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diately the crime is committed, or as soon as any kindness is shown to him, he is overwhelmed with remorse, and we may be very sure that he would ever afterwards avoid not only the crime of murder itself but also the misguided courses which led to it. Surely we may demand that if the penalty of death be retained in the first case, it ought, in the name of common sense, to be remitted in the second.
4. There is no difference between murder and other crimes which our moral sense can admit to justify this unique difference in the penalty. Unless the fundamental principle of our criminal law be the crudest Mosaism, what reason is there for treating an act of wounding which proves fatal differently from an essentially similar act from which the victim wholly or partially recovers? In particular, is it rational to take the life of a man who, intending only to wound another person, kills him, and to punish a man who, intending to kill another person, wounds him, perhaps seriously, with a long or short term of imprisonment? Or what shall we say of the perjurer who deliberately swears away the life or liberty or reputation of an innocent man? Or of the speculator who, without remorse, reduces thousands of men to beggary and starvation ? or of the person who hurls one young woman after another into an abyss of infamy and despair? Is it an enlightened common sense which assigns a ferocious punishment to the homicide, while these and other offences are more lightly punished or not punished at all?
5. No one can deny that the death penalty grievously impairs public respect for the law and its administration. It is unspeakably degrading that a criminal trial should resolve itself into a gamble for a man's life, into a game, moreover, in which everything may depend upon chance circumstances : upon the emotions, imagination, or often defective reasoning powers of witnesses; upon the skill of the respective advocates, upon the optimistic or pessimistic disposition or mood of the judge; upon the susceptibility of jurymen to appeals to their often irrelevant prejudices. The irrevocability of the punishment demands a certainty which the evidence can seldom supply; and so it comes that a man's fate is determined by Vol. XV—No. 3.
circumstances which lie wholly outside of his own disposition, and indeed of the specific act of which he is accused.
6. The execution of the capital sentence is full of the possibilities of moral corruption and desperation. If our opponents do not immediately assent to this, they should be asked to explain why a former public executioner, and even his children, can find no one to employ them. They should be asked whether they would themselves apply for the post of executioner or would like to see one of their friends do so: whether a lady executioner should not be provided for female convicts ! 6 We can find a ready explanation for the abolition of public executions in this country and for the more recent omission of their picturesque incidents, once thought to be so solemn and impressive, which formely accompanied the execution of the death sentence: such are the tolling of a sepulchral bell and then the hoisting of a black flag, in token that the "dread sentence of the law has been duly carried out.” These changes have been made not merely or mainly out of consideration for the sentimental people, whose feelings were lacerated by such sights and sounds. Thy have been made because it became increasingly evident that the immediate awareness of cruel punishments and processes which make such punishments vivid and fascinating do harm and not good to the less refined section of the people. That is, the very people who, on the common deterrent theory, most need to be impressed with the awfulness of this punishment are driven to violence and desperation by seeing it performed, or by being informed through the eye or ear that it is being or has been performed. Surely, we may ask whether the knowledge of the infliction of this punishment obtained through the newspapers or otherwise is productive of moral blessing, and not, rather, of great moral injury
7. Let me call attention to a class of people whose interests are not often considered in this connection, namely, the in
* These illustrations fully justify us in charging our opponents with sentimentality, in the worst sense of the word. We would probably find work for a former executioner, if we could, though we totally disapproved, on principle, of his old occupation.
mates—prisoners and officials—of the place in which the execution takes place. It might easily befall an innocent or highly refined person to be confined to a prison at such a time; and his feelings as well as those of his less fortunate fellowprisoners surely deserve our most earnest consideration. These people share very slightly, if at all, in the benefits which the public is supposed to have secured from the diminishing publicity of executions; and our objections acquire a tenfold force when we protest that the criminal class, which we desire to make less criminal, and the persons in charge of the criminal, should not be subjected to influences so degrading and ruinous.
8. I need only mention the obvious fact that the death penalty is in great part responsible for the fascination which stories of crime and violence exercise over youthful and undisciplined minds. The amount of crime produced by disordered imaginations, which have, through contemplating deeds of violence, become irresistibly fascinated and obsessed, is incalculable.
