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.