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argues that Government has no right to regulate commerce, none to regulate religion, none to relieve the poor, none to educate children, none to establish colonies, none to care for the health of the people except by suppressing nuisances, none to issue currency, none to carry mails, none to build or maintain lighthouses. The specific illustrations given of the danger of people putting their fingers into what they do not understand, are admirably put; but, as we have intimated, the sweeping theories themselves result from the habit of considering the governors and the governed different people, with different interests. Let government be what it should be,— the organization of the governed for the carrying-out of certain affairs essential to all, and they will themselves see to it, that the process shall not interfere unduly with individual privileges. Mr. Spencer suggests, rather lamely, that what he calls private enterprize will carry out the work which he would prohibit government from undertaking. A private corporation (why not call it the Trinity Board) shall be established to build the lighthouses of the world. Another private corporation (let us call it Thurn and Taxis) shall carry the mails of the world. Another private corporation (shall we call it the Royal College of Physicians) shall regulate the sewers. Another private corporation (let us call it the Church) shall see that by no accidental failure of personal charity Darby and Joan starve to-night. After having established a few hundred of such private corporations, we may rub our hands with glee, and say, "We have left every thing to unrestricted care: things are taking care of themselves; we have discharged all these interests from the function of government." But the toil-worn man of public spirit, as he rushes madly from one election of directors to another; as he finds all these institutions of private benevolence clashing with each other, even when administered by perfectly upright men, as the whole book supposes, exhausted after his attendance at the last election of the three hundred, will be apt to say, Why should we not, once for all, lay out a system by which the relations of these several Boards to each other should be adjusted once for all, a system by which

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the choice of these administering officers shall be made at once, and with direct reference to dividing the work, as they can best discharge it? This is to ask, Why not establish a constitution of government with very large powers, to be used at the direction of the governed?

los. H. Alten.

ART. VIII.-STATE CRIMES, AND THEIR PENALTY.

THE scene of the 7th of July closed the last act of that gloomy tragedy which began with the murder of the 14th of April. It is not a very pleasant or a very profitable thing to dwell on, the putting to death of four persons, bound and helpless, in that deliberate, ostentatious, mechanical way, which is called a public execution. In general, it has been proved true, that the punishment of death has in it something to harden and demoralize the popular heart; and when a popular exhibition is made of it, as it still is in many countries, it is one of the great schools of depravity, and a public horror. If it is ever to be justified at all, it is in a time of revolution like the present, when a solemn act of State invests the human tragedy of death with an awe and respect which are apt to be lost while human life is cheapened in the accumulation of worse horrors, so that the doom of those four malefactors does more to impress the imagination, and give a sense of the awe of death, than all the carnage of a battle-field, or all the mortality of a hospital; or else, when any given crime has, by peculiar circumstances of guilt and atrocity in it, thrown the public mind somewhat off its balance, and jarred the general conscience in a peculiar way, to which the feeling of satisfied justice seems to bring some relief, when the criminal's life is deliberately required by the State, as the forfeit of his deed.

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It is purely by the good or evil of this moral effect, as we believe, that the death-penalty can fairly be defended or accused, as a part of the ordinary administration of justice. In safe and ordinary times, in a civilized and orderly State,

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the cases must be very rare when it is either wise or right. The arguments which have generally upheld it have been either the cowardice that would shuffle crime and its consequences out of sight as fast as possible, or else the superstition that has held so blindly to the worst mistakes and horrors of the past. Nothing, perhaps, has done so much to brutalize the temper and debauch the conscience of the criminal classes. themselves, as the shocking repetition and cheapening of it in some modern countries.* To be of any good effect, or to plead any justification, it should be a very rare, a very deliberate, and a very solemn thing. And its main justification then will be, that it is the only way which the law has unless we should go back to the ancient horrors of bodily torture to set apart a particular class of crimes, and testify that abhorrence of them which is the general verdict of mankind. It is not for vengeance, not for cruelty, that human law thus banishes the criminal for ever from the face of the earth, and the society of human life, remanding him from man's judgment to the bar of Him who sees not as man sees, and is wise to ordain, and just to judge, where our judgment fails. Nor is it because death is a more severe or a more adequate punishment of guilt than long imprisonment (for instance) with hard labor, or exile and disgrace. But, if we may say so, there are cases which seem to appall and paralyze our judgment; and, with a certain horror and repugnance, we long to have every visible token of them buried from our sight: we long that the deed itself, and the chief agents of it, should pass from the face of man into oblivion, at least into history, and be henceforth to all the world as if they had not been.

