THE PUNISHMENT OF CRIMINALS. 541 



life. This miglit lead to a continual vendetta and numerous other 

 murders, such as we read ahout in Virginia and some of the other 

 American States, where, it is alleged, criminals often escape from 

 justice or the law is not firmly administered. The argument is, of 

 course, applicable to any other crime of a malevolent or brutal 

 character. Some years ago, when the garotters in England had the 

 lash freely applied to them the whole community were gratified, 

 because it was just retribution for the suffering the criminals had 

 inflicted on their victims. 



Looking at Sir J. F. Stephen's advocacy of the hatred and 

 revenge theory from the preceding standpoint, it will be seen that 

 his opinions are not the mere groundless expressions of a relentless 

 Judge. He may well contend that he was but giving effect to 

 views founded upon acknowledged principles of the Criminal Law. 

 I am presumptuous enough to differ from such views, and to express 

 the hope that they will never be followed. The main object of this 

 paper is to advocate a far more merciful, but, it is believed, an 

 equally efficacious, way of relieving the community of its anti- 

 social portion. We do not want to stain our criminal annals with 

 more blood. The remembrances of the past are sickening enough 

 in this respect. 



In 1771, when the Criminal Law was administered in a spirit 

 that would not be tolerated in these more enlightened days, Lord 

 Auckland published his " Principles of the Penal Law," a work 

 still esteemed one of the ablest written upon the subject. The 

 following sentence from it will show how greatly at variance he is 

 with Sir J. F. Stephen as to the spirit in which criminals should 

 be punished. He says : — " There is no such thing as vindictive 

 justice ; the idea is shocking." Mr. Nesbit, Q.C., in his address on 

 " Insanity and Crime," at Hobart, in January, 1892, dealing with 

 this aspect of Sir J. F. Stephen's teachings, is reported to have 

 said : — " Between the hatred which Sir James Stephen justifies and 

 and the majestic severity of the mind which, while detesting crime, 

 can still regard the criminal as an erring and deeply unfortunate 

 brother the gulf is wide indeed. Can we doubt Avhich is the most 

 worthy of a high moral nature and of a truly strong character ?" 

 In cases of premeditated and malevolent injury, where the con- 

 science has ample time to warn, strong exception may be taken to 

 the terms " an erring and deeply unfortunate brother." In such 

 cases one feels that lex talio7iis is the most fitting punishment, and 

 the accused is entirely removed from the category of lae unfortu- 

 nate. 



But the term is not inapplicable to some who have yielded to 

 sudden impulse or temptation. There is often much force in what 

 a late English Judge, noted for his ability and fairness in criminal 

 cases, once said in reference to prisoners — '• They are just like other 

 people ; in fact, I often think that but for the different opportunities 

 and other accidents the prisoner and I might very well be in one 



