style="font-size:15px;"> Again, this author objects, as some others have done, to the punishment of death, because it is incapable of an adjustment to the degrees of guilt. What punishment is? Or how can any tribunal determine on degrees of moral guilt? It is not a criminal, it is a crime, that the law punishes. To determine between two thieves, which had the better motive, which had the least of thief in him, is not the function of a judge, nor could he perform it, if imposed upon him. It has been remarked by those who have had wide opportunities of judging—and the annals of criminal jurisprudence support the observation—that murderers, taken as a class, are not, as men, the worst order of criminals. Some sudden impulse, or some one obstinate desire, got the better of their reason; or it might happen, that the motive for committing a great crime was not of so dark a dye as that which often induces to one of less turpitude. And yet neither our author, nor any one else, would hesitate to accord to the crime of murder the very severest penalty that stands upon the code.
But M. Zschokke's main argument against the reasonableness and justice of death-punishment is this, that every man has an original imprescriptible right, prior to, and in the face of all society—to be a man—"mensch zu sein"—"to develope himself as man." Society may limit the exercise of this right, but not annul it; may mutilate the man as it thinks fit, but must leave so much of him behind as may bear the name of man. What is to be said of such metaphysical vagaries as these? If this pass for reasoning, the unlawfulness of imprisonment may be proved in the same manner; one has but to assert that man has an a priori indefeasible right to the use of the limbs which nature has given to him. But no man has any right whatever, but under the implied condition of performing corresponding duties. This individual, whom the law will not any longer allow to develope his humanity, should, if he had wished to develope himself further, have allowed the like liberty to others.
But that which most remarkably distinguishes M. Zschokke's little performance is the substitute for the punishment of death which it suggests. We believe it was here that M. Sue derived an idea which occupies so conspicuous a place in his Mysteries of Paris. That substitute is blindness. "The blinded man," writes our author, "is an eternal prisoner, without need of prison walls. He must envy other culprits their chains—their darkest dungeons; for in the darkest dungeons hope may penetrate, and they may one day see the light again. He must envy the dead, on whom the executioner has done his utmost; for to him life itself has become one endless punishment. He is bound without fetters—bound more securely than if he were locked to the oar or welded to the rock. Every step, every movement, tells him of his weakness and of his guilt. The living world around him—he has lost it all; he retains only its sources of pain, and the unfading memory of his own crime. Scoffed at by the unfeeling, pitied by some, by all shunned—contempt and commiseration and scorn are the smarting scourges to which he stands defenceless for the residue of his days."
A frightful punishment truly! But we are far from approving of it as a substitute for death. In the first place, it is equally irrevocable; and it is one, and perhaps the most cogent argument against death-punishment, that it admits of no recall in case of error, no remission or compensation in the event of sentence having been passed upon an innocent man. Our author, indeed, seems to think otherwise; for he reckons it amongst the advantages of this mode of punishment, that it does admit of compensation if it has been unjustly inflicted. To us it seems very doubtful whether any pleasures addressed to the remaining senses of hearing, of touch, or of taste, can be said to compensate for the loss of sight. Neither does blindness, any more than death, admit of degree or apportionment. In this respect, burning or the use of fire as a punishment, which has been suggested, though not absolutely advised, by Bentham, would have a decisive preference. "Fire," writes that voluminous jurist and legislator, "may be employed as an instrument of punishment without occasioning death. This punishment is variable in its nature, through all the degrees of severity of which there can be any need. It would be necessary carefully to determine, on the test of the law, the part of the body which ought to be exposed to the action of fire; the intensity of the fire; the time during which it ought to be applied; and the paraphernalia to be employed to increase the terror of the punishment. In order to render the description more striking, a print might be annexed, in which the operation should be represented."—(Works, vol. i. p. 407.)
What is still more to the point, the punishment of blinding is quite as repugnant to those sentiments of humanity which are said to be outraged by the depriving a fellow creature of his life. As we have before intimated, the spectacle of pain inflicted is at all times an evil in itself. Even the presence of those gloomy buildings, devoted to all the wretched purposes of incarceration, is, we should say, a public calamity. The more men see of misery, the more callous do they become to it; the less effort do they make to relieve; the more ready are they to inflict it. Punishments should be multiplied as little as possible. Very slight offences had better be left to the correction of public opinion, and very grave offences should be severely visited, as well to spare punishment as to prevent crime. We at once admit that it is an evil—the spectacle of putting a man to death. But this of putting out his eyes is, in act, scarce less revolting, and the spectacle is perpetuated. The public execution lasts his lifetime. There is something, too, from which we recoil in associating what has hitherto been the most pitiful affliction of humanity with the idea of punishment of crime. A blind man walks amongst us the universally commiserated—and good need he has of our commiseration; it would be a sore addition to his calamity to make his condition one of suspected turpitude, and expose him to the hazard of being classed with murderers.
With respect to that greater severity of the punishment, on which our author eloquently enlarges, the only severity which a legislature ought to seek is that which is available in the shape of threat; and no threat can be more effective than that of taking from a man his life, since he can always, in his own imagination, commute any other punishment into that. If it be true, on the one hand, that death is a mere privation, and not to be compared, in real severity, to very many of the positive afflictions of life; and if, on the other, it is still the greatest threat which society can hold out—these two facts together would go far to prove that it is the very best punishment which could be devised.
Dismissing this exception of the punishment of death for the crime of murder, imprisonment at home or abroad, accompanied with hard labour, or periods of solitary confinement, is the sole threat of any moment which the law holds out against offenders; and it becomes, therefore, of infinite importance to establish an effective prison discipline. We look upon this simplification of our penal operations as an advantage; and we are by no means disposed to favour those inventive gentlemen who would devise new punishments, or revive old ones, for the purpose, it would seem, of having a variety of inflictions corresponding to the variety of offences. A well-regulated prison, where the severity of the taskwork, the nature of the diet, the duration and the strictness of the confinement, all admit of apportionment to the offence, seems to include all that is desirable in this matter of punishment. Here, if any where, can plans of reformation be combined with penal inflictions. Such plans ought, by all means, to be encouraged; but they are not—whatever Captain Maconochie, and other zealous reformers, say to the contrary—the first and peculiar object for which a prison is designed.
Captain Maconochie was for some time superintendent of Norfolk Island. A rough experience. But prison discipline must be much the same in its elements, in whatever part of the world it is carried on. We are not about to enter into the variety of questions connected with transportation, or the management of penal colonies. Wherever imprisonment or compulsory labour are to be undergone, the same class of difficulties and dilemmas must arise; and we shall deal only with Captain Maconochie's remarks, as they apply generally to all convicts, whether transported or not.
It is quite curious to observe the unconscious pranks that men of sound understandings, but not philosophically disciplined, may be led into, when, from some favourite point of view, they suddenly rush into generalities, and proclaim as reasoning what is the dictate of a momentary sentiment. Captain Maconochie, desirous of enlisting our sympathies in favour of his convicts, assimilates their condition to that of the black slaves, whom the philanthropic efforts of Wilberforce, and others, succeeded in
