ALL punishments or penal1 remedies for crime, except capitalpunishment, may be considered from two points of view:
First, as they regard Society; secondly2, as they regard theoffender.
Where capital punishment is resorted to, the sole end in viewis the protection of Society. The malefactor3 being put todeath, there can be no thought of his amendment4. And so faras this particular criminal is concerned, Society ishenceforth in safety.
But (looking to the individual), as equal security could beobtained by his imprisonment5 for life, the extreme measure ofputting him to death needs justification6. This is found inthe assumption that death being the severest of allpunishments now permissible7, 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 conclusive9 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 intimidation11?
Is punishment by death the most dreaded12 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, misery13 andapprehension, must, if he reflects at all, contemplate14 aviolent end as an imminent15 possibility. He has no betterfuture before him, and may easily come to look upon deathwith brutal16 insensibility and defiance17. 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 jealousy18 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 hereditary19: alarge number of unfortunates of whom it may almost be saidthat they were destined20 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 fully10 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 punitive21 aspects, is a greater evil to those for whomlife has greater attractions. Besides this, the permanentdisgrace of capital punishment, the lasting22 injury to thecriminal's family and to all who are dear to him, must be farmore cogent23 incentives24 to self-control than the mere25 fear ofceasing to live.
With the criminal and most degraded class - with those whoare actuated by violent passions and hereditary taints26, 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 eradicate27 innate28 instincts, there must be alarge proportion of the majority, the better-to-do, who areboth occasionally and habitually29 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 retention30 ofcapital punishment may be justified31.
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 eminently32 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 hearsay33? 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 imprisoned34 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 drawn35 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 savages38. Unfortunately theChristian religion still promulgates39 and passionately40 clingsto the belief in Hell as a place or state of everlastingtorment - that is to say, of eternal torture inflicted8 for noultimate end save that of implacable vengeance37. Of all themiserable superstitions41 ever hatched by the brain of manthis, as indicative of its barbarous origin, is the mostdegrading. As an ordinance42 ascribed to a Being worshipped asjust and beneficent, it is blasphemous43.
The Sentimental36 argument, like all arguments based uponfeeling rather than reason, though not without merit, isfraught with mischief44 which far outweighs45 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 chivalry46 which it involves. There is somethinggenerous and noble, albeit47 quixotic, in siding with the weak,even if they be in the wrong. There is something charitablein the judgment48, '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 sophistries49 of reason, whichoften deceive, but be governed by your hearts, which willalways lead you right. I reject without hesitation50 thepunishment you propose: it violates natural feelings, itharrows up the susceptible51 mind, it is tyrannical and cruel.'
Such is the language of your sentimental orators52.
'But abolish any one penal law merely because it is repugnantto the feelings of a humane53 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 virtue54 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 gender55. 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 strenuously56 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, prosecutors57, witnesses, judges,and jurymen are, as a rule, liable to reluctance58 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.
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penal
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| adj.刑罚的；刑法上的 | |
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secondly
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| adv.第二，其次 | |
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malefactor
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| n.罪犯 | |
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amendment
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| n.改正，修正，改善，修正案 | |
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imprisonment
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| n.关押，监禁，坐牢 | |
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justification
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| n.正当的理由；辩解的理由 | |
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permissible
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| adj.可允许的，许可的 | |
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inflicted
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| 把…强加给，使承受，遭受( inflict的过去式和过去分词 ) | |
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conclusive
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| adj.最后的，结论的；确凿的，消除怀疑的 | |
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fully
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| adv.完全地，全部地，彻底地；充分地 | |
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intimidation
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| n.恐吓，威胁 | |
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dreaded
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| adj.令人畏惧的；害怕的v.害怕，恐惧，担心( dread的过去式和过去分词) | |
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misery
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| n.痛苦，苦恼，苦难；悲惨的境遇，贫苦 | |
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contemplate
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| vt.盘算，计议；周密考虑；注视，凝视 | |
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imminent
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| adj.即将发生的，临近的，逼近的 | |
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brutal
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| adj.残忍的，野蛮的，不讲理的 | |
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defiance
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| n.挑战，挑衅，蔑视，违抗 | |
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jealousy
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| n.妒忌，嫉妒，猜忌 | |
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hereditary
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| adj.遗传的，遗传性的，可继承的，世袭的 | |
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destined
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| adj.命中注定的；(for)以…为目的地的 | |
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punitive
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| adj.惩罚的，刑罚的 | |
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lasting
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| adj.永久的，永恒的；vbl.持续，维持 | |
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cogent
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| adj.强有力的，有说服力的 | |
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incentives
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| 激励某人做某事的事物( incentive的名词复数 )； 刺激； 诱因； 动机 | |
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mere
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| adj.纯粹的；仅仅，只不过 | |
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taints
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| n.变质( taint的名词复数 )；污染；玷污；丑陋或腐败的迹象v.使变质( taint的第三人称单数 )；使污染；败坏；被污染，腐坏，败坏 | |
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eradicate
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| v.根除，消灭，杜绝 | |
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innate
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| adj.天生的，固有的，天赋的 | |
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habitually
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| ad.习惯地，通常地 | |
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retention
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| n.保留，保持，保持力，记忆力 | |
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justified
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| a.正当的，有理的 | |
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eminently
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| adv.突出地；显著地；不寻常地 | |
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hearsay
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| n.谣传，风闻 | |
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imprisoned
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| 下狱，监禁( imprison的过去式和过去分词 ) | |
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drawn
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| v.拖，拉，拔出；adj.憔悴的，紧张的 | |
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sentimental
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| adj.多愁善感的，感伤的 | |
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vengeance
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| n.报复，报仇，复仇 | |
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savages
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| 未开化的人，野蛮人( savage的名词复数 ) | |
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promulgates
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| v.宣扬（某事物）( promulgate的第三人称单数 )；传播；公布；颁布（法令、新法律等） | |
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passionately
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| ad.热烈地，激烈地 | |
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superstitions
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| 迷信，迷信行为( superstition的名词复数 ) | |
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ordinance
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| n.法令；条令；条例 | |
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blasphemous
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| adj.亵渎神明的，不敬神的 | |
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mischief
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| n.损害，伤害，危害；恶作剧，捣蛋，胡闹 | |
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outweighs
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| v.在重量上超过( outweigh的第三人称单数 )；在重要性或价值方面超过 | |
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chivalry
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| n.骑士气概，侠义；（男人）对女人彬彬有礼，献殷勤 | |
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albeit
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| conj.即使；纵使；虽然 | |
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judgment
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| n.审判；判断力，识别力，看法，意见 | |
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sophistries
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| n.诡辩术( sophistry的名词复数 )；（一次）诡辩 | |
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hesitation
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| n.犹豫，踌躇 | |
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susceptible
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| adj.过敏的，敏感的；易动感情的，易受感动的 | |
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orators
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| n.演说者，演讲家( orator的名词复数 ) | |
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humane
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| adj.人道的，富有同情心的 | |
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virtue
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| n.德行，美德；贞操；优点；功效，效力 | |
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gender
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| n.（生理上的）性，（名词、代词等的）性 | |
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strenuously
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| adv.奋发地，费力地 | |
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prosecutors
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| 检举人( prosecutor的名词复数 )； 告发人； 起诉人； 公诉人 | |
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reluctance
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| n.厌恶，讨厌，勉强，不情愿 | |
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