This brings us to the last of the pleas which we have proposed to treat upon under this head. The question of Personal Identity may arise in many ways; as whether a child claiming an inheritance is the same that he pretends, or is pretended to be, as in the _Douglas_ or _Anglesea_ causes; (vide ante) whether a prisoner is actually the person who committed a particular offence, when the jury tries the fact and the identity together; and where a prisoner after conviction escapes and is retaken, whether he is the same that was convicted.[103] The former cases we have noticed under the heads of Supposititious Children, vol. i, p. 220, warning our readers not to be too hasty in determining identity upon mere resemblance.[104] And in the last case “a jury shall be impanneled to try the collateral issue, namely, the identity of his person; and not whether guilty or innocent; for that has been decided before. And in these collateral issues the trial shall be _instanter_, and no time allowed the prisoner to make his defence or produce his witnesses, unless he will make oath that he is not the person attainted: (_Fors. C. L._ 41) neither shall any peremptory challenges of the jury be allowed the prisoner; though formerly such challenges were held to be allowable, whenever a man’s life was in question.” _4 Bl. Com._ 396. And query whether this is not the better doctrine; the case of _Mr. Radcliffe_, brother of _Lord Derwentwater_, (_Fors. C. L._ 41) in which the contrary was held, was for high treason shortly after the rebellion of 1745; and as _Sir M. Forster_ says, speaking of _Monmouth’s_ attainder, “that was a time of great heat and violence, and few things then done ought to be drawn into example.” _Ib._ 44. There does not appear to be any good reason why a prisoner should not have all the safeguards on a collateral issue or inquest of office, which are allowed on the main issue; especially when, as in the present instance, his life depends upon the question.
Punishments may be divided into three classes; capital, when the death of the offender is intended to deter others from similar offence; precautionary, when a noxious individual is removed from general society by imprisonment or transportation; and correctional, when by some pain or penalty inflicted on the individual, he is to be deterred from future crime. Though the subject would admit of much curious detail, our remaining space will not allow us to trace the different modes or modifications of legitimate punishment used in various nations or ages; nor to enter our protest of abhorrence against the many and inhuman tortures which religious fanaticism or political rancour have invented for their antagonists; the only point on which we can physiologically have occasion to observe, as applicable to the capital punishments of the present times, is, that they should be inflicted with as little pain as possible to the criminal, lest compassion for the sufferings of the man, should supersede the salutary horror of his offence; an end which is really, though not apparently, attained in our ordinary mode of execution by hanging; the victim does not suffer, though sometimes his convulsive struggles induce a contrary belief; but the method is defective in one point, it is not calculated to produce a deep impression on the minds of spectators, _Pompa mortis magis terret quam mors ipsa_. The French mode of decapitation, though held in abhorrence from the outrages with which its very name has become associated, is equally humane; an instant terminates the mortal sufferings of the criminal; for this reason it was originally adopted, and when we consider that it superceded the barbarous punishment of breaking on the wheel, previously in use, and the clumsy and uncertain method of decapitation by the sword or axe, we feel ourselves justified, in spite of popular prejudice, in designating the guillotine[105] an invention of humanity.