Capital Punishment.—The authority to take the life of a fellow-man is based on God's word to Noah, "whoso sheddeth man's blood by man shall his blood be shed;" and upon the abstract idea of justice "a life for a life." These words in no sense contain a command to us of this century to execute all murderers without exception. For the present state of civilisation a new principle has been evolved which is, that when a man shows himself to be unchangeably hostile to society then his life may be forfeited. As the methods of dealing with criminals improve so the word LIBERTY is being substituted for the word LIFE. The sin on the man's soul may be left to God; all that men has to deal with is his anti-social attitude. If impossible to change this attitude then either death or life imprisonment must result. This very question of possibility is so uncertain that few modern criminologists care to adjudicate, and most regard the death sentence as anticipating too much. Life-imprisonment, under the highest moral influences, becomes life-long by and only by the continued resistance of the criminal. It is not the objectionable form of punishment previously described for it encourages the man to put forth his best effort to improve, and substantially rewards these efforts, even to granting him his liberty if he persevere with them. Punishment by death is becoming more and more unpopular. The dislike of juries to bring in a verdict of "guilty" in a murder case is sufficient testimony to this. In the crowds who sign petitions for the reprieve of the condemned, the hysterical element is too prominent to make any other estimate possible. But the reaction is steady, and it will not be long before capital punishment becomes a thing of the past. To abolish it before a suitable substitute were provided would be mistake.

Gradually society is awakening to the fact that the condition of the criminal ought to be ameliorated, and that there can be no real amelioration which does not make definite efforts for the prisoner's reform. The aim should be to assist every man to recover by his own effort the place in society from which he has fallen. No man is incapable of improvement, and under a wise systematic discipline most men do improve. A remarkable witness is found in the experience of Dr Browning who was engaged as Surgeon-superintendent of convict ships between 1831 and 1848. Of one voyage from Norfolk Island to Tasmania he was in charge of 346 "old hands." These men had agreed to take terrible revenge upon some of their comrades who had been employed as constables over the others. Under Dr Browning's instruction and discipline their purpose was abandoned. He landed the men in Tasmania without having inflicted a single punishment upon the voyage. He remarks:—"The men were given to me in double irons; I debarked them without an iron clanking among them. I am told that this is the first and only instance of convicts removed from Norfolk Island having had their fetters struck off during the voyage, and being landed totally unfettered. They were almost uniformly double-cross-ironed and chained down to the deck, everybody being afraid of them. I was among them at all hours and the prison doors were never once shut during the day. To God be all the glory." Three Governors of Tasmania expressed their high opinion of Dr Browning's system and of its subsequent effects upon their behaviour. (Vide "Christianity amongst Prisoners." Howard Ass.:)

In the famous Dartmoor prison and at Borstal in Kent experiments are being made to secure a greater number of reformations among the younger convicts. It is too early to estimate the value of the systems being tried, but they are being watched with much hope and expectation. In America there is a decided tendency to substitute State reformatories for prisons, especially in the case of the young. The Elmira Reformatory has been established for more than a quarter of a century, and its claims to have reformed 82 per cent. of the men committed to it has been upheld by the special enquiry instituted in 1890.

If these different systems were more closely studied there would result a great awakening as to the possibilities of the criminal, and society would discover that its best interests were served by reforming its offenders and making them moral and industrious servants of the State, instead of by committing them to institutions where they were brought into contact with consecrated villainy and where the unwholesome influence is calculated to confirm them in criminal habits and make them a constant menace and expense to the community. That our criminal population is on the increase, and that the proportion of recidivists grows larger every year, is scarcely to be wondered at in the midst of such influences. Notwithstanding all that has been done to improve the state of prisons from what they were even fifty years ago, yet the motto "once a criminal always a criminal" is often too sadly true. The report of the English commissioners of prisons shows that amongst those who have been convicted during the year 1902, 51.9 per cent. of the men and 70.6 per cent. of the women had been previously convicted. In the past these results were regarded as inevitable. Now they are regarded with much disquietude. Formerly they were supposed to point to a defect in the criminal, now they are understood to prove a defect in the penal system. The reason for this defect lies in having regarded certain objects as primary which are in reality only secondary. These objects have been defined to be the deterrence of crime by the example of punishing criminals; the repression of crime by the infliction of punishment, and the protection of society as a consequence. The deterrent value of the penal system has been greatly reduced by the small amount of dread which it excites in the criminally disposed. The representative value is of a minus quantity. Crime is assisted more than it is crippled. The protection of society is secured only during the period of incarceration. At the end of that period the criminal must be discharged and he goes forth often a more skilful criminal than before and with a vow to take vengeance upon society.

