CHAP. 12.] OBJECT OF PUNISHMENT. 329 believed that men can part with rooted habits of injustice and vice without the sensation of considerable pain." But, to occasion this pain in order to make them part with vicious habits is to do something "further" than to take away liberty. Respecting the relative utility of different modes of punishment and of prison discipline, we have little to say, partly because the practical recognition of reformation as a primary object affords good security for the adoption of judicious measures, and partly because these topics have already obtained much of the public attention. One suggestion may however be made, that as good consequences have followed from making a prisoner's confinement depend for its duration on his conduct, so that if it be exemplary the period is diminished,-there appears no sufficient reason why the parallel system should not be adopted of increasing the original sentence if his conduct continue vicious. There is no breach of reason or of justice in this. For the reasonable object of punishment is to attain certain ends, and if by the original sentence it is found that these ends are not attained, reason appears to dictate that stronger motives should be employed. It cannot surely be less reasonable to add to a culprit's penalty if his conduct be bad, than to deduct from it if it be good. For a sentence should not be considered as a propitiation of the law, nor when it is inflicted should it be considered, as of necessity, that all is done. The sentence which the law pronounces is a general rule, -good perhaps as a general rule, but sometimes inadequate to its end. And the utility of retaining the power of adding to a penalty is the same in kind and probably greater in degree than the power of diminishing it. In one case the culprit is influenced by hope and in the other by fear. Fear is the more powerful agent upon some men's minds, and hope upon others. And as to the justice of such an institution, it appears easily to be vindicated for what is the standard of justice? The sentence of the law? No: for if it were it would be unjust to abate of it as well as to add. Is it the original crime of the offender? No: for if it were, the same crime, by whatever variety of conduct it was afterward followed, must always receive an equal penalty. The standard of justice is to be estimated by the ends for which punishments are inflicted. Now although it would be too much to affirm that any penalty or duration of penalty would be just until these ends were attained, yet surely it is not unjust to endeavour their attainment by some additions to an original penalty when they cannot be attained without. * Godwin: Inq. Pol. Just. v. ii. p. 748, 751. 330 PUNISHMENT OF DEATH. [ESSAY III: CHAPTER XIII. PUNISHMENT OF DEATH. I SELECT for observation this peculiar mode of punishment on account of its peculiar importance. And here we are impressed at the outset with the consideration, that of the three great objects which have just been proposed as the proper ends of punishment, the punishment of death regards but one; and that one not the first and the greatest. The only end which is consulted in taking the life of an offender is that of example to other men. His own reformation is put almost out of the question. Now if the principles delivered in the preceding chapter be sound, they present at once an almost insuperable objection to the punishment of death. If reformation be the primary object, and if the punishment of death precludes attention to that object, the punishment of death is wrong. To take the life of a fellow-creature is to exert the utmost possible power which man can possess over man. It is to perform an action the most serious and awful which a human being can perform. Respecting such an action then, can any truth be more manifest than that the dictates of Christianity ought especially to be taken into account? If these dictates are rightly urged upon us in the minor concerns of life, can any man doubt whether they ought to influence us in the greatest? Yet what is the fact? Why, that in defending capital punishments these dictates are almost placed out of the question. We hear a great deal about security of property and life, a great deal about the necessity of making examples, but almost nothing about the moral law. It might be imagined that upon this subject our religion imposed no obligations; for nearly every argument that is urged in favour of capital punishments would be as valid and as appropriate in the mouth of a pagan as in our own. Cas this be right? Is it conceivable that in the exercise of the most tremendous agency which is in the power of man, it can be right to exclude all reference to the expressed will of God? I acknowledge that this exclusion of the Christian law from the defences of the punishment is to me almost a conclusive argument that the punishment is wrong. Nothing that is right can need such an exclusion; and we should not practise it if it were not for a secret perception, that to apply the pure requisitions of Christianity would not serve the purpose of the advocate. Look for a moment upon the capital offender and upon ourselves. He, a depraved and deep violator of the law of God,-one who is obnoxious to the vengeance of heaven,—one, however, whom Christ came peculiarly to call to repentance and to save. -Ourselves, his brethren,-brethren by the relationship of nature,brethren in some degree in offences against God,-brethren especially in the trembling hope of a common salvation. How ought beings so situated to act towards one another? Ought we to kill or to amend him? Ought we, so far as is in our power, to cut off his future hope, or, so far CHAP. 13.] CAPITAL PUNISHMENTS. 