of death is rarely inflicted, this sensation operates in all its force; the people are always strongly excited by every trial for a capital offence; they neglect their business, and crowd round the court; the accused, the witnesses, the counsel, every thing connected with the investigation becomes a matter of interest and curiosity; when the public mind is screwed up to this pitch, it will take a tone from the circumstances of the case, which will rarely be found to accord with the impartiality acquired by justice.

If the accused excite an interest from his youth, his good character, his connections, or even his countenance and appearance, the dreadful consequences of conviction, and that, too, in the case of great crimes as well as minor offences, lead prosecutors to relax their severity, witnesses to appear with reluctance, jurors to acquit against evidence, and the pardoning power improperly to interpose. If the public excitement take another turn, the consequences are worse; indignation against the crime is created into a ferocious thirst of vengeance; and if the real culprit cannot be found, the innocent suffers on the slightest presumption of guilt; when public zeal requires a victim, the innocent lamb is laid on the altar, while the scape-goat is suffered to fly to the mountain. This savage disposition increases with the severity and the frequency of capital inflictions, so that in atrocious as well as in lighter offences, this species of punishment leads sometimes to the escape of the guilty, often to the conviction of the innocent.

Whoever has at all observed the course of criminal proceedings, must have witnessed what I have just endeavoured to describe; undeserved indulgence, unjust severity; opposite effects proceeding from the same cause; the unnecessary harshness of the punishment.

But when no such fatal consequences are to be the result, the course of justice is rarely influenced by passion or prejudice. The evidence is produced without difficulty, and given without reluctance; it has its due effect on the minds of jurors, who are under no terrors of pronouncing an irremediable sentence: and pardons need not be granted, unless innocence is ascertained, or reformation becomes unequivocal.

Another consequence of the infliction of death is, that if frequent it loses its effect; the people become too much familiarized with it to consider it as an example; it is changed into a spectacle, which must frequently be repeated to satisfy the ferocious taste it has formed. It would be extremely useful in legislation, if the true cause could be discovered of this atrocious passion for witnessing human agonies and beholding the slaughter of human beings. It has disgraced the history of all nations; in some it gave rise to permanent institutions, like that of the gladiators in Rome; in others it has shown itself like a moral epidemic, which raged with a violence proportioned to the density of population, for a limited time, and then yielded to the influence of reason and humanity. Every people has given us instances of this delirium; but the religious massacre of St Bartholomew, and the political slaughters during the reign of terror in France, exemplify, in a striking manner, the idea I mean to convey. The history of our own country, young as it is, is not free from this stain. The judicial murder of the wizards and witches of New England, and of a great number of poor wretches, during what was called the negro-plot at New York, furnish us with domestic lessons on this subject. The human sacrifices which we find in the early history of almost every nation,

proceeded from another cause, the idea of vicarious atonement for sins; but they were attended with the same heart-hardening effect. Human sufferings are never beheld, for the first time, but with aversion, terror and disgust. Nature has strongly implanted this repugnance on our minds, for the wisest purposes: but this once conquered, it happens in the intellectual taste, as it does in that of the senses: in relation to which last, it is observed, that we become most fond of those enjoyments which required, in the beginning, some effort to overcome the disgust produced by their first use; and that our attachment to them is in proportion to the difficulty which was conquered in becoming familiarized to them. Whatever may be the cause of this striking fact, in the history of the human mind, its effects ought to be studied by the legislator who desires to form a wise and permanent system. If the sight of one capital execution creates an inhuman taste to behold another; if a curiosity, satisfied at first with terror, increases with its gratification, and becomes a passion by indulgence, we ought to be extremely careful how, by sanctioning the frequency of capital punishments, we lay the foundation for a depravity, the more to be dreaded, because, in our government, popular opinion must have the greatest influence on all its departments, and this vitiated taste would soon be discovered in the decisions of our courts and the verdicts of our juries. But if this punishment be kept for great occasions, and the people are seldom treated with the gratification of seeing one of their fellowcreatures expire by the sentence of the law; a most singular effect is produced; the sufferer, whatever be his crime, becomes a hero or a saint; he is the object of public attention, curiosity, admiration, and pity. Charity supplies all his wants, and religion proves her power, by exhibiting the outcast and murderer, though unworthy to enjoy existence upon earth, yet purified from the stain of his vices and crimes, converted by her agency into an accepted candidate for the happiness of heaven; he is lifted above the fear of death by the exhortations and prayers of the pious; the converted sinner receives the tender attentions of respectability, beauty and worth: his prison becomes a place of pilgrimage, its tenant, a saint awaiting the crown of martyrdom; his last looks are watched, with affectionate solicitude; his last words are carefully remembered and recorded; his last agonies are beheld with affliction and despair; and after suffering the ignominous sentence of the law, the body of the culprit, whose death was infamy, and whose life was crime, is attended respectfully and mournfully to the grave, by a train that would not have disgraced the obsequies of a patriot or a hero. This sketch, though highly coloured, is drawn from life: the inhabitants of one of the most refined and wealthy of our state capitals, sat for the picture; and although such exalted feelings are not always excited, or are prudently repressed, yet they are found in nature, and in whatever degree they exist, it cannot be doubted, that in the same proportion, they counteract every good effect that punishment is intended to produce. The hero of such a tragedy can never consider himself as the actor of a mean or ignoble part; nor can the people view in the object of their admiration or pity, a murderer and a robber, whom they would have regarded with horror, if their feelings had not been injudiciously enlisted in his favour. Thus the end of the law is defeated, the force of example is totally lost, and the place of execution is converted into a scene of triumph for the sufferer, whose crime

