In such case, under an indictment for crimes of either of these descriptions, he was considered as having renounced all haw, and was to be dealt with as in a state of nature, when every one who found him might slay him. But, in modern times, it has been held that no man is entitled to kill him wantonly and wilfully, but in so doing is guilty of murder, unless it be in endeavoring to apprehend him; for any one may arrest him, on a criminal prosecution, "either of his own head," or on writ or warrant, in order to bring him to execution. So a person banished the ream or transported for life, as a punishment for crime, forfeits all his civil rights much as if he were dead. His wife may marry again, and his estate will be administered upon as if he were deceased. A will made by such a person, after incurring this civil disability, is void; and so are all acts done by him in the exercise of any civil right. The statutes of New York provide that a convict sentenced to the state's prison for life shall be considered as thereby becoming civilly dead. All suits to which he is a party will, accordingly, abate, as in case of his natural decease (2 Johns. Ca. 408), and his wife may marry again, his estate be administered upon, and his heirs will succeed to the inheritance; and, though he may be afterwards pardoned, this will not defeat the proceedings which took place during his civil disability (4 Johnson's Reports, 232. The statutes passed in some of the United States against conspirators and absentees, at the commencement of the revolution, stripped them of all civil rights, and provided that their estates should be confiscated, or partly confiscated, to the state, and in part applied to the support of dependent relatives, or assigned to the wife as dower. These statutes were of a temporary and occasional character, and their operation has ceased with the occaon which gave rise to them.

DEATH, in mythology. The representation of death, among nations in their earher stages, depends upon the ideas which they form of the state of man after this life, and of the disposition of their gods towards mankind. In this respect, the study of these representations is very interesting. Of later ages the same cannot be said, because imitations of representations previously adopted are very often the subjects of the plastic arts in such periods. However, these representations do not altogether depend on the causes above mentioned, as the general disposition of a nation (for instance, that of the Greeks,

who beautified every object) has also a great influence upon them; and it is remarkable that the Greeks, whose conceptions of an after-life were so gloomy, represented death as a pleasing, gentle being, a beautiful youth, whilst the Christians, whose religion teaches them to consider death as a release from bondage, a change from misery to happiness, give him the most frightful, and even disgusting shape. One reason of this may be, that the call to repentance is a prominent feature in the Christian religion; and to arm death with terrors may have been supposed to give weight to the summons.

The Greeks had many gods of death, the knots and bavaros; the former were the goddesses of fate, like the Valkyria in the Northern mythology. Untimely deaths, in particular, were ascribed to them; the latter, Oavaros, represented natural death. According to Homer, Sleep and Death are twins, and Hesiod calls them the sons of Night. They are often portrayed together on cameos, &c. During the most flourishing period of the arts, Death was represented on tombs as a friendly genius, with an inverted torch, and holding a wreath in his hand; or as a sleeping child, winged, with an inverted torch resting on his wreath. Sleep was represented in the same manner, except that the torch and the wreath were omitted. According to an idea originating in the East, death in the bloom of youth was attributed to the attachment of some particular deity, who snatched his favorite to a better world. It was ascribed, for instance, to Jupiter, or to his eagle, if the death was occasioned by lightning, as in the case of Ganymede ; to the nymphs, if the individual was drowned, as in the case of Hylas; to Aurora, if the death happened in the morning; to Selene, if at night (Cephalus and Endymion), &c. These representations were more adapted to relieve the minds of surviving friends, than the pictures of horror drawn by later poets and artists. (See the classical treatises of Lessing, Sämmtl. Schriften, vol. 10, and Herder's Wie die Alten den Tod gebildet.) Euripides, in his Alcestis, even introduced Death on the stage, in a black robe, with a steel instrument in his hand, to cut off the hair of his victims, and thus devote them to the infernal gods. The later Roman poets represent Death under more horrible forms, gnashing his teeth, and marking his victims with bloody nails, a monster overshadowing whole fields of battle. The Hebrews, likewise, had a fearful angel of death, called Samaël, and prince of the

