ALL punishments or penal remedies for crime, except capital punishment,
may be considered from two points of view: First, as they regard Society;
secondly, as they regard the offender.
Where capital punishment is resorted to, the sole end in view is the
protection of Society. The malefactor being put to death, there can be
no thought of his amendment. And so far as this particular criminal is
concerned, Society is henceforth in safety.
But (looking to the individual), as equal security could be obtained by
his imprisonment for life, the extreme measure of putting him to death
needs justification. This is found in the assumption that death being
the severest of all punishments now permissible, no other penalty is so
efficacious in preventing the crime or crimes for which it is inflicted.
Is the assumption borne out by facts, or by inference?
For facts we naturally turn to statistics. Switzerland abolished capital
punishment in 1874; but cases of premeditated murder having largely
increased during the next five years, it was restored by Federal
legislation in 1879. Still there is nothing conclusive to be inferred
from this fact. We must seek for guidance elsewhere.
Reverting to the above assumption, we must ask: First, Is the death
punishment the severest of all evils, and to what extent does the fear of
it act as a preventive? Secondly, Is it true that no other punishment
would serve as powerfully in preventing murder by intimidation?
Is punishment by death the most dreaded of all evils? ‘This assertion,’
says Bentham, ‘is true with respect to the majority of mankind; it is not
true with respect to the greatest criminals.’ It is pretty certain that
a malefactor steeped in crime, living in extreme want, misery and
apprehension, must, if he reflects at all, contemplate a violent end as
an imminent possibility. He has no better future before him, and may
easily come to look upon death with brutal insensibility and defiance.
The indifference exhibited by the garrotted man getting up to adjust his
chair is probably common amongst criminals of his type.
Again, take such a crime as that of the Cuban’s: the passion which leads
to it is the fiercest and most ungovernable which man is subject to.
Sexual jealousy also is one of the most frequent causes of murder. So
violent is this passion that the victim of it is often quite prepared to
sacrifice life rather than forego indulgence, or allow another to
supplant him; both men and women will gloat over the murder of a rival,
and gladly accept death as its penalty, rather than survive the
possession of the desired object by another.
Further, in addition to those who yield to fits of passion, there is a
class whose criminal promptings are hereditary: a large number of
unfortunates of whom it may almost be said that they were destined to
commit crimes. ‘It is unhappily a fact,’ says Mr. Francis Galton
(‘Inquiries into Human Faculty’), ‘that fairly distinct types of
criminals breeding true to their kind have become established.’ And he
gives extraordinary examples, which fully bear out his affirmation. We
may safely say that, in a very large number of cases, the worst crimes
are perpetrated by beings for whom the death penalty has no preventive
terrors.
But it is otherwise with the majority. Death itself, apart from punitive
aspects, is a greater evil to those for whom life has greater
attractions. Besides this, the permanent disgrace of capital punishment,
the lasting injury to the criminal’s family and to all who are dear to
him, must be far more cogent incentives to self-control than the mere
fear of ceasing to live.
With the criminal and most degraded class—with those who are actuated by
violent passions and hereditary taints, the class by which most murders
are committed—the death punishment would seem to be useless as an
intimidation or an example.
With the majority it is more than probable that it exercises a strong and
beneficial influence. As no mere social distinction can eradicate innate
instincts, there must be a large proportion of the majority, the
better-to-do, who are both occasionally and habitually subject to
criminal propensities, and who shall say how many of these are restrained
from the worst of crimes by fear of capital punishment and its
consequences?
On these grounds, if they be not fallacious, the retention of capital
punishment may be justified.
Secondly. Is the assumption tenable that no other penalty makes so
strong an impression or is so pre-eminently exemplary? Bentham thus
answers the question: ‘It appears to me that the contemplation of
perpetual imprisonment, accompanied with hard labour and occasional
solitary confinement, would produce a deeper impression on the minds of
persons in whom it is more eminently desirable that that impression
should be produced than even death itself. . . . All that renders death
less formidable to them renders laborious restraint proportionably more
irksome.’ There is doubtless a certain measure of truth in these
remarks. But Bentham is here speaking of the degraded class; and is it
likely that such would reflect seriously upon what they never see and
only know by hearsay? Think how feeble are their powers of imagination
and reflection, how little they would be impressed by such additional
seventies as ‘occasional solitary confinement,’ the occurrence and the
effects of which would be known to no one outside the jail.
