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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 aflash 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 Caesar. 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
so, I do not avail myselfof 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 isinot 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 more qualified to exercise this great prerogative than a Court of Appeal composed of the highest judges in the realm, and engaged in the investigation of the most grave charge which can be made against a fellow subject. Is money of more value in England than the life of a human being? Why should there be an Appeal in civil actions in the High Court of justice, and not an Appeal in the same Court in a case of life and death?
7. Pardon by the Royal Prerogative.—The power to pardon offenders is usually entrusted to what is called the Executive power. What is this Executive power is not very clear, and the name does not suggest any very clear idea. Perhaps, the most perfect notion we can form of this Executive power is that it is an authority subordinate to the supreme Legislative power in the State. How far this power of pardon should be exercised in any case is agrave matter for discussion; because, if the power is exercised on a knowledge of the case, the Executive power acts as a Court of Appeal, and over-rides the ordinary Courts of the State; and if it acts arbitrarily, it acts legislatively and in violation of the fundamental laws of civilised government. Pardon of offences against the Criminal Laws should not be granted, unless on a proper satisfaction to the State by punishment, or by an equivalent of past, present, or future services. By the Constitution of England, the prerogative of mercy is reserved to the Sovereign. No matter where deposited, or how actually exercised, it should not be regarded, says Paley, as a favour yielded to solicitation, granted to friendship, or least of all made subservient to the conciliation or gratification of political attachments, but should be a judicial act. Recent events have shewn that this great doctrine is apt to be forgotten by a large number of well-meaning, but weak-minded persons. An unmerited pardon is a crime against the public. A wise Government will never be affected by the violence or threats of a mob, or of its leaders. The Sovereign power,
entrusted with the high and sovereign right to pardon offenders, should be governed by an enlightened regard to the public welfare. When it does not put the laws of the land into execution, the Sovereign power suffers a serious wrong. The power of pardon should not be exercised by caprice, or under fear. It is often a beneficent and beneficial power; but it often gives rise to unjust clamour, unfounded libels, and dangerous threats. Such a power cannot be easily exercised to the satisfaction of all. As a rule, clemency should be excluded in a perfect Criminal system of law, where punishments are mild and the proceedings in Criminal cases are regular and expeditious; for, then, clemency is unjust to the nation and dangerous to its security and peace. When an accused person is innocent, and has been found guilty, his case is not one for clemency, but for justice, and should be subject to a regular Appeal to a Criminal Court of Appeal. A criminal should no more be exempted, by caprice, from the sentence inflicted on him by law, than a defendant, in a Civil action, should be exempted from the judgment passed against him in a Civil suit, unless by and 'in virtue of a judgment of a Court of Appeal. But, when the Criminal Laws are absurd, or the punishments severe, the clemency of the supreme power may be just and necessary. Still, clemency should belong to the laws, and not to the legislator. It should shine out and illuminate the Criminal Code. It ought not to be left to the whim or fancy of private judgment. It should not be determined by the invisible and mysterious power of public opinion, which, though strong, is vague and capricious.
8. Some Reforms Required in our Criminal Laws.—Great improvements and reforms have been made during the present century in our Criminal laws; but much requires to be done by future Legislators and judges and Magi
strates. Looking at the Criminal laws of our country, and the offences they are intended to punish and to prevent, I venture to assert that the spectacle of human suffering before our eyes, even after all the advancements we have made in the present century, should arouse our best exertions to help and save those who are surrounded by vice, or addicted to crime, and that not only in their interest, but also in our own and that of the public. Let us see that our Criminal laws, and indeed all our laws, are in conformity to justice and the public interest. Nothing would enable us more effectually to arrive at this conformity than the simplifying and codifying of our Criminal laws, and making them clear, precise, and brief in expression. Napoleon the Great boasted that his Code had done more good to France than all previous laws. Was he right ? To a very large extent he was. Very considerable progress in this great and necessary Reform was made under the late Lord Chancellor Cairnsin 1878 and 1879- Than the present Lord Chancellorof England, no man in this country is more capable of completing the grand work which Lord Cairns, with the aid of most able coadjutors, commenced, but did not succeed 'in bringing to a final conclusion.
I have shewn, I think, that it is of the highest importance that the Legislature should provide for a High Court of Criminal Appeal in all cases of murder, and, indeed, in all grave and serious crimes, in order to protect the innocent, and to prevent the execution of harsh or unjust sentences against the guilty. But, if the accused ought to have the right of Appeal, the question arises, should the accuser have the right of Appeal, or of beginning a new prosecution? Thorrilon answers both questions in the negative, and supports his opinion by an appeal to the principle of Humanity. I venture to think that he is wrong on this point; and that the accuser as well as the accused should have the right