confirms
the statement cited above, that under the milder code crimes
were more rare than after its repeal.
That the punishment of death has been restored in Tuscany is
true; but that “it was found necessary to return to it,” or that
its restoration was on account of an increase of crime, is a mere
inference from the fact of its restoration; an inference, too, not
only altogether without support, but opposed to clear, explicit
testimony, both as to the effect of its abolition and the reason for
its re-establishment. It was not restored by the government
THOUGHTS ON THE DEATH PEN ALTY. 103
which abolished it, but by a military conqueror, whose aim was
to gratify his own ambition, rather than to promote the welfare
of the conquered country. Professor Carmignani attests that “its
re-establishment was chiefly throtigh the power of the absolute
will of Bonaparte, . . . . . . in opposition to the wishes of all
the magistrates, to the views of all the enlightened jurists of the
country, and to all the evidence which their recent experience
had afforded.” The motives which governed Napoleon's action
in the case, are revealed in a work published some years ago by
his brother Louis. When Emperor of France, he had offered the
sovereignty of Tuscany to Louis, who thereupon asked permission
to govern its internal affairs in his own way, leaving its exterior
relations to the Emperor. His answer was, “in the interior as
in the exterior, all belonging to me must follow my orders. .
The interest of France is the point to which everything must
tend ; codes, taxes and conscriptions,—everything in your king-
dom must be to the profit of mine. If I allowed you to make
Tuscany happy and tranquil, all travellers from France would
envy it.” Surely the restoration of the code of blood, by a ruler
acting upon such a policy as is here avowed, is anything but an
argument in favor of that code; and in truth adds strength to the
proof against it, already drawn from the well-attested happy re-
sults of its abolition.
CHEEVER’s HISTORICAL ARGUMENT.
But Cheever is not content to rest his cause here. After la-
boring to weaken the force of the examples we have now been
considering, or to enlist them on his own side, he goes on to set
over against them what he calls a “powerful historical argument
in favor of capital punishment.” This is no other than the case
of the kingdom of Judea, in which he says, “the experiment
was tried for more than 1500 years; and the result was, that
when the penalty of death for murder was most faithfully execut-
ed, the crime of murder was less common; but in times when
that penalty was not executed, murders and all other crimes be-
came common.”
This appeal to Jewish history strikes me as a signally unfor-
tunate one for his cause. In the first place, if it proves anything,
it proves too much; for every inference from it in favor of death

104 THOUGHTS ON THE DEATH PENALTY.
for murder, is as good for that penalty in any other of the thirty
or forty cases made capital by the Jewish code. Yet Cheever ar-
gues that only murder should be so punished, and that affixing death
to minor offenses, impairs its efficacy in the case of murder, and
tends to the increase of crime. And, in the next place, the view
which Jewish history gives us of that people, is very far from
inspiring admiration of their character, or leading us to think
favorably of the inſluence of their penal system. Better it might
be than the usages of the yet ruder barbarism which it super-
seded, or than those of the heathen tribes round about; but this
is saying little to recommend it, for imitation, to a Christian com-
munity in this far more enlightened age. The history of Judea
is a record of violence and blood, and the picture it gives of the
nation’s character is answer enough to Cheever’s exulting refer-
ence to its testimony. With all the blessings bestowed or pro-
mised on the one hand, and all the judgments threatened or sent
upon them on the other, with all the teachings of their prophets
and all the precepts of their law, we find them represented, all
along throughout their national existence, as a stiff-necked peo-
ple, uncircumcised in heart and ears, always resisting the Holy
Ghost; a seed of evil-doers, children that are corrupters; a stub-
born and rebellious generation, impudent and hard-hearted, not
ashamed when they committed abominations, nor ceasing from
their stubborn way, even amid the chastenings of Divine dis-
pleasure; an obstinate race, whose neck is an iron sinew, and
their brow brass; having a revolting and rebellious heart, and
hands ſull of blood; with feet which run to evil, making haste
to shed innocent blood; their thoughts, thoughts of iniquity,
wasting and destruction in their paths; their princes rebellious
and companions of thieves; their prophets like a roaring lion
ravening the prey; their priests like troops of robbers, murder-
ing in the way by consent; their land full of bloody crimes; their
cities full of violence and perverseness, and the streets thereof
filled with the slain. See Ex. xxxii. 9; xxxiii. 3, 5; xxxiv. 9.
Deut. ix. 6, 7, 13, 24; x. 16. Judg. ii. 19. 2 Chr. xxx. 8.
Neh. ix. 26. Ps. lxxviii. 8. Isa. i. 4, 15, 23, xxx. 9; xlviii. 4;
lix. 3–8, 12–15. Jer. iv. 17; v. 23; vi. 15; xxiii. 10, 11, 14,
xxxii. 30, 31. Ezek. ii. 3–8; iii. 7, 9, 26, 27; vii. 23, ix. 9,
Sl
THOUGHTS ON THE DEATH PENALTY. 105
xi. 6; xxii. 2, 12, 25–30; xxiv. 6. Hos. iv. 2. Matt. xxiii. 31,
33. Acts vii. 51, 52, 59. 1 Thes, ii. 15; and a multitude of
like passages.
How Cheever learned that murders were few, and human life
was peculiarly secure among the Jews when the penalty was
faithfully executed, he has not seen fit to tell us. I find no proof
in the Bible that such was the case, but much to favor the oppo-
site belief. The general testimony quoted above, is confirmed by
many particular facts which prove the tone of morals and the re-
gard for life to have been very low, and the people’s spirit brutal
and ferocious. Witness Gideon's vengeance on the men of Suc-
coth and Penuel; (Judges viii. 6—17., Jephthah's slaughter of
42,000 Ephraimites for a petty cause of quarrel; (xii. 6;) and his
sacrifice of his own daughter as a burnt offering, in fulfilment of
a rash vow; (xi. 31, 39.) Abimelech's murder of his seventy
brethren, (ix. 5,) and his butchery and burning of the people of
Shechem; (ix. 45, 49 ;) the horrid outrage of the men of Gibeah
on the travelling Levite's concubine, and his mode of rousing
Israel to avenge it; (xix. 22—29;) the destruction of almost an
entire tribe, and more than 40,000 men of the other tribes, in the
war of vengeance which followed; (xx.) and the massacre of the
inhabitants of a whole city, men, women and children, for having
taken no part in that war. (xxi. 10, 11.) See the murderer of
Abner and Amasa, not only called to no account during David's long
reign, but continuing high in office and strong in influence, so
popular and powerful as to be “too hard ” for the king himself,
(2 Sam. iii. 39,) and never degraded or punished till he had taken
sides, after David's death, with the unsuccessful competitor for the
vacant throne. See the atrocious crime of Amnon, unnoticed
by king or people for two full years, and then avenged by another
horrible atrocity. (2 Sam. xiii. 6—29.) Then see Absalom,
reeking with a murdered brother's blood, not only going unpun-
ished, but after a brief absence from his father's court, and a yet
briefer from his kingdom, restored to favor and all the privileges
of a prince of the blood royal. (xiii. 38; xiv. 21, 33.) Nay, be-
hold David himself, one of the best, if not the very best, of all
the Jewish kings, stained with the double guilt of adultery and
murder, committed, too, under circumstances of peculiar aggra-
106 THOUGHTS ON THE DEATH PENALTY.
vation. (xi, 4, 14—17.) Then come the crimes and cruelties,
revolts, assassinations and massacres which fill the history of the
kingdom's later periods, till the Chaldean conqueror closed the
volume and sealed it with the nation’s own blood. If such are
the results of the “grand experiment” over which Cheever so
exults, his “historical argument” may indeed be “powerful,”
but it is so against himself.
But perhaps it will be replied, these wicked deeds were done
in times when the penalty was not executed, and so add strength
to the argument in its favor. Then, I answer, that those times
must have covered nearly the whole period of the “grand ex-
periment,” leaving the seasons of “faithful execution ” few and
far between. Be that as it may, however, death was all this
while, by the Jewish code, the legal penalty for murder; and if
crime nevertheless went unpunished, that may have been, for
aught we know, as I have shown it has been so often since, one
of the consequences of making it capital. Besides, we are not
to take for granted that at times the law was rigidly enforced,
and life was so incomparably more secure—as Cheever affirms—
than it has ever been elsewhere. If so many bloody deeds are
specified in so brief a history, where we look for only the more
prominent events; and if such a general description of the peo-
ple's character and moral condition, as that above quoted is given
from time to time throughout their national existence; while no
clear declaration is anywhere made sustaining in the least degree
Cheever's broad assertion, the fair inference certainly is that it
does not accord with fact. So much for his “powerful argument.”
To use his own words, it “breaks down at every step.”
Enough, I trust, has now been said, to show that experience
confirms the deductions of reason, against the penalty of death;
proving it at once needless and hurtful, since all the proper ends
of punishment can be better answered without than with it, and
some of them it puts entirely beyond our reach. And if this
be so, Wisdom unites with Mercy in requiring its immediate
abolition.
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CHAPTER II.
J U S T I C E.
“ Fit retribution, by the moral code
Determined, lies beyond the State’s crimbrace.”
WoRDsworth.
** UTILITY NOT THE GROUND OF PUNISHMENT.”
But death to the murderer is demanded on other grounds than
those of expediency. “Punishment,” says Cheever, “is some-
times called for, apart from the question whether it be useful or
not.” And again; there is such a thing as retributive justice,
apart from the purpose of security against crime, or the necessity
of the guardianship of society and the universe.” “The culprit,”
says Theodore Frelinghuysen, “is doomed to suffer, because he
deserves to suffer.” Hence it is argued, that as the murderer
deserves to die, it is the right and duty of the State to kill him.
DESERT OF DEATH NO PROOF OF RIGHT TO KILL.
Now without calling in question the premises of this argu-
ment, I dissent from its conclusion. Whether the murderer is
worthy of death or not, we need not determine; for granting
that he is, it by no means follows that we are bound, or have a
right, to give him his desert. Not even the warmest friend of
the gallows will maintain that human tribunals ought always to
award, to every offender, all the suffering he deserves; or that
mercy should never be shown, however safe, or even generally
beneficial, it might be in any particular case. Nor will it be
denied that cases may and do occur, in which mercy is both safe
and conducive to the common good. But if this is admitted,
then the criminal's desert of death is, in no case, of itself enough
to justify the State's infliction of it. Not only must his desert be
proved, but also that the infliction will do more good than harm;
since the latter is not implied in the former, and both are needed,
to authorize the death-doom.
And what are we, that we should demand the stern award of
strictest justice against our offending brother 1 Who of us
would stand forth to execute it, if the warrant ran, as once of
old, “let him who is without sin” strike the first blow 4 Shall
. 107
108 THOUGHTS ON THE DEATH PENALTY.
they who own themselves transgressors daily of that perfect
law which justly claims their full obedience, and who rely on
sovereign grace alone for all they hope here or hereafter, re.
fuse the lenity they crave, and, like the forgiven debtor of ten
thousand talents, drag to inexorable judgment the poor fellow
servant who owes a hundred pence? Shall they be eager to
deal out retributive justice, who believe that
“In the course of justice none of us
Should see salvation ?”
Have they never “learned what this meaneth, I will have
mercy and not sacrifice 1"—or reflected that
“we do ask for mercy,
And that same prayer should teach us all to render
The deeds of mercy "
To doom our brother to “the most terrible of all penalties” in
human power, while we put up that beautiful petition which
Jesus taught us—“forgive, as we forgive,”—what is it but to
turn the prayer for pardon into a dreadful imprecation, calling
down God's heaviest judgments on our own heads 1 For if our
way of forgiving is to punish as severely as we can, and we
ask God to forgive as we do, do we not ask him to punish with
the utmost severity in his Almighty power" How the use of
this petition can be reconciled with the infliction of suffering,
merely because it is deserved, and “apart from the question”
of its utility either to the sufferer or the community, is a
problem which I am glad it is not my task to solve. However
just such retribution, for retribution's sake, may be esteemed,
I cannot but think that the disciple of Jesus, filled with the
spirit of his master, would choose to leave it in the hands of
Him “to whom vengeance [i.e. retribution] belongeth;” who
claims it as His own prerogative.
But if these considerations are urged in vain; if it is still
insisted that mercy must not be suffered to “rejoice against
judgment,” but justice, severe and unrelenting, must have its
course; then it behooves us at least to be sure that what we
propose to do is just ;-just not merely towards others, but also
in us. For the practical question before us is not, what is just
for the criminal to suffer?—but what is just for society to inflict?


