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same course, which in Russia is as useful as it is humanizing, is public cruelty, enervating what is already too relaxed, and breaking down the defences, at best too difficult to be kept up, of social order and personal security. Our whole system of polity is so constructed as to require the aid of public sentiment, and in nothing more than in the administration and execution of criminal law. In our system this law, if it be such as not to impart energy and sternness to public sentiment with respect to crime and its punishment, but to relax and depress it, must subvert itself, and lie a dead letter in the statute-book, annulled by its own moral influence. The sight or the idea of the pale, trembling, convicted murderer, may produce two very different trains of sentiment; and what this train shall be in the particular person, depends upon the manner in which his mind has been formed to regard crime and punishment. In one of these trains, pity of the convict, sympathy with his sufferings, desire to avert his awful doom, and the superficial inquiry, who can be hurt by sparing him? will follow each other, conducting to the conclusion, that the punishment is malicious and vindictive, and the convict the murdered not the murderer. Such are the sentiments and reasoning in the periodical before referred to, in Colt's case. In the other of these trains of sentiment, the feelings are absorbed in the consolation, that the rights of society are vindicated, that justice visits outrage with equalhanded retribution, that in the most solemn sanctions of law, its majesty is reverenced and its voice obeyed, and that no private considerations avail to divert public duty from its faithful guardianship of the community. Such a view, while it gives a general sense of security, from assurance that the law is vigilant and energetic, rests with a feeling of dread upon the evil-minded from the conviction that there is no escape for guilt, and at the same time it gives firmness and vigor to virtue by manifesting the practice of justice, and the rebuke of iniquity to be alike its attributes, and that it is equally inconsistent with it to justify the wicked, as to condemn the righteous. Under the first train of sentiment, the determination will be to spare the malefactor; under the last, to protect the community, to warn the profligate, and to fortify the innocent by inseparably connecting in their minds crime and infamy.

The course of criminal jurisprudence in this country has been directed by the first described train of sentiment, and as a consequence has extended and fostered it. The profession has

been, not to annul punishment, but to form and graduate it according to the requirements of humanity in the advanced civilization of the age; indeed to change punishment from “brutal" and "savage," to human and civilized: characterizing by "brutal" and savage" the punishments provided by the pilgrim fathers, Penn and his counsellors, and those patriots and sages, who conducted our nation through the revolution, in their system of civil polity under which the people were imbued with such love of order, fixedness of principle and intelligence of subordination, that (what every other people who have tried the experiment have utterly failed in) they sat down in well-regulated government constituted by themselves, in the full possession of civil and religious liberty. It should be added, that the epithets, "brutal"-" savage," applied to punishments determined by laws enacted before and directly after the Revolution, in the original States of this Union, by men as distinguished by conscientiousness and humanity as by practical wisdom and consummate ability, whose memory is cherished as ornaments of our race, are defined by the delicate feelings and refined taste of those who in pity to the convict have interposed for his relief. The result has been, that in nearly every state the criminal code has been changed, rejecting what had been deemed an essential element of punishment, for a substitute of an entirely new principle.


A prominent reason for this change has been the greater certainty of punishment. It has been argued, that the efficacy of punishment consists in its certainty that if it is an established thing, that the law will be executed without fail, so that the offender, if detected, must suffer the penalty it prescribes, greater leniency may be indulged; for men will not risk small penalties, when they see little chance of escape: that it is this hope of escape, that leads to crime: that when punishment is severe juries will not convict, or upon conviction governors will pardon and that these considerations are familiar to those who direct their minds toward the commission of crime, and form important items in their calculation of the probability of eluding punishment. These arguments seem to have been allowed for the purpose of demonstrating the fallacy of human reasoning on this subject. For never was human reasoning more conclusively confuted by experiment. The difficulty of conviction has been more than doubled; and the facility of obtaining pardon increased at least tenfold. With respect to conviction, a

