The Learned Judge then observed, that "the lenity of the judges, and the frequency of reprieves and pardons, had been assigned, by some, as reasons for the increase of robberies:" he said, that "he was induced to mention this, on account of a late publication, in which the learned author, had laid it down for a maxim, that, except where the evidence was not satisfactory, and in some other instances mentioned in the book, judges ought to execute all they convict. This," adds the learned judge, "would be making our laws like the laws of Draco, which, from their severity, were said to be written in blood." (k)

It is no small disadvantage to a work, to be held forth for judgment, as to its real intention, from a mention of a detached paragraph, or of a single and unexplained proposition. From the manner in which the learned judge did this, the auditory must conclude, that the author must be a very cruel and blood-thirsty person, who wished for laws of the most sanguinary kind, to be executed with the most unrelenting severity, wherever the conviction of an offender could afford an occasion. Nothing could be farther from his thoughts!(?)

In the first place, I would answer, that no where, throughout the whole book, is the judge's power of reprieve denied, or found fault with, but where it is exerted wantonly and indiscriminately, as well as inconsistently with the public good. Where judges indulge their feelings as men, so far as to forget their duty as magistrates (in whose hands the administration of justice is placed by the constitufion, for the good of the whole) there the public suffers in the escape of offenders from punishment-because, this not only tends to the encou ragement of those who are already embarked in villainy, but

to draw others in to the commission of crimes, from the hope of impunity, which such ill-timed lenity holds forth to them. As to the position itself, "that judges ought to execute all they convict, except in a few cases," it stands very fully explained (p. 80.) in the following words. (m)

"A judge, who can see a fellow creature stand before him, under circumstances of the deepest guilt, and exposed to the severest punishment, without feeling the utmost pity and compassion, must be a monster in nature: little better must he be, who does not gladly embrace every opportunity of shewing mercy, where it can be done consistently with the safety and welfare of the public. But, on the other hand, these ought to be uppermost in the judge's thoughts; for where these are sacrificed, in any degree, it is not mercy, but folly and injustice, to reprieve; and such reprieves, having, no doubt, brought more to the gallows than they have ever saved from it, are not to be esteemed acts of mercy, but are a species of cruelty: drawing in men to commit capital offences, under a notion of impunity, is very mischievous, not only to the criminals themselves, but to those "who suffer by their outrages," &c. (n)

As the laws of Draco were mentioned by the learned judge, may be worth our while to consider a little who this Drace was, and what were his laws. (0)

it

Draco lived about 623 years before CHRIST, and was Archon (Gr. apxwv) or chief magistrate, at Athens. We have but very short and imperfect accounts of this man, but he is said to have punished all things with death; even indolence, or the taking an apple, was as severely punished as

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sacrilege for which he himself assigned this reason:-"Small faults seem to me worthy of death, and for the most flagrant offences I can find no higher punishment."

As to the laws of England, they must, abstractedly and specifically considered, be just what they are, whether executed or not. It was not possible for the legislature to foresee every event or circumstance, which might appear on the trials of offenders; it is therefore, that the wisdom and discretion of the judge, is to remedy the defects of human foresight, and to take care, that the spirit and intent of the law be duly observed in every case and I own, I cannot conceive, that executing people, who, by their offences, make it difficult to travel the roads, to walk the streets, to set by our own fire-sides, without danger of being robbed, and perhaps worse; or to turn our horses and other cattle into our fields, without the hazard of losing them; can bring the laws of England into the least si militude of a system, which put a man to death for taking an apple.

The learned judge then said; "that it had been disputed among theological writers, how far the Jewish law is repealed, or how far it is lawful to put men to death among Christians." (p)

As for theological writers and disputants, I have read enough of them, to make me narrow my studies of that sort, to those who, being divinely inspired, can neither lie nor deceive: and indeed, the learned judge seemed of the same opinion; for his lordship appealed to the scriptures of the New Testament, for a proof, that it is lawful, among christians, to put men to death for certain crimes.

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The first text his Lordship mentioned, was Rom. xiii. 4. *For he (the magistrate) beareth not the sword in vain.'

The sword is an instrument of death, and stands here, metonymically, to denote capital punishment; and this sentence, therefore, evidently proves the power of magistrates to put criminals to death, otherwise these magistrates would bear the sword in vain.

But one might carry the text farther, and say, that the magistrate bears the sword in vain ( ɛixn) to no purpose, if laws are not duly put in execution. The whole reasoning of the context implies this.

Ver. 3. Rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise for the

same.

Ver. 4. For he (the ruler or magistrate) is the minister of God to thee for good: but if thou do that which is evil, be afraid: for he beareth not the sword in vain, for he is the minister of GOD, a revenger (Exdixos eis ogy—an avengerto execute wrath or punishment) upon him that doeth evil.—A stronger passage cannot be produced, to prove, that it is not only lawful, but the magistrate's absolute and indispensible duty, to punish offenders according to law: that he is God's minister for this very purpose.

Ver. 5. Wherefore ye(christians-even then, living under an heathen government) must needs be subject-i. e. to the laws of the state-not only for wrath-not only with res pect to the punishment which will otherwise ensue; but for conscience sake-i. e. towards GOD; who, ver. 1. commands

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every soul to be subject to the higher powers, and, of course, to obey the laws.

The other text, mentioned by the learned judge, was Acts xxv. 11. where the apostle Paul says, before Festus, the Roman governor, at his judgment-seat-" If I be an offender, or have committed any thing worthy of death, I refuse not to die." This text is also much to the purpose, and justifies our reformers in declaring-"Art. 37. Of the civil Magistrates”that the laws of the realm may punish christian men with DEATH, for heinous and grievous offences. (t)

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His Lordship next introduced the character of our Saviour, as furnishing an example of meekness, lowliness, compassion, and mercy; which he seemed to do, by way of a gentle reproof to the author for finding fault with the lenity of the judges, in granting reprieves so often to convicts. His Lord ship spake, on this point, with a reverence and seriousness that did him honour; and, as an instance of the pity and forbearance of the "Blessed Jesus" (as his Lordship expressed himself) he mentioned the case of the woman taken in adultery, whom the Pharisees brought to Christ. But if we examine that passage, we shall find, that, our Lord was not sitting as a judge: this was a character which he never bore on earth-so far from it, he renounced it, both as to civil and criminal matters. See Luke xii. 14. John viii. 15. & xii 47.

If we would see him as a judge, we must look upon him, as exalted to the right hand of GoD, where he will sit at the last day, as the great judge of quick and dead. He then will judge the world in righteousness, and the people with equity. Ps. xcviii. 9. Comp. Acts xvii. 31. He will render unto every man according to his deeds, &c. See Rom. 11. 6. 12. Happy

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