world, and coinciding with the devil; but he removes with a kiss those who die in early youth. Enoch was taken up to heaven alive. The disgusting representations of Death common among Christians, originated in the 14th century; for the representation of Death as a skeleton merely covered with skin, on the monument at Cuma, was only an exception to the figure commonly ascribed to him among the ancients. In recent times, Death has again been represented as a beautiful youth-certainly a more Christian image than the skeleton with the sithe. The monument made by Canova, which George IV erected in honor of the Stuarts, in St. Peter's church at Rome, represents Death as a beautiful youth. He is sometimes portrayed under the figure of a dying lion.

DEATH, DANCE OF; an allegorical picture, in which are represented the various figures and appearances of death in the different relations of life, as a dance where Death takes the lead. The idea of such a dance appears to be originally German, and to belong to poetry. In later times, it was used, also, in England and France, by poets and artists. The French have such a dance-La Danse Macabre derived, it is said, from a poet called Macaber, but little known. A dance of Death was painted on the walls of the churchyard of the Innocents, at Paris, about the middle of the 15th century, which the chapter of St. Paul's, in London, caused to be copied, to adorn the walls of its monastery. Gabriel Peignot, in the Recherches sur les Danses des Morts et sur l'Origine des Cartes à jouer (Dijon and Paris, 1826), investigated the origin of the dance of Death in France, and thus explained the dancing positions of the skeletons; that, according to the relations of old chronicles, those who were attacked by the plague ran from their houses, making violent efforts to restore their rapidly-declining strength by all kinds of morbid movements. Others derive the origin of this rep resentation from the masquerade. These dances are often found painted on the walls of Catholic burial-places. The most remarkable dance of Death was painted, in fresco, on the walls of the church-yard, in the suburb of St. John, at Basle, which was injured, in early times, by being washed over, and is now entirely destroyed. This piece has been ascribed to the celebrated Hans Holbein; but it has ⚫ long since been proved that it existed 60 years before his birth. It was painted at Basle, in the year 1431, by an unknown

artist, in commemoration of the plague, which prevailed there at that time; the council was then sitting, and several of its members were carried off by it. It repre sented Death as summoning to the dance persons of all ranks, from the pope and the emperor down to the beggar, which was explained by edifying rhymes. That piece contained about 60 figures as large as life. Besides being ascribed to Holbein, as was before stated, it has also been ascribed to a painter named Glauber, but without foundation. Holbein perhaps conceived, from this picture, the idea of his dance of Death, the original drawings of which are in the cabinet of the empress of Russia, Catharine II. Some say that Holbein himself made the wood-cuts of it. The latest engravings of this picture of Holbein are in 33 plates, in the Œuvres de Jean Holbein, par Chr. de Meckel (1st volume, Basil, 1780). Similar representations were painted, in the 15th century, in other cities of Switzerland. (See Muller's Geschichte der Schweizer-History of Switzerland-4 vols.) The dance of Death in St. Mary's church at Lubeck, was completed in 1463. On the walls of the churchyard of the Neustadt of Dresden, there is, even at the present time, to be seen a similar dance of Death. It consists of 27 basso-relievo figures, worked on sand-stone, and includes persons of both sexes, and of all ranks. The labor of the sculptor has more merit than the unpoetical rhymes which were afterwards added. (See Fiorillo's Geschichte der zeichnenden Kunste in Deutschland und den Niederlanden, 4 volumes.)

DEATH, PUNISHMENT OF. The ques tions most commonly discussed by phulosophers and jurists under this head are, 1. as to the right of governments to inflict the punishment of death; 2. as to the expediency of such punishment; 3 as to the crimes to which, if any, it may be most properly confined and limited: 4. as to the manner in which it should be inflicted. A few words will be said on each of these points.

