Chapter 18

ALL punishments or penal remedies for crime, except capitalpunishment, may be considered from two points of view:

　　First, as they regard Society; secondly, as they regard theoffender.

　　Where capital punishment is resorted to, the sole end in viewis the protection of Society. The malefactor being put todeath, there can be no thought of his amendment. And so faras this particular criminal is concerned, Society ishenceforth in safety.

　　But (looking to the individual), as equal security could beobtained by his imprisonment for life, the extreme measure ofputting him to death needs justification. This is found inthe assumption that death being the severest of allpunishments now permissible, no other penalty is soefficacious in preventing the crime or crimes for which it isinflicted. Is the assumption borne out by facts, or byinference?

　　For facts we naturally turn to statistics. Switzerlandabolished capital punishment in 1874; but cases ofpremeditated murder having largely increased during the nextfive years, it was restored by Federal legislation in 1879.

　　Still there is nothing conclusive to be inferred from thisfact. We must seek for guidance elsewhere.

　　Reverting to the above assumption, we must ask: First, Isthe death punishment the severest of all evils, and to whatextent does the fear of it act as a preventive? Secondly, Isit true that no other punishment would serve as powerfully inpreventing murder by intimidation?

　　Is punishment by death the most dreaded of all evils? 'Thisassertion,' says Bentham, 'is true with respect to themajority of mankind; it is not true with respect to thegreatest criminals.' It is pretty certain that a malefactorsteeped in crime, living in extreme want, misery andapprehension, must, if he reflects at all, contemplate aviolent end as an imminent possibility. He has no betterfuture before him, and may easily come to look upon deathwith brutal insensibility and defiance. The indifferenceexhibited by the garrotted man getting up to adjust his chairis probably common amongst criminals of his type.

　　Again, take such a crime as that of the Cuban's: the passionwhich leads to it is the fiercest and most ungovernable whichman is subject to. Sexual jealousy also is one of the mostfrequent causes of murder. So violent is this passion thatthe victim of it is often quite prepared to sacrifice liferather than forego indulgence, or allow another to supplanthim; both men and women will gloat over the murder of arival, and gladly accept death as its penalty, rather thansurvive 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: alarge number of unfortunates of whom it may almost be saidthat they were destined to commit crimes. 'It is unhappily afact,' says Mr. Francis Galton ('Inquiries into HumanFaculty'), 'that fairly distinct types of criminals breedingtrue to their kind have become established.' And he givesextraordinary examples, which fully bear out his affirmation.

　　We may safely say that, in a very large number of cases, theworst crimes are perpetrated by beings for whom the deathpenalty has no preventive terrors.

　　But it is otherwise with the majority. Death itself, apartfrom punitive aspects, is a greater evil to those for whomlife has greater attractions. Besides this, the permanentdisgrace of capital punishment, the lasting injury to thecriminal's family and to all who are dear to him, must be farmore cogent incentives to self-control than the mere fear ofceasing to live.

　　With the criminal and most degraded class - with those whoare actuated by violent passions and hereditary taints, theclass by which most murders are committed - the deathpunishment would seem to be useless as an intimidation or anexample.

　　With the majority it is more than probable that it exercisesa strong and beneficial influence. As no mere socialdistinction can eradicate innate instincts, there must be alarge proportion of the majority, the better-to-do, who areboth occasionally and habitually subject to criminalpropensities, and who shall say how many of these arerestrained from the worst of crimes by fear of capitalpunishment and its consequences?

　　On these grounds, if they be not fallacious, the retention ofcapital punishment may be justified.

　　Secondly. Is the assumption tenable that no other penaltymakes so strong an impression or is so pre-eminentlyexemplary? Bentham thus answers the question: 'It appearsto me that the contemplation of perpetual imprisonment,accompanied with hard labour and occasional solitaryconfinement, would produce a deeper impression on the mindsof persons in whom it is more eminently desirable that thatimpression should be produced than even death itself. . . .