9. And, in conclusion, capital punishment is the one definite and practically unmitigated survival in our criminal law of the old traditions of vengeance and retaliation. It is true that certain measures are adopted—we may think of them as we may-with a view to reconciling the murderer to his fate and to his Maker. It is not easy to ascertain, from the arguments of our opponents, on what principles they would base this practice. If we suggest that a murderer's obvious penitence ought to encourage us to cherish hopes for his moral improvement in this life, we are told that it is easy enough to be penitent with a rope round one's neck. If, on the other hand, we urge that penitence under such circumstances must be difficult and precarious, we are comforted with the reflection that the person murdered, if he died immediately, had no time for penitence either; or we are assured by accounts of sincere repentance and resignation to a just punishment. This ought to suffice to show that the death penalty is a source of anarchy and devastation in our moral principles, as it certainly is in our attempts to treat crime systematically. Recourse to penitence and reform on the one hand, and to vengeance on the other, just as the defence of any existing anomaly requires, is intellectually, morally, and socially vicious and humiliating.
The Greeks of old believed that blood once shed brought an inexorable curse even upon the innocent, and more blood must henceforth be shed from generation to generation until the curse were accomplished. Observation of what still goes on in the twentieth century might often supply us with proofs that this old pessimist belief was not wholly fantastic and superstitious; but that facts still lend it, as of old, no inconsiderable support. Surely, we may demand of the institutions of an enlightened and civilized society that they should do something to frustrate these curses. But we fear that if some unrecorded ruined lives were written we should find that we still allow an original violent deed, often of comparatively little guilt, to become the poisonous source of a rushing stream of wickedness and horror.
III. THE DETERRENT POWER OF PUNISHMENT AND OF
CAPITAL PUNISHMENT IN PARTICULAR.
Thackeray complained that, with a certain kind of person, it was no use arguing about capital punishment. “You may talk to a man for a year upon the subject, and he will always reply to you, 'It is natural, and therefore it must be done. Blood demands blood.''
We may hope that this is not an argument which at the present day would give much trouble to any thoughtful person; and its emyployment is usually confined to an abstract and unscrupulous controversialist, when every better argument failed him. What chiefly frightens many good people from the thought of abolishing capital punishment is an instinctive apprehension that the country would immediately begin to swarm with murderers and life would not be safe for an instant. Death is the only effective deterrent, they say, for a certain class of people, and the state cannot relax its hold of this weapon. This general abstract doctrine is often found to co-exist with a willingness to intercede for any condemned person, whose case is brought effectively under the theorist's notice. We contend that the theory is without foundation,
and that the benevolent impulse to uplift the individual criminal not least by sympathy, patience, and mercy, provides the basis for a much better moral and legal theory.
1. As a general principle of punishment, it is hap-hazard and illogical. If deterrence be your object and harshness be your means, why should the present condition of the law, which is only, as regards murder, a matter of some forty years, give you such complete satisfaction? There is no reason, on this theory, why the harshness of the punishment should not be augmented and the same principle extended to other crimes. The criminal codes of Western Europe were long dominated by this principle, and they had a fair opportunity of “stamping out" crime if it could be done by such means. The statistics of crime in the centuries of this régime are a sufficient comment upon the claims of the deterrent principle.
2. Like the rest of mankind, criminals vary extremely in their desires and fears. We very often read of murderers jesting with prison warders about "being swung," and walking with alacrity to the scaffold. And what shall we say of the constant combination of murder and suicide, or of murder followed by the immediate self-surrender of the homicide to the police?? We even read of some who accuse themselves of a crime which they never committed, or who commit murder with the deliberate intention of confessing, and obtaining through the scaffold a release from a disordered and miserable life. In general, we ought to learn, if only from the increasing prevalence of suicide, that it is idle to think of frightening desperate men with the threat of death; and that men need much rather to be encouraged to live bravely and nobly, in spite of their past, than to be cowed by spectacles and narratives of deliberate and professional homicide
3. A close acquaintance with our own hearts and with actual cases of crime shows us that the thought of the punishment
* The common case of the murdering of sweethearts, for example, especially when followed by attempted suicide or surrender, seems to me to demand no less sympathy than if the suicide had succeeded, or than the killing of infants by their mothers. The practice of our courts in this matter is curiously capricious and very disquieting.