is wholly forgotten, while his courage, resignation, or piety, mark him as the martyr, not the guilty victim, of the laws.

Where laws are so directly at war with the feelings of the people whom they govern, as this and many other instances prove them to be, these laws can never be wise or operative, and they ought to be abolished.

Quid leges sine moribus, vanæ proficiunt? But if laws unsupported by the morals of the people are inefficient, how can we reasonably expect that they will have any effect when they are counteracted by moral feelings as well as by ideas of religion. This is the effect of capital punishments in a country where they are not commonly inflicted. Let us now see what is their result, where they are unhappily too frequent.

In England, a great portion of the eloquence and learning, and all the humanity of the nation are at work, in an endeavour, not to abolish the punishment of death (that proposition would be too bold in a government where reform, in any department, might lead to revolution in all), but to restrict it to the more atrocious offences. This has produced a parliamentary inquiry, in the course of which the reports, to which I have alluded before, were made; one of them contains the examinations of witnesses before a committee of the house of commons. From one of these, that of a solicitor who had practised for more than twenty years in the criminal courts, I make the following extracts:

"In the course of my practice, I have found that the punishment of death has no terror upon a common thief; indeed, it is much more the subject of ridicule among them, than of serious deliberation. The certain approach of an ignominious death does not seem to operate upon them; for after the warrant has come down, I have seen them treat it with levity. I once saw a man, for whom I had been concerned the day before his execution, and on offering him condolence, and expressing my concern at his situation, he replied with an air of indifference, players at bowls must expect rubbers; and this man I heard say, that it was only a few minutes, a kick and a struggle, and all was over. The fate of one set of culprits, in some instances, had no effect, even on those who were next to be reported for execution; they play at ball and pass their jokes as if nothing was the matter. have seen the last separation of persons about to be executed. There was nothing of solemnity about it, and it was more like the parting for a country journey, than taking their last farewell. I mention these things, to show what little fear common thieves entertain of capital punishment; and that so far from being arrested in their wicked courses by the distant possibility of its infliction, they are not even intimidated by its certainty."

I

Another of those respectable witnesses (a magistrate of the capital) being asked, whether he thought that capital punishment had much tendency to deter criminals from the commission of offences, answered, "I do not. I believe it is well known to those who are conversant with criminal associations in this town, that criminals live and act in gangs and confederacies, and that the execution of one or more of their own body, seldom has a tendency to dissolve the confederacy, or to deter the remaining associates from the continuance of their former pursuits. Instances have occurred within my own jurisdiction, to confirm me in this opinion. During one sitting, as a magistrate, three persons were

brought before me for uttering forged notes. During the investigation, I discovered that those notes were obtained from a room in which the body of a person named Wheller (executed on the preceding day, for the same offence) then was laid, and that the notes in question were delivered for circulation by a woman with whom he had been living. This is (he adds) a strong case, but I have no doubt that it is but one of very many others."

The ordinary of Newgate, a witness better qualified than any other to give information on this subject, being asked, "Have you made any observations as to the effect of the sentence of death upon the prisoners ?" answers-"It seems scarcely to have any effect upon them; the generality of people under sentence of death are thinking, or doing rather, any thing than preparing for their latter end." Being interrogated as to the effect produced by capital executions on the minds of the people, he answers, "I think, shock and horror at the moment, upon the inexperienced and the young, but immediately after the scene is closed, forgetfulness altogether of it, leaving no impression on the young and inexperienced. The old and experienced thief says, the chances have gone against the man who has suffered; that it is of no consequence, that it is what was to be expected; making no serious impression on the mind. I have had occasion to go into the press-yard within an hour and a half after an execution, and I have there found them amusing themselves, playing at balls or marbles, and appearing precisely as if nothing had happened."

