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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. So-
and-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 well-
disposed 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.
III
The last English Judge, I believe, who gave expression to a public
and judicial opinion in favour of the punishment of Death, is Mr.
Justice Coleridge, who, in charging the Grand Jury at Hertford last
year, took occasion to lament the presence of serious crimes in the
calendar, and to say that he feared that they were referable to the
comparative infrequency of Capital Punishment.
It is not incompatible with the utmost deference and respect for an
authority so eminent, to say that, in this, Mr. Justice Coleridge
was not supported by facts, but quite the reverse. He went out of
his way to found a general assumption on certain very limited and
partial grounds, and even on those grounds was wrong. For among the
few crimes which he instanced, murder stood prominently forth. Now
persons found guilty of murder are more certainly and unsparingly
hanged at this time, as the Parliamentary Returns demonstrate, than
such criminals ever were. So how can the decline of public
executions affect that class of crimes? As to persons committing
murder, and yet not found guilty of it by juries, they escape solely
because there are many public executions--not because there are none
or few.
But when I submit that a criminal judge is an excellent witness
against Capital Punishment, but a bad witness in its favour, I do so
on more broad and general grounds than apply to this error in fact
and deduction (so I presume to consider it) on the part of the
distinguished judge in question. And they are grounds which do not
apply offensively to judges, as a class; than whom there are no
authorities in England so deserving of general respect and
confidence, or so possessed of it; but which apply alike to all men
in their several degrees and pursuits.
It is certain that men contract a general liking for those things
which they have studied at great cost of time and intellect, and
their proficiency in which has led to their becoming distinguished
and successful. It is certain that out of this feeling arises, not
only that passive blindness to their defects of which the example
given by my Lord Tenterden was quoted in the last letter, but an
active disposition to advocate and defend them. If it were
otherwise; if it were not for this spirit of interest and
partisanship; no single pursuit could have that attraction for its
votaries which most pursuits in course of time establish. Thus
legal authorities are usually jealous of innovations on legal
principles. Thus it is described of the lawyer in the Introductory
Discourse to the Description of Utopia, that he said of a proposal
against Capital Punishment, "'this could never be so established in
England but that it must needs bring the weal-public into great
jeopardy and hazard', and as he was thus saying, he shaked his head,
and made a wry mouth, and so he held his peace". Thus the Recorder
of London, in 1811, objected to "the capital part being taken off"
from the offence of picking pockets. Thus the Lord Chancellor, in
1813, objected to the removal of the penalty of death from the
offence of stealing to the amount of five shillings from a shop.
Thus, Lord Ellenborough, in 1820, anticipated the worst effects from
there being no punishment of death for stealing five shillings worth
of wet linen from a bleaching ground. Thus the Solicitor General,
in 1830, advocated the punishment of death for forgery, and "the
satisfaction of thinking" in the teeth of mountains of evidence from
bankers and other injured parties (one thousand bankers alone!)
"that he was deterring persons from the commission of crime, by the
severity of the law". Thus, Mr. Justice Coleridge delivered his
charge at Hertford in 1845. Thus there were in the criminal code of
England, in 1790, one hundred and sixty crimes punishable with
death. Thus the lawyer has said, again and again, in his
generation, that any change in such a state of things "must needs
bring the weal-public into jeopardy and hazard". And thus he has,
all through the dismal history, "shaked his head, and made a wry
mouth, and held his peace". Except--a glorious exception!--when
such lawyers as Bacon, More, Blackstone, Romilly, and--let us ever
gratefully remember--in later times Mr. Basil Montagu, have striven,
each in his day, within the utmost limits of the endurance of the
mistaken feeling of the people or the legislature of the time, to
champion and maintain the truth.
There is another and a stronger reason still, why a criminal judge
is a bad witness in favour of the punishment of Death. He is a
chief actor in the terrible drama of a trial, where the life or
death of a fellow creature is at issue. No one who has seen such a
trial can fail to know, or can ever forget, its intense interest. I
care not how painful this interest is to the good, wise judge upon
the bench. I admit its painful nature, and the judge's goodness and
wisdom to the fullest extent--but I submit that his prominent share
in the excitement of such a trial, and the dread mystery involved,
has a tendency to bewilder and confuse the judge upon the general
subject of that penalty. I know the solemn pause before the
verdict, the bush and stifling of the fever in the court, the
solitary figure brought back to the bar, and standing there,
observed of all the outstretched heads and gleaming eyes, to be next
minute stricken dead as one may say, among them. I know the thrill
that goes round when the black cap is put on, and how there will be
shrieks among the women, and a taking out of some one in a swoon;
and, when the judge's faltering voice delivers sentence, how awfully
the prisoner and he confront each other; two mere men, destined one
day, however far removed from one another at this time, to stand
alike as suppliants at the bar of God. I know all this, I can
imagine what the office of the judge costs in this execution of it;
but I say that in these strong sensations he is lost, and is unable
to abstract the penalty as a preventive or example, from an
experience of it, and from associations surrounding it, which are
and can be, only his, and his alone.