THOUGHTS ON THE DEATH PENALTY. 109
Now I maintain that justice, as well as mercy, forbids our in-
flicting any punishment for the sake of mere retribution,
“apart from the question” of its usefulness. We have no
| right to make men suffer solely “because they deserve to
suffer.” If we had, it would be right for us to punish all
transgressions of the Divine law, natural or revealed, those
which are not, no less than those which are, direct invasions
of the rights of man. Not only crime, but every form of sin,
would be within the proper scope of human penalties;–a
doctrine which, carried to its legitimate conclusions, would
turn our law-courts into courts of conscience, literally, “with
a vengeance;” make morals and religion, in their minutest
details, the subject of penal legislation, and enactinto statutes
the teachings of physiology touching diet, exercise and habits
of life; menace impiety with dungeon and halter; set censors
| over table, toilet, field and workshop, to watch against intem-
\perance in food and drink, extravagance or conformity to
hurtful fashions in dress, indolence or wanton over-exertion in
labor; and in a word enforce sinless perfection with the terror
of the magistrate's sword. Rather more work than our re-
| publican rulers would care to assume, in these days when the
favourite democratic motto is, “that government is best which
governs least.” And seriously, can that be a true doctrine,
of which the consequences are so absurd "
| Again. However worthy of retributive punishment the cri-
| minal may be, all doubtless will admit that his partners in the
| crime cannot claim the right to award it to him. A child may
“deserve to suffer” for lying or stealing; but should his father,
who had taught him theft and falsehood, and tempted him to
their commission, “doom him to suffer,” and that too, not for
the child’s good, or his own, or any other's, but purely for the
sake of “retribution,” who would not cry out upon the act as
cruelly unjust 1 Yet how much does the relative position of
society and the criminals it punishes differ from this? What
has it done for them, and for the degraded class whence gene-
rally they come 1 Has it surrounded their childhood with
healthy moral influences, or done aught to prevent them from
10
110 THOUGHTS ON THE DEATH PENALTY.
drawing their first breath in a tainted moral atmosphere, and
being moulded to vicious tastes and habits while yet too young
to choose any circumstance of their condition ? When choice
seemed in their power, but the “second nature” already wrought
into them, inclined their choice to evil, has it then been dili.
gent to repair the wrong of its former neglect 1 When they
had wandered far in the way of vice, wherein their feet had
first been set, has it sought them out, and, with kind words
and deeds of love and wholesome counsel and instruction,
laboured to lead them to the better path 1 Has it been careful
so to dispense its wealth that mone should be shut out, by
abject poverty, from the means of moral culture; or tempted
to crime by pinching want and sore distress " Have its laws,
and usages, and institutions all been fitted to inspire a deep
abhorrence of bloodshed and violence, and to cherish a gentle
and loving spirit, and so to make men heartily averse to evil-
doing? Far otherwise.
SOCIETY TRAINS MEN TO CRIME.
Instead of doing what it should for the prevention of crime,
by improving the character and condition of those most likely to
commit it, and thus hindering the growth of criminal dispositions,
and removing the temptations to their indulgence, it is too often
working out the very opposite results. By its too unequal dis-
tribution of the good things of life, some, deprived at once of
bodily comforts and necessaries, and the means of improvement
for mind and heart, are made reckless and desperate by ignorance
and suffering; while in others are nourished all the vices bred of
luxury and over-abundance. Its gross neglect, too, of the igno-
rant and wretched, for whose wants of body and soul it has made
no adequate provision, aggravates the evils of this inequality.
Nor is its mere neglect the worst. It has open schools of
vice, potent agencies of demoralization. For its state-licensed
grog-shops, its theatres, puffed by the popular press and patro-
nized by the “genteel” and respectable,” as well as the vile, its
gambling houses frequented and countenanced by those who
nevertheless wear its civic and social honors and stand high in
public esteem; for all these—not to name other fountains of cor-
ruption—and for their influence in training men for crime,

THOUGHTS ON THE DEATH PENALTY. 1 11
society it as truly answerable as individual offenders. By its
artificial distinctions, also, which rate birth, and possessions, and
outward appearance, above moral worth, and prefer eminence in
comparatively useless and even positively hurtful employments,
to skill and industry beneficially directed; glorifying the spirit
of slaughter embodied in military heroes, and holding the peace-
ful virtues and honest toil of artisans and tillers of the earth as
ignoble; it perverts the sense of right, lessens the natural horror
at the thought of shedding human blood, and by insensible degrees
prepares the mind to yield, when unpropitious circumstances or
evil passions beset it with temptations. Moreover, as has here-
tofore been shown, the penal code itselſ, while it retains the
stain of blood, teaches a doctrine and sets an example which help
to form men for the commission of murder. And the treatment
meted out to less offenders, but too often tends to deepen their
depravity and fit them for yet darker deeds. After suffering
some ignominious penalty, perhaps imprisonment among older,
and hardier, and more expert transgressors, of whom they learn
new arts of wickedness; they are sent forth friendless and desti-
tute, with a stain on their characters which makes it difficult to
obtain honest means of support, a consciousness of disgrace
which robs them of self-respect, and a sense of discouragement
which prevents almost the effort thenceforward to do better;
shunned by the virtuous for fear of contamination, and left if not
driven to the companionship of vice and crime, so that reforma-
tion is hardly to be looked for, however sincerely it may be de-
sired. A change for the better is indeed beginning to appear,
and convicts have a brighter prospect than in former times of
winning back their way to virtue, usefulness and peace; but still
society is very far from having done its duty toward them, either
before or after their first false step. Such being the case, ought
it not first to make amends for its own faults, whether of doing or
not doing, before it claims a right to punish for the sake of retri-
bution those very crimes which it fosters, at least, if not creates?
DANGER OF IRRETRIEVABLE ERRORS,
Yet again. Whatever are its rights toward the criminal, has it
any right to endanger the lives of the innocent? Can it justly
seek retribution at the risk of inflicting a great and irreparable

THOUGHTS ON THE DEATH PEN ALTY.
wrong? Human tribunals are always liable to err, and error in a
case like this admits of no remedy. Other penalties leave a chance
for the discovery of mistakes before it is too late to repair, in
part, if not wholly, the injustice they may have done; but, to the
victim of an unjust death-sentence, no shadow of requital can be
made. The memory of the wrong remains to torment its authors
with vain regrets, and perhaps to unnerve the arm of justice with
the dread of like mistakes in future, so that transgressors will grow
bold with the hopes of impunity; but regret and remorse can
never “sooth the dull, cold ear of death,” or breathe new life
into the senseless clay. How many have died for crimes which
they never committed, none can tell; but the many known in-
stances give reason to suspect that many more have occurred
which never came to light. One discovered error makes us justly
apprehensive of others undiscovered.
CASES KNOWN TO HAVE OCCURRED.
O'Sullivan states that “ upwards of a hundred such cases are
known in the history of English criminal jurisprudence.” A Par-
liamentary return, moved for many years ago by Sir James Mack-
intosh, showed that in England, “for many years, the average of
persons executed whose innocence had afterwards been satis-
factorily and publicly established, was one every three years.” Dr.
Smollett, in his History of England, (vol. iii. p. 318,) gives an
instance in which the real criminals assisted at the execution of
an innocent man, “heard him appeal to Heaven for his inno-
cence, and in the character of friends embraced him as he stood
on the brink of eternity.” Dymond, in his Essays on Morality,
says, “at one assizes, we believe, six persons, afterward found to
be innocent, were hanged.” O’Connell, in a speech at Exeter
Hall, in 1832, mentioned five such cases within his own know-
ledge. Three of them were those of three brothers whom he
had defended within the last ten years. While on their way to
jail after sentence, their mother broke through the military guard
to meet them. “I saw her,” said he, “clasp her eldest son, who
was but twenty-two years of age; I saw her hang on her second,
who was not twenty; I saw her faint when she clung to the neck,
of her youngest boy, who was but eighteen ; and I ask what re-
compense could be made for such agony. They were executed
THOUGHTS ON THE DEATH PENALTY. 113
—and—they were innocent.” The English papers stated, in 1845
that William Towns, a British soldier in India, had lately con-
fessed a murder for which one Chalker was executed nine years
before. “Charles Lucas, a distinguished advocate of Paris, in his
work on this subject,” says O'Sullivan, “presents a sad array of
similar evidence. One item of it which he gives, is that in 1826.
within six months, eleven persons condemned to death by the as-
size court, on jury trials, were saved only by appeals to the
Court of Cassation.
IN THIS COUNTRY.
“Our own criminal history,” O’Sullivan continues, “ has not
failed to and its contributions to this dreadful array of public mur-
der in the name of law.” In 1839 or 40, Ezra White was con-
victed of murder in New York, but on a second trial, granted on
account of some irregularity in the proceedings, was acquitted.
But the error is not always so seasonably detected. In a late num-
ber of the Providence (R. I.) Republican Herald, is related the
case of “the talented and amiable Dr. Hamilton, of Ken-
tucky,” who, about twenty-five years ago, was convicted, on cir-
cumstantial evidence, of the murder of Dr. Sanderson, and was
executed, “leaving an amiable wife and several children, incon-
solable.—In three months, two robbers and murderers confessed
on the gallows that they committed the murder.” Edward Liv-
ingston testified that he has witnessed more than one of these
fatal errors, discovered too late for correction. In one instance
particularly, “he listened with awe.” while the victim, with
solemn asseverations of his innocence, “summoned his accuser
and judge to meet him at the throne of God.” The perjury of
his accuser was detected, but only in time “to add one more ex-
ample of the danger and impiety of using this attribute of the
divine power, without the infallibility which can alone properly
direct it.”
In the case alluded to on page 70, of the woman in Missouri
who murdered her seducer, a young man named Burton, who
loved her before her fall, and proved the strength of his affection
by renewing his addresses after its discovery, by some means was
led to suspect the truth, and drew from her a full confession. He
then permitted suspicion to fasten on himself; and managed to