　　All that renders death less formidable to them renderslaborious restraint proportionably more irksome.' There isdoubtless a certain measure of truth in these remarks. ButBentham is here speaking of the degraded class; and is itlikely that such would reflect seriously upon what they neversee and only know by hearsay? Think how feeble are theirpowers of imagination and reflection, how little they wouldbe impressed by such additional seventies as 'occasionalsolitary confinement,' the occurrence and the effects ofwhich would be known to no one outside the jail.

　　As to the 'majority,' the higher classes, the fact that menare often imprisoned for offences - political and others -which they are proud to suffer for, would always attenuatethe ignominy attached to 'imprisonment.' And were this theonly penalty for all crimes, for first-class misdemeanantsand for the most atrocious of criminals alike, thedistinction would not be very finely drawn by the interested;at the most, the severest treatment as an alternative tocapital punishment would always savour of extenuatingcircumstances.

　　There remain two other points of view from which the questionhas to be considered: one is what may be called theVindictive, the other, directly opposed to it, theSentimental argument. The first may be dismissed with a wordor two. In civilised countries torture is for everabrogated; and with it, let us hope, the idea of judicialvengeance.

　　The LEX TALIONIS - the Levitic law - 'Eye for eye, tooth fortooth,' is befitting only for savages. Unfortunately theChristian religion still promulgates and passionately clingsto the belief in Hell as a place or state of everlastingtorment - that is to say, of eternal torture inflicted for noultimate end save that of implacable vengeance. Of all themiserable superstitions ever hatched by the brain of manthis, as indicative of its barbarous origin, is the mostdegrading. As an ordinance ascribed to a Being worshipped asjust and beneficent, it is blasphemous.

　　The Sentimental argument, like all arguments based uponfeeling rather than reason, though not without merit, isfraught with mischief which far outweighs it. There arealways a number of people in the world who refer to theirfeelings as the highest human tribunal. When the reasoningfaculty is not very strong, the process of ratiocinationirksome, and the issue perhaps unacceptable, this courseaffords a convenient solution to many a complicated problem.

　　It commends itself, moreover, to those who adopt it, by thesense of chivalry which it involves. There is somethinggenerous and noble, albeit quixotic, in siding with the weak,even if they be in the wrong. There is something charitablein the judgment, 'Oh! poor creature, think of his adversecircumstances, his ignorance, his temptation. Let us bemerciful and forgiving.' In practice, however, this oftenleads astray. Thus in most cases, even where premeditatedmurder is proved to the hilt, the sympathy of thesentimentalist is invariably with the murderer, to thecomplete oblivion of the victim's family.

　　Bentham, speaking of the humanity plea, thus words itsargument: 'Attend not to the sophistries of reason, whichoften deceive, but be governed by your hearts, which willalways lead you right. I reject without hesitation thepunishment you propose: it violates natural feelings, itharrows 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 repugnantto the feelings of a humane heart, and, if consistent, youabolish the whole penal code. There is not one of itsprovisions that does not, in a more or less painful degree,wound the sensibility.'

　　As this writer elsewhere observes: 'It is only a virtue whenjustice has done its work, &c. Before this, to forgiveinjuries is to invite their perpetration - is to be, not thefriend, but the enemy of society. What could wickednessdesire more than an arrangement by which offences should bealways followed by pardon?'

　　Sentiment is the ULTIMA RATIO FEMINARUM, and of men whosenatures are of the epicene gender. It is a luxury we mustforego in the face of the stern duties which evil compels usto encounter.

　　There is only one other argument against capital punishmentthat is worth considering.

　　The objection so strenuously pleaded by Dickens in hisletters to the 'Times' - viz. the brutalising effects uponthe degraded crowds which witnessed public executions - is nolonger apposite. But it may still be urged with no littleforce that the extreme severity of the sentence induces allconcerned in the conviction of the accused to shirk theresponsibility. Informers, prosecutors, witnesses, judges,and jurymen are, as a rule, liable to reluctance as to theperformance of their respective parts in the melancholydrama.' 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, thesame person would have been found guilty.

　　Much might be said on either side, but on the whole it wouldseem 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.