1. As to the right of inflicting the putishment of death. This has been doubted by some distinguished persons; and the doubt is often the accompaniment of a highly cultivated mind, inclined to the indulgence of a romantie sensibility, and believing in human perfectibility. The right of society to punish offences against its safety and good order will scarcely be doubted by any considerate person. In a state of nature, individuals have a right to guard themselves from injury, and to

repel all aggressions by a force or precaution adequate to the object. This results from the right of self-preservation. If a person attempts to take away my life, I have, doubtless, a right to protect myself against the attempt by all reasonable means. If I cannot secure myself but by taking the life of the assailant, I have a right to take It would otherwise follow, that I must submit to a wrong, and lose my life, rather than preserve it by the means adequate to maintain it. It cannot, then, be denied that, in a state of nature, men may repel force by force, and may even justly take away life, if necessary to preserve their own. When men enter society, the right to protect themselves from injury and to redress wrongs is transferred, generally, from the individuals to the community. We say that it is generally so, because it must be obvious that, in many cases, the natural right of self-defence must remain. If a robber attacks one on the highway, or attempts to murder him, it is clear that he has a right to repel the assault, and to take the life of the assailant, if necessary for his safety; since society, in such a case, could not afford him any adequate and prompt redress. The necessity of instant relief, and of instant application of force, justifies the set, and is recognised in all civilized communities. When the right of society is once admitted to punish for offences, it sems difficult to assign any limits to the exercise of that right, short of what the exigencies of society require. If a state have a right to protect itself and its citizens in the enjoyment of its privileges and its peace, it must have a right to apply means adequate to this object. The object of human punishments is, or may be, threefold; first, to reform the offender; secondly, to deter others from offending; and, lastly, to secure the safety of the community, by depriving the offender of the power of doing mischief. The first consideration rarely enters into human legislation, because of the inadequacy of our means to produce great moral results by the infliction of punishment. The two latter considerations enter largely into the theory and practice of legislation. Who is to be the judge, in such cases, what is the adequate punishment for any offence? Certainly, punishments ought not to be inflicted, which are utterly disproportionate to the offence, and beyond the exigencies of society. No government has a right to punish cruelly and wantonly, and from mere revenge; but, still, the discretion must be 'vested some

where, to say what shall be the degree of punishment to be assigned to a particular offence. That discretion must be, from its nature, justly a part of the legislative power, and to be exercised according to the actual state of society. It may, nay, it must be differently exercised in different ages, and in different countries; for the same punishment which, in one age or country, may be sufficient to suppress an offence, or render it comparatively harmless, may, in another age or country, wholly fail of the effect. If mild punishments fail of effect, more severe must be resorted to, if the offence be of a nature which affects society in its vital principles, or safety, or interests. The very frequency of a crime must often furnish a very strong ground for severe punishment, not only as it furnishes proof that the present punishment is insufficient to deter men from committing it, but from the increased necessity of protecting society against dangerous crimes. But it is often said, that life is the gift of God, and therefore it cannot justly be taken away, either by the party himself, or another. If he cannot take it away, he cannot confer that power on others. But the fallacy of this argument is obvious. Life is no more the gift of God than other personal endowments or rights. A man has, by the gift of God, a right to personal liberty and locomotion, as well as to life; to eat and drink and breathe at large, as well as to exist; yet no one doubts that, by way of punishment, he may be confined in a solitary cell; that he may be perpetually imprisoned or deprived of free air, or compelled to live on bread and water. In short, no one doubts that he may be restrained in the exercise of any privileges or natural rights short of taking his life. Yet the reasoning, if worth any thing, extends to all these cases in an equal degree. If, by his crimes, a man may justly forfeit his personal rights, why not his life? But we have seen that it is not true, even in a state of nature, that a man's life may not be taken away by another, if the necessity of the case requires it. Why, then, may not society do the same, if its own safety requires it? Is the safety of one person more important than the safety of the whole community? Then, again, as to a man's inability to confer on others a right which he does not himself possess. Suppose it is so; the consequence which is deduced from this does not, in fact, arise. Blackstone, indeed, in his Commentaries (4 Comment. 8), seems to deduce the right of society to punish capital offences, in

