ishment, otherwise penal legislation would be more apt to be governed by mere chance than by any fixed and determined rules. This analogy must, however, be a strictly moral analogy, and never a material analogy, as seems too often to have been the aim of penal legislation. This moral analogy is to be reached by depriving the criminal of those rights which he has despised, abused or violated in others. The material analogy consists in copying the crime in the punishment. Such was the Tartarus of Greek Mythology and the Inferno of Dante. But the essence of justice is not to be thus attained. To attempt to carry such an analogy into practice is to render justice sometimes cruel and often ridiculous, in the end it is but the lex talionis, "an eye for an eye and a tooth for a tooth." Man even in the deepest degradation is always a moral being, possessing conscience, reason, and will; and he cannot be treated as a wise man would not treat his beast of burden. The punishment must be made to find its reason in the consciousness of the criminal, so that even while experiencing the pain arising from it, he is at the same time, at least to himself, forced to aknowledge its justice. Finally, the punishment must be certain. Crimes are more effectually repressed by the certainty than by the severity of their punishment. The uncertainty arises chiefly from a disregard, on the part of the legislator, of the principles upon which rests the right to punish, and which should govern the nature of the punishment and the manner of its infliction. Not finding a just reason in the nature of things for the punishment, society will often grant impunity to the criminal rather than inflict it upon him, and thus the law defeats its own purpose. It is in the certainty of the punishment that lies its chief intimidative power.

Punishment thus understood can no longer be arbitrary, capricious and violent; it rests firmly upon the immutable laws of reason and justice. To the punishment may now be joined any true means which will tend toward the amendment of the criminal, for the first step toward amendment is the sense of justice passing from the penal law, through the sentence of the judge, into the consciousness of the criminal. But under the pretext of a reformation of the criminal, penal law must not encourage him in his wickedness by a sentimental and culpable weakness. The reformation of the criminal is not to be brought about by any

lightening of his punishment, but by the improvement of his sentiments and morals while separated from the corrupting influence of others like himself, by the seeds of morality and of knowledge that are sown in his heart, and, alas, how large a portion of crime has its origin in ignorance, by the habits of industry and temperance that are grafted upon his life, and, finally, when his punishment is ended, by placing him in such a position that whatever of good he may thus have had engrafted upon him, may have a fair chance to develop and bear fruit. Thus a dangerous and destructive force in the body politic may be restored to its useful and normal condition. Guided by these principles of humanity and justice, penal law can forever bid farewell to all those horrors and abominations which, under the name of punishments, have formally composed this branch of penal legislation. No more mutilations, no more cruelties, no more punishments which degrade both body and soul, such as are still to be found lurking here and there, hiding themselves under the dust of antiquity, in the penal codes of almost every civilized nation of Europe. But why speak of Europe, as long as even in our own land the whipping-post is still standing at our doors, and the lash still falls on the backs of American citizens. The only effect of such punishments is to defeat the end of punishment, and to so harden the criminal that all reformation is rendered improbable if not impossible, and they inevitably recoil back upon the society that inflicts them, degrading human nature and retarding the progress of true civilization.

But there is a question which now presents itself, that involves the true test of this whole theory of punishment. This is also one of those "questions of the day" that are continually presenting themselves for solution, and which, until solved, are the stumbling-blocks in the pathway of a developing humanity. Does the inalienable right of self-preservation, as exercised by society in the manner that has been discussed, give to society the right to dispose of the life of him who has become a source of danger to her? Is the death penalty a legitimate means of intimidation for the purposes of repression and reparation?

This, as has already been said, is one of the "questions of the day," and is one that is now forcing itself toward a solution. Like all social questions, it slumbered quietly in the bosom of

humanity until the conditions favorable to its development became present, when it at once presented itself, and has ever since continued to present itself with greater or less prominence, and the day must come, if it has not dawned already, in which it must be solved. The history of this question, though it is both instructive and interesting, is foreign to the object of this inquiry. It will be sufficient to state that Beccaria, in the latter part of the last century, in his celebrated treatise on "Crimes and their Punishments," was the first to start this question, and that Since then it has continued to press its claims with ever-increasing power and vigor, until to-day it is a question upon which the philosophical world is fairly divided into two clearly defined and openly antagonistic parties.