man prosecuting an extensive and prosperous business has shot dead his own daughter, of deliberate purpose and with direct preparation, and has been acquitted of all guilt. Another man has literally hacked to death his own father, and been cleared of wilful murder. A post-master has been convicted of stealing money from the mail by breaking open letters passing through his hands as post-master, a most deliberate, base and dangerous crime, and has been recommended by the jury in their verdict finding his guilt, to mercy. It is deemed a victory, when a verdict is obtained against a notorious swindler with the fruits of his iniquity in his hands; and this victory cannot always be achieved. It is not necessary to pursue this point; all conversant with courts of justice have been convinced by their own observation. With respect to pardons, we have before us a notice of a pardon in December 1842, from the President of the United States, of a sentence passed in April 1840 for fifteen years imprisonment for aiding to abstract money from letters in a post-office: not quite three years of the term suffered, more than twelve remitted. In New York, a statute prepared with peculiar care and solicitude, to prevent the distressing crime of duelling, so fraught with calamity, has been deliberately violated; the violation has been boastingly acknowledged in the very teeth of justice; and it has been pardoned; forming a precedent that sanctions the crime, and prostrates the law. Every kind of crime, the sentence upon which is sufficiently inconvenient to justify the trouble of applying for pardon, is pardoned. Where the law appoints an imprisonment of a few years, the greater portion of the term is reprieved. In Pennsylvania, as we have seen, the public press throws its complaints in relation to this matter upon the governor, and he throws them back upon the courts and juries. In New-York the advocates of the abolition of capital punishment, agreeing that there must be some protection of life, and that imprisonment for life of the wilful murderer was as little security as could be required, admitted, that to effect such a sanction of law, it was necessary to change the constitution so as to take from the governor the power of pardon in this particular: it being found upon investigation, that sentences for life had generally been put an end to by pardon within four or five years: the term which these sentences for the most atrocious crimes had been allowed to run under the pardoning power, not being equal to what the legislature had prescribed for

minor offences. There is no special cause of complaint against courts, juries and governors with respect to these matters; the influence of the laws allowing nothing painful and degrading in punishment, has not only concealed or glossed all that is infamous and flagitious in crime, but in the spirit of the laws producing the same spirit of carefulness of the malefactor lest. he should be treated with severity, has formed the common sentiment into aversion to the infliction of any suffering even of imprisonment with abundant comforts, so that the moment it begins, there is a tide of sympathy for the convict, and of indignation against all who have contributed to bring him to justice, no matter how much he has injured them by his criminality. A man noted in the community for practical wisdom, just thinking, sound judgment, in a time of general alarm through the frequency of crimes, was heard to express doubt, whether society had strength adequate to its own protection; whether our system of government by laws could repress crime so far as required for common safety and that same man within a few months afterward, signed a petition and was active in exertion. for reprieve of a burglar. The writer has seen a man with his flesh appearing to creep upon hearing it said, that a hardened felon, old and bold in violation of the peace of society, ought to be whipped; while he listened with entire composure to the relation of the exploits of a midnight robber, breaking into houses in the defenceless hour of sleep, carrying peril wherever he went.

That there is evil, is attested by the common voice. But what remedy can be proposed? We shall not attempt to answer the inquiry. The public mind, if it will make itself master of this subject, will find a remedy. The common sagacity, brought into exercise, is adequate to the exigencies of the community. The fault lies, and the mischief arises, when there is an unpleasant and difficult work to be performed by the body politic, in their consenting for the sake of ease, that those who will take it off their hands may do it in their own way. The discussion of this subject heretofore has been all on one side. Had not the philosophers of leniency insisted upon the total expunging of capital punishment from the criminal code, probably they would have been permitted to retain undisturbed possession of all the rest of the field. As that is a corporal punishment, and depends upon the same reason as other corporal punishments; its being absolutely enjoined by the supreme Lawgiver,.

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may lead to the investigation, whether all previous time comprehending the wisdom of legislation in all places and ages, has been so very wrong in prescribing this mode of punishment.

We have seen that, in determining punishment, the attention may be directed to society, inquiring what is wise and expedient for its protection and well-being, or to the offender to see how he will be affected by the infliction. In the last case the motive that will be excited, will be commiseration. We may, without hesitation, take the position, that this undistinguishing but powerful principle ought not to be allowed to influence the making or administering of criminal law. It is too much to require, that the only concern shall be for the malefactor. In forming our judgments in this matter, we should be careful to survey the whole ground. Ours is a government of laws. The laws are not vindictive: they inflict pain, not that the wrongdoer may feel, but that the community may learn the character of crime, and be preserved from its baneful evils; that the profligate may be terrified, and the innocent instructed and warned. We have no need to guard against personal vengeance; there is no cause for apprehension that punishment will ever be aggravated from this source; but how can we expect to fortify youth against temptation, to preserve them from allurements to indolence and indulgence, leading them to become plunderers of their fellow men instead of pursuing the toil-worn course of patient, painstaking industry, unless by powerful safeguards? And can we have these safeguards in the completeness requisite for their efficiency, without the co-operation of the criminal code visiting crime as base and rendering it odious? It is very certain, that the form of law which takes the part of the of fender, to make his crime sit as lightly as possible, conjuring up the spirit of compassion to show its winning aspect and seek its gratification in the opportunity afforded by the convict's condition, as a case of suffering humanity, will do nothing available for this end. But there is a powerful principle of our nature, which we can call to our aid by judicious legislation, and produce by it most salutary moral effects in this relation. The mind may be trained to connect specific things with such revolting associations, that it cannot endure the thought of them. Upon this principle it has been experienced of the worst of men, that, all abandoned as they are, there are things of which they cannot be prevailed upon to harbor the design. It is a most useful purpose of punishment to produce such associations, to save

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