II
We come, now, to consider the effect of Capital Punishment in the prevention of crime.
Does it prevent crime in those who attend executions?
There never is (and there never was) an execution at the Old Bailey in London, but the spectators include two large classes of thieves— one class who go there as they would go to a dog-fight, or any other brutal sport, for the attraction and excitement of the spectacle; the other who make it a dry matter of business, and mix with the crowd solely to pick pockets. Add to these, the dissolute, the drunken, the most idle, profligate, and abandoned of both sexes— some moody ill-conditioned minds, drawn thither by a fearful interest—and some impelled by curiosity; of whom the greater part are of an age and temperament rendering the gratification of that curiosity highly dangerous to themselves and to society—and the great elements of the concourse are stated.
Nor is this assemblage peculiar to London. It is the same in country towns, allowing for the different statistics of the population. It is the same in America. I was present at an execution in Rome, for a most treacherous and wicked murder, and not only saw the same kind of assemblage there, but, wearing what is called a shooting-coat, with a great many pockets in it, felt innumerable hands busy in every one of them, close to the scaffold.
I have already mentioned that out of one hundred and sixty-seven convicts under sentence of death, questioned at different times in the performance of his duty by an English clergyman, there were only three who had not been spectators of executions. Mr. Wakefield, in his Facts relating to the Punishment of Death, goes into the working, as it were, of this sum. His testimony is extremely valuable, because it is the evidence of an educated and observing man, who, before having personal knowledge of the subject and of Newgate, was quite satisfied that the Punishment of Death should continue, but who, when he gained that experience, exerted himself to the utmost for its abolition, even at the pain of constant public reference in his own person to his own imprisonment. "It cannot be egotism", he reasonably observes, "that prompts a man to speak of himself in connection with Newgate."
"Whoever will undergo the pain," says Mr. Wakefield, "of witnessing the public destruction of a fellow-creature’s life, in London, must be perfectly satisfied that in the great mass of spectators, the effect of the punishment is to excite sympathy for the criminal and hatred of the law. . . I am inclined to believe that the criminals of London, spoken of as a class and allowing for exceptions, take the same sort of delight in witnessing executions, as the sportsman and soldier find in the dangers of hunting and war. . . I am confident that few Old Bailey Sessions pass without the trial of a boy, whose first thought of crime occurred whilst he was witnessing an execution. . . And one grown man, of great mental powers and superior education, who was acquitted of a charge of forgery, assured me that the first idea of committing a forgery occurred to him at the moment when he was accidentally witnessing the execution of Fauntleroy. To which it may be added, that Fauntleroy is said to have made precisely the same declaration in reference to the origin of his own criminality.
But one convict "who was within an ace of being hanged", among the many with whom Mr. Wakefield conversed, seems to me to have unconsciously put a question which the advocates of Capital Punishment would find it very difficult indeed to answer. "Have you often seen an execution?" asked Mr. Wakefield. "Yes, often." "Did it not frighten you?" "No. Why should it?"
It is very easy and very natural to turn from this ruffian, shocked by the hardened retort; but answer his question, why should it? Should he be frightened by the sight of a dead man? We are born to die, he says, with a careless triumph. We are not born to the treadmill, or to servitude and slavery, or to banishment; but the executioner has done no more for that criminal than nature may do tomorrow for the judge, and will certainly do, in her own good time, for judge and jury, counsel and witnesses, turnkeys, hangman, and all. Should he be frightened by the manner of the death? It is horrible, truly, so horrible, that the law, afraid or ashamed of its own deed, hides the face of the struggling wretch it slays; but does this fact naturally awaken in such a man, terror—or defiance? Let the same man speak. "What did you think then?" asked Mr. Wakefield. "Think? Why, I thought it was a—shame."