As to the ‘majority,’ the higher classes, the fact that men are often
imprisoned for offences—political and others—which they are proud to
suffer for, would always attenuate the ignominy attached to
‘imprisonment.’ And were this the only penalty for all crimes, for
first-class misdemeanants and for the most atrocious of criminals alike,
the distinction would not be very finely drawn by the interested; at the
most, the severest treatment as an alternative to capital punishment
would always savour of extenuating circumstances.
There remain two other points of view from which the question has to be
considered: one is what may be called the Vindictive, the other, directly
opposed to it, the Sentimental argument. The first may be dismissed with
a word or two. In civilised countries torture is for ever abrogated; and
with it, let us hope, the idea of judicial vengeance.
The _lex talionis_—the Levitic law—‘Eye for eye, tooth for tooth,’ is
befitting only for savages. Unfortunately the Christian religion still
promulgates and passionately clings to the belief in Hell as a place or
state of everlasting torment—that is to say, of eternal torture inflicted
for no ultimate end save that of implacable vengeance. Of all the
miserable superstitions ever hatched by the brain of man this, as
indicative of its barbarous origin, is the most degrading. As an
ordinance ascribed to a Being worshipped as just and beneficent, it is
blasphemous.
The Sentimental argument, like all arguments based upon feeling rather
than reason, though not without merit, is fraught with mischief which far
outweighs it. There are always a number of people in the world who refer
to their feelings as the highest human tribunal. When the reasoning
faculty is not very strong, the process of ratiocination irksome, and the
issue perhaps unacceptable, this course affords a convenient solution to
many a complicated problem. It commends itself, moreover, to those who
adopt it, by the sense of chivalry which it involves. There is something
generous and noble, albeit quixotic, in siding with the weak, even if
they be in the wrong. There is something charitable in the judgment,
‘Oh! poor creature, think of his adverse circumstances, his ignorance,
his temptation. Let us be merciful and forgiving.’ In practice,
however, this often leads astray. Thus in most cases, even where
premeditated murder is proved to the hilt, the sympathy of the
sentimentalist is invariably with the murderer, to the complete oblivion
of the victim’s family.
Bentham, speaking of the humanity plea, thus words its argument: ‘Attend
not to the sophistries of reason, which often deceive, but be governed by
your hearts, which will always lead you right. I reject without
hesitation the punishment you propose: it violates natural feelings, it
harrows up the susceptible mind, it is tyrannical and cruel.’ Such is
the language of your sentimental orators.
‘But abolish any one penal law merely because it is repugnant to the
feelings of a humane heart, and, if consistent, you abolish the whole
penal code. There is not one of its provisions that does not, in a more
or less painful degree, wound the sensibility.’
As this writer elsewhere observes: ‘It is only a virtue when justice has
done its work, &c. Before this, to forgive injuries is to invite their
perpetration—is to be, not the friend, but the enemy of society. What
could wickedness desire more than an arrangement by which offences should
be always followed by pardon?’
Sentiment is the _ultima ratio feminarum_, and of men whose natures are
of the epicene gender. It is a luxury we must forego in the face of the
stern duties which evil compels us to encounter.
There is only one other argument against capital punishment that is worth
considering.
The objection so strenuously pleaded by Dickens in his letters to the
‘Times’—viz. the brutalising effects upon the degraded crowds which
witnessed public executions—is no longer apposite. But it may still be
urged with no little force that the extreme severity of the sentence
induces all concerned in the conviction of the accused to shirk the
responsibility. Informers, prosecutors, witnesses, judges, and jurymen
are, as a rule, liable to reluctance as to the performance of their
respective parts in the melancholy drama.’ The consequence is that ‘the
benefit of the doubt,’ while salving the consciences of these servants of
the law, not unfrequently turns a real criminal loose upon society;
whereas, had any other penalty than death been feasible, the same person
would have been found guilty.
Much might be said on either side, but on the whole it would seem wisest
to leave things—in this country—as they are; and, for one, I am inclined
to the belief that,
Mercy murders, pardoning those that kill.