of supplicium more majorum. In other cases, as in the execution of Antigonus, the whipping terminated in beheading †. Crucifixion, or the servile supplicium, was in use during many centuries, and first abrogated by Constantine; the sentence also inflicted whipping, "verbera intra aut extra pomarium, arbore infelici suspendito ." The criminal was naked in the execution of these different punishments. Parricides § were sewed up in a leathern sack, with an ape, a cock, a serpent, and a dog, and so cast into the sea. It was also usual to cover some offenders with a mantle daubed over with pitch, and then to set fire to it; Cogila, inquit Seneca |, illam tunicam alimentis igneis illatam et intextam. The Emperors introduced a punishment called "Serræ-dissectio ¶." Damnatio in gladium, or sentence to the public combats, and damnatio ad bestias**, were also frequent; and the latter appears to have been very fatal to offenders; " præclara ædilitas! said Cicero, unus Leo, ducenti Bestiarii.”

These crucltics were founded on the twelve tables of the Decemvirs, and were contrary to the republican spirit. Accordingly by the Porcian law, made in the 454th year of

*Codicillos præripuit Nero, legitque se hostem a senatu judicatum, et quæri ut puniatur more majorum: interrogavitque quale esset id genus poenæ. Et cum comperisset, nudi hominis cervicem inseri furcæ, corpus virgis ad necem cædi; conterritus ferrum jugulo adegit.-Sueton. in vità Neron. c. 49.

+ Dion. I. xlix.

Liv. 1. i. & Val. Max. l. i. c. 7.

§ Cujus supplicio non debuit una parari
Simia, nec serpens unus, nec culeus unus.

Juv. 1. viii.

See also, Dig. 48. ad Leg. Pomp. & Cic. Orat. pro Sext. Roscio.

Ep. 14.

¶ Sueton. in vitâ Calig. c. 27.

**Dig. 48. 19. 11. 3.

Rome, by Porcius Lecca the tribune, it was ordained, that no citizen should be put to death. This exemption was in the extreme of lenity, and erroneous in its foundation. Capital executions are in all states necessary.

Nothing, however, but the evident result of absolute necessity, can authorize the destruction of mankind by the hand of

man.

The infliction of death is not therefore to be considered, in any instance, as a mode of punishment, but merely as our last melancholy resource in the extermination of those from society, whose continuance among their fellow-citizens is become inconsistent with the public safety.

We may pronounce it then contrary both to sentiment and morality, to aggravate capital executions by any circumstances of terror or pain beyond the sufferings inseparable from a violent death.

I transcribe the following passage from the English statetrials. "Hugh Peters, being carried on a sledge to the scaf fold, was made to sit thereon within the rails, to behold the execution of Mr. Cook. When Mr. Cook was cut down, and brought to be quartered, Col. Turner ordered the sheriff's men to bring Mr. Peters near, that he might see it; and bye and bye the hangman came to him all besmeared in blood, and, rubbing his bloody hands together, he tauntingly asked, "Come how do you like this work, Mr. Peters? how do you like it?" He replied, "friend, you do not well to trample on a dying man*.”

*This is not the only instance of ungenerous insults towards the republican sufferers at the restoration. "The regicides (says Bishop Burnet) had at that time been odious beyond expression, yet the odiousness of the crime began to be much flattened by the And therefore when Sir Henry Vane was

-frequent executions.

Lawgivers should remember, that they are, mediately, and in effect, the executioners of every fellow-citizen, who suffers death in consequence of any penal statute; and there are certain contrasted points of view, in which it may be of use to them to consider criminals at the approach of death.

"Master Barnardine, what hoa! your friend the hangman! you must be so good sir, to rise, and be put to death: pray, Master Barnardine, awake, till you are executed, and sleep afterwards.”

66

The wretch, to whom this last summons is so ludicrously addressed, is represented to us, as a man, that apprehends. death no more dreadfully, but as a drunken dream; careless, reckless, and fearless of what's past, present, or to come.”