Disgust and indignation, or recklessness and indifference, or a morbid tendency to brood over the sight until temptation is engendered by it, are the inevitable consequences of the spectacle, according to the difference of habit and disposition in those who behold it. Why should it frighten or deter? We know it does not. We know it from the police reports, and from the testimony of those who have experience of prisons and prisoners, and we may know it, on the occasion of an execution, by the evidence of our own senses; if we will be at the misery of using them for such a purpose. But why should it? Who would send his child or his apprentice, or what tutor would send his scholars, or what master would send his servants, to be deterred from vice by the spectacle of an execution? If it be an example to criminals, and to criminals only, why are not the prisoners in Newgate brought out to see the show before the debtors’ door? Why, while they are made parties to the condemned sermon, are they rigidly excluded from the improving postscript of the gallows? Because an execution is well known to be an utterly useless, barbarous, and brutalising sight, and because the sympathy of all beholders, who have any sympathy at all, is certain to be always with the criminal, and never with the law.
I learn from the newspaper accounts of every execution, how Mr. Soand-so, and Mr. Somebody else, and Mr. So-forth shook hands with the culprit, but I never find them shaking hands with the hangman. All kinds of attention and consideration are lavished on the one; but the other is universally avoided, like a pestilence. I want to know why so much sympathy is expended on the man who kills another in the vehemence of his own bad passions, and why the man who kills him in the name of the law is shunned and fled from? Is it because the murderer is going to die? Then by no means put him to death. Is it because the hangman executes a law, which, when they once come near it face to face, all men instinctively revolt from? Then by all means change it. There is, there can be, no prevention in such a law.
It may be urged that Public Executions are not intended for the benefit of those dregs of society who habitually attend them. This is an absurdity, to which the obvious answer is, So much the worse. If they be not considered with reference to that class of persons, comprehending a great host of criminals in various stages of development, they ought to be, and must be. To lose sight of that consideration is to be irrational, unjust, and cruel. All other punishments are especially devised, with a reference to the rooted habits, propensities, and antipathies of criminals. And shall it be said, out of Bedlam, that this last punishment of all is alone to be made an exception from the rule, even where it is shown to be a means of propagating vice and crime?
But there may be people who do not attend executions, to whom the general fame and rumour of such scenes is an example, and a means of deterring from crime.
Who are they? We have seen that around Capital Punishment there lingers a fascination, urging weak and bad people towards it, and imparting an interest to details connected with it, and with malefactors awaiting it or suffering it, which even good and welldisposed people cannot withstand. We know that last-dying speeches and Newgate calendars are the favourite literature of very low intellects. The gallows is not appealed to as an example in the instruction of youth (unless they are training for it); nor are there condensed accounts of celebrated executions for the use of national schools. There is a story in an old spelling-book of a certain Don’t Care who was hanged at last, but it is not understood to have had any remarkable effect on crimes or executions in the generation to which it belonged, and with which it has passed away. Hogarth’s idle apprentice is hanged; but the whole scene—with the unmistakable stout lady, drunk and pious, in the cast; the quarrelling, blasphemy, lewdness, and uproar; Tiddy Doll vending his gingerbread, and the boys picking his pocket—is a bitter satire on the great example; as efficient then, as now.
Is it efficient to prevent crime? The parliamentary returns demonstrate that it is not. I was engaged in making some extracts from these documents, when I found them so well abstracted in one of the papers published by the committee on this subject established at Aylesbury last year, by the humane exertions of Lord Nugent, that I am glad to quote the general results from its pages:
"In 1843 a return was laid on the table of the House of the commitments and executions for murder in England and Wales during the thirty years ending with December 1842, divided into five periods of six years each. It shows that in the last six years, from 1836 to 1842, during which there were only 50 executions, the commitments for murder were fewer by 61 than in the six years preceding with 74 executions; fewer by 63 than in the six years ending 1830 with 75 executions; fewer by 56 than in the six years ending 1824 with 94 executions; and fewer by 93 than in the six years ending 1818 when there was no less a number of executions than 122. But it may be said, perhaps, that in the inference we draw from this return, we are substituting cause for effect, and that in each successive cycle, the number of murders decreased in consequence of the example of public executions in the cycle immediately preceding, and that it was for that reason there were fewer commitments. This might be said with some colour of truth, if the example had been taken from two successive cycles only. But when the comparative examples adduced are of no less than