If so, what kind of an example? And, in so far as it affects the public mind at all, is not the effect in kind, if not in degree, precisely that which attends the public execution? It can operate as a warning only to the extent that it is known and its terrors realized. The logic that condemns public executions because of their bestializing influence cannot justify the private execution as an influence for good, because it involves a concession that in so far as that influence extends it is harmful in character. Therefore the private execution, in so far as it exerts an influence, exerts a bad one; otherwise, by the very logic of its advocates, it should not exist.

2. Wherever recourse is had to the death penalty, that penalty is applied simply because it is thought that life imprisonment is not sufficiently severe. Is the death penalty sufficiently severe ? If the element of severity be accounted the salient principle of criminal punishments, how can we regard any punishment as sufficiently severe which falls short of preventing crime, and why shall we not increase the penalties to the very limit of severity until crime shall cease or be reduced to its minimum? When we fail to do that, we give evidence of insincerity; we show that we do not believe that which we both preach and practice in our administration of the death penalty. Nothing is more clear than that the gallows and the electric chair do not prevent murder.

According to the recently published statements of Prof. A. D. White, homicidal crime is on the increase in the United States. If severity is to be the principal deterrent, then nothing can be plainer than that we are not sufficiently severe in our punishment of murderers. The example we make of them is not sufficiently horrible to impress upon the public mind the extremely hazardous nature of homicide as a trade or pastime. Indeed, we often hear it said of this or that criminal. that "hanging is too good for him."

If death in any manner is impressive because of the severity of the punishment, why is not torture still more impressive? In the time of Henry VIII. those who committed murder by poisoning were boiled to death, like lobsters. Now it is plain that no sane person wants to be boiled alive. Therefore, is it not reasonable to believe that men would refrain from murder if they knew that boiling would be the penalty? Or, they could be fricasseed-or sent to the packing houses, for soap grease. Ravaillac, the man who murdered Henry IV., had his flesh torn off with hot pincers. Vivisection, too, might be practiced upon them, in the interest of science. As early as the fourth century B. C., Herophilus of Alexandria dissected living criminals who were supplied by the state for that philanthropic purpose. Is it reasonable to suppose that any Southern negro would commit rape if he thought he would be turned over, alive, to the "student doctors" and the dissecting table? Perish the thought!

One thing is certain, and that is this: If severe punishments prevent crime, then we are woefully lacking in severity. Hanging is too mild a punishment. The advocates of the scaffold and the electric chair are mere maudlin sentimentalists. If they are right in their theory of criminal punishments, they err in not going far enough; if wrong, they have erred in going too far. In either event, the argument for severity, carried to its logical conclusion, is an argument against the death penalty as now administered.

3. Under its own definition of murder society makes itself as guilty of that crime every time a legal execution occurs, as is any culprit who dies upon the scaffold. After a crime has been committed, no private individual has the right, either morally or legally, to deliberately kill the criminal, it matters not how wicked or depraved that criminal may be. Any person who did so would be adjudged guilty of murder. But that

which the individual would scorn to do directly, he does indirectly, and that which no private member of society is allowed to do individually is done by society in, the aggregate.

The common law definition of murder, as given by Mr. Wharton, one of the greatest authorities on criminal law, is as follows: "Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either express or implied." As is well known, malice may be implied from the deliberate use of a deadly weapon, and an instrument certain to produce death is a deadly weapon; e. g., the gallows or the electric chair. The gist of the crime in all cases is the deliberate intent to kill. To make one a principal in a murder it is not necessary that he should inflict the mortal wound. One need not spring the death-trap in order to share the responsibility for a legal execution. In every case society stands by, aiding and abetting the killing. Nor is it necessary, according to the accepted authorities, that the homicide, in order to constitute murder, should be the effect of the "direct" violence of the person charged with murder. If he set in motion the dangerous agency which results in the death of his victim, it may be murder. If a person intentionally do any act towards another, who is helpless, which must, necessarily lead to the death of that other, it may be murder. It matters not how depraved the victim may be, to deliberately kill him or cause or aid another to do so, is murder. Society says so, and the law decrees it. Even to kill an alien enemy in time of war is murder, unless the killing occur in the exercise of actual warfare.

The general rule under the common law and the statutes of the majority of the American states is that justifiable or excusable homicide can exist only when

the proper officer executes a criminal in strict conformity with his sentence, where an officer in the legal exercise of a particular duty kills a person who resists or prevents him from exercising it, or where the homicide is committed in preventing a forcible and atrocious crime; as, for instance, in self-defense, or where the deceased was in the act of committing robbery or murder.

The law, as will be seen, exempts the hangman; for to be a murder the killing must be done "unlawfully," and whatever else may be said of the hangman it cannot be said of him that he hangs persons in violation of the laws as they exist and are declared and construed by the courts. The hangman is merely an agent-your agent and mine. He acts deliberately and with intent to kill. He coolly plans the death of his victim and deliberately carries his plans into execution. But his act is authorized by law. For this reason, and for this reason only, it is not murder. If any other human being, not clothed with his official authority, killed the same person in the same manner, it would be murder.

Society has in the aggregate authorized a particular officer to do a particular act which any member of society would be hanged for doing. The hangman, however, does not make the law. He can only obey, or else resign and permit its mandates to be carried out by another. But society does make the law.