certain cases (that is, in cases of mala prohibita, and not mala in se), from the consent of the offenders. The marquis Beccaria, on the other hand, denies that any such consent can confer the right, and therefore objects to its existence. But the notion of consent is, in nearly all cases, a mere theory, having no foundation in fact. If a foreigner comes into a country, and commits a crime at his first entrance, it is a very forced construction to say that he consents to be bound by its laws. If a pirate commits piracy, it is almost absurd to say that he consents to the right of all nations to punish him for it. The true and rational ground on which the right rests, is not the consent of the offender, but the right of every society to protect its own peace, and interests, and property, and institutions, and the utter want of any right, in other persons, to disturb, or destroy, or subtract them. The right flows, not from consent, but from the legitimate institution of society. If men have a right to form a society for mutual benefit and security, they have a right to punish other persons who would overthrow it. There are many cases where a state authorizes life to be taken away, the lawfulness of which is not doubted. No reasonable man doubts the right of a nation, in a just war, especially of self-defence, to repel force by force, and to take away the lives of its enemies. And this right is not confined to repelling present force, but it extends to precautionary measures, which are necessary for the ultimate safety of the nation. In such a war, a nation may justly insist upon the sacrifice of the lives of its own citizens, however innocent, for the purpose of ensuring its own safety, Accordingly, we find that all nations enrol militia and employ troops for war, and require them to hazard their lives for the preservation of the state. In these cases, life is freely sacrificed by the nation; and the laws enacted for such purposes are deemed just exercises of power. If so, why may not life be taken away by way of punishment, if the safety of society requires it? If a nation may authorize, in war, the destruction of thousands, why may it not authorize the destruction of a sangle life, if self-preservation require it? The mistake, however, is in supposing that life cannot be taken away without the consent of the party. If the foregoing reasoning is correct, such consent is neither supposed nor necessary. In truth, the supposition of an original compact between all the persons who are subject to the regulations of a society, by their

own free consent, as the necessary and proper basis on which all the rights of such society depend, is, at best, a gratuitous supposition; and it sometimes leads to very incorrect results. It may be added, that the Scriptures most clearly recognize and justify the infliction of capital punishments in certain cases.

2. As to the expediency of capital punishment. This opens a wide field for discussion. Some able men, who do not doubt the right, do still deny the expedi ency of inflicting it. It may be admitted, that a wise legislature ought to be slow in affixing such a punishment to any but very enormous and dangerous crimes The frequency of a crime is not, of itself, a sufficient reason for resorting to such a punishment. It should be a crime of great atrocity and danger to society, and which cannot otherwise be effectually guarded against. In affixing punishments to any offence, we should consider what are the objects and ends of punishment. It is clear that capital punishment can have no effect to reform the offender himself It may have, and ordinarily does have, the effect to deter others from committing a like offence; but, still, human experience shows that even this punishment, when inflicted for small offences, which are easily perpetrated, and to which there is great temptation, does not always operate as an effectual terror. Men sometimes are hardened by the frequent spectacles of capital punishments, and grow indifferent to them. Familiarity deprives them of their horror. The bloodiest codes are not those which have most effectually suppressed offences. Besides, public opinion has great weight in producing the acquittal or condemnation of offenders If a punishment be grossly disproportionate to the offence, if it shock human feelings, there arises, insensibly, a sympa thy for the victim, and a desire to screen him from punishment; so that, as far as certainty of punishment operates to deter from crimes, the object of the legislature is often thus defeated. It may be added, that a reasonable doubt may fairly be entertained, whether any society can lawfully exercise the power of punishing, beyond what the just exigencies of that society require. On the other hand, a total abolition of capital punishments would, in some cases at least, expose society to the chances of deep and vital injuries. A man who has committed murder deliberately, has proved himself unfit for society, and regardless of all the duties which belong to it. In his case, the ler taliomis can