10*
114 THOUGHTS ON THE DEATH PENALTY.
keep her ignorant of his danger, till he was arrested, convicted
and executed. When she heard of his death she was almost
frantic. “She immediately published the whole history of her
wrongs and her revenge,” but as “no one wished for another
victim, she was left unpunished, save by the dreadful records of
ner memory.” The volume from which this case is taken re-
lates also another. A poor German, who had just come to New
York, was one day preparing his dinner in the kitchen of the
family with whom he lodged, when the husband and wife—a
quarrelsome couple—fell into a violent altercation, and the
woman suddenly snatched the knife he was using, and, before he
could arrest her hand, plunged it into her husband's heart, then
rushed into the street, crying murder. The German sprang to
the wounded man, caught him and drew out the knife; and those
who ran in at the alarm, seeing the bloody weapon in his hand,
and blood on his clothes, readily believed the wife’s assertion
that he was the murderer. Upon her false testimony and the
seemingly corroborating circumstances, he was convicted and
put to death. She afterward, on her death-bed, confessed her
agency in the transaction.
O'Sullivan relates the case of Boynton, a citizen of New York
State, and “a young man of fine talents, character, and attain-
ments,” who was convicted a few years ago in Louisiana, on
circumstantial evidence, of having murdered a fellow boarder at
the tavern where he had been staying a few weeks. He earnest-
ly protested his innocence to the last. When the hangman was
about to adjust the halter, he sprung from the scaffold, rushed in
among the multitude, and cried piteously for help, repeating the
assurance that he was innocent. He was soon secured, and in
the midst of his piercing cries and terrible struggles, the horrid
work was finished. Not long after, the keeper of the tavern, on
his death bed, confessed that he committed the murder, and
directed the circumstances so as to fix suspicion on Boynton. In
another instance given by O'Sullivan, a man named Wood was
executed in Dutchess county, N. Y., for the murder of his son,
having been convicted on the testimony of another son, who it
was afterwards found was the real murderer. A young woman
also, in Columbia county, who was put to death on the charge of
poisoning some children left in her care, was afterward proved

THOUGHTS ON THE DEATH PEN ALTY. 115
innocent. In 1844, a Catholic priest in Indiana was convicted
of rape upon a woman of his church, while at confession, and
was sentenced to the penitentiary. About a year afterward, the
papers of the day stated that facts had come to light which fully
established his innocence, and proved him to have been the vic-
tim of a conspiracy. Had death been the penalty in Indiana, as
as it is in several other states, for the crime charged upon him,
this discovery would have been too late to profit him. In the
fall of 1843, one Ebenezer H. Miller, was convicted of murder in
Kent county, Michigan. Just before he was to have been exe-
cuted, the sentence of death was commuted to imprisonment for
life. He had been three years in prison, when his innocence
was revealed by the death bed confession of the real murderer,
who had been the principal witness against him, and he was
of course discharged. But for the wise clemency of the Gover-
nor, in commuting his sentence, his would have been another
case of irreparable wrong inflicted by the penalty of death.
CONFESSION NOT ALWAYS TO BE TRUSTED.
These are some of the instances in which evidence once deem-
ed conclusive is known to have been fallacious. But evidence
no stronger has doomed many whose dying protestations, uncon-
firmed by after-proof, leave the question of their guilt still doubt-
ful. It is more than probable that many of these were innocent.
Even confession is no certain proof of guilt, for crimes have been
confessed which had not been committed. Most readers are
familiar with the case of Bourne, in Vermont, who confessed a
murder of which he had been convicted on circumstantial evi-
dence, and would have been hung, had not his supposed victim
returned alive and well, just in time to save him. How many
too have confessed the impossible crime of witchcraft, and died
sacrifices to a now exploded superstition But illustrations need
not be farther multiplied, of what no candid reasoner will deny,
the ever imminent danger of inflicting, by the doom of death, an
immeasurable and utterly remediless wrong. As Dymond well
says, “a jury or court of justice never know that a prisoner is
guilty.” Their condemnation is therefore in some sort a shot at
random, or at best, with a doubtful aim. Now, however just it
may be that a murderer should die, it surely is not just to fire at
116 * THOUGHTS ON THE DEATH PENALTY.
a venture into the crowd where he is, in order to kill him. La
Fayette spoke the language no less of justice than of humanity,
when he said, “Till the infallibility of human judgments shall
have been proved to me, I shall demand the abolition of the
penalty of death.”
CHEEvER’s REPLY.
If any thing could add strength to this argument from the danger
of fatal and irreparable mistakes, Cheever's reply would do it.
He says the penalty has saved a hundred innocent persons from
murder, where it has cut off ten by mistake. But I have shown
that, instead of saving from murder, it causes more murders than
it punishes, and is therefore to be charged with the death both of
its own innocent victims, and of those who by reason of its influ-
ence, fall a prey to the murderer. He says there is the same
danger of mistake in all punishments. True, but in all others it
can be remedied, in part at least, if not wholly. His argument
is good to prove that necessity alone can justify any punishment,
and that such only should be chosen as allow mistakes to be cor-
rected, fully if possible, but if not, then partially at all events.
It weighs against the gallows, therefore, and not for it. He says
that, “in almost every instance” of fatal error, “except where
no murder had been committed, the real culprit had taken the
life of the accused by perjury;” that is, “had used an institution
of justice, instead of the assassin's knife, to perpetrate another”
murder. A very good reason for abolishing, but a marvellously
poor one for retaining “an institution of justice” (injustice,
rather,) which can be so easily, and has been so often, turned
into “an assassin’s knife.” And in those cases “in which no
murder had been committed,” is the loss of an innocent man's
life, through the erroneous belief that there had been murder, so
trivial an affair as to be worthy of only a mere parenthetical
notice? Shall we still uphold a penal system, which sacrifices
the innocent on suspicion of crime when none has been commit-
ted, and gives the perpetrator of one murder a weapon to com-
mit another with ? But, says Cheever, “If you abolish the
penalty of death to avoid these murders in the second instance,
you increase the number of murders in the first instance.” This
THOUGHTS ON THE DEATH PENALTY. 117
is answered by the proof already given, that abolishing the death
penalty diminishes, instead of increasing, murders.
DIFFICULTY OF ESTIMATING GUILT.
Another thought is perhaps worth suggesting in this connec-
tion. Even if the deed were traced with absolute certainty to the
doer, the amount of his guilt is known only to the Searcher of
hearts; and only he who knows that, can measure out the just
degree of punishment. What has been his previous training,
what circumstances beyond his control have modified his charac-
ter, what temptations have beset and what provocations have
maddened him; in a word, what influences without himself have
combined to shape his course, can be but imperfectly known, if at
all, by any human tribunal. Yet all this must be perfectly known
before his just desert can be awarded him. Are they the proper
dispensers of retributive justice, who do not and cannot, in a
single case, know what is a just retribution; and who in many
cases fail of even approaching to such knowledge?
AND OF MEASURING PUNISHMENT.
Again. A right measure of punishment is as hard to attain as
a right estimate of guilt. The same infliction will be far severer
to some than to others; hence, even if the criminal’s exact desert
were ascertained, it could not be known whether he was ad-
equately punished, unless it were first known kow much a given
infliction would make him suffer. But the code of blood forbids
the graduation of punishment to the varying grades of guilt. It
has the same penalty, for the same outward crime, however un-
like the circumstances of its commission, or the character of its
authors, or their susceptibility of pain from that particular inflic-
tion. For the least guilty, its doom is death ; for the most guilty,
only death. Yet some, in their brutal stupidity, like Shakspeare's
Barnardine, “apprehend death no more dreadfully but as a
drunken dream; careless, reckless and fearless of what’s past,
present or to come;” while others die a thousand deaths in fear-
ing one, feeling keen agony in every moment’s anticipation of
their fate. To some, death comes a welcome deliverer from a
life of complicated misery; others it tears from family and friends,
from many comforts, from bright hopes which made life sweet
and sunny, and the prospect of the cold, dark grave very terri-
118 THOUGHTS ON THE DEATH PENALTY.
ble. One dies impenitent in a horror of despair, felt as the fore-
taste of endless wo; another, whose crime was perhaps more ag-
gravated, and involved deeper guilt, goes away rejoicing in the
hope of a blessed immortality, which makes death no punish-
ment to him, but rather a speedier dismissal from a world of sin
and sorrow to eternal bliss. As the most hardened and depraved,
in general, dread death the least, it punishes the least guilty the
most severely. Where then is the boasted justice of a penalty
which, always so unequal in its bearing, and so incapable of ad-
justment to different degrees of guilt, must often produce suffer-
ing in inverse proportion to desert Doubtless it was in view of
considerations like these, that Wordsworth, though an advocate
of the death penalty, made the concession which is placed at the
head of this chapter.
INJUSTICE TO THE MANY.
But I have yet another objection to that penalty, on the ground
of justice; or rather have to apply more distinctly to this point,
an objection already stated under another head. Be the criminal's
desert what it may, and be the right of society toward him what
it may, it has no right to impair the general security of life, or
lower the tone of public morals. The state, the criminal, and the
innocent accused of crime, are not the only parties to whom jus-
tice has regard. The great body of unoffending citizens have their
rights also; rights which are invaded by whatever puts in needless
peril their lives, their property, their peace of mind, or their
purity of morals. But it has been shown that the penalty of
death has this effect; that it is fearfully demoralizing, that it
weakens the strongest barrier against crime, especially crimes of
blood, increases the chances of impunity, and in various ways
tends to the multiplication of murders, as well as of less enor-
mous offences. It is, therefore, gross injustice to the mass of the
people, whatever it may be to the immediate sufferer. The in-
cendiary may deserve, if you will, to have his house burnt down,
but if it stands where the flames will endanger other houses, is it
just to their inmates to set it on fire So neither is it just to the
unoffending many, to punish the offending few in such a way as
will lessen the general safety.

