results of the principle of the prevailing systems; an advanced position in the line in which these systems are the first stage. At present, however, the public mind is not prepared for this advance; and it will not be pretended, that the relaxation of criminal justice, is chargeable to the severity of the laws. The only corporal punishment retained in our prevailing codes is that of death for wilful murder. The argument for this has been, that the law should make ruthless violence upon human life dreadful, and put forth its highest sanction to restrain vindictive malice and raging passion from gratifying their thirst of blood. But even this corporal punishment retained in this extreme case for this high purpose, is giving way before the principle which has rejected all others.

May we not then be allowed to inquire, whether the fault is not in the lenity of the laws? The mere suggestion of such an inquiry raises the cry, "brutal," "savage;" but the times call for it, and no nervous sensitiveness to harsh epithets should hinder or prevent it. Mercy is a noble and exalted virtue : pity and commiseration may be weaknesses: when apparently amiable and seeming to proceed from pious feeling, they are not unfrequently immoral weaknesses, the workings of an artificial and morbid sentimentality. Sympathy with the convict in his guilt is both weak and wicked; the most merciful of beings is the most inflexibly just. But upon the sight of a malefactor enduring bodily suffering for crime, no matter how ruffian or base, the energy of virtue through infirmity of depraved nature dissolves in sympathy; and we absurdly misconstrue this failure of virtue, into virtue itself. In this way our laws have been framed, with the eye upon the suffering of the convict undergoing sentence, kindling into indignation because looking upon the punishment only, and seeking for the amelioration of it. In consequence, the laws are destitute of the truth and sternness requisite to exhibit crime and moral obliquity in their true character, and associate them with their just retributions. The natural result is the relaxation of moral principle; the conscience becomes torpid; there is a want of sensibility to personal guilt, settling into indifference. Every person of observation who will examine this subject experimentally or speculatively, by the common experiences of life or the true principles of philosophy, without affectation, will come to this conclusion. In the experience of the writer of this article, in cases of great criminality, astonishing when we consider the

standing of the offenders, it has not been practicable to produce in them any proper sense of their guilt; their minds will not receive the impression of the heinousness of their conduct; but they are impervious to the truth. We believe, there is the same reason, why such persons apparently with so little hesitation deeply implicate themselves in crime, and why they cannot be made sensible of the flagitiousness of their guilt.

The criminal law is the highest and most authoritative instruction upon the subject of crime. Moral philosophy is theory; it is reading, very good reading, and that is its principal use: "plays round the head, but comes not near the heart." The criminal law is practical; it comes home to all that is susceptible about us. The penalties it annexes are the standard of guilt. This law is learned in the operations and converse of society; it is a part of the moral light, received as readily as the light of day. Men become familiar with it without perceiving how it enters with the first rudiments of knowledge, is incorporated with the first opinions and sentiments, and makes a part of the intellectual structure. According to the representation of crime in the criminal law of a community, and the standard of its guilt in the penalty prescribed for it, will be the opinions, sentiments and principles in that community in their estimation such is the character of crime, and the degree of its guilt. This is not merely just reasoning; it is confirmed by experience. Many years ago the law, in a certain region of our country, prescribed for adultery corporal punishment, of which a part was to sit on the gallows an hour with a rope round the neck. A citizen in that region, of superior ability, wealth, popularity, and prospects, of general upright deportment, was detected in adultery. He was ruined; denounced by unanimous opinion, he fled his state. In another region, about that time, a citizen, to explain facts tending to raise a suspicion against him of a particular offence, publicly confessed to the fact of adultery. The writer then resident in the former region, well recollects his own amazement, and that of all with whom he was conversant, at a man's voluntarily acknowledging such guilt. It was deemed of far deeper turpitude, than that involved in the suspicion. Subsequently in another region, where the penalty for adultery was one hundred dollars to be recovered in an action of debt, the writer learned how little was to be apprehended from the imputation of it. Yet the writer has no doubt, that the actual suffering because of adultery in the first

mentioned region, great as it was in the single case, was far less than in the last mentioned, where the law throwing no restraint, the evils of indulgence were more frequently experienced, producing no small amount of sorrow and ruin.