hardly be deemed unjust. The safety of society is most effectually guarded by cutting him off from the power of doing farther mischief. If his life be not taken away, the only other means left are, confinement for life, or transportation and exile for life. Neither of these is a perfect security against the commission of other crimes, and may not always be within the power of a nation without great inconvenience and great expense to itself. It is true that the latter punishments leave open the chance of reform to the offender, which is, indeed, but too often a mere delusion; but, on the other hand, they greatly diminish the influence of another salutary principle, the deterring of others from committing like crimes. It seems to us, therefore, that it is difficult to maintain the proposition that capital punishments are, at all times and under all circumsances, inexpedient. It may rather be affirmed that, in some cases, they are absolutely indispensable to the safety and good order of society. We should incline to say that, as a general rule, every nation, in its legislation on this subject, must be governed very much by the manners, customs, habits of thinking, and state of opinion, among the people upon whom it s to operate. In a rude and barbarous state of society, summary and almost vindictive punishments seem more necessary than in a highly polished and civilized state of society.

3. As to the crimes to which capital panishments may, most properly, be limded. From what has been already said, this must depend upon the particular circumstances of every age and nation; and nach must be left to the exercise of a sound discretion on the part of the legislaure. As a general rule, humanity forbids sach punishments to be applied to any hut erines of very great enormity, and danger to individuals or the state. If any crimes can be effectually suppressed by moderate means, these ought, certainly, to be first resorted to.. The experience, however, of most nations, if we may judge from the nature and extent of their criminal legislation, seems to disprove the opinion so often indulged by philanthropists, that moderate punishments are sufficient to suppress crimes, and that capital punishments are rarely necessary. The codes of most civilized nations abound with capital punishments. That of Great Britam, a nation in which the public legisation has a deep infusion of popular opinion, is thought to be uncommonly sanguinary. Blackstone, in his Commen

taries (vol. iv, 18), admits that, in his time, not less than one hundred and sixty crimes were, by the English law, punishable with death. In the code of the U. States, only nine crimes are so punishable, viz., treason, murder, arson, rape, robbery of the mail, fraudulent casting away ships, rescue of criminals capitally convicted during execution, and piracy, one species of which is the African slave-trade. In the codes of the several states of the Union, still fewer crimes are generally punishable with death. It remains yet to be proved, whether the general mildness of our penal code has afforded us any greater security against crimes than exists in other nations. Hitherto, the temptations to commit them have been less here, than in other countries less abundantly and cheaply supplied with the necessaries of life. It is still a question, fit to exercise the solicitude and ingenuity of our statesmen and philanthropists, whether we can safely carry on so mild a system in a more corrupt and dense state of society. If we can, it must be by a very sparing use of the power of pardoning; so that the certainty of absolute, unmitigated punishment shall follow upon the offence. Beccaria, with his characteristic humanity and sagacity, has strongly urged that the certainty of punishment is more important to deter from crimes than the severity of it. At present, there is great danger that the pardoning power, in our free forms of government, will, in a great measure, overthrow this salutary principle. Its exercise, therefore, ought to be watched with the greatest jealousy and care, lest the abuse of it should lead to the introduction either of absolute impunity for offences, or of more extensive capital punishments. It will probably be found, from the experience of most nations, that capital punishment ought not wholly to be dispensed with. On the other hand, it may be safely affirmed, that there is no positive necessity to apply it to a very large number of crimes. Treason, murder, arson, piracy, highway robbery, burglary, rape, and some other offences of great enormity, and of a kindred character, are not uncommonly punished in this manner; but beyond these, it is extremely questionable whether there is any necessity or expediency of applying so great a severity. Still, however, as has been already intimated, much must depend upon the opinion and character of the age, and the prevailing habits of the people, and upon the sound exercise of legislative discretion. What may be deemed uselessly severe in one