have heard a confirmed criminal, sentenced to a long term of penal servitude, entreat the Judge to pass on him a sentence of death. I am, therefore, inclined to agree with Boresco that, all things being equal, the prospect of the loss of life does not inspire in great criminals more fear than the loss of liberty. It is self-evident that the punishment of death is very real and very efficacious as regards the offender himself; for death most effectually prevents him from ever again offending human society. In this aspect, it is not without its advantages in the administration of Criminal law against murderers, and especially against persons guilty of High Treason.

But the punishment of death-for murder and treasonis no more the natural and eternal state of man than relentless war. Wars, with their barbarous horrors, have diminished in modern times, and are now never waged, unless for great and exceptional causes. Executions, with their barbarous horrors, have diminished in modern times, and are now reserved for the most heinous crimes. Vengeance has been excluded from the Criminal Codes of all civilised nations; and the horrors and cruelties of ignorant and savage times are greatly diminished. Since the abolition of the laws of Feudalism, and the introduction of the great principle of the equality of justice to all, great advancement has been made in Criminal law. Now, the public authority has replaced feudal lords, and their arbitrary will, and all, rich and poor alike, are equally protected by and before the law. Why, then, should the punishment of death be continued amongst powerful and civilised nations, when it is not justified by absolute necessity? Several States have abolished it, and suffered no harm, but rather have experienced good, by abolishing it. We cannot pretend that we are unable to secure murderers and even traitors against all possibility of escape from imprisonment after their conviction.

According to the Report of the Directors of Convict Prisons for England and Wales for 1889-90, 20 persons were sentenced to death, and 11 were executed. Would this country be in any worse condition by these eleven. persons being sentenced to penal servitude for life? By way of contrast, I may here add that the same Report shews that, in 1836, there were 20 persons convicted of murder in England and Wales and sentenced to death, and that 17 of them were executed; and that, in the same year, 740 persons were sentenced in England and Wales to transportation or penal servitude for life, and in 1889 only 3 to penal servitude for life. That there has been a very considerable and regular diminution of serious crime in England and Wales is undeniable. Into the causes of this improvement I should like to enter here, but must now forbear. I shall merely give the population of England and Wales, and the number of prisoners sentenced to imprisonment and transportation and penal servitude in 1836, and the population and number of prisoners sentenced to penal servitude in 1889. In 1836 the population was 15 millions as against 29 in 1889; and the number sentenced to imprisonment in 1836 was 10,125 as against 7,857 in 1889; and the number sentenced to transportation and penal servitude in 1836 was 3,611 as against 918 in 1889. Nay more, in 1836, 474 persons were sentenced to death for offences other than murder; and in 1889, not one person.

The punishment of death cannot be necessary; for Society can, or ought to be, and in England is, able to protect itself against a murder. It is not useful; for it never, I fear, prevented murder or even treason, or any great crime in the case of any determined resolution to injure Society, or a fellow being. As a punishment, perpetual imprisonment is, I believe, more dreadful than death; for our sensibility is more powerfully affected by weak, but repeated, impressions than by a violent and momentary impulse. When the criminal

is hardened by crime, neither the fear of death, nor of perpetual imprisonment, will have any effect on him to turn him from his evil courses. He looks upon the extreme penalty of the law with great indifference. In considering the effects of punishment, we must always distinguish between the effects produced by punishment on ordinarily well-behaved citizens, and on depraved and habitual criminals. Clearly, the reasoning of the former will be very different from the reasoning and mental habits of the latter. The imagination also has a powerful influence on our habits and opinions, and may cause that which is unbearable at one time to be easily borne at another, and by one person, and not by another.

I may be told that all nations have punished some crimes by death. I admit the fact. But I do not admit the righteousness of capital punishment on that ground. Unless the punishment is necessary, as, e.g., in the case of selfdefence, as it may be and often is, I do not admit the abstract moral legitimacy of capital punishment; for such a right is not essential to modern political society, which is known to be able to do without it. The punishment of death is no more necessary for civilized Society than torture, and is a remnant of the past, or of a passing stage of Society, which is destined to pass away. I, therefore, hope to live to see imprisonment for life substituted in England for the punishment of death in every case of murder; and that, at the very least, the English legislature may adopt the principle, established in France, by allowing the jury, in a case of murder, to return a verdict of murder with or under extenuating circumstances. On the ground of practical expediency, and State policy, I am not in favour of the abolition of the sentence of death in High Treason; for High Treason is a crime not against a private individual, but against the Majesty of the State itself or of its Representative. A person guilty of High Treason against the State, or the Sovereign, is a public enemy, and should be treated

as an enemy with whom the State or the Sovereign is at war. In a matter of this kind, State policy may be as powerful an argument as abstract reasoning.

Am I still pressed with the argument of the universality of the punishment of death in all countries? If so, then,

I answer, so were human sacrifices at one time or another, in every country of the world, so far as we have been able to ascertain the truth, or form probable conclusions from other well-known and authenticated facts. But, as a flash of lightning penetrates the gloom of the dark and murky night, so the voice of reason and truth ever and anon flashes across the world, and lights up the torches of truth and reason and sweeps away old, savage and barbarous laws from the Criminal Code. When all the Physical sciences. are advancing with rapid strides, why should the science of Law stand still?

Confiscation of effects, by a death sentence, did not exist in the old Roman law, and was first introduced by Sylla, and was maintained by Julius Cæsar. The Feudal lords, who were generally poor and rapacious, adopted confiscation to fill their often-exhausted exchequers; but their example has been rejected in most of the modern European Criminal Codes. Confiscation of property by a death sentence recently existed in England; but was abolished in 1872.* The relations of the murderer suffered enough by the punishment of the criminal, without being deprived of the property which would have fallen to them by his natural death. This change is an example of the progress of criminal law towards the adoption of more humane principles than formerly existed.

*

If the only proper object of human punishment were the reformation of the offender, the necessary consequence would be that the punishment of death is not allowable under any circumstances. As I do not admit that this is

* Vide 33 & 34 Vict., c. 23.

so, I do not avail myself of that argument for the abolition of the punishment of death. I believe that capital punishment, which is the destruction of human life, is destined to disappear from the Criminal laws of all enlightened nations; because the principles which I have here laid down are becoming the common doctrines of all enlightened Criminal jurists and philanthropists, and are largely held by all enlightened nations in the world.

On the whole, then, I conclude that, on the principles of absolute morality, the punishment of death is not morally legitimate; and that it is not justified, by its utility, in any case, except High Treason; and that, whatever may have been its suitability, in former ages, it is not suited to the present age. Of course, so long as it exists in the Statute Book, capital punishment can be, and ought to be, enforced. 6. The necessity for a Supreme Criminal Court of Appeal.When there is no Court of Appeal to reconsider, and, if necessary, revise the judgments of a Court of First Instance, there is serious danger of grave acts of injustice. In Civil cases of the most insignificant amount, Civil Courts of Appeal are amply provided from the lowest to the highest Court in this realm. But in Criminal Courts, where the honour, liberty and life of the citizens are often decided, there is, in England, as a rule, no right of appeal. This condition of affairs is a public scandal to English Justice, and ought not to be allowed to continue another session of Parliament. Where an innocent person is convicted, absolute remissibility of punishment is impossible; but it ought to be approached as nearly as human frailty will allow.

Strange as it may appear, China, for at least 4,000 years, has afforded three appeals to its meanest subject when sentenced to death; and yet we, in England, do not allow of a single appeal, unless to the clemency and mercy of the Sovereign, whose prerogatives are exercised by a political functionary, who can never, in any case, be alleged to be