It

point of view from which this question is ordinarily regarded, that men concentrate their attention on the sufferings of the criminal, leaving out of sight the misery that he has inflicted, and the misery which, in the event of his escape, he will be in a condition to inflict on innocent persons. To the act of wise vigour which prevented Strafford from acting as the minister and general of Charles I. during the great civil war which he provoked, and which he alone could probably have brought to a successful conclusion, more than to any other circumstance do we owe the establishment of our liberties. is said that Palmer had committed in all fourteen murders: had he been detected and executed for the first, on which side would have been the gain to humanity? In a recent work by a colonial judge, we are told of the case of a man called Lynch, who was tried and acquitted for murder by a merciful jury, and who lived to murder ten other persons with every aggravation of cruelty and atrocity that can be conceived before he was overtaken by tardy justice. We are justified, therefore, in saying that one end of punishment is to prevent the commission of crime, and that this end is attained by the punishment of death in the very highest degree.

It would be, perhaps, unjust to press too hard on the argument of Thucydides, which was directed not against the capital punishment of individuals, but against the indiscriminate massacre of the whole male population of a great city. But it is quite evident that such an argument proves too much. If the master passions of mankind are so absolutely irresistible, if desire meeting with opportunity and stimulated by the confidence of success is sure to make the attempt, we may give up not only the punishment of death, but all punishment whatever, and must trust for the repression of crime to an education, if such a one can be found, which will enable men to control from within their unruly passions, and to such a police from without as will afford sufficient protection against violence. The argument reduces itself to an absurdity. The truth is, that the career of a criminal must be looked upon like any other career: it has its attractions and its drawbacks; its attractions consist in obtaining the property of others without steady labour, in gratifying any impulse of revenge or lust as it arises, and in a certain spirit of adventure which leads some men to court danger for the sake of its excitement. What its drawbacks are mainly depends upon the law. It is the duty of the legislature, on behalf of the honest part of the community, to make those drawbacks as great as possible, without shocking the general

VOL. CXXI. NO. CCXLVII.

feeling of humanity or defeating its own end by the impunity which is sure to follow on overstrained severity.

The

The only proof which is given of the assertion that the punishment of death does not deter from the commission of crime is the unquestionable fact that those crimes for which the punishment of death is denounced do nevertheless continue to be committed that is, the remedy is no remedy at all, because it does not, in every case, effect a perfect cure. question is not of completely preventing crime, but of materially checking its spread and increase, and may be reduced to this simple issue is or is not the punishment of death greatly dreaded by criminals. Look at the facts. If a man is sentenced to any punishment short of death, little more is heard of him. He vanishes from the sight and the mind of the public, and considerable attempts are seldom made to save him from the penalty he has incurred. How different is it in the case of the punishment of death! How strenuous are the exertions made on every hand to prevent its execution! How very rarely is a criminal found to plead guilty to a charge involving capital punishment! How strong is the disposition to deny and extenuate his crime, and to treat it, even if thoroughly proved, as worthy of some less severe punishment! It is difficult to meet contradictory arguments at the same time, but we confess of the two, we are more struck with the view which represents the punishment of death as having too much than too little terror, and as tending to defeat itself by the strength of the sentiment against its execution which it raises in the

public mind. Some years ago, when, from causes mainly political, people had less confidence than they happily have now in the administration of justice, this argument against the punishment of death, from the impunity which it often secured, undoubtedly carried with it great weight; but it is among many reassuring and gratifying symptoms which characterise the times in which it is our good fortune to live, that we hear little now of this morbid sensibility, and that juries are found to decide on capital cases with a care, indeed, and with an anxiety befitting the solemn and irrevocable doom which hangs on their decision, but with no greater bearing in favour of the prisoner than is exhibited in cases of less awful importance. The milder our government has become, the less disposition do the people show to fetter its efficiency by faltering in the execution of those painful but necessary duties which devolve upon them. The whole question is in the hands of the juries; for if it were found that they habitually refused to convict in capital cases, the legislature would have no resource but to

abolish the punishment of death altogether. There is no fear in the present day that death-punishments will lose their efficacy by too great frequency, and the argument from compassion, if it be once conceded that they deter from crime, is certainly not on the side of their abolition.

Assuming, then, that the punishment of death is to continue, shall it continue as at present, with every circumstance of the most extreme publicity? The argument in favour of publicity is, that it is absolutely necessary that the execution shall be notorious, so that no idea may exist that the criminal has escaped from the hands of justice by any culpable connivance of the authorities. It is also said, that, as the object of punishment is to deter, it should be made as public as possible, in order that this object may be the more fully attained. On the other hand there is a great deal to be urged. It is quite possible to obtain such evidence of the execution of a sentence as shall be more satisfactory to a reasonable man than the testimony of a crowd, in the midst of a scene of indescribable tumult and confusion, little able to identify the malefactor, whose last struggles are theatrically paraded before their eyes. We are also disposed to think that private execution, all things well weighed and considered, is much more likely to inspire terror into the mind of the prisoner than the public exhibition with which we are familiar. We must view

