ish wheel in motion to a low chant, hoiding him by the wrist, keeping close all the while, as if to catch some germ of consent in his indifferent words. And little by little he perceives that all this is for him -the incense, the dizzy wheel, the shreds of stuff cut secretly from his sleeve, the sweetened cup he drank at her offer, unavailingly; and yes! his own features surely, in pallid wax. With a gasp of flighty laughter she ventures to point the thing out to him, full at last of visible, irrepressible dislike. Ah! it was that very reluctance that chiefly stirred her. Healthily white and red, he had a marvellous discretion about him, as of one never to be caught unaware, as if he never could be anything but like water from the rock, or the wild flowers of the morning, or the beams of the morning star, turned to human flesh. It was the self-possession of this happy mind, the purity of this virgin body, she would fain have perturbed, as a pledge to herself of her own gaudy claim to supremacy. King Theseus, as she knew, had had at least two earlier loves for once she would be a first love; felt at moments that with this one passion once indulged, it might be happiness thereafter to remain chaste forever. And then, by accident, yet surely reading indifference in his manner of accepting her gifts, she is ready again for contemptuous, open battle. Is he indeed but a child still, this nursling of the forbidding Amazon, of that Amazonian goddess-to be a child always? or a wily priest rather, skilfully circumventing her sorceries, with mystic precautions of his own? In truth, there is something of the priestly character in this impassible discretion, reminding her of his alleged intimacy with the rival goddess, and redoubling her curiosity, her fondness. Phædra, love-sick, feverish, in bodily sickness at last, raves of the cool woods, the chase, the steeds of Hippolytus, her thoughts running madly on what she fancies his secret business with a storm of abject tears, foreseeing in one moment of recoil the weary tale of years to come, star-stricken as she declares, dares to confess her longing to half-suspicious attendants; and the cruel inherited nature of the daughter of the Minotaur now at full force in her. awake one morning to find Hippolytus there kindly at her bidding, drove him openly forth in a tempest of insulting speech. There was a mordent there, like

the menace of misfortune to come, in which the injured goddess also was invited to concur. What words! what terrible words! following, clinging to him, like acrid fire upon his bare flesh, as he hasted from Phædra's house, thrust out at last, his vesture remaining in her hands. The husband returning suddenly, she tells him a false story of violence to her bed, and is believed.

King Theseus, all his accumulated store of suspicion and dislike turning now to active hatred, flung away readily upon him, bewildered, unheard, one of three precious curses (some mystery of wasting sickness therein) with which Poseidon had indulged him. It seemed sad that one so young must call for justice, precariously, upon the gods, the dead, the very walls! Admiring youth dared hardly bid farewell to their late comrade: are generous, at most, in stolen, sympathetic glances toward the fallen star. At home, veiled once again in that ancient twilight world, his mother fearing solely for what he may suffer by the departure of that so brief prosperity, enlarged as it had been, even so, by his grateful taking of it, is reassured, delighted, happy once more at the visible proof of his happiness, his invincible happiness. Duly he returned to Athens, early astir, for the last time, to restore the forfeited gifts, drove back his gayly painted chariot to leave there behind him, actu ally enjoying the drive, going home on foot poorer than ever. He takes again to his former modes of life, a little less to the horses, a little more to the old studies, the strange, secret history of his favorite goddess,-wronged surely! somehow, she too, as powerless to help him; till he lay sick at last, battling one morning, unaware of his mother's presence, with the feverish creations of the brain; the giddy, foolish wheel, the foolish song, of Phædra's chapel, spinning there with his heart bound thereto. "The curses of my progenitors are come upon me!" he cries.

And yet, why so? guiltless as I am of evil." His wholesome religion seeming to turn against him now, the trees, the streams, the very rocks, swoon into living creatures, swarming around the goddess who has lost her grave quietness. He finds solicitation, and recoils, in the wind, in the sounds of the rain; till at length delirium itself finds a note of returning health. The feverish word-ways open unexpected

ly upon wide currents of air, lulling him to sleep; and the conflict ending suddenly altogether at its sharpest, he lay in the early light motionless among the pillows, his mother standing by, as she thought, to see him die. As if for the last time, she presses on him the things he had preferred in that eating and drinking she had found so beautiful. The eyes, the eyelids are big with sorrow; and again, as he understands, making an effort for her sake, the healthy light returns into his : a hand seizes hers gratefully, and a slow convalescence begins, the happiest period in the wild mother's life. When he longed for flowers for the goddess, she went a toilsome journey to seek them, growing close, after long neglect, wholesome and firm on their tall stalks. The singing she had longed for so despairingly hovers gayly once more within the chapel and around the house.