331 as is in our power, to strengthen the foundation of that hope? Is it the reasonable or decent office of one candidate for the mercy of God to hang his fellow-candidate upon a gibbet? I am serious, though men of levity may laugh. If such men reject Christianity, I do not address them. If they admit its truth, let them manfully show that its principles should not thus be applied. No one disputes that the reformation of offenders is desirable, though some may not allow it to be the primary object. For the purposes of reformation we have recourse to constant oversight, to classification of offenders, to regular labour,-to religious instruction. For whom ?--For minor criminals. Do not the greater criminals need reformation too? If all these endeavours are necessary to effect the amendment of the less depraved, are they not necessary to effect the amendment of the more? But we stop just where our exertions are most needed; as if the reformation of a bad man was of the less consequence as the intensity of his wickedness became greater. If prison discipline and a penitentiary be needful for sharpers and pickpockets, surely they are necessary for murderers and highwaymen. Yet we reform the one, and hang the other! Since then so much is sacrificed to extend the terror of example, we ought to be indisputably certain that the terror of capital punishments is greater than that of all others. We ought not certainly to sacrifice the requisitions of the Christian law, unless we know that a regard to them would be attended with public evil.* Do we know this? Are we indisputably certain that capital punishments are more efficient as examples than any others? We are not. We do not know from experience, and we cannot know without it. In England, the experiment has not been made. The punishment therefore is wrong in us, whatever it might be in a more experienced people. For it is wrong unless it can be shown to be right. It is not a neutral affair. If it is not indispensably necessary, it is unwarrantable. And since we do not know that it is indispensable, it is, so far as we are concerned, unwarrantable. And with respect to the experience of other nations, who will affirm that crimes have been increased in consequence of the diminished frequency of executions? Who will affirm that the laws and punishments of America are not as effectual as our own? Yet they have abolished capital punishments for all private crimes except murder of the first degree. Where then is our pretension to a justification of our own practice?--It is a satisfaction that so many facts and arguments are before the public which show the inefficacy of the punishment of death in this country and this is one reason why they are not introduced here. "There are no practical despisers of death like those who touch, and taste, and handle death daily, by daily committing capital offences. They make a jest of death in all its forms and all its terrors are in their mouths a scorn." "Profligate criminals, such as common thieves and highwaymen," "have always been accustomed to look upon the gibbet as a lot very likely to fall to them. When it does fall to them therefore they consider themselves only as not quite so lucky as some of their companions, and submit to their fortune without any other uneasiness than what may arise from the fear of death; a fear which even by such * We ought not for any reason to do this,--but I speak in the present paragraph of the pretensions of expediency. Irving's Orations. 332 INEFFICIENCY OF CAPITAL PUNISHMENTS. [ESSAY III worthless wretches we frequently see can be so easily and so very com pletely conquered." A man some time ago was executed for uttering forged bank-notes, and the body was delivered to his friends. What was the effect of the example upon them? Why, with the corpse lying on a bed before them, they were themselves seized in the act of again uttering forged bank-notes. The testimony upon a subject like this, of a person who has had probably greater and better opportunities of ascertaining the practical efficiency of punishments than any other individual in Europe, is of great importance. "Capital convicts," says Elizabeth Fry, “pacify their conscience with the dangerous and most fallacious notion that the violent death which awaits them will serve as a full atonement for all their sins."* It is their passport to felicity, the purchase-money of heaven! Of this deplorable notion the effect is doubly bad. First, it makes them comparatively little afraid of death, because they necessarily regard it as so much less an evil: and secondly, it encourages them to go on in the commission of crimes, because they imagine that the number or enormity of them, however great, will not preclude them from admission into heaven. Of both these mischiefs the punishment of death is the immediate source. Substitute another punishment, and they will not think that that is an "atonement for their sins," and will not receive their present encouragement to continue their crimes. But with respect to example, this unexceptionable authority speaks in decided language. "The terror of example is very generally rendered abortive by the predestinarian notion, vulgarly prevalent among thieves, that if they are to be hanged, they are to be hanged, and nothing can prevent it.'" It may be said that the same notion might be attached to any other punishment, and that thus that other would become abortive; but there is little reason to expect this, at least in the same degree. The notion is now connected expressly with hanging, and it is not probable that the same notion would ever be transferred with equal power to another penalty.