continue so long as capital punishment continues. Men will shrink from becoming agents or ministers in carrying out a law which makes no distinction in the degrees of guilt, and which becomes capricious and difficult from its very severity. The statesman who, in vindicating a penal code, suffers the ques tion to be decided by his own consciousness rather than by studying mankind under all the varying stages of social and political progress, and as affected by climate, custom, and law, is greatly liable to err. In fact this is the fundamental error at the bottom of many of our schemes of reformation and improvement. Those who have to prescribe punishments for certain transgressions of the law are apt to look at that which would be terrible to their own minds, rather than that which is most likely to operate upon the fears and passions of those for whom the law is made, of those in fact who have inclinations towards evil. The class of minds who would be influenced by the fear of death punishment, are probably those who would not be capable of cherishing the idea of committing murder under the most powerful circumstances of trial or provocation. To a man treading the path of usefulness and honour, and surrounded by all the associations which give value to life, the bare glance at the scaffold with all its ghastly accompaniments, would be horrible in the extreme, and might overcome any strong temptation to an act of rapacity or vengeance. Such are the men who generally devise laws for states, but they have to legislate for men whose career is the very opposite of their own. Such men as I have named are not always the most competent to estimate the effects of law and punishment upon the ignorant, the depraved, the partially imbecile, or the insane. Men of calm thought and studious pursuits sitting in council chambers, in quiet deliberation upon the causes of crime and the means for its repression, are not always able to discriminate effect from cause, or properly calculate the value of the measures they adopt. Hence our mistakes in criminal jurisprudence. The question is not what will affect the mind under its usual and ordinary moods, but what will operate when disturbed by disappointment, by jealousy, by resentment? What will be most likely to influence the minds of those who with a proclivity to evil, are goaded by passion, tempted by avarice, or influenced by intemperance? I submit that it is a mistake to suppose that the punishment, or that any of the consequences, are thought about at all in the vast majority of cases, and that always supposing that the mind is capable of reasoning at all, the consciousness that detection and conviction for the offence would be speedy and all but inevitable, would be far more efficacious in restraining the hand raised to strike, than the most severe punishment. The legislator must, moreover, make proper allowance for the difference in character and disposition of the masses for whom he legislates. Men do not differ more in their physical than in their mental and moral constitution. There are some, and it is a large class in society, who are brought into the world with defective and unhealthy organisations, and who have been exposed to vicious training, bad example, and early temptation, and who are susceptible of sudden impulses, and easily excited to acts of violence. There are some who seem deaf to the voice of conscience or of law. We have not as yet learnt to estimate the philosophy of the Divine law which visits the sins of the fathers upon the children, nor shall we be able to legislate wisely and well until its import is fully understood. There are many loose in society, who under proper regulations ought to be under supervision or restraint, many are condemned as criminals who ought to be treated as patients, and it is to be feared that many have suffered death, who were no more accountable for the crimes they had committed, than they would have been accountable for an attack of disease, the result of hereditary taint, or contracted by living in the abodes of fever or pestilence. We have learnt by experience how vain and useless is the effort to extirpate crime, or even keep it in check by penal laws. During the present century we have seen that sanguinary punishments tend to augment the number of offenders, and feed the passions of the multitude. One by one the capital penalties have been repealed, until virtually only one remains, and that for murder. It can be shown that all these ameliorations of our criminal code have been attended with favourable results. Why, then, not follow in the same course, and abolish the punishment of death altogether? I ask for the abolition on the grounds that no sufficient reasons are given to render it even probable, that the supposed deterrent influence operates in a sufficient number of cases to justify the continuance of the penalty, with all its manifest and manifold disadvantages. I object to the punishment of death because it teaches to the people a lesson of vengeance, and this is inevitable when, in the language of the Roman writer, the punishment bears resemblance to the crime. I object to it also on the ground of its uncertainty-an uncertainty which I believe cannot be corrected by any refinement in the law, nor by any care exercised by those who administer it. It is not within the reach of human attainment that we can discriminate where responsibility ends, and where irresponsibility begins. And this difficulty will always beget doubts and scruples; doubts and scruples which interfere with the process of law and defeat the ends of justice. I hold that the punishment of death does not answer its purpose, and that its doom is near. It is only a question of time. APPENDIX. Statistics of Murder in England and Wales. [Extracted from the "Judicial Statistics" annually presented to Parliament.] I. For the three years 1857, 1858, 1859 (quoted by Lord Hobart, in his Essay on "Capital Punishment "). II. For the four years 1860, 1861, 1862, 1863. MURDER. Proportion of Committals to Convictions, 3 to 1 SAME PERIOD-FOR ALL CRIME. Proportion of Committals to Convictions, 4 to 3 Actual Numbers. 