At the crisis of that strange illness she had supposed her long forebodings about to be realized at last; but upon his recovery feared no more, assured herself that the curses of the father, the step-mother, the concurrent ill-will of that angry goddess, have done their utmost he will outlive her a few years hence put her to a rest surely welcome. Her misgivings, arising always out of the actual spectacle of his profound happiness, seemed at an end in this meek bliss, the more as she observed that it was a shade less unconscious than of old. And almost suddenly he found the strength, the heart, in him, to try his fortune again with the old chariot; and those still unsatisfied curses, in truth, going on either side of him like living creatures unseen, legend tells briefly how, a competitor for pity with Adonis, and Icarus, and Hyacinth, and other doomed creatures of immature radiance in all story to come, he set forth joyously for the chariot-races, not of Athens, but of Træezen, her rival. Once more he wins the prize he says good-by to admiring friends anxious to entertain him, and by night starts off homeward, as of old, like a child,

returning quickly through the solitude in which he had never lacked company, and was now to die. Through all the perils of darkness he had guided the chariot safely along the curved shore: the dawn was come, and a little breeze astir, as the gray level spaces parted delicately into white and blue, when in a moment an earthquake, or Poseidon the earth-shaker himself. or angry Aphrodite awake from the deep betimes, rent the tranquil surface a great wave leaped suddenly into the placid distance of the Attic shore, and was surging here to the very necks of the plunging horses, a moment since enjoying so pleasantly with him the caress of the morning air, but now, wholly forgetful of their old affectionate habit of obedience, dragging their leader headlong over the rough pavements. Evening and the dawn might seem to have met on that hapless day through which they drew him home entangled in the trappings of the chariot that had been his ruin, till he lay at length, gray and haggard, at the rest he had longed for dimly amid the buffeting of those murderous stones, his mother watching impassibly, sunk at once into the condition she had so long anticipated.

Later legend breaks a supernatural light over that great desolation, and would fain relieve the reader by introducing the kindly Asclepius, who presently restores the youth to life, not, however, in the old form or under familiar conditions. To her, surely, counting the wounds, the disfigurements, telling over the pains which had shot through that dear head now insensible to her touch among the pillows under the harsh broad daylight, that would have been no more of a solace than if, according to the fancy of Ovid, he flourished still, a little deity, but under a new name and veiled now in old age, in the haunted grove of Aricia, far from his old Attic home, in a land which had never seen him as he was. -Macmillan's Magazine.

"Forasmuch as the ende of their wrath and punyshmente intendeth nothynge elles but the destruction of vices and savynge of menne."-Utopia (Arber's edition, p. 50).

In these words the noble-hearted More laid down a principle which the penal code of his own country has consistently violated. For his language clearly points to reformation as the object of punishment, and English law has persistently clung to that one form of punishment which makes reformation almost impossible unless by a miracle. In More's own time and in the reign of Elizabeth the proportion of executions to the number of the population is almost incredible, while as late as the reign of George III. there were on the statute-book something like two hundred crimes punishable with death. No doubt in many cases the law was a dead letter, but even so, the state of things was a scandal to the rest of the civilized world. Well might Mirabeau say: "The English nation is the most merciless of any that I have heard or read of." Douglas Jerrold, a writer by no means given to "sentimentalism," draws a picture of Georgian justice :

"The Lords of the Privy Council had met with good King George III. at their head to correct the vices of the land. There was death for the burglar, death for the foot-pad, death for the sheep-stealer, death, death, death for a hundred different sinners. The hangman was the one social physician, and was thought to cure all peccant ills. Horrible,

ghastly quack! And yet the King's Majesty believed in the hideous mountebank, and every week, by the advice of his Lords of the Council-the wise men of St. James's, the Magi of the kingdom, the starred and gartered philanthropists-every week did sacred royalty call in Jack Ketch to cure his soul sick children! Yea; it was with the hangman's fingers that the father of his people touched the people's evil. And if in sooth the malady was not allayed, it was not for lack of paternal tending, since we find from the Old Bailey Register-that thing of blood and bigotry and ignorance-that in one little year, in almost the first twelve months of the new drop, the hangman was sent to ninety-six wretches who were publicly cured of their ills in the front of Newgate! And the King in Council thought there was no such remedy for crime as the grave; and therefore by the counsel of his privy sages failed not to prescribe death warrants. To reform men was a tedious and

uncertain labor; now hanging was the sure work of a minute."