-Where then is the overwhelming evidence of utility, which alone, even in the estimate of expediency, can justify the punishment of death? It cannot be adduced; it does not exist. But if capital punishments do little good they do much harm. "The frequent public destruction of life has a fearfully hardening effect upon those whom it is intended to intimidate. While it excites in them the spirit of revenge, it seldom fails to lower their estimate of the life of man, and renders them less afraid of taking it away in their turn by acts of personal violence." This is just what a consideration of the principles of the human mind would teach us to expect. To familiarize men with the destruction of life is to teach them not to abhor that destruction. It is the legitimate process of the mind in other things. He who blushes and trembles the first time he utters a lie, learns by repetition to do it with callous indifference. Now you execute a man in order to do good by the spectacle, while the practical consequence it appears is, that bad men turn away from the spectacle more prepared to commit violence than before. It will be said, that this effect is produced only upon those who are already profligate, and that a salutary example is held out to the public. But the answer is at hand,-The public do not usually begin with capital crimes. These are committed after the person has become depraved, that is, after he has arrived at that state in which an execution CHAP. 13.J EFFECTS OF PUBLIC EXECUTIONS. 333 will harden rather than deter him. We "lower their estimate of the life of man." It cannot be doubted. It is the inevitable tendency of executions. There is much of justice in an observation of Beccaria's. "Is it not absurd that the laws which detect and punish homicide should, in order to prevent murder, publicly commit murder themselves?"* By the procedures of a court, we virtually and perhaps literally expatiate upon the sacredness of human life, upon the dreadful guilt of taking it away,—and then forthwith take it away ourselves! It is no subject of wonder that this "lowers the estimate of the life of man." The next sentence of the writer upon whose testimony I offer these comments is of tremendous import:-"There is much reason to believe that our public executions have had a direct and positive tendency to promote both murder and suicide." "Why, if a considerable time elapse between the trial and the execution, do we find the severity of the public changed into compassion? For the same reason that a master, if he do not beat his slave in the moment of resentment, often feels a repugnance to the beating him at all." This is remarkable. If executions were put off for a twelvemonth, I doubt whether the public would bear them. But why if they were just and right? Respecting "the contempt and indignation with which every one looks on an executioner," Beccaria says the reason is, "that in a secret corner of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them that their lives are not lawfully in the power of any one." Let him who has the power of influencing the legislature of the country or public opinion (and who has not?) consider the responsibility which this declaration implies, if he lifts his voice for the punishment of death! But further: the execution of one offender excites in others "the spirit of revenge." This is extremely natural. Many a soldier, I dare say, has felt impelled to revenge the death of his comrades; and the member of a gang of thieves, who has fewer restraints of principle, is likely to feel it too. But upon whom is his revenge inflicted? Upon the legislature, or the jury, or the witnesses? No, but upon the public, -upon the first person whose life is in their power and which they are prompted to take away. You execute a man then in order to save the lives of others; and the effect is that you add new inducements to take the lives of others away. Of a system which is thus unsound,-unsound because it rejects some of the plainest dictates of the moral law,-and unsound because so many of its effects are bad, I should be ready to conclude, with no other evidence, that it was utterly inexpedient and impolitic,-that as it was bad in morals it was bad in policy. And such appears to be the fact. "It is incontrovertibly proved that punishments of "a milder and less injurious nature are calculated to produce, for every good purpose, a far more powerful effect."§ Finally. "The best of substitutes for capital punishment will be found in that judicious management of criminals in prison which it is the object of the present tract to recommend ;"-which management is Christian management,—a system in which reformation is made the first object, but in which it is found that in order to effect reformation, severity to hardened offenders is needful. Thus then we arrive at the goal : :-we + Godwin: Inq. Pol. Just. v. ii. p. 726 * Essay on Capital Punishments, ch. 28. Ib. p. 76. |