five successive cycles, and the result gradually and constantly progressive in the same direction, the relation of facts to each other is determined beyond all ground for dispute, namely, that the number of these crimes has diminished in consequence of the diminution of the number of executions. More especially when it is also remembered that it was immediately after the first of these cycles of five years, when there had been the greatest number of executions and the greatest number of murders, that the greatest number of persons were suddenly cast loose upon the country, without employ, by the reduction of the Army and Navy; that then came periods of great distress and great disturbance in the agricultural and manufacturing districts; and above all, that it was during the subsequent cycles that the most important mitigations were effected in the law, and that the Punishment of Death was taken away not only for crimes of stealth, such as cattle and horse stealing and forgery, of which crimes corresponding statistics show likewise a corresponding decrease, but for the crimes of violence too, tending to murder, such as are many of the incendiary offences, and such as are highway robbery and burglary. But another return, laid before the House at the same time, bears upon our argument, if possible, still more conclusively. In table 11 we have only the years which have occurred since 1810, in which all persons convicted of murder suffered death; and, compared with these an equal number of years in which the smallest proportion of persons convicted were executed. In the first case there were 66 persons convicted, all of whom underwent the penalty of death; in the second 83 were convicted, of whom 31 only were executed. Now see how these two very different methods of dealing with the crime of murder affected the commission of it in the years immediately following. The number of commitments for murder, in the four years immediately following those in which all persons convicted were executed, was 270.
"In the four years immediately following those in which little more than one-third of the persons convicted were executed, there were but 222, being 48 less. If we compare the commitments in the following years with those in the first years, we shall find that, immediately after the examples of unsparing execution, the crime increased nearly 13 per cent., and that after commutation was the practice and capital punishment the exception, it decreased 17 per cent.
"In the same parliamentary return is an account of the commitments and executions in London and Middlesex, spread over a space of 32 years, ending in 1842, divided into two cycles of 16 years each. In the first of these, 34 persons were convicted of murder, all of whom were executed. In the second, 27 were convicted, and only 17 executed. The commitments for murder during the latter long period, with 17 executions, were more than one half fewer than they had been in the former long period with exactly double the number of executions. This appears to us to be as conclusive upon our argument as any statistical illustration can be upon any argument professing to place successive events in the relation of cause and effect to each other. How justly then is it said in that able and useful periodical work, now in the course of publication at Glasgow, under the name of the Magazine of Popular Information on Capital and Secondary Punishment, ’the greater the number of executions, the greater the number of murders; the smaller the number of executions, the smaller the number of murders. The lives of her Majesty’s subjects are less safe with a hundred executions a year than with fifty; less safe with fifty than with twenty-five.’"
Similar results have followed from rendering public executions more and more infrequent, in Tuscany, in Prussia, in France, in Belgium. Wherever capital punishments are diminished in their number, there, crimes diminish in their number too.
But the very same advocates of the punishment of Death who contend, in the teeth of all facts and figures, that it does prevent crime, contend in the same breath against its abolition because it does not! "There are so many bad murders," say they, "and they follow in such quick succession, that the Punishment must not be repealed." Why, is not this a reason, among others, for repealing it? Does it not go to show that it is ineffective as an example; that it fails to prevent crime; and that it is wholly inefficient to stay that imitation, or contagion, call it what you please, which brings one murder on the heels of another?
One forgery came crowding on another’s heels in the same way, when the same punishment attached to that crime. Since it has been removed, forgeries have diminished in a most remarkable degree. Yet within five and thirty years, Lord Eldon, with tearful solemnity, imagined in the House of Lords as a possibility for their Lordships to shudder at, that the time might come when some visionary and morbid person might even propose the abolition of the punishment of Death for forgery. And when it was proposed, Lords Lyndhurst, Wynford, Tenterden, and Eldon—all Law Lords—opposed it.
The same Lord Tenterden manfully said, on another occasion and another question, that he was glad the subject of the amendment of the laws had been taken up by Mr. Peel, "who had not been bred to the law; for those who were, were rendered dull, by habit, to many of its defects!" I would respectfully submit, in extension of this text, that a criminal judge is an excellent witness against the Punishment of Death, but a bad witness in its favour; and I will reserve this point for a few remarks in the next, concluding, Letter.