Slowly and in the face of strenuous opposition from "strong" judges and weak prelates the statute-book was purged of most of these monstrous enactments, until at the present day, putting on one side martial law, the capital penalty is inflicted only in cases of treason or murder. It is pretty generally admitted that increase of crime has not followed the successive relaxations of the penal code, and hence the question has been of late years constantly mooted:-Why retain the penalty of death at all? How uneasy and unsatis fied public opinion is at the present time, is shown by the fact that when sentence of death has been passed, in almost every case an agitation for a reprieve follows as a matter of course. The remarkable outbreak of feeling in the Maybrick case has furnished the most recent illustration of this dissatisfaction. Men are happily growing less and less enamored of that robust civic virtue which often appears so excellent an imitation of cynical indifference.

The sacrifice of an innocent life, however rare, is felt to be a heavy price even though it purchased for the rest of us comparative immunity from crime. Mr. John Bright, speaking at University College, London, a few years ago, ex. pressed a pathetic hope he might live long enough to see the uprooting of the gallowstree. It still flourishes and brings forth fruit after its kind, but his was the hand that laid the axe to its root.

The literature of the subject, though sufficiently copious, is not very accessible to the ordinary reader, being for the most part contained in Blue Books and in Hansard's reports. Perhaps this may explain why, in spite of the interest shown in particular cases, so few people take the trouble to inform themselves accurately upon the general question. In any case it may be useful to recapitulate and summarize the facts and arguments upon which the opponents of Capital Punishment take their stand.

There will probably be little difference of opinion as to the ultimate objects of punishments. They are:

(1) As to the certainty of application. "If it were possible," says Sir Samuel Romilly, "that punishment, as the consequence of guilt, could be reduced to absolute certainty, a very slight penalty would be sufficient to prevent almost every species of crime except those which arise from sudden gusts of ungovernable passion."

The converse of this proposition appears to hold good. Where the penalty is very heavy its incident is apt to become erratic and uncertain. Of all punishments used by civilized nations the punishment of death is most open to this objection. Under the old law, when death was inflicted for minor offences, this feature was even more apparent than it is at the present day. Mr. Harmer, a solicitor with a very large Old Bailey practice, said, when examined before a parliamentary committee in 1819

"The instances, I may say, are innumerable, within my own observation, of jurymen giving verdicts in capital cases in favor of the prisoner directly contrary to the evidence. I have seen acquittals in forgery where the verdict astonished every one in court, because the guilt appeared unequivocal, and the acquittal could only be attributed to a strong feeling of sympathy and humanity in the jury to save a fellow-creature from certain death. The old professed thieves are aware of this sympathy, and are desirous of being tried

The late Sergeant Parry on a subsequent occasion* gave the following evidence

"It is a common observation in our profession that there is nothing more difficult than to obtain a verdict of guilty from a jury where the charge is murder. It has frequently occurred that the jury have asked - Can we find And the prisoner is allowed to go free." a verdict of manslaughter? No, you cannot.

It may be objected that such evidence as this has no application at the present day, but it is easy to supplement it from

more recent sources. In the course of a

recent debate f in the House of Commons, Sir Colman O'Loghlen said he had within the last forty-eight hours prosecuted a man in County Cork, about whose conviction, but for the penalty of death, he felt certain, but who, as it was, was acquitted. Every one of the Crown solicitors on the Munster Circuit, and, he believed, the majority of the judges, were of opinion. that if capital punishment were done away with the number of convictions would be

increased. The experiment of doing away with capital punishment has been tried in several of the American States, and the result throws a light upon the subject which only inveterate bigotry or stolid venture to disregard. prejudice could Take, for instance, the case of Wisconsin. Writing to Mr. John Bright in 1864, the Governor of that State thus expresses himself

"The evil tendency of public executions, the great aversion of many to the taking of life, rendering it almost impossible to obtain jurors from the more intelligent portion of the community, the liability of the innocent to suffer so extreme a penalty, and be placed beyond the reach of the pardoning power, and the disposition of courts and juries not to convinced me that this relic of barbarism convict, fearing the innocent might suffer, should be abolished. The death penalty was repealed in 1853. No legislation has since reestablished it, and the people find themselves equally secure." ‡

Some years later, in 1873, we find this passage in Governor Washburne's mes

sage

"There can be no doubt that the change in the law has made punishment more certain, and I but express the opinion of those who have most carefully considered the question,

* Capital Punishment Commission, 1865. +July 24th, 1872, p. 1730.