No colouring is necessary to heighten the effect of these sketches. Nothing, it appears to me, can more fully prove the utter inutility of this waste of human life, its utter inefficiency as a punishment, and its demoralizing operation on the minds of the people.

The want of authentic documents prevents me at present from laying before the general assembly some facts which would elucidate the subject, by examples, from the records of criminal courts in the different states. The prevalence of particular offences, as affected by the changes in their criminal laws; the number of commitments, compared with that of convictions; and the effect which the punishment of death has on the frequency of the crimes for which it is inflicted; accurate information on these heads would have much facilitated the investigation in which we are engaged. But although from the causes which I have stated, these are not now within our reach; there are yet some facts generally known on the subject, which are not devoid of interest or instruction. Murder, in all the states, is punished with death; in most of them it is, except treason (which never occurred under the state laws), the only crime that is so punished. If this were the most efficacious penalty to prevent crimes, this offence would be the one of which we should see the fewest instances. Is it so? To answer this question, we must establish a comparison, not between it and other offences, that would never lead us to a true result; there are some crimes that are so destructive of the very existence of society, create such universal alarm, and suppose so great a depravity, that the perpetrator is always viewed with abhorrence by the whole community, and public execration would inflict a punishment, even if the laws were silent. The number of such crimes, therefore, whatever may be the punishment assigned to them, must necessarily be fewer, in proportion, than those which do not inspire the same horror, or spread the same

alarm; of this nature is murder; we must, therefore, look to other countries, to establish our point of comparison.

Unfortunately, the crime is punished in the same manner as it is here, in the only country we have sufficient data to reason upon, and therefore the result of the inquiry cannot be conclusive; but if in that country a number of other offences are punished with death, which do not incur that penalty here, and if those minor offences prevail in a much greater degree there than they do here, where they are not so punished, while murder, and robbery with intent to murder (almost the only crimes punished in that manner here), be more frequently committed in this country than in that which I select for the comparison, then we shall have some reason to doubt the efficacy of this violent remedy.

In London and Middlesex, for sixteen years ending in 1818, thirtyfive persons were convicted of murder, and stabbing with intent to murder, which is an average of a fraction more than two in a year. In the city of New Orleans, seven persons suffered for the same crime, in the space of the last four years, which is very little less than the same average; but the population of New-Orleans did not, during the period, amount to more than 35,000, which is to that of Middlesex and London, in round numbers, as one to twenty-seven; therefore, the crime of murder was nearly twenty-seven times as frequent, in proportion to numbers, as in London. Almost the same proportion holds between the whole state and England and Wales, in relation to this crime; nineteen executions having taken place for murder, in the last seven years, in Louisiana, and one hundred and fifty-four during the seven years, ending in 1818, in England and Wales. In London and Middlesex, eight hundred and eighty-five persons were convicted of forgery and counterfeiting in seven years, ending in 1818. During an equal period, seven persons were convicted of the same offence in the whole state, which makes the crime eighteen times more frequent in London, in proportion to number, than it is here. Six thousand nine hundred and seventy-four convictions for larceny took place in the same seven years in London: and for a like period, in the state of Louisiana, one hundred, which is near ten to one more there than here, in proportion to the population. Many capital convictions were had there, for crimes of which none were committed here, and which, if they had been, would have been punished only by imprisonment at hard labour. Í well know that the state of society in the two countries, the degree of temptation, the ease or difficulty of obtaining subsistence, and other circumstances, as well as the operation of the laws, may produce the difference I have shown. But does it not raise serious doubts as to the efficacy of the capital punishment, to observe this double effect, that almost the only crime which we punish in that manner, is more frequent in the proportion of twenty-seven to one, while those which are the object of a milder sanction, are almost in the same ratio less than in the country with which we make the comparison?

The laws of none of the states punish highway robbery with death; those of the United States affix this punishment to the robbery of the mail, under circumstances which generally accompany it. Yet it is believed, that this last species of highway robbery is more frequent than the other-another proof that the fear of death is not a more powerful preventative of crime than other punishments.

I do not urge the doubts which many wise and conscientious persons have entertained of the right of inflicting this punishment, because