THOUGHTS ON THE DEATH PENALTY. 1 19
ANTIQUITY AND GENERAL PREVALENCE.
The justice of this penalty is sometimes argued from its anti-
quity and general prevalence. Cheever cites the Greek poets
and the barbarians of Melita to this point, and others have dwelt
much on the same argument. But it would be just as good for
idolatry, for despotism, for belief in witchcraft, and for a thou-
sand errors in morals, religion, and science, all ancient and wide-
spread, resting on the authority of “philosophers, legislators, and
poets,” as well as of the common mass for ages, and still prevail-
ing over far the greater portion of our globe. Aggressive war and
the enslavement of captives, private revenge, polygamy, trial by
ordeal, are a few of the multitude of ancient usages, once—and
some of them even now—almost universal, which might plead
the same justification. While “the whole world lieth in wicked-
ness,” (1 John v. 19,) universal usage cannot prove much in favor
of any practice. And if the abolition of the penalty of death would
be an innovation, so was its establishment, after the world had gone
on, Cheever thinks, sixteen centuries without it. So too was
Christianity, and would be still among seven-eighths of the hu-
man race,—so was republicanism, so was the Copernican system
of astronomy, so was the mechanical use of steam;-but I need
not multiply illustrations. It being admitted on all hands that the
world is not what it should be, nothing is plainer than that
the work of setting it right must be accomplished by innovation
after innovation; by exploding ancient errors, changing preva-
lent usages, and overturning long-established systems, till nothing
is left but what can stand on its own merits. Antiquity is no sure
evidence of truth, nor general prevalence a proof of right.
We have now seen that to the question with which we started
—ought human hands to punish crime with death —both expe-
diency and justice answer with an emphatic No: the one con-
demning such a punishment as opposed in tendency to every ob-
ject of penal law of which it can take cognisance; the other pro-
nouncing its infliction, by erring man, a usurpation of the preroga-
tive of the Infallible, and an invasion of the rights of the many, in
a vain attempt to deal out retribution for the crimes of the few.

CHAPTER III.
SA C R E D SC RIPT U R ES.
“Before the world had pass'd her time of youth,
While polity and discipline were weak,
The precept, eye for eye and tooth for tooth,
Came forth--a light, though but as of day break,
Strong as could then be borne. A master meek
Proscribed the spirit fostered by that rule,
Patient his law, long suffering his school,
And love the end, which all through peace must seek.”
Wordsworth.
“NOT LEFT TO OUR DISCRETION.”
To all which has hitherto been urged against the bloody pen-
alty, it is replied that the Divine Law leaves us no discretion in
the case; that it has commanded us to put the murderer to death,
and our duty is, not to speculate on the policy or rightfulness of
the act, but implicitly to obey. Let this be proved, and contro-
versy is at an end. But they who appeal to Scripture for the
proof, should remember that the Bible is one thing, and their no-
tion of its meaning is another, and, it may be, a very different thing.
Of all who read the Bible, a vast majority, it is certain, err more
or less in their interpretation; and most probably none are right
in all points. This is proved by the multitude of conflicting
creeds, all claiming to be scriptural, though only one can be wholly
right, and all may be partly wrong. “Since the ordinary means
of expounding Scripture,” as Bishop Taylor, in his “Liberty of
Prophesying,” truly says, “are all dubious, uncertain, and very
fallible, he that is the wisest, and by consequence the likeliest to
expound truest in all probability of reason, will be very far from
confidence.”
past ERRons should teach us caution.
When we remember how the enemies of reform have always
used the Bible to oppose every step of progress, not alone in the-
ology and morals, but in politics and even natural science; quoting
it now against a Galileo or a Columbus, and now in favor of the
divine right of kings: employing it to prop up here some hoary
tottering error, and there some crumbling system of oppression;
we may cease to wonder that the champions of the gallows seek
its aid; but should receive their version of its teachings with ex-
120
THOUGIITS ON THE DEATH PENALTY. 121
treme distrust. As the false notions of former times have yielded
to the might of advancing truth, and the most pious and sound in
doctrine now admit the harmony of Scripture with the disco-
veries of science, and—in this country, at least—with republican
principles; so, peradventure, will it be admitted, when a wise
and just humanity shall have wiped the blood-stain from our sta-
tutes, that the Bible does not bid us punish crime with death. The
opposite doctrine will of course be taught so long as the state en-
joins that penalty. In Russia the Bible is held to justify despotism,
but not to require a death penalty for murder. Here, directly the
reverse. In some countries it is supposed to sanction death for
many crimes; in Pennsylvania, for none but murder in the first
degree. The celebrated Matthew Henry, interprets Judah’s com-
mand to bring forth Tamar “ and let her be burnt,” (Gen. xxxiii.
24,) as meaning “to be not burnt to death, but burnt in the cheek
or forehead; ” which would have been her punishment by the
laws of England. Thus, we see, what is practised or legalized
goes far to determine what will be taught.
Since, then, interpreters so widely differ, and are so manifestly
biassed by the prevailing sentiment and usage around them, what
is it but the height of rash presumption to trust an issue so im-
portant as is now before us, to the doubtful chance of their cor-
rectness? How cautious should we be of giving any text a con-
struction binding us to cut short a brother's life, and “put in jeo-
pardy a human soul!” Nothing but the clearest evidence which
the case admits, should be deemed proof that God requires of us
an act so solemn in its nature, so fearful in its consequences.
PRESUMPTIVE PROOF AGAINST IT.
This clearest evidence we have not. For first, there is strong
presumptive proof the other way. Fully as the moral law is re-
vealed in the Bible, and many as are its specific rules for human
action, and its threats of punishment for disobedience, it no where
prescribes how man must punish crime, save in the Mosaic code,
which bound the Israelites alone, and was not meant to be per-
petual, even for them. If then God has specified how we must
punish murder, he has departed widely, in this instance, from
his ordinary course, which, considering that with Him is no

11
192 THOUGHTS ON THE DEATH PENALTY.
variableness, neither shadow of turning, is exceedingly unlikely.
So striking an exception to a rule otherwise universal, needs
more support than a few texts of doubtful interpretation, espe-
cially when life and death hang on the issue.
Again. God’s laws never conflict with each other. If he has
commanded us to punish murder, it must be in a way not forbid-
den by any other revelation of his will. But justice and a true
expediency, which always coincide, are as truly divine law as
any text of Scripture. They form that “law of nature” which
is God’s oldest statute and the basis of all law. They are the
dictates of eternal Right and of all-perfect Wisdom and Goodness,
seeing and choosing the fittest means to gain the highest ends;
and though their bidding in some cases may be harder to find
out than the meaning of a plain sentence in the Bible, yet when
once known, it is as binding as any rule can be. Hence, every
argument in the foregoing chapters, going to prove the death-
penalty unjust and inexpedient, tends equally to disprove its
assumed divine authority; and certainly enough has there been
shown, at least to raise against it a very strong presumption.
“SCRIPTURE ARGUMENT LIMITED.”
Now, to overcome this strong presumptive evidence; to show
that in this instance God has set aside a rule else universal, and
required of us an act so fraught with awful consequences, and to
all appearance so unwise and unjust, we naturally expect and
reasonably demand proof clear and abundant in proportion to
the difficulty of making out so improbable a case. Do we find
it? On the contrary, what is offered is remarkably scanty.
Cheever admits, as well he may, that “the argument from Scrip-
ture is somewhat limited.” Almost its whole strength is compris-
ed in a single brief passage of questionable meaning. Of that
passage he says, “it is the citadel of our argument, commanding
and sweeping the whole subject.”
It is worthy of notice, too, that this alleged rule of duty for a
Christian age and people is found, not in any words of Christ or
his apostles, nor in any part of what with strict accuracy may
be called the Christian scriptures; but in those relating to a dis-
pensation yet earlier even than the Jewish. Holding, as I be-
THOUGHTS ON THE DEATH PENALTY. 123
lieve all theologians do, that in point of clearness and fulness,
revelation was progressive from the earliest ages to the time of
Christ, this going back not merely to, but beyond Moses for our
guide, seems quite too much like seeking for the living among
the dead. That the advocates of death-punishment feel the need
of such a course, adds greatly to the force of that presumptive
evidence already so exceedingly strong against them. It is true
they quote a few texts from the Christian records, but only
as collateral testimony, and not as being, of themselves, enough
to sustain their cause ; only as forming, so to speak, the outposts
of their “citadel,” not as to be trusted for their main defense.
But collateral testimony avails them nothing if their direct proof
fails; the outposts cannot be held when the citadel is carried.
On the one passage alluded to, therefore, must be and is their
chief reliance. Not by the broad sun-blaze of the Christian noon,
not even by the glimmering Jewish day-break, but by one lonely
ray of dim starlight, struggling through the gloom of a yet re-
moter age, they bid us read our duty as followers of Christ, in
relation to a matter of such vast importance.
TESTIMONY DOUBTFUL.
But Cheever tells us that his scripture proof, “though some-
what limited, is plain and powerful.” It ought to be, to serve
his purpose. Extremely scanty as it is, it should be too plain
for doubt. A shadow of uncertainty is fatal to his conclusion.
Even texts which at first view might seem fully to sustain it,
would not suffice if they would bear a different construction.
The very hangman would not do his official work, which he
takes for granted is both just and wise, unless his warrant were
so clear as not to admit two meanings. Can we suppose that
God would give us a less certain mandate, if he meant to bid us
shed our sinning brother's blood—an act so seemingly, at least,
impolitic and wrong?
Now I deny that the text mainly relied on by the champions
of the gallows, or any other Bible text, indeed, is such a clear
unquestionable command as they are bound to show. On the
contrary, their strongest passage is so doubtful, that honest, learn-
ed and intelligent men have differed, do differ, and cannot agree
as to its meaning. Whether it is a command or a prediction, or