these things, not from the point of view of men of education and refinement, but of those for whom they are designedthe classes brutalised by ignorance, intemperance, and crime. No doubt, a gentleman-if we can imagine a person really worthy of the name in such a situation-would feel the public exposure as the bitterest and most intolerable part of his punishment. But though the law is made for all, the expediency of its provisions must be estimated with reference to the feelings and notions of the class on which it is destined principally to act. A little consideration will show that this very publicity is, to the hardened criminal, the greatest possible comfort and support. He has the excitement of appearing on a public theatre to act a very notorious part, to be for the moment the object of undivided interest and attention to many thousands of his fellow-creatures. The opinion which he values is not that of his superiors; it is the opinion of the very class from which he is taken, and who stand by as critical judges to applaud or condemn the manner in which he passes through the closing scene. There are familiar faces in the crowd, there are nods and recognitions, there is a sound of well-known voices even in that extremity. He does not fall

He has still one

Turn next to the

altogether solitary, nor altogether deserted.
feat to accomplish. He must die game.
spectators. The whole exhibition is to them one of thrilling
interest and excitement-of interest into which they can tho-
roughly enter, of excitement which the coarsest and most
callous natures cannot help feeling: they are encouraged in
crime by the exhibition of courage and hardihood, and feel
that, placed under similar circumstances, they would be able
to act a similar part. If the execution be as it commonly is,
as in the case of Müller, for instance, death almost without a
struggle, they learn the fatal secret-to persons whose only
terror is the privation of life-how easy it is to die.

'Victurosque Dei celant ut vivere durent
Felix esse mori.'

If, on the other hand, as occasionally happens, the sufferings of the criminal be long and protracted, a feeling of indignation is engendered against the execution of justice, and there is great danger that the criminal should be converted into a martyr. As far as abstract argument goes, then, the scale seems to preponderate very decidedly against the publicity of execution. But we are not left wholly to abstract argument. In the colony of New South Wales, where, if anywhere in the world, the feelings, habits, and propensities of the criminal classes ought to be thoroughly understood, private executions have been the practice for the last eleven years, and we are enabled to lay before our readers a very interesting account of the colonial law and its effects, as described by the highest legal authority in the colony. By the Act of the legislature of New South Wales which passed in 1853, any number of justices of the peace at their own discretion, and any number of unofficial spectators at the discretion of the sheriff, may be admitted within the jail to witness the execution; and the execution must be witnessed and the fact certified in writing by the sheriff or his deputy, and the surgeon and governor of the jail and two or three other persons. In fact, every such certificate is usually signed by about eight or ten credible persons. It is twice published, as the law requires, in the Government Gazette, and any false statement in it is punishable as a felony. In addition to this official publication, there is generally a detailed account of the execution in one or more of the news

papers by a reporter who has obtained admission for that purpose. There is, in short, no reason for doubting the reality of the execution in any case, and we are assured that no such doubt ever has been entertained as to the execution of any criminal whatever under the existing system. It is believed

that this comparatively private execution is, as might have been expected from the arguments adduced above, more dreaded by the criminal than public executions used to be. There is no excitement, no opportunity for display, no sympathy, no one who has come to see if the criminal will die game. The spectators are unimpassioned, they come to witness and record the transaction, and have no associations or feelings in common with the sufferer: all is solemnity and calm. If, on the other hand, the case be one calculated to excite the passions and hatred of the people, the last moments of the prisoner are undisturbed by the howlings and execrations of a mob, many of whom, if the secrets of all hearts could be revealed, would be found little better than himself. The secresy of the event gives scope for the imagination, and invests death with greater terrors than the actual sight of the struggle. Add to this that secret punishment saves entirely the demoralising scenes which usually surround public executions, and of which we have recently had so fearful an exhibition under the scaffold of Müller, and we think that a very strong case is made out for the consideration of the Commission now sitting in favour of the substitution of private for public executions.

We may assume, after the recent authoritative announcement, that transportation to Western Australia will henceforth be given up; and this raises the question whether we are, therefore, to give up transportation altogether, and, if not, in what form and under what conditions it can possibly be continued. The old notion of transportation was the sending prisoners to a new settlement for life, or for a certain number of years, there to be held to labour, as originally in New South Wales, either in a regulated kind of slavery to work for private persons, or, as more recently in Van Dieman's Land and Western Australia, to work together in gangs on roads or other public undertakings. On the expiration of the criminal's sentence, it was expected and intended that he should be absorbed and lost in the mass of the free settlers in the colony, and it was hoped that the facility of finding employment and of making a fortune incidental to a new country would prevent him in general from falling back into those criminal practices which had entailed upon him so much misery. It is unnecessary to enter into the merits of this plan, because, whatever they may be, we are convinced that under the existing conditions of colonisation and the improved facilities of intercourse, it is simply impracticable. The first condition of success for a system of transportation on the old principle is a thriving and progressive community; that con