We assume without debate the right of human society over the life of its subjects and members. Being attacked in its

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*Thus, Miss Martineau tells us, that, in the year 1785, ninety-seven persons were executed.in the city of London alone, for the crime of pilfering from shops; in one instance, a batch of twenty persons at once, hung in the public street, before a vast, profane, quarrelsome, and half-drunken mob of men, women, and children, of a Monday morning, as the fruit of the previous week's action of the Courts. In 1811, when Sir Samuel Romilly moved the third reading of his Bill in the House of Commons, "at that moment there was a child in Newgate, not ten years of age, under sentence of death for this offence."- History of the Peace, vol. ii. p. 86.

liberties or sovereignty, a State may stand to its own defence, and employ the persons of its citizens, in whatever way seems best, safest, most effectual and humane, as a barrier between it and ruin. Whatever our previous scruples about it may have been, and whatever our dread of it considering the cruel and despotic way in which the sovereign power in other countries has used it,-in conscriptions, in standing armies, in wars of ambition, in terrible vengeance visited upon conspiracy and rebellion, the general sense of our people has heartily ratified that extreme power, and has submitted to a conscription so vast as to be the astonishment of the world. This is the practical acknowledgment of the right of society to claim the lives of its members at need, put to the severest test, and triumphantly sustained. A corresponding right it clearly has, in those extreme cases of crime and its penalty, which have been spoken of. A right to be used very cautiously, and only in the last resort. A right whose sacredness would all be lost, if it were to be used for vengeance or cruelty or cowardice. A right which is only justified, when it is used to express, in the most solemn, the most unequivocal, the only way, the deepest moral conviction of a community, in judgment of the deepest order of human guilt. But Justice must hold the sword, as well as the scales. If there are merit and honor on our side, there must be guilt and blame on the other. And that guilt, that blame, must have their expression in human codes of law. Of course, law cannot pretend to measure the degrees of personal merit and blame. No doubt, everybody knows, a child is brought up in crime, or a man is led to crime, by a thousand circumstances utterly out of his control, which imply no more blame in him than the fact that he was born at all, or born in such a city, or such a State. And, if we set about measuring the degrees of personal guiltiness, there is no one, of any tenderness of conscience, who could ever bring himself to pronounce sentence on his fellowman. "Who am I," he would say, "to declare this unhappy creature a sinner, and unfit to live; I, who have been comfortably and respectably brought up, who hardly know what violent passion and strong temptation mean; I, who never felt the pressure of haggard want, or the

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curse of evil companionship, -who am I, to judge this poor fellow-creature, born under a different sky, breathing a different air, trained to another code of right and wrong, beset by temptations, hounded on by passions that I hardly know the name of, who am I, to pronounce his doom? Let me put myself in his place rather; and let me think to myself which is perhaps more guilty before the bar of God, he or I!" This would be the language of conscience dealing with the question of the degree of personal guilt. But human justice does not deal with questions of conscience, - that is, essentially and directly. It leaves them to be settled in the court of conscience, at the bar of religion, between a man's heart and his God, or the teacher he selects to interpret to him the mind of God. Human justice, as expressed in law, must deal with facts, with tendencies, with dangers and their remedy. It cannot go into questions of casuistry, or the metaphysics of free will, or the philosophy of those influences which act on character. It deals with men, with facts, with deeds. The highest reason which it understands, or can take account of, is the safety and advantage of society itself. If it does its best for that, it is obliged to leave all questions of human liberty and guilt and doom, reverently but absolutely, to the God who alone can judge in the sphere of absolute truth and perfect right. There will always be a dash of pity in the indignation which a right-minded person feels for guilt. And, within the bounds of public safety, the court must allow for all circumstances that extenuate the guilt or mitigate its doom. But we are not to forget, that, in the division of employments in a Commonwealth, it is the business of law to guard the public safety, just as it is of religion to guard the public conscience; and that the last and highest consideration which law, as such, can entertain, is the order, the security, the true liberty, of the State.

In the accumulation of great crimes and horrors which have marked the latter stages especially of the war, there has been an uneasy feeling that we ought to do something to retaliate or avenge, before the bar of our conscience, the guilt from which the nation has suffered so deeply, and the hearts of the people have bled so cruelly. There can be no doubt,

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