To the hangman, killing is but obedience to the law. But what law does society obey when it decrees the death penalty and sets in motion the dangerous and deadly agency that destroys a human life? There is no law by which the people of any state are required to authorize capital punishment. They are not forced to do so. They do not act under duress, or any species of compulsion. It is upon their part a voluntary act, deliberately performed, decreeing death to those whom they never saw. Through the hangman, therefore, society

commits a murder every time the death penalty is executed. As to society, in such cases (though not as to the hangman) every element of murder exists as defined in the indictment against the victim. Strike the word "unlawful" from the common law definition of murder, and you make the hangman as much a murderer as the man he hangs. That word defends and acquits the hangman. But to what law does society turn for its defense? Confronted with these wilful and deliberate homicides done through its decree, how can it escape the charge of murder by the very definition it gives of that crime?

In vain do we search the category of justifiable and excusable homicides for a vindication of the State. You do not execute the condemned man while he is resisting an officer, or while he is attempting to commit some forcible or atrocious crime; you do not execute a criminal in a heat of passion, by accident or in selfdefense.

What, then, has society to say? Simply this: "It is necessary." The major portion of society thinks it necessary that such an one should die. Therein lies the right to kill; therein lies all the defense that can be interposed to the indictment against society for the crime of murder every time it commits a coldblooded, intentional, deliberate homicide. The victim may think otherwise. A very considerable minority of the members of society unquestionably do think otherwise. We come, then, to this proposition: The right of any man to live depends solely upon the popular vote. Society having decreed by a majority vote that certain persons shall die, they are executed. Is that a defense to the charge of murder? It may be argued for society that the man who commits a capital crime knows in advance what the penalty will be, and that having notice of the consequences he acts upon his own responsibility and at his own peril, when he incurs the death penalty. This sug

gests the story of the Texas cow-boy who stole a horse He was lynched, and the coroner's jury brought in a verdict of suicide. But the service of notice of any intention to kill cannot mitigate the crime; it simply emphasizes the murderous intent, and aggravates the element of premeditation, which is the chief constitutive element of the crime of murder.

Having by popular vote determined that in certain cases human beings should be put to death, society has taken unto itself to say when a man shall live and when he shall die; it is the sole judge of the expediency and of the necessity. If it have this right, human existence, then, must depend upon the will of society. If it have the right to say whether or not a man shall die it has, by the same process of reasoning, the same right to say whether he shall be born; and the right which builds the gallows implies. the right to commit abortion-or infanticide, as did the Ephori under the constitution of Lycurgus.

It is a distortion of terms and a trifling with words to call this power a right. It is neither more nor less than the exercise of inborn and inherent power, regardless of abstract considerations of right or wrong; and it is the same power which the individual murderer exerts when he slays his victim.

However benevolent the general purpose of legal executions, as to the helpless victim himself, their purpose is annihilation, predetermined and premeditated, and the motive is one of murderous malignity. Whether society should continue to commit these deliberate murders may be an open question; but that society does commit murder in the instances mentioned does not admit of doubt.

From the foregoing considerations it appears that our death penalty is an anomaly in logic and in law; that it is conceived in ignorance, maintained by falsehood and consummated in murder; that it is inconsistent with itself, with

"Sacrifice to 'the mob,' O poet! Sacrifice to that unfortunate, disinherited, vanquished, vagabond, shoeless, famished, repudiated, despairing mob; sacrifice to it, if it must be and when it must be, thy repose, thy fortune, thy joy, thy country, thy liberty, thy life. The mob is the human race in misery. The mob is the mournful beginning of the people. The mob is the great victim of darkness. Sacrifice to it! Sacrifice thyself! . . Sacrifice to it thy gold, and thy blood which is more than thy gold, and thy thought which is more than thy blood, and thy love which is more than thy thought; sacrifice to it everything except justice. Receive its complaint; listen to it touching its faults and touching the faults of others; hear its confession and its accusation. Give it thy ear, thy hand, thy arm, thy heart. Do every thing for it, excepting evil. . . . Correct it, warn it, instruct it, guide it, train it. Put it to the school of honesty. Make it spell truth, show it the alphabet of reason, teach it to read virtue, probity, generosity, mercy. Hold thy book wide open. Be there, attentive, vigilant, kind, faithful, humble. Light up the brain, inflame the mind, extinguish selfishness; and thyself give the example. To learn is the first step; to live is but the second. Be at their command: dost Be ever there in the form of light! For it is beautiful on this somber earth, during this dark life's brief passage to something beyond,

it is beautiful that Force should have Right for a master, that Progress should have Courage as a leader, that Intelligence should have Honor as a sovereign, that Conscience should have Duty as a despot, that Civilization should have Liberty as a queen, and that the servant of Ignorance should be the Light.")

Literature, poetry, art,-all, Hugo felt, must unite to transform the mob into a rational multitude; to enlighten, elevate, ennoble and render happy and prosperous all the people through justice and the light of education.

"Literature," he exclaims, "secretes civilization, poetry secretes the ideal. That is why literature is one of the wants of societies; that is why poetry is a hunger of the soul.

"That is why poets are the first instructors of the people.

To work for the people,—this is the great and urgent need.

"It is important, at the present time, to bear in mind that the human soul has still greater need of the ideal than of the real.

"It is by the real that we exist; it is by the ideal that we live. Would you realize the difference? Animals exist, man lives.

"To live is to have justice, truth, reason, devotion, probity, sincerity, common-sense, right, and duty welded to the heart. Life is conscience.

...

At a time when the dilettante and easeloving poets and artists were courting the favor of throne, aristocracy and wealth by prating about art for art's sake, and sneering at those who contended that the supreme mission of art was to further justice and the happiness of the people, Victor Hugo became the august voice of civilization, the prophet of progress, denouncing the prophets of Baal, and insisting that the true mission of art was utility, the forwarding of the interests of all the units that go to make up the social organism.