The defenders of capital punishment having abandoned torture as an aid to punishment, have renounced with it the doctrine of expiation, and there remains but two grounds upon which they base the right of society over the life of the criminal. First. Traditional, abstract, metaphysical right, the use of which remains submitted to reason and the force of circumstances. The death penalty, they say, has been in use from time immemorial. It is inscribed on the codes of all nations, and is inherent in the laws of human nature. Second. Society has a right to defend herself. She is bound to exercise that right, especially in behalf of those whom, in receiving into her body corporate, she deprives of their natural rights of self-defense by substituting herself in place of that right in order to preserve for them the most certain enjoyment of security, liberty and happiness. If to do so it becomes necessary to punish him who endangers that enjoyment, even by depriving him of life itself, she can, nay, she must do so.

The first of these propositions is utterly false and worthless. There is not a single error in favor of which the authority of tradition and of custom cannot be equally invoked. Slavery, primogeniture, religious persecution, in fact everything that an enlightened age and Christianized civilization has learned to despise, were errors almost as old as the human race, and have been regarded as sacred among all nations. To defend them to-day is the effort of a school of philosophy whose peculiar mission seems to be, in apologizing for the past, to render the present more glorious.

The second proposition is true. The life of an individual is, as far as society is concerned, no more an inalienable right in him than his liberty. Inviolability exists only within the limits of our rights, and is lost the moment we relinquish our rights for the purpose of attacking those of another. Society has the right of self-defense, and if she can only defend herself by means of the death penalty, it is not only perfectly legitimate, but her absolute duty, to make use of it. It is not necessary-as has sometimes been contended—that she should wait until the whole social order shall be threatened in order to justify herself in the use of this means of repression and intimidation; it is sufficient that the right of an individual be threatened, for in the social order each one has entrusted his natural right of self-defense, to a certain extent at least, to society.

But is this means-for after all the death penalty is but a means to an end-necessary? Does it answer the purpose for which it is designed better than any other would do? And, finally, is it a punishment which, better than any other punishment, answers the requirements which the principles of punishment demand. These are the true points at issue and upon their answer alone should depend the abolition of the death penalty. It is through the application of the principles which alone should govern in the infliction of punishments, that the changes that have taken place in penal legislation in this respect during the last two centuries can be accounted for. On what other grounds can we account for or justify the almost total disappearance of this terrible punishment from the penal code of almost all civilized nations. In our own country, but one alone in the whole dark catalogue of crimes has attached to it the penalty of death; and the time may not be far distant when this, too, shall have disappeared, when the scaffold shall have taken its place beside the rack and the wheel in the lumber-rooms, where are stored the discarded, worn-out and useless weapons of civilization, and be no more seen except in the museums of antiquarians and the chamber of horrors of some future Tussaud's wax-work exhibition. But if the death penalty is to be abolished, it must not be abolished as slavery and religious persecution have been abolished, because they were wrong in themselves, but because man has made such progress in his grand onward march toward perfection that it has come to be no longer a

legitimate means of repression and reparation-that is to say, that it is a punishment that goes beyond the ends of penal justice, bet ing a severity which reason and experience has shown to be not the best safeguard against the crime that it seeks to prevent. JAMES L. FERriere.

THE NEW YORK EXHIBITION OF WATER COLORS.

TH

HE promise of the present winter's exhibition was of a pleasure beyond the usual one of being a yearly increase in the number and quality of the nation's paintings in water colors. This year we were to have a collection of drawings and water colors, principally drawings by the most prominent English artists. Our first impression was of disappointment, at the small number represented, but they nevertheless furnish a tolerable standard, to judge the peculiar excellences and weaknesses of the English school. We are told the pictures were collected in three weeks, and I suppose it is owing to this fact that so few of the English etchers are represented. Seymour, Hayden and P. G. Hammerton, for instance, are already too well-known in America to pass over, and of our own countryman, James Whistler, there is not even an unfinished vagary. Mr. Edwin Edwards has a series of landscapes, faithful and "The Chestnuts" are fine

of beautiful etchings, mostly studies yet fresh, as etching seems so fit to be. manly work, and the "Haunted House" is bewitched in good earnest. Mr. Du Maurier is so fami liar to us in Punch, that we are surprised to find his well-known large comfortable manner on the academy walls. The style is so good one can't help wondering why our wood-draughtsmen do not use it more. It has, too, the advantage of being easily rendered by the engraver, though it must be confessed it seems in all cases cold.

Miss Paterson seems to have lost some of her coldness in the brocaded dress of "A Young Girl." The embarrassed action of her right hand is very pretty, whether the young men be lovers or not. The originals of the illustrations to "The Wandering Heir," reprinted in Harper, are here, and very beautiful is one of Mr. Felde's" Father, father." Mr. Small's "Kill Him," is rich and