124 THOUGHTS ON THE DEATH PENALTY.
a warning of the general consequences of violence; whether, if
a command, it requires the taking of human life or only that of
beasts, and whether in either sense it is binding now, or ever
was universally binding, all these are doubtful points, as may be
seen in the conflicting opinions of biblical scholars concerning
them. What the original Hebrew means, and what is the true
sense of our English version, are both questionable. Yet both
must be made certain, before it can warrant our shedding human
blood.
TRANSLATIONS VARY,
That the first cannot be certain, the differing translations show.
Our common English version reads, “Whoso sheddeth man’s
blood, by man shall his blood be shed.” (Gen. ix. 6.) A literal
rendering of the original would be, “Shedding the blood of man,
in man his blood is shed.” Or, “by man his blood is (or will be,
or shall be) shed.” The verb in the last clause is in the form
used for either the present or future indicative, as well as some-
times instead of the imperative, and of course does not determine
whether the sentence is a command, an assertion or a prediction.
The phrase translated “by man” is the Hebrew “b'adam;” the
word adam preceded by the letter beth, which means also in,
among, with, &c.; while according to Fabre d’Olivet, one of the
most emiment Hebrew scholars of Europe, the preposition “by”
is properly represented by the letter mem. It is therefore un-
certain whether the bloodshedding, even if foretold or required,
is to be by man. John Calvin says that the rendering of b'adam
“by man,” is a forced construction.
The Septuagint, Greek version, supposed to have been made
by seventy-two learned Jews, about 300 years before Christ,
would read, in a literal English translation, thus: “He shedding
(i. e. he who sheds) the blood of man, for the blood his will
be shed.” The Samaritan copy has it, “for the man his blood will
be shed.” A literal rendering of the Latin Vulgate is, “Who-
ever sheds human blood, his blood will be shed tº making no
mention of the agent. Of Martini’s Italian version, the same.
Of Diodati’s Italian version, “The blood of him who sheds the
blood of man, will be shed of man.” Of the French Bible in
common use, and which our Bible Societies distribute, “Who

THOUGHTS ON THE DEATH PENALTY. 125
will shed the blood of man in man, his blood will be poured out;”
making the “b'adam” refer to the mode of the first life-taking,
and not to the agent in the second. Of the Huguenot translation
the same. The celebrated Swedenborg, also renders the text,
“He who sheds the blood of man in man, his blood shall be
shed;” placing the comma, as it is in the French version, after
the words “in man.” Pascal quotes it as given in the Vulgate,
and adds, “this general prohibition takes from man all power
over the life of man.” War and judicial executions he seeks to
justify on subsequent divine commands. Fabre d’Olivet translates
the last clause of the passage “through man will his blood be
shed.” Cahen, director of the Israelite school in Paris, who has
lately published a new version of the Old Testament, also uses
the future indicative, ſº will be shed.” Le Clerc makes the pas-
sage but a declaration of what is generally to happen. A friend
of mine, who has given considerable attention to the Hebrew text,
translates it thus: “He has shed the blood of man, in man his
blood is shed.”
Here are ten or twelve authorities, some of them of much
weight, for differing from our common version. Of the three or
four variations which they give, not one makes the text a clear
command, while most if not all of them absolutely shut out the
mandatory construction. They seem to make it a declaration
either of the general consequence of blood-shed, or of the great
truth that inasmuch as all men are of one blood, made alike, “ in
the image of God,” the manslayer virtually sheds his own blood
when he sheds another's. Now, if the sense of the original were
so perfectly plain as Cheever thinks it, and as it must be to sus-
tain his argument, is it possible that honest and learned men,
agreeing too with him, as most of them probably do, as to the
duty of punishing murder with death, could have differed so in
their translations !
** SHALL” Not ALWAYS IMPERATIVE.
But admitting that the common English version is the right
one, it is still open to more than one interpretation. It is com-
monly taken at first view for a command, partly because that
construction agrees with our laws and practice, as Matthew
Henry's construction of Gen. xxxviii. 24, agreed with those of

11*
126 THOUGHTS ON THE DEATH PENALTY.
England; and partly because “shall” is now used generally in a
mandatory sense. The whole argument hangs upon that single
word. If in the place of “shall be’” we had “will be,” or “may
be,” or “is,” this often quoted text would no longer be regarded
as a prop of the gallows. But “shall,” even now, is not always
a word of command, and formerly it was yet oftener used as the
simple future. In that sense we meet it on every page of the
Bible, and to understand it always or generally as a command,
would fill the book with gross absurdities.
“Bloody and deceitful men shall not live out half their days,”
says the Psalmist. Are they bidden to kill themselves 2 The
wise man tells us, “whoso diggeth a pit shall fall therein.” Is
this a command “The wicked shall do wickedly,” says Daniel,
“ and none of the wicked shall understand.” A precious war-
rant this for playing the villain in God’s own name, if “shall” is
always mandatory. Murder itself could plead divine authority,
and to say God dooms the murderer to death, would be to charge
him with punishing obedience to his own law. This very chap-
ter, in which that doom is sought, has one verse which reads
thus: “Every living thing that moveth shall be meat for you.”
Are we bidden to devour all manner of beasts, birds and insects,
and creeping things, clean and unclean, harmless and venomous!
The word “shall” occurs fourteen or fifteen times in the chapter,
omitting the disputed 6th verse, and in only one instance at most
does the sense require it to be understood imperatively, while in
most cases it is plainly meant to bear the simple future meaning.
What certainty then can we have that it is imperative in the
6th verse.
Even in the passage which Cheever cites as parallel to this,
and as in favor of his interpretation, I cannot see that “shall” is
mandatory, or that “the assertion is in the nature of an injunc-
tion.” This is the text: “ The man that doeth violence
to the blood of any person shall flee to the pit; let no man
stay him.” If “the pit” is not a place of safety, whither the
man-slayer will flee from the blood-avenger, as the author of
“The Bible against the Gallows”—understood to be a Presby-
terian clergyman—thinks it is; but is rather the grave or the pit
of death; still the text does not read like a command. Had that

THOUGHTS ON THE DEATH PENALTY 127
been its character, would it not have been, he “shall be driven,
or thrust into the pit 7” For, as Cheever says, “he certainly will
not ” flee thither “if he can help it,” so a force from without
him must drive him to it. But the act here spoken of is to be his
own, and if the text is “an injunction,” and “the pit” is death,
he is commanded to kill himself, and all others are forbidden to
hinder him. I am not yet ready to believe that God commands
suicide. Much more reasonable is it to my mind to take the pas-
sage as a declaration of the general truth, that the shedder of hu-
man blood would, from the natural tendency of his violent tem-
per and depraved heart, rush on to that destruction which his
bloody deeds had been preparing for him, and it would be useless
to try to hinder him. This, in an age of comparative barbarism,
when revenge was deemed a virtue, and retaliation of even ac-
cidental injuries was held almost a duty, would be a truth too ob-
vious to escape general observation, and would naturally enough
pass into a proverb. But to take a saying descriptive of what was
in such an age, for an injunction as to what should be in one far
more enlightened, is truly to “grope in the noon-day as in the
night.” But, be the meaning of the passage what it may, it cer-
tainly is not a command to other men to kill the man-slayer, nor
a proof that Gen. ix. 6, is such a command.
Since, then, the whole force of the argument, from this “cita-
del” text, depends upon the mandatory sense of “shall,” a word
not always or generally mandatory, and in this very chapter used
much oftener in another sense, perhaps the case might here be
safely rested, on the want of proof that God ordained the gallows
for our use. Still, however, the strength of prejudice in some
minds in favor of the notion that this text is such an ordinance,
seems to justify, if not demand, the showing of some other rea-
sons for rejecting it.
consEQUENCEs of THE MANDATORY CONSTRUCTION.
The absurd consequences legitimately flowing from its adoption
furnish one of these. If, as Cheever holds, the text is a command,
permanent and universal, not only giving “the power to pro-
ceed by capital punishment against the homicide,” but imposing
an “imperative obligation to use that power,” then it forbids the

128 THOUGHTS ON THE DEATH PENALTY.
pardon of a murderer, under any circumstance. Yet who will
say that no murderer ought ever to be pardoned? Possibly a few
of the warmest advocates of death-punishment, compelled by their
own logic and the necessities of their cause, may say it; but how
many even of their disciples will in this agree with them? Nay,
1 doubt if any of themselves would deny that it has been some-
times right to let a murderer live, or affirm that in every instance
wherein it has been done, it was worse for the world than if he
had been put to death. What think they of David’s case?—of
Paul's Do they lament that the lives of these homicides were
spared Or could they find it in their hearts to grieve that even
humble Jacob Hodges was allowed to expiate his crime by a life
of active goodness, far better than he could have done it by a
violent death? And if not, will they say it was wrong to spare
his life 2
If they say no to these questions, they virtually yield the point
in dispute. They admit that the punishment of murder is left to
man’s discretion ; and if in one case we may let the offender live
because we think it right and wise to do so, we may in every case,
if so we think it right and wise to do. They must, therefore, to
maintain their ground, deny a pardoning power in the case of
murder altogether, and, for aught I see, the power of temporary
reprieve, and of allowing time after conviction for the criminal
to prepare for death. If we may delay obedience to God’s man-
date, at our discretion, a month or a day, why not a life-time !
In the space which we do allow, the man may die, and thus may
our delay make it impossible to obey the law, “by man shall his
blood be shed.” So, too, must they condemn the distinguishing of
murder into degrees, and of manslaughter from both degrees of
murder. For every grade of homicide they must demand the
slayer's instant death. The Mosaic code must share their censure,
because it appointed cities of refuge for all manslayers but those
who killed by lying in wait, or from old hatred; i. e.—in modern
language—for all who committed manslaughter or murder in the
second degree.
Yet farther. The language of the text is unlimited. If it bids
us kill the murderer, of whatever degree, it no less bids us kill
him who has slain another by accident or in self-defense, for he
i
I(.IS
*{

