Kemmler's Case and the Death-Penalty.
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make a right, if it shall be regarded fair pounded, What has the law to offer, either for society to kill a second man because in justification or vindication, for its uneven the first man has been killed by murder? procedure, in the various kinds of manIt is here not material to the issue in killing, against the man-killer? Is the pro controversy that the second man did the cedure based upon society's arrogation to killing in the first place. He had no right itself of the power to enact and direct to kill. Does the absence of this right in that a man shall forfeit his inalienable the murderer end by juggling forth the rights to life and liberty under certain spe presence of a right to kill in society? cified circumstances (a dangerous and too The law defines two kinds of killing doubtful power, which is still and has ever against which its provisions militate. One been arbitrarily exercised in all climes) or of these is killing premeditated; the other upon simple justice founded in both a right is killing unpremeditated. The distinction and a duty, unquestionable, of society to is simple enough. The second kind of kill preserve its own peace and security intact? ing figures in codes generally under the The evident answer to this question solves delusive name of manslaughter, and is never the whole problem, and substantially con punished by death to the perpetrator of it. stitutes all there is of difficulty connected The distinction is thought to have been with crime juridically and judicially. It wisely and profoundly drawn. Is it so in abundantly demonstrates that the lawyertruth? Suppose some one arose and scorn craft commenced to remedy the evil at the fully charged that the distinction was fini- wrong end. It also throws interesting light cally and superficially drawn, what then? on the origin of the whole mistake about Is there a sound answer possible in the "our criminal jurisprudence, and shows that premises? In both cases the law regards this arose when society, without the knowl the killing as culpable, that is, as having edge of just what is the intangible thing been culpably done by some overt act or which makes a responsible moral agent omission (not unfrequently in the case of un of man, nor any suspicion of the psycho premeditated killing by criminal negligence) physiological nature of crime, took the on the part of the accused. Yet in either strange and curious power of forfeiture case the injury done to the victim and (a cloudy creature of the mind) into its to society is the same and irreparable. myriad hands, — the heads guiding these Why should the guilty actor in one case hands the while not a little actuated by escape with life and in the other lose it, the most sordid motives of self-interest. unless crime is not evenly punished accord Ever since that early day the results have ing to the gravity of the injury inflicted? been wrong, — utterly, ceaselessly, outra Upon what theory, then, does the criminal geously, and even absurdly wrong. The law proceed in these particulars? What books, alas! are full of telling as well as does it intend to reach here, — the crime most horrible instances of it. itself, or the criminal? The elements in To ask why could not treatment to an volved are threefold, to wit : the crime, intelligent, curative, and just end, instead of the criminal, and the injury wrought to an exclusively afflictive and punitive end, society by the crime. Now, what particular have been selected and applied to the crim thing or things does the law, as pronounced inal, is idle, though interesting enough. by society, recognize itself authorized to Society is a growth most marvellous, on a effect and accomplish by the penalty in any bottom that is always shifting, yet not given case? This plain question brings the always sound. Men may not stand idly discussion within reach of first principles, passive, but must ever be educated away which again compel the query to be pro from as much as they need to be educated