The crimes of such a man may perhaps have made him unfit to live; but he is certainly unfit to die. The safety of the community, and the preservation of individuals, may call for his execution; but the bosom of humanity will heave in agony at the idea; the eye of religion will turn with horror from the spectacle.

brought to the scaffold, lest his words should leave impressions on the hearers to the disadvantage of the government, drummers were placed under the scaffold, who, as soon as he began to address the people, upon a sign given, struck up with their drums. After being thus repeatedly interrupted, and even when he was taking leave of his friends, he gave over, and died with so much composedness, that it was generally thought, that the government had lost more than it had gained by his death." Vol. i.

Shakespeare, Meas. for Meas. Act iv. Sc. 3.

p. 164.

Suppose the sufferer, on the contrary, to have been a valuable member of society, and to have erred only from some momentary impulse of our imperfect nature; one, who in the recollection of reason hath found repentance; who resigns with chearfulness that life, which is become a forfeiture to the law, and looks up in confidence to heaven for that forgiveness which is not to be found on earth. The last foot-steps of such a man, are watered with the tears of his fellow-citizens; and we hear from the mouth of every spectator,

"Yes I do think, that you might pardon him,
And neither heaven, nor man grieve at the mercy."

I cannot dismiss this subject without expressing a doubt, relative to the propriety of punishing with death a return from transportation; especially where the original offence was not capital. It certainly is not justified by necessity; for it is easy, if requisite, to send the delinquent abroad again, without any considerable degree either of expence or trouble. Will it be said, that he deservedly suffers for the breach of a compact, which he is supposed to have made? In many instances the transportation is not in the nature of a conditional pardon, but directed by possitive law *; in no instance is such a compact reconcileable to the law of nature.

* In support of this assertion I shall cite some authorities; previously observing, that, "exclusion from society is the proper punishment of those only, who are become objects of terror to their fellow-citizens in consequence of very heinous crimes, either not equivalent to the ultimum supplicium, or of which they have been convicted by disputable and unsatisfactory evidence."

By 6 Geo. I. c. 23. and 4 Geo. I. c. 11. any persons convicted of larceny either grand or petit, and entitled to clergy, may in the discretion of the court be directed to be transported to

On the whole, is not such severity inconsistent with that leading principle which forbids penal laws to attack the natural sentiments of the heart?" Duri est non desiderare patriam. Cari sunt parentes, curi liberi, propinqui, familiares, sed omnes omnium caritates patria una complexa est: pro quá quis bonus dubitet mortem oppetere ?

By stat. 20 Geo. II. c. 46. it is made a felony, without benefit of clergy, for rebels under sentence of transportation to go into France or Spain; and the same severity is extended to all the friends of such persons, keeping or entertaining any correspondence with them by letters, messages, or other

wise.

In the wording of this clause, there is not any saving of even the most innocent interchanges of friendship. Shall

America for seven years; and if they return within that time, it shall be felony without benefit of clergy.

By stat. 10 Geo. II. c. 32. the penalty of transportation for seven years is inflicted on the second offence of stealing deer in any uninclosed forest; and for the first offence upon such as come to hunt there, armed with offensive weapons.

By 26 Geo. II. c. 19. § 11. persons convicted of assaulting any magistrate or officer, &c. in the salvage of any vessel or goods, are to be transported for seven years.

Ibid. c. 33. § 8. persons convicted of solemnizing matrimony without banns or licence, &c. shall be transported for 14 years.

Also by 5 Geo. III. c. 14. persons stealing or taking fish in any water within a park, paddock, orchard, or yard, and the receivers, aiders, and abettors, shall be transported for seven years.

I have not selected these as the most exceptionable instances; there are many others, in which transportation is inflicted upon offences by no means so heinous in their nature, as to require the extirpation of the criminal from the society of his fellow-citizens.