THOUGHTS ON THE DEATH PENALTY. 129
too has “shed man's blood.” So has the murderer's executioner,
and he too must be slain, and then his slayer, and then his ; and
thus, unless an earlier suicide arrests it, the work of slaughter
must go on, till the last man becomes his own executioner, and
crowns with his corpse the pile of universal carnage. To answer
that the text refers to murderers only, is to assume what cannot
be proved, and to make the same phrase—“shedding blood”—
mean, in the first clause, murder, and, in the next, a rightful killing.
Again: the notion that God here commands us to kill the man-
slayer, seems inconsistent with the clear intent of the whole pas-
sage, text and context. Its manifest design is to teach, in the most
impressive manner, the sacredness of human life. For this we are
told, “your blood of your lives will I require,” at the hand of
man and beast; and for this are we reminded that “in the image
of God made he man; ” that his life is, as it were, a symbol of
the divine life, and, as Cheever says, quoting from Calvin, “none
can injure his brethren but he injures God; which if we would
remember, we should be far slower to offer injuries.” Now will
a mandate to destroy life make us revere it more ? Will God’s
image seem more sacred because we are bidden to deface it?
Surely not. If one violation of its sanctity has lessened our re-
verence for it, will not another rather aggravate than cure the
evil? You still call murder a violation of God’s image even when
its victim is a wicked man; then does not the killing of the mur-
derer violate it too, and impair your sense of the sanctity of life 2
Facts testify that it does. The proofs which have been given of
the demoralizing influence of the gallows, of its tendency to lower
the general estimate of the worth of life, tell fearfully upon this
point. To make the 6th verse a command that we shall slay the
murderer, then, is to defeat the very purpose of the passage.
The solemn mandate, simple and unqualified, “THOU SHALT Not
KILL,” sets the true value on the life of man, and fixes deepliest
in the soul a just regard for its inviolate sanctity. He who aſ-
firms an exception to this plain rule, must prove it with a noon-
day clearness. No statute in the local, temporary code of Israel,
no words of doubtful import in the covenant with Noah, can abate
its authority over us. But the imperative construction of the
verse before us conflicts with that authority, and must therefore
be presumed erroneous.

130 THOUGHTS ON THE DEATH PENALTY.
OTHER INTERPRETATIONS.
We escape these difficulties by receiving the text as a warning,
in general terms, of the consequences of violence; like the say-
ing, “whoso diggeth a pit shall fall therein,” or the Psalmist's
declaration concerning the wicked, that “his violent dealing
shall come down upon his own pate.” These passages nobody un-
derstands as universally applicable, nor would they be true, so
understood; for sometimes the treacherous are not victims of their
own treachery, and the violent do not always suffer violence.
Though we are told that “wrath killeth the foolish,” that the
triumphing of the wicked is short,” and “he shall fly away as a
dream and not be found; ” while “the righteous shall inherit the
land and dwell therein for ever;” that “wealth and riches shall
be in his hand,” and “his horn shall be exalted with honor;”
yet is it also said that “the wicked live, become old, yea, are
mighty in power; ” that “the way of the wicked prospers, and
all they are happy who deal very treacherously; ” that “the
godly man ceaseth, the faithful fail from among the children of
men; ” that “the good man is perished out of the earth,” and
“he that departeth from evil maketh himself a prey.” And we
all know that the wicked have often a large share of worldly
prosperity, riches, honor, power and long life; while the good
are often poor and oppressed and afflicted. But who ever dreams
of charging the texts just quoted with contradicting each other, or
the notorious facts of every day’s experience One class of them
is taken as general statements of the familiar principle that “ho-
nesty is the best policy,” or that “godliness is profitable for all
things;” the other class, as statements of the many seeming ex-
ceptions to that rule; and so taken, both are true. So, too, this
declaration that the blood of the blood-shedder will be shed, may
be no more than a like general assertion; and as such it was em-
phatically true in that early period between Noah and Moses,
when the avenger of blood, the nearest kinsman of the slain,
paused not to ask the motives or the circumstances of the slaying,
but sought his vengeance alike against the innocent and the guilty
slayer. x
That such was the bloody custom of those times, seems evident
from the Mosaic code itself, for to remedy that very evil the

THOUGHTS ON THE DEATH PENALTY. 1S1
cities of refuge were instituted, that he who slew by accident or
in the heat of sudden passion, and not with deliberate malice,
might have a place of shelter till the blood-avenger's wrath
should have time to cool. (Deut. xix.4–6.) The presumption
is, then, that before their institution all who shed the blood of
man were in like peril from the blood-avenger, whether they did
it maliciously, or in sudden quarrel, or in self-defense, or in reta-
liation. For aught that appears, the avenger himself was liable
to the same danger in his turn. The state of society was doubt-
less such as we have seen it among barbarous nations at much
later periods, and may see it even now among savage tribes; such
as the poet paints, when he makes the lisping child of a slaughtered
chieftain say,
“And if I live to be a man,
My father's death revenged shall be;”
or exclaims, in view of the deadly strifes which it engenders,
“Can piety the discord heal,
Or staunch the death-feud's enmity,
Can Christian lore, can patriot zeal,
Can love of blessed charity ?
No! vainly to each holy shrine
In mutual pilgrimage they drew,
Implored in vain the grace divine
For chiefs, their own red ſalchions slew.
While Cessford owns the rule of Car,
While Ettrick boasts the line of Scott,
The slaughtered chiefs, the mortal jar,
The havoc of the feudal war,
Shall never, never be forgot.”
Interpreting the passage as alluding to such a state of society,
we need not limit the phrase “shedding man's blood,” to wilful
murder, but may take it in its obvious sense as extending to every
grade of homicide.
Equally do we escape the absurdities attendant on the manda-
tory construction of the text, by adopting that which makes it
simply say that the slayer sheds his own blood in his victim's,
because all are alike created in the divine image, made of one
blood, sharers of that divine inbreathing whereby the “breath of
life” was imparted to “the dust of the earth,” when “man be-
132 THOUGHTS ON THE DEATH PENALTY,
came a living soul.” By this construction the last clause be-
comes a reason for the particular statement in the first, as well
as for the general doctrine of the whole passage—the awful
sacredness of human life. As “blood” and “ life” are here the
same in meaning, for “the life thereof.” is “ the blood thereof.”
(verse 4th,)—it is as if this verse had read “to take another's life
is virtually to invade your own, for both are derived from the same
sacred fountain, the life of God; into whose image, by his inbreath-
ing of your life-breath, you were both, and all your race, created.”
Another interpretation, which some adopt, is based on a ren-
dering of the original authorized by the learned German, Michae-
lis, who translates the first word, “whatsoever sheddeth,” instead of
“whoso.” He then applies it to both man and beast, but others
hold it applicable to the beast alone ; in part by reason of its
neuter form, but chiefly because extending it to man would, as
they think, subvert the essential idea which is the basis of the
whole passage,” by making it require man to destroy that very
life which it designs to teach him to regard as sacred. It does
not airn, they say, to fix a penalty for murder; because the beast,
incapable of guilt, deserves no punishment; but by declaring its
life forfeit for the life it took, to strengthen, in the minds of men,
the idea of the sanctity of human life. Several ancient nations
had such laws, as, in this view of it, the text would be. In
Athens, the dog which bit a man was doomed to death by law,
and even the lifeless instrument of a human death was destroyed
or banished. The Roman laws required the animals which had
done mischief to be given up to the injured party for punishment.
By the old English common law, the instrument with which a
man had been killed was forfeited as a “deodand,” a “gift to
God.” All these laws doubtless had their origin in a desire
to keep alive that “ idea of the mystic sacredness of life,” which
pervades the text before us.
Cheever pronounces this interpretation absurd, because it re-
presents God as “legislating, in regard to murder, for brutes and
not for men.” But had he seen its real bearings, he would have
known that the passage is, according to it, not a legislation “in
regard to murder,” but a rule concerning homicide of every sort,
and that its whole aim being a certain effect on man, it is to all
sis
.
l
THOUGHTS ON THE DEATH PEN ALTY. 133
practical purposes legislation for man. He tries to ridicule it,
too, by supposing a man to have been killed by a bloodhound, set
on him by a malicious neighbor; and then that while the man
is suffered to escape, the dog is tried and solemnly executed. I
see not why he should “ let the man escape,” unless to fix on his
opponents doctrines which they do not hold, and which are not
| deducible from those they do. But for the rest, whatever of ridi-
culous attaches to the solemn execution of a dog, belongs to his
own argument, and not to theirs; for he contends, as they do
not, that the text is literally binding now, and if in part, then
wholly. Consistency requires him, therefore, to demand the
legal execution of man-slaying beasts. Matthew Henry is con-
sistent enough boldly to take that ground, and one prominent
living advocate of the gallows, if no more, has been understood
to favor it, though he is cautious of committing himself to it in
print. If it is ridiculous, let the ridicule fall where it belongs.
Yet another view has been taken of the meaning of the passage.
It is said by some, that the third verse having given, without
exception, “every moving thing that liveth,” to be used for
food, the terms so unlimited might have been thought to take in
man himself; especially as the like phrase, “every living sub-
stance,” in the account of the flood, (vii. 23,) manifestly did so,
for “man and cattle and creeping things” are expressly enume-
rated under it. That men have, in some countries, and perhaps
all ages, devoured one another, proves the possibility of such a
misconstruction, and shows the need of guarding against it. The
fourth verse, by enjoining that blood should not be eaten, required
the shedding of the blood of all animals used for food; then the
fifth and sixth verses, by forbidding the shedding of human blood,
and enforcing the idea of its inviolate sacredness, built up the
needed barrier against cannibalism. The text, in this view of it,
seems to take for granted that homicide is known already to be
wrong, and the danger it would guard against is not that men
will think it right in general, but that they will misinterpret so
the grant of animal food, as to suppose that in this particular case
it creates an exception to the life-protecting law, else universal.
In favor of this view may be cited the high authority of Fabre
d'Olivet, in his great work, “The Hebrew Language Restored.”
12
134, THOUGHTS ON THE DEATH PENALTY.
“He appears to think,” says the friend who kindly referred me
to this authority, “that the Hebrews gave this passage a false
gloss, because they considered the correct interpretation as inti-
mating the fact of early cannibalism, or rendering them liable to
the charge that Moses reprehended it. In confirmation, he
states that the books of Zoroaster contain a very similar prohibi-
tion.”
These are some of the varying interpretations put upon the
passages in dispute. I pretend not to decide which is right, nor
is it needful to my argument that I should. Its purpose is gain-
ed by showing that the meaning of the text is so uncertain as to
leave room for all these differing opinions touching it, among
men of candor, learning and intelligence. For if it is uncertain,
it cannot justify our taking life.
A HIGH AUTHORITY,
But I have one more authority to cite against its mandatory inter-
pretation. It is that of one who cannot err and will not deceive.
If the text is a command, it is either permanent and universal; a
transcript, so to speak, of the divine mind, and changeless as its
original; or it is local, temporary, depending on circumstances
for its validity, and passing away with their change. Cheever
says it is the former. “The obligation of the ordinance endures
as long as the reason on which it is founded;” and that reason
“is not transitory, not a matter of expediency, not limited to any
age, country, or generation, but co-eval and co-essential with the
race.” Of course, as “it will be in force so long as there are
men in God’s image;” so it must have been in force ever since
there were men in God’s image. “While the reason stands, the
law remains.” If then, at any time since man was made in the
image of God, no such law was in force, no such can ever be,
and this text is not such a law. Now God has told us, by the
emphatic testimony of his own practice, that a time has been
when no such law existed. When Cain murdered Abel, although,
as Cheever says, “no murder could ever be committed under
more aggravating circumstances,” yet the All-righteous Judge,
who knew full well what his own law required, did not condemn
the murderer to death; but taught impressively, by sparing even
him, how sacred he would have men hold the life of man. (Gen.
iv. 8—15.) Neither was death the doom of Lamech, when he