Regarding these objects as secondary the reformation of the offender has been acknowledged as primary by criminologists, and they turned their attention to study the criminal pathologically, to enquire into the causes of crime and also to make trial of the best methods for securing reformation. "Punishment the principle and reformation the incident," was the theory of the old school. The New school reverses the order to "Reformation the principle and punishment the incident." Obviously this course renounces the old principle of retaliation and vengeance and embraces that indicated by Christ in his precept "bear ye one another's burdens."

The Philosophy of Punishment.—The threatening attitude of the criminal towards the peace and welfare of society makes it an obvious necessity that society should protect itself against him, otherwise he would soon master the situation and reduce social order to barbarism.

What are the steps which it must take? It must first remember that its right to punish is not an inherent, but a delegated one. Though its powers are sovereign in the sense that there is no appeal from them, yet they must not be exercised in an arbitrary way. So far as there is a capacity for the realisation of responsibility to God so far must that responsibility be observed. Where this responsibility is disregarded, society immediately becomes the greater criminal itself even though its deeds may be done in the name of the majority of its members. As history is not without examples of this abuse of a sacred trust neither is it without instances of the Divine interference expressed in the destruction of a community which had offended after this manner. This responsibility must be acknowledged firstly—in the end to be attained; and, secondly or subsequently—in the means by which it is attained. We are generally informed that our penal systems exist for the purpose of repressing crime, and that punishment is thus inflicted upon the criminal in order that others may be deterred from following his example. Reformation is sometimes suggested. The public, however, concerns itself very little about its criminals and much less about the objects which its penal system is supposed to secure for it. The attitude of the general public towards the criminal is undoubtedly a vindictive one. His sentence is discussed from this point of view only, viz.:—will the suffering that he will have to undergo be sufficient to accord with the enormity of the crime he committed? The end which is understood is simply suffering, expiatory suffering; suffering which neither man nor society has any right whatever to inflict upon a human being. The old principle of an eye for an eye, while in accord with abstract justice, was often made the occasion for abuse, and the largely prevailing conception of justice amongst us to-day is precisely the abuse of that same principle. Society does well in returning upon its criminals the consequences of their acts, but the consequences should be a natural return and not an artificial one. The criminal should see that by his attack upon society he is excluded from all the benefits of its system. He has isolated himself and this isolation is of itself miserable, and will, if persisted in, become intolerable. Its final state is Hell, a state in which society is destroyed while the social instinct remains and craves in its unquenched agony. It is perfectly right to show the wrong-doer the ultimate end of his chosen course, but there is no warrant for the strenuous effort which is made to force him towards it. A criminal's punishment should be made purgatorial and not internal. The old penology regarded him as a hopeless individual and proceeded with its hellish tortures without undue delay. Beneath its system no reforms were possible, and the fact that none were ever made, was pointed to in order to justify its horrors. Society took no interest in them whatever while they were being pushed lower and lower down the social scale, but met them at the lowest steps, and, halter in hand, gravely professed the utmost concern in their future and eternal welfare.

So far, society has failed to recognise the end of the punishment it is entitled to impose. In the words of Dimitri Drill, a Moscow publicist, the new penology expresses that it "renounces entirely the law of retaliation as end, principle, or basis of all judicial punishment. The basis and purpose of punishment is the necessity of protecting society against the evil consequences of crime either by the moral reclamation of the criminal or by his separation from society; punishment is not to satisfy vengeance." We must not jump to the hasty conclusion that herein is meant that the criminal must be treated very gently and coaxed back to more virtuous paths. What is meant is that his punishment should be made purgatorial and not infernal. The process of reclamation is accompanied by far sharper pains than those which are expiatory, but they are the pains of a healing surgery and not those of a soul destroying brutality. Where the means for reclamation fail then separation from society is advocated. Separation in the midst of influences which would always tend to awaken the desire to reform and which would give immediate assistance to that desire when awakened.

Thus the recognition of this fact that the authority to punish offenders against its law has been, by God, delegated to the social institution, brings with it a recognition of the responsibility which accompanies such authority.

In primitive times most offences were punished by the death penalty, not as a vindictive measure but because the offender was hopeless and society helpless. That is, the social state being of a very simple order, any infraction of its laws would declare the offender a most pronounced criminal, bitterly hostile to society and irreclaimable by such social machinery as then existed. The death penalty when inflicted must ever be so regarded. Not as a life for a life but as the punishment inflicted upon one who has by his own conduct given complete evidence that his recovery to the social state is impossible. In this century of civilisation it is incumbent to look upon the criminal as being in a measure a by-product of society and to deal with him accordingly. Outside of society crime is impossible, therefore society accounts for crime and is also in a measure responsible for it. To this measure exactly (although the measure itself can never be determined with exactitude) is the criminal by-product. In a large measure he is responsible (entire responsibility is conceivable), and it is this sense of responsibility which makes it possible to carry out his treatment.