CHAPTER XVIII

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.

Tracks of a Rolling Stone · 第 18 / 48 章