THOUGHTS ON THE DEATH PEN ALTY. 135
had slain a man to his wounding, a young man to his hurt. (Gen.
iv. 23.") And Cheever thinks the penalty of death was not
known before the flood. Grotius, he says, is of the same opinion.
of they are right, here are more than sixteen centuries, during
which this supposed “permanent and universal” law was not in
force; proving that it is not such a law.
* The different interpretations given of the brief account of Lamech, may
serve as another proof how hard it is to learn the exact meaning of this an-
cient book, and should teach us caution in determining an issue of life and
death by the dubious translation of a few obscure texts. Cahen, the learned
Parisian Jew, supposes that the family of Cain were persecuted for the sin
of their parent, and that Lamech complains of this and asks, “Have I slain a
man,’ &c., “that the crime should be imputed to me?” He suggests also
another explanation, that the use of the sword, invented by Tubal-Cain, was
made a subject of reproach to the family of Lamech, and that he asks, in
self-justification, if he had used it for murderous purposes. Theodore Parker,
following the German Herder, understands Lamech as triumphing in the
power acquired by Tubal-Cain's invention of the sword; and exclaiming,
“I have killed a man for wounding me, a young man for striking me.” But
a far more beautiful interpretation, is that given in a work entitled, “Hebrew
Characters derived from Egyptian Hieroglyphics; by John Lamb, D. D., mas-
ter of Corpus Christi College, Cambridge;” one of the most profound He-
braists of the present century. He says, “After the name of Tubal is added
Cain. The meaning of this is, that Tubal was a “Cain,” i. e. a fratricide.
How the deed took place we are not informed, whether he committed it deli-
berately, or in the heat of passion, or accidentally. This interpretation of
the word explains the meaning of Lamech's speech to his wives in the 4th
chapter of Genesis. Adah and Zillah come to their husband, the former call-
ing upon him to avenge the blood which Tubal had shed, and the latter plead-
ing for mercy towards her son Tubal ; and he thus answered them :
• Adah and Zillah hear my voice,
Hearken unto my words, ye wives of Lamec ;
If I slay an honorable man to my own wounding,
And a young man to my own injury,
Though seven-fold vengeance shall he taken on Cain,
(i. e. the fratricide,)
Yet upon Lamec seventy and seven fold.”
That is, iſ having lost one son, I now slay another, so noble a youth,
though indeed Tubal will be severely punished, yet I myself must be by far
the greater sufferer.” P. 58.
I cannot forbear to add the comment of the friend who furnished me this
extract. “It is a true touch of natural feeling, and our opponents must bring
in their alleged divine command to negative this merciful prompting of a
father's heart. Will the Heavenly parent judge more harshly than did this
antediluvian patriarch 1”
136 THOUGHTS ON THIE DEATH PEIIALTY.
Since the flood, also, we find that God has not so regarded it.
When Simeon and Levi murdered all the males of a neighboring
city, upon a provocation given by only one man, and for which
he offered the fullest reparation in his power, neither did Jacob,
as ruler of his household, punish them with death, nor have we
any proof that God commanded him to do it, or was displeased
because he did it not. The murderers both lived to be fathers of
numerous tribes, and the posterity of one of them were the
chosen ministers at God’s altar, to the very end of the Jewish
dispensation. Moses was not put to death for slaying the Egyp-
tian, whom he saw smiting the Hebrew, although no evidence
appears upon the record that it was anything less, at best, than
manslaughter. So far from it, he was preserved to be the ruler
of his people, and, under God, the framer of those laws and that
religious system, to which their posterity adhere unto this day.
David's is another case in point. Instead of being doomed to death
for the atrocious murder of Uriah, no sooner was he fully convict-
ed of his horrid guilt in that affair, than he received the prophet’s
prompt assurance, “the Lord hath put away thy sin; thou shalt
not die.” Neither did Saul of Tarsus expiate with his own
blood, the blood of holy Stephen, which had stained his homicidal
hand, nor that of many other saints against whom his voice was
given when they were put to death. Thus it appears from God’s
own dealings with men, through many ages, that he has not or-
dained a law, permanent and universal, that the murderer shall
be punished with death.
THE TEXT NOT NOW A LAW, IF EveR.
If then the text in controversy ever was a law imposing such a
penalty, it must have been one of the transitory kind; a positive en-
actment for a particular purpose, or to fit a peculiar set of circum-
stances, and not a moral precept, right in its eternal nature. The
latter can no more be changed, suspended, or annulled, than the
being of its Author. The former may be positively repealed, or
may pass away with the circumstances which called for and jus-
tified it. Thus, all concede, the ceremonial and civil codes of
Israel have lost their binding force; and thus, too, may have passed
away that of the statute, if it was one, now before us. Admitting,
for the sake of argument, that it was a statute, I maintain that it
S.
:

THOUGHTS ON THE DEATH PENALTY. 137
has thus passed away. The change of circumstances since the
period for which it was enacted, would of itself be strong pre-
sumptive evidence, if not conclusive proof of this. The period I
allude to, is that from Noah to Moses; for though a longer sway is
claimed for it, as part of its original design, yet the soundness of
that claim is the very thing in question, and cannot be assumed
as part of its own proof; while every argument which goes to
show that, if adapted to that time, it probably is not to ours, would
weigh against its claim of present authority. A clearer revelation
of moral and religious truth, a higher civilization, a better social
state, more stable governments, a regular administration of laws
by impartial officers, these are some of the token of such a change
as may be presumed to have annulled the force of all positive in-
stitutions then existing. Our improved prisons and prison disci-
pline, our asylums, and hospitals, and houses of refuge, all our
means of restraint and moral influence which can be brought to
bear upon offenders, though lamentably short of what they ought
to be, yet stand in striking contrast with the absence, in that earlier
day, of almost every appliance for a criminal’s reformation.
Then, for his mere safe-keeping, hardly any place could be trusted
but the grave, and if he could be safely kept, the motive to that
trouble would be small, when not his good was sought, but only that
security against his violence which one sure blow would seem a
speedier way to win. Now, not the least important sign of our bet-
ter social state, is a softening of the general character by the in-
fluence of Christianity, a larger growth of humane sentiments, a
clearer sense—as yet too dim, it is true—of our obligations to even a
sinning brother, and an increasing disposition to regard his welfare
as among the objects of penal discipline. Much as we still want in
these particulars, we have yet abundant cause to say with one of
our sweet poets of humanity:
“Thank God that I have lived to see the time
When the great truth begins at last to find
An utterance from the deep heart of mankind,
Earnest and clear, that all revenge is crime;
That man is holier than a creed, that all
Restraint upon him must consult his good ;
Hope's sunshine linger on his prison wall,
And Love look in wº solitude.”
138 THOUGHTS ON THE DEATH PENALTY.
REPLY TO CHEEVER’s ANSWER.
When Cheever says that “the state of society in which the
tower of Babel could be built, was not likely to suffer for want
of a jail,” he is very far from meeting the full force of our argu-
ment. It is not to the mere ability to pile up stones and mortar, and
shut men up in cages, like wild beasts, that we refer for proofs of
a social state requiring mitigations of the penal code. The enu
meration given above, includes far more important particulars than
this, which might exist with a very low condition of man’s moral
nature, a very feeble developement of his social affections, a very
dim and slightly controlling sense of the glorious truth of human
brotherhood. The builders of great cities and high towers might
still be savage in spirit, cruel and revengeful, barbarous in their
customs, bloody in their religious rites, rude in their polity, and
sadly ignorant of what in social and civic life each owes to all
and all to each. Witness the ancient Mexicans, who could in-
deed erect grand temples, piling up huge pyramids for their foun-
dations, but filled them with the steam of human sacrifices; could
build stately cities, but knew little of the civilization of the heart.
The histories also of Assyria, Babylon, Persia, Greece, Rome and
Carthage, might furnish many illustrations of this same truth. So,
had the men of Shinar raised their Babel-tower heaven-high, as
they designed ; to confound an ability to do this, with the quali-
ties of such a social state as ours, were a confusion worse than
Babel ever knew. -
Even if mechanic arts and architectural skill had made no pro-
gress since that barbarous age when the man-slayer's innocence
of all intent to kill was no protection from the blood-avenger's
stroke, and cities of refuge for the guiltless unfortunate were as
yet unknown ; when punishment was but a name for stern re-
venge, inflicted by the injured party or his nearest kin, impelled
by passion and not guided by calm justice; the change of circum-
stances alone might still suffice to prove the penal policy of that
time unfit for us, and so to raise a strong presumption that it is
abolished. That “when the reason ceases, the law dies,” is no
less sound a legal maxim than that “while the reason stands the
law remains.”
Nor am I alone in thinking this a case for its application.