Upon what principle has our criminal law been framed, and the vital part of it, the punishments, determined? We have before mentioned, what all observers of events must have remarked, that the community, to be freed from the burden of this subject, have suffered it to pass into the hands of philanthropists, who have undertaken it gratuitously for the sake of making their improvements. The subject is perplexing and painful; and society seems willing to enter upon any experiment to avoid what is man's, as well as God's, strange workpunishing man. The principle of the improvement introduced, looks to the malefactor as the prominent object, and requires as the main end to be answered, his reformation. As results of this, he must not be pained by bodily suffering; for this is "brutal," "savage": nor must he be marked with ignominy; for this would destroy his self-respect essential to reformation. In the outset, however, these philanthropists fall into the error of judging of the feelings of the culprit by their own, and of supposing that the same things will affect him and them in the same manner. This is a common error: the refined and sensitive shudder at the thought of inflictions which the hardened criminal would scarcely feel, and are well nigh convulsed in agony with imagining infamy to which he would be utterly indifferent. Such is the process of vice through which he passes to conviction of crime, so depraving are the influences to which he subjects himself, so conversant is his life with hardship and wickedness, that he is callous and obdurate. It has been found in the experience of penitentiaries, in cases of release by pardon, that convicts can feign penitent feeling, tender affection and good resolution so as to gain full credit, with so little change of principle, that their first step of liberty is into their former course of wickedness, proving themselves, under all their specious demeanor, radically corrupt. We by no means assert, that there is no reformation in penitentiaries. We have rejoiced over one prominent case. But that case is not an argument against capital punishment, and does not properly belong to the view we are now taking. There may be, we presume there are, other cases; but we are confident that all who have reflected upon this matter, or who will turn their attention to the candid

examination of it, will sustain us in saying that they who have been disposed to make the most of this part of the subject, have used a great many more words than they have adduced facts to frame their argument.

This philanthropy is not only mistaken in investing the culprit with the refinement and sensibility of its advocates, who would be more deeply affected by an unkind word, than he with the pillory; but it is in greater error in becoming so absorbed with his reformation as to lose sight entirely of the proper means to preserve the innocent from guilt. There is obviously something else to be cared for besides the criminal and his comfort, some other concern than merely to contrive how light we can make the penalty of his transgression. He has cast behind his back every consideration that forbade the flagitious purpose of his lawless will: he has trampled, with entire disregard of social duty, upon the comforts, rights and safety of others it seems inequitable, in providing punishment for his offence, to act upon this same disregard of what is due to the worthy part of society, and look only for what will be lenient to him. We recur then to the proper objects of criminal jurisprudence, and take the position, that instead of the criminal's comfort and reformation being the first concern, they are the last the first being to produce such an estimate and consequent sentiment of abhorrence of crime in the common mind, that the thought of it shall be loathsome, infamy inseparable from its image the second, to make such sensible impression of pain and ignominy upon the wicked and unprincipled as to deter them from hazarding the consequence of crime: and the last, so far as consistent with most effectually securing these results, the comfort and reformation of the offender. We disclaim all cruelty; we reject sanguinary laws as defeating their own purpose; but we do not take either our standard or our definition of cruelty or sanguinary laws from persons who have trained themselves to be shocked, and cry "brutal," "savage," at a punishment which the wisest of men, by the pen of inspiration, prescribes for a child (Prov. 19: 18; 23: 13, 14; 13: 24). Crime is brutal, is infamous. The office of law is to make it appear what it is, by punishment stamped with its own character. We do not allow to the men who, under the name of mitigating punishment, frustrate this its proper end, their claim to peculiar benevolence. Is it benevolence so to frame the criminal law, that it is lenient in its restraints upon those

who, regardless alike of mercy and justice, exercise cruelty upon the defenceless, robbery upon the unprotected, knavery upon the confiding, and spoliation upon property, notwithstanding all the precaution that can be used for its security? Especially is it benevolent, so to frame this law, as to make no adequate impression upon those whose minds are forming under its influence of the heinousness of crime, of the sternness of justice, but on the contrary, to imbue them with moral principles so loose that they fall before common temptations into the grossest delinquencies, and then plead, in unfeigned simplicity, that they have done nothing very wrong? Who would not desire to have the salutary impression of punishment, marked with suffering and infamy, upon the mind of his child to deter him from guilt, rather than the influence of this alleviated system which, pervaded with sympathy for criminals, makes easy the descent to crime and impairs the sense of its degradation, but nevertheless, in a manner suited to the taste of speculative refinement equally effects the ruin of its victim? In the first case the parent might enjoy a child worthy and honorable: in the last à malefactor leniently treated by law. We have no taste for this lenity, and no esteem for the benevolence that exercises it. We do not deny, we fully admit, that men of the purest benevolence and most exalted worth, have been, and are zealously engaged in projects for mitigating punishment of crime. What we say is, that what they have done or are doing, may not be benevolent in an enlarged and just view of the subject; for we do not dispute the benevolence of particular cases of mitigation. But we further say, that many who have been zealous in this system of alleviation, and are now zealous in it, are mere notionists in benevolence. The man of energy, who to prevent crime, prescribes law to make it painful and infamous, has tenfold more true sympathy with his race. The energy of his character arises from strong feeling. Refined sentimentality, the great element of much benevolence, often consists of mere description; told in words, represented in picture, exhibiting its own contrast in matter of fact. Sterne, if not the father, the successful fosterer, of this sentimentality, was cruel even in the tenderest relations of man. Robespierre distinguished himself by a treatise against capital punishment; we next see him the bloodiest butcher of the French revolution. Lebon, the commissioner of the National Convention at Arras in the reign of terror, was constrained to pass a capital sentence by the threat