273 to 99 90 to 63 273 to 63 Actual Numbers. 75,144 to 57,058 III. For the seven years 1857 to 1863, inclusive. A Plea Against Capital Punishment. By W. O. THE most unanswerable argument which can be adduced against capital punishment is (in my view of the matter) to be derived from the consideration of the degree of moral responsibility attaching to the criminal. This argument, unlike most other arguments affecting the question, is based upon a consideration of positive facts. Thus, it is positive that in the eye of Absolute Justice a different degree of responsibility, that is of criminality, attaches to different individuals, although each of them commit the same crime. But this difference human justice cannot estimate. The Omniscient alone can apportion to each criminal his exact measure of responsibility. Human justice, is therefore, a partial and a rough justice; and it is therefore, also, partially blind in the application of its punishments; and so from the very nature of the case necessarily unjust in the apportioning of punishment to crime. Now the extremest punishment which man inflict is that of death, an irrevocable doom; and as he never can be sure that the punishment, as applied to the individual, is a just one, he is not justified in inflicting it. He is bound for the sake of society and justified in protecting himself against the futurepossible violence of the criminal; but he is not justified in going beyond this; and for the following reasons: can No living mortal can enter into the mind of a criminal and calculate all the influences which may have operated upon him both from within (i.e. from his own faulty organisation) and from without, and have impelled him to crime. But we all know and admit that such imperious influences do guide and impel the hand of the criminal to the commission of crime. As regards external influences, let it be remembered that criminals, as a rule, are born into and come out of the ignorant, the brutal, and the suffering classes of society. Thus, for example, in the heart of our Christian civilisation, children are brought up in ignorance, vice, and brutality, and are by the very fact of their position condemned to a career of crime and infamy, i.e., are condemned to punishment. We know just as certainly as we know the sun will rise on the morrow, that of so many children bred up in certain districts where vice and misery preyail, a given percentage will assuredly become criminals, i. e., subject themselves to legal penalties. Before even the children are born, we know that such will be the case. From this fact it is manifest that criminals so bred up to crime are not wholly and absolutely responsible for the crimes they commit. The society which is conscious of the existence of the fact, and which has the power to remove those evil influences which bring the child to crime, is assuredly in part responsible for the commission of those crimes. Society is particeps criminis in so far as it is responsible for the existence of the vice and misery which breed the criminals. Society, therefore, is justly bound to bear in part the Q burthen of the sins which result from its own blind and criminal neglect. To destroy (for crime) the life of one whom it has allowed by its criminal negligence to be brought up and trained in the ways of vice is plainly to throw upon the wretched being the total expiation of a crime for which itself is in part responsible. The external influences operating on men's minds and inducing and even driving them to crime are innumerable. Some of them are manifest enough to all of us; but some are of a kind which none but the Omniscient can appreciate. Enough for this argument that such influences do exist, and do operate apon man and impel him irresistibly to crime. But there are other influences, of an internal sort, in action. I mean influences attaching to his very organisation-over which he has no control and which also impel him to crime. These are still more difficult of appreciation; though the broad fact of their exist ence is an undeniable truth. Not only are the features of an individual transmitted from generation to generation, but even the very characteristics of his mind, his diseases, his peculiarities, his thoughts and passions, are often repeated, and through a long series of offspring -"to the third and fourth generation." No one, again, can define absolutely the line which divides sanity from insanity. No one can mark the distinction between a responsible action, and an action which is the product of an irresistible, an irrepressible impulse. The law may step in, and must step in and roughly and with manifest injustice cut the knot; but still assuredly mortal justice can take no true measure of the absolute degree of responsibility which attaches to the. commission of crime. 66 Before everything, therefore, mortal justice to be wise and just should be merciful. Its object should be the reformation, not the punishment, of the criminal. But hanging a criminal is not merciful justice; it is revenge, cruel and brutal revenge. To hang a man because " society would not be safe" if his life were saved, is to distribute justice upon the most unmerciful and selfish of motives. Society, as we have shown, is itself responsible for a large share of the crimes which proceed from ignorance and vice, and should, therefore, in all justice, bear its share of the consequences of the crime. Pity, again, the offspring of that scientific knowledge which points to the faulty organisation of a man, to the hereditary transmission of diseases mental and bodily, should teach us to stay our hand from doing the irreparable deed of death upon a criminal. Even if it were proved, which it never has been, that hanging a man deterred others from the commission of crime, hanging would still be unwarrantable, and for the reasons above assigned. It is neither Christian nor scientific justice. It is the expression of revenge and selfishness on the part of society. |