That which renders the punishment of death peculiarly appropriate, in our estimation, in the crime of murder, is not by any means its retaliative character; the sentiment, that "blood must have blood," is one which we have no desire to foster; and if some less grievous penalty would have the same effect in deterring from the crime, we should, of course, willingly adopt it. Our ground of approval is this, that it presents to the mind an antagonist idea most fit to encounter the temptation to the crime. As this temptation must generally be great, and often sudden, that antagonist idea should be something capable of seizing upon the apprehension at once—of exercising at once all its restraining efficacy. Imprisonment for length of years—the mind must calculate and sum up the long list of pains and penalties included in this threat, before its full import is perceived. But death! And then the after-death! For what makes the punishment of death so singularly applicable to the case of murder is this, that it awakens whatever may exist of religious terror in the mind of him who contemplates the crime. On the one hand, he is about to commit a deed on which there are not two opinions; it is not a crime made such by the laws; it is not even a robbery, for which he may frame excuses out of his destitution, and the harsh distinctions of society; it is murder, which heaven and earth, rich and poor, equally denounce. On the other hand, his guilt will bring him almost immediately before the tribunal of God, as well as the judgment-seat of man. No long interval weakens the impression, no long space holds out the vague prospect of repentance and amendment, and compensatory acts of goodness; but if he will lift the knife, if he will mingle the poison, there is the earthly executioner at hand to transfer him to the still more dreadful sentence of the after-world! The same opinion which condemns the crime of murder here on earth, as the most atrocious that can be committed, follows him to that other tribunal; and all that his imagination has been accustomed to depict of the horrors of internal and eternal punishment, rushes at once upon him.

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.

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