When the temptation comes in the shape of sudden anger and impetuous passion, there is a threat as sudden to encounter it. When the crime is revolved in the secret and guilty recesses of the mind—as when some individual stands between the tempted man and the possession of a fortune, or some other great object of desire—there is religious terror as stealthy, as secret, as unconquerable, as the strongest desire that takes possession of the human heart, to assist always at his deliberations.

M. Zschokke's little treatise, to which we have alluded, contains the usual, together with some unusual, arguments against the punishment of death, and contributes also a novel substitute for it. He begins, in true German manner, by explaining (inter alia) the difference between reason and understanding; the exact distinction between man and the rest of the animal creation; and some other metaphysical generalities, which, fortunately, are not concerned with the business in hand. For, as no two writers agree in their explanations, and as none succeeds in perfectly satisfying either his reader or himself, it would be impossible, if such preliminaries were first to be adjusted, ever to arrive at the discussion itself. The work is written in letters, addressed to a young prince; and, at the thirteenth letter—there are but sixteen in the whole—he approaches his main question—"Nun denn es sei zur sache!" "Now then to the matter." And first he protests that death is no punishment at all. The venerable historian absolutely flies to such aphorisms as were the delight of Seneca, to prove that death is no evil, and can consequently be no punishment; although there are some who, under the dominion of mere instinct, may deem it such. "The death," he writes, "of the criminal is no punishment; but for him, as for every other mortal, only the end of earthly troubles, cares, and sufferings. In vain," he continues, "does the multitude of suicides show us daily that death is no evil, and therefore no punishment; for the men who thus abridge their days manifestly prefer death to the endurance of the evils of life."

It has been said, that "he who can look at death starts at no shadows." And certainly, reason on the matter how you will, and prove life to be as worthless as you please, if a man can defy death, and solicit it, there is no other punishment that can be effective. It would be all but impossible to prevent a criminal, if so resolved, from laying violent hands upon himself; and altogether impossible to prevent him from contemplating suicide as his last resort in case of detection, and so nullifying the threat of any other punishment. There is no hold whatever on the man in whom the love of life, or the fear of death, is really extinct. But we are far from thinking that Seneca and the Stoics have yet made so deep an impression on mankind that there is a very general indifference to death, especially to a death inflicted by others—the ignominious sentence of the law.

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 emancipating. The parallel is—to say the best—very surprising and unexpected. Convicts in the colonies stand in the same predicament, with regard to society, as their fellow-culprits at home; and the gallant Captain would hardly preach a crusade for the liberation of all the prisoners in England—for all who are undergoing the discipline of our houses of correction. To be compelled to labour for another man's advantage, and at another man's will, because one is "guilty of a darker skin," and to be compelled to the like taskwork because one has committed burglary, are two very different things. Full of this happy comparison, however, Captain Maconochie proceeds—"They (the blacks) were thus, in the main, merry, virtuous, and contented beings; they did not advance—this their condition as slaves forbade—but neither did they recede; and whatever the influence of their condition on their own character, it ended nearly with themselves; they were subjects, not agents, and no one was made materially worse through their means. In every one of these respects, convicts are differently, and far more unfavourably, circumstanced. True, they have sinned, which is often alleged as a reason for dealing with them more harshly; but who has not sinned? Who will venture to say, or would be right if he did say, that, similarly born, educated, and tempted, as most of them have been, he would have stood where they have fallen? They are our brothers in a much nearer sense than were the negroes." Now, if language such as this means any thing, the convict is a most maltreated person, and should not have been punished at all. It is really the duty of sober sensible men to put their veto on such oratory as this; there is too much of the same kind abroad. We must all of us be ready to acknowledge, that if we had been "born, educated, and tempted," as many of these felons, we too might have been felons. Does it follow that we ought not to have received the punishment of felons? Is this sort of argumentum ad hominem, which makes the crime in imagination our own, to bribe us into an utterly ruinous indulgence towards it? Crime is not punished on earth—as divines teach us it will be punished in heaven—on a principle of retributive justice, and according to our moral deserts. To prove that this is not the principle of judicial punishment, we have only to call to mind that, whereas, in a moral point of view, the force of temptation diminishes the guilt, men, in framing their laws, invariably increase the punishment in proportion to the temptation. The facility to commit a crime, is one great element in the temptation to commit it; and this facility has been always considered (as in the case of forgery) to call for a counterbalance in the severity of the penalty.

In matters of penal legislation, there are two currents of thought, which must be always kept distinct. The one relates to the natural and little cultivated feelings of mankind, which demand retaliation for injuries committed—a vindictive or retributive justice. Here is found the rude motive power by and on which legislation has to work; sometimes shaping these feelings to its purposes, sometimes shaping its purposes to them. The other current of ideas is purely legislative, purely prospective, having for its sole end the well-being of society, and looking on punishment; not as retributive, or vindictive, or as morally due, but as a sad necessity for the preservation of order.