THOUGHTS ON THE DEATH PENALTY. 139
Cahen, although he makes the verb in Gen. ix. 6, a future indi-
cative, yet understands the text as legalizing the law of retalia-
tion, which he believes the oldest law, and the most equitable in
the origin of society. He adds, however, “Since it has been well
established that justice is neither vengeance nor compensation, but
a correction having for its aim the melioration and not the des-
truction of the guilty, we are returned to ideas more conformed
to the true interests of humanity.” Thus he evidently regards
the statute as virtually repealed by the intellectual and moral
growth of Society.
CHRIST FOREIDS RETALIATION.
But, waiving this consideration, I contend that Christianity has
repealed it, if it was in force when Christianity was established.
For if it is a statute, it is based on the principle of retaliation; a
principle directly hostile to the Christian spirit, and most ex-
plicitly condemned in the teaching of Jesus and his apostles.
When, after quoting the Mosaic sanction of that principle in the
familiar maxim, “an eye for an eye, and a tooth for a tooth,” he
added the emphatic words, “but I say unto you that ye resist not
evil,” or, as the context plainly proves his meaning, “that ye
retaliate not evil,” he spoke the condemnation, not alone of
those specific instances of its use, but of the principle itself, and,
by consequence, of every law or usage based upon it. To deny
this, and say he meant to touch but the two cases specified, is to
utter the absurdity that while he held it wrong to strike out an
eye or tooth, in retaliation, he intended still to sanction the same
principle, in the case of “hand for hand, foot for foot, burning
for burning, wound for wound, and stripe for stripe,” as well as
“life for life.” If his condemnation reached to one case not speci-
fied, by the same reason it reached to all, for all involve the same
principle. The principle is right in every case, or wrong in all:
and by teaching that it is wrong in some, Jesus has taught that it
is right in none.
Cheever's reply that this injunction was “not directed to the
laws themselves, but to the abuse of them,” is an assertion un-
supported by anything in the words or life of Jesus. He does
not say “ye have perverted the saying of them of old time, to
justify private revenge;” but it is directly at the saying that

140 THOUGHTS ON THE DEATH PENALTY.
he aims his condemnation. When he had occasion, as he some-
times had, to reprove his hearers for their perversions of the
law, he states explicitly that such is his design, and contrasts
the “commandment of God” which they had transgressed or
abused, with their “tradition ” whereby they had “made it of
none effect.” See Matt. xv. 3–6, where he rebukes them for
such a treatment of the law of filial duty. But here he uses no
such language, nor gives us the remotest hint that such a
thought was in his mind.
Nor is the objection of any greater force, that Jesus “had
no reference to the primeval statute revealed to Noah;" for in
whatsoever of its embodiments he chose to condemn the re-
taliatory principle, the condemnation reached it everywhere;
in “the primeval statute,” if such it was, as much as in the
Mosaic code, or the revengeful maxims of the Jews. Besides,
the doctrine of progressive dispensations would seem to teach,
not that the statute which preceded Moses could survive the
abrogation of his code, but that it had already been displaced
when his came in, whatever harmonized with his being ab-
sorbed into it, to share its fate, and all else fading away in its
clearer light, which faded in its turn before the yet brighter
rising of the Christian day.
Cheever cites, in confirmation of his view, the words of
Christ to Peter, when he drew his sword upon the high priest’s
servant: “Put up again thy sword into his place; for all they
that take the sword shall perish by the sword.” Now this, so
far from proving that we are commanded to put the murderer
to death, is one of the passages often cited on the other side,
as parallel to Gen. ix. 6, when understood in the sense of a
mere general warning. Adam Clarke, though holding to the di-
vine authority of death-punishment for murder, seems not to
find support for that opinion in this text. His comment is,
“the general meaning of this verse is, they who contend in
battle, are likely on both sides to become the sacrifices of their
mutual animosities.” This is the plain and common sense in-
terpretation, and to make the use of it which Cheever does,

THOUGHTS ON THE DEATH PENALTY. 141
appears to me a sign that poof-texts on his side are extremely
SCar Ce,
He quotes also, in connection with this, a similar passage in
the book of Revelation; (xiii. 10) “he that killeth with the
sword must be killed with the sword.” It is so obviously the
same in import as the other, that it needs no additional com-
ment. Admitting all that Cheever says about the form of these
assertions “supposing a universal knowledge of their truth and
certainty; appealing to the authority of a known divine sanc-
tion, and to a proverbial sanction growing out of the divine,”
they prove nothing to the point, that God enjoins on us the
shedding of the murderer's blood. Teach what they may as to
the workings or designs of His Providence, they do not reach
the case in hand. As well might it be said that Daniel's as-
sertion, “the wicked shall do wickedly,” appeals “to the au-
thority of a known divine sanction,” and makes wickedness a
duty; or that the saying “bloody and deceitful men shall not
live out half their days,” requires such men to kill themselves
at thirty ; as that the texts under consideration teach the duty
of killing murderers. “The form which these assertions take”
is the same in all the cases, and of course it sustains the one
conclusion just as much as it does the other.
THE SWORD OF THE MAGISTRATE,
Another passage on which Cheever much relies, as a strong
outwork of his “citadel,” is that in Romans xiii. 1–4, where-
in Paul enjoins submission to rulers, and speaks of the magis-
trate as bearing not the sword in vain, but as the minister of
God to execute wrath on him that doeth evil. But in all this
there is no proof of a command to punish men with death. At
most it but asserts the ruler's right to protect the good and
punish the evil; and for these purposes to use the needful
means of maintaining his authority; leaving the choice of
means to his discretion. If, then, he judges it inexpedient to
punish with death, believing evil-doing can be more effectually
repressed by milder penalties, here is no prohibition of their
use. “The sword” is the emblem of his power, but it does not
follow that it must be an instrument of penal bloodshed. Even

142 Thoughts on the DEATH PENALty.
if it were certain, as it is not, that in this text is taught the
ruler's duty sometimes to take life, it would not prove that he
must slay the criminal who is completely in his power, and can
otherwise be restrained from doing mischief. It might refer to
the use of the sword in subduing armed rebellion, or overcoming
forcible resistance to the laws. Most who oppose the punish-
ment of death, would probably allow such use of it to be right,
when nothing else would serve. This no more proves death-
punishment to be right, than an admission of the right to kill
in needful self-defense would justify the killing of an unarmed
and pinioned captive. This passage therefore gives the gal-
lows no support.
PAUL’s ExAMPLE,
But “Paul recognised the justice of the death-penalty in
his own person,” Cheever says, when, in his appeal from his
Jewish persecutors, to Caesar's judgment seat, he said, “if I
be an offender or have committed anything worthy of death, I
refuse not to die, but if there be none of these things whereof
they accuse me, no man may deliver me unto them.” (Acts
xxv. 11.) In this I see but a strong asseveration of his inno-
cence, and no opinion expressed or implied as to the right or
wrong of the death-penalty. He is so confident that even by
their own laws he cannot be condemned, that he fears not to
stake his life on the issue. If in this he recognised the jus-
tice of death-punishment, then he also recognised its justice
for every offense to which it was affixed by the tribunal he
appealed to. But who believes he meant to endorse the whole
penal code of the Roman empire as right, or even all its capi-
tal inflictions! Though if he did, or if he meant in any de-
gree to admit the justice of that penalty, this would but prove
that it might be inflicted if it were expedient, not that it must
be. For, as Paul said of himself, that not all things lawful for
him were expedient, so is it true of rulers. They may not
punish unjustly, but they are not of course bound to inflict the
full measure of just punishment. They may be wisely mer-
ciful, and besides have this high motive so to be, w
“That human power doth then show likest God’s,
When mercy seasons justice.”
bro

THOUGHTS ON THE DEATH PENALTY. 143
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SUM OF NEW TESTAMENT PROOF,
These, I believe, are all the texts of any note which are
brought from the New Testament, in defense of the gallows.
How little they prove for it, has now been shown. Against it,
we need only the absence of proof in its support, but we have,
besides, a clear condemnation of the principle whereon it rests,
and a constant inculcation of a spirit opposed to its infliction.
The Gospel breathes love and forgiveness, teaches us to do
good even to the unthankful and unjust, to regard the criminal
as a brother for whose reformation we ought to labor, and in
whom we ought to reverence the sacredness of human life,
the image—though obscured—of our common Father. How
its teachings were understood in the earlier ages of the Chris-
tian era, may be gathered from the following words in Milman's
History of Christianity. (p. 356.) Of the Emperor Julian (A.
D. 361-6) it says, “He would not allow Christians to be prae-
fects, as their laws prohibited their adjudging capital punishments.”
THE MOSAIC L.A.W.
On the arguments which some have drawn from the Mosaic
code, I need not dwell, for all concede that it does not bind
us; that it never bound any but the Hebrews, and now is not
obligatory even on them. Aside, moreover, from all historical
proof that it was never meant to be our rule, the boldest advo-
cate of the death-penalty would shrink from the logical conse-
quences of basing it upon the law of Moses. For if we must
do any act because that law requires it, we must do every act
which it requires. Not only for murder must we kill, but for
nearly forty other offenses, some of them not known as crimes
at all in any modern code. We must kill most cruelly, too;
must stone men to death for gathering sticks on the Sabbath,
(Num. xv. 32—39,) and, in certain cases, burn women for
unchastity. (Lev. xxi. 9.) For enticing to idolatry, the father
must stone his own child to death; the brother his brother; the
husband his wife. (Deut. xiii. 6—10.) Could such laws be to-
lerated in a civilized land 1 No doubt the Mosaic code was

144
THOUGHTS ON THE DEATH PENALTY.
better than what preceded it; and probably as good as the
nation’s “hardness of heart” would allow to be enforced. It
embodied noble principles, and contained admirable provisions.
Its institution of the cities of refuge, for example, was a
humane, although but partial, restriction on the former savage
custom of revenge, an attempt to abolish which entirely would
probably have failed. Before it, in the times to which Gen. ix. 6
refers, a manslayer without malice, or even without intent to
injure, seems to have had less protection than a wilful mur-
derer has now. He was every moment liable to the blow of
vengeance, whereas the latter is safe for a few weeks or months.
The city of refuge partly remedied this evil. Yet it came far
short of a full remedy, and left the refugee in a much worse
condition than the legislators of any civilized country would
consent to leave him in. Though innocent of any crime, and
of right as much entitled to life and liberty as other men, yet
he might be slain if overtaken before he reached the city; and
if not, he must remain a prisoner within its walls until the
high-priest’s death. It was something, doubtless, to provide
him shelter from the blood-avenger's fury, even, at the cost of
freedom and with banishment from home and friends; but the
social state in which no better could be done, is surely no fit
model whereby to fashion ours. However wise and excellent
for such a state, the laws of Moses are not the laws for a Chris-
tian and enlightened age.
CONCLUSION.
Here, then, we rest. Having shown that the penalty of
death is not required by policy, or justice, or the written laws
of God; but that its abolition is in harmony with all three,
being right in itself, conducive to the general good, and ac-
cordant with the letter and spirit of the Gospel; I leave the
question in the hands of those who must decide it, trusting
that their decision may be prompted by the love, and guided
by the wisdom of Him who “ has no pleasure in the death of
the wicked, but that the wicked turn from his way and live.”



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