Hansard, May 3d, 1864, p. 2099.

when I state that but for that change in the law, at least one half of those convicted would have escaped all punishment-so difficult is conviction when the punishment is death." * Reverting to 1864, the Governor of Michigan writes :

"Before the abolition of the death penalty murders were not unfrequent, but convictions were rarely or never obtained. It became the common belief that no jury could be found (the prisoner availing himself of the common law right of challenge) which would convict. There can be no doubt that public opinion sustains the present law, and is against the restoration of the death penalty. Conviction and punishment are now much more certain

than before the change was made."

Similarly, the Chief Justice of Rhode Island, where the death penalty has also

been abolished, writes:

66

My observation fully justifies me in say ing that conviction for murder is far more certain now in proper cases than when death was the punishment of it."

(2) As to susceptibility of graduation. It is hardly necessary to say that scarcely any two instances of the same species of crime show precisely the same degree of turpitude; motive, provocation, surrounding circumstances, age, character, all have to be taken into consideration in estimating the amount of punishment requisite. Hence the need for graduation in the punishment. Simple imprisonment, hard labor, penal servitude, even the lash are all capable of more or less accurate graduation. Nowhere is there greater room for difference in the degree of guilt than in the case of murder, and yet the punishment inflicted is one and the same in every case. In some cases, indeed, even death may be a severer punishment to one man than to another. To a man brought up in the higher ranks of society the social infamy and the personal degradation may add a sting to the punishment which may be entirely absent in the case of one less fortunate in his birth. But this distinction which in other punishments can be taken into account and allowed for, operates, in the case of death, altogether independently of the judge. Hence it may, and no doubt often has happened, that the punishment has borne most heavily where the guilt was lightest.

(3) As to revocability. Here again it is perfectly obvious that of all punishments, that of death is, tried by this

* Hunsard, June 12th, 1877, p. 1679.

For

standard, the most unsatisfactory. although it is perfectly true that in one sense all punishment is irrevocable as soon as it has commenced to operate, yet in every other case, as long as the victim is alive, it is possible either to remit a portion of the sentence or to make substantial reparation. If, therefore, it can be shown that there is an appreciable danger of so fatal a miscarriage of justice, most people would freely admit that the case against capital punishment is a very serious one. The risk of such a miscarriage might, no doubt, be lessened by the adoption of that simple measure of reform which for so many years has clamored vainly at our gates-the creation of a Court of Criminal Appeal. Even then, however, the danger would not be removed, and the argument against capital punishment would to many minds still remain overwhelming.

Now, what are the facts of the case?

Some time ago Sir James Mackintosh, clared that, taking a long period of time, a most cool and dispassionate observer, deone innocent man was hanged in every three stated as the result of his experience that The late Chief Baron Kelly years. from 1802 to 1840 no fewer than twentytwo innocent men had been sentenced to death, of whom seven were actually executed. These terrible mistakes are not confined to England: Mittermaier refers to cases of a similar kind in Ireland, Italy, France, and Germany. In comparatively recent years there have been several striking instances of the fallibility of the most carefully constituted tribunals. In 1865, for instance, an Italian, named Pelizzioni,

was tried before Baron Martin for the murder of a fellow-countryman in an affray at Saffron Hill. After an elaborate trial death. In passing sentence the Judge he was found guilty, and sentenced to took occasion to make the following remarks, which should always be remembered when the acumen begotten of a "" sound

A re

Moir, M.A., Lond., 1865, pp. 146-148. *Capital Punishment, edited by J. Macrae markable case is mentioned by M. Visschers as having happened in Belgium. Three hawkers were sentenced to death for a most aggravated crime. They were found guilty

by a majority of the jury with the full con

currence of the Court. The King commuted the punishment to hard labor for life. Their innocence was afterward established, and annuities given them.-Cap. Pun. Comm., 1865 (9.3583).