Not to contend that there is no amount of wig or ermine that can
change the nature of the man inside; not to say that the nature of a
judge may be, like the dyer's hand, subdued to what it works in, and
may become too used to this punishment of death to consider it quite
dispassionately; not to say that it may possibly be inconsistent to
have, deciding as calm authorities in favour of death, judges who
have been constantly sentencing to death;--I contend that for the
reasons I have stated alone, a judge, and especially a criminal
judge, is a bad witness for the punishment but an excellent witness
against it, inasmuch as in the latter case his conviction of its
inutility has been so strong and paramount as utterly to beat down
and conquer these adverse incidents. I have no scruple in stating
this position, because, for anything I know, the majority of
excellent judges now on the bench may have overcome them, and may be
opposed to the punishment of Death under any circumstances.
I mentioned that I would devote a portion of this letter to a few
prominent illustrations of each head of objection to the punishment
of Death. Those on record are so very numerous that selection is
extremely difficult; but in reference to the possibility of mistake,
and the impossibility of reparation, one case is as good (I should
rather say as bad) as a hundred; and if there were none but Eliza
Fenning's, that would be sufficient. Nay, if there were none at
all, it would be enough to sustain this objection, that men of
finite and limited judgment do inflict, on testimony which admits of
doubt, an infinite and irreparable punishment. But there are on
record numerous instances of mistake; many of them very generally
known and immediately recognisable in the following summary, which I
copy from the New York Report already referred to.
"There have been cases in which groans have been heard in the
apartment of the crime, which have attracted the steps of those on
whose testimony the case has turned--when, on proceeding to the
spot, they have found a man bending over the murdered body, a
lantern in the left hand, and the knife yet dripping with the warm
current in the blood-stained right, with horror-stricken
countenance, and lips which, in the presence of the dead, seem to
refuse to deny the crime in the very act of which he is thus
surprised--and yet the man has been, many years after, when his
memory alone could be benefited by the discovery, ascertained not to
have been the real murderer! There have been cases in which, in a
house in which were two persons alone, a murder has been committed
on one of them--when many additional circumstances have fastened the
imputation upon the other--and when, all apparent modes of access
from without, being closed inward, the demonstration has seemed
complete of the guilt for which that other has suffered the doom of
the law--yet suffered innocently! There have been cases in which a
father has been found murdered in an outhouse, the only person at
home being a son, sworn by a sister to have been dissolute and
undutiful, and anxious for the death of the father, and succession
to the family property--when the track of his shoes in the snow is
found from the house to the spot of the murder, and the hammer with
which it was committed (known as his own), found, on a search, in
the corner of one of his private drawers, with the bloody evidence
of the deed only imperfectly effaced from it--and yet the son has
been innocent!--the sister, years after, on her death-bed,
confessing herself the fratricide as well as the parricide. There
have been cases in which men have been hung on the most positive
testimony to identity (aided by many suspicious circumstances), by
persons familiar with their appearance, which have afterwards proved
grievous mistakes, growing out of remarkable personal resemblance.
There have been cases in which two men have been seen fighting in a
field--an old enmity existing between them--the one found dead,
killed by a stab from a pitchfork known as belonging to the other,
and which that other had been carrying, the pitch-fork lying by the
side of the murdered man--and yet its owner has been afterwards
found not to have been the author of the murder of which it had been
the instrument, the true murderer sitting on the jury that tried
him. There have been cases in which an innkeeper has been charged
by one of his servants with the murder of a traveller, the servant
deposing to having seen his master on the stranger's bed, strangling
him, and afterwards rifling his pockets--another servant deposing
that she saw him come down at that time at a very early hour in the
morning, steal into the garden, take gold from his pocket, and
carefully wrapping it up bury it in a designated spot--on the search
of which the ground is found loose and freshly dug, and a sum of
thirty pounds in gold found buried according to the description--the
master, who confessed the burying of the money, with many evidences
of guilt in his hesitation and confusion, has been hung of course,
and proved innocent only too late. There have been cases in which a
traveller has been robbed on the highway of twenty guineas, which he
had taken the precaution to mark--one of these is found to have been
paid away or changed by one of the servants of the inn which the
traveller reaches the same evening--the servant is about the height
of the robber, who had been cloaked and disguised--his master
deposes to his having been recently unaccountably extravagant and
flush of gold--and on his trunk being searched the other nineteen
marked guineas and the traveller's purse are found there, the
servant being asleep at the time, half-drunk--he is of course
convicted and hung, for the crime of which his master was the
author! There have been cases in which a father and daughter have
been overheard in violent dispute--the words "barbarity", "cruelly",
and "death", being heard frequently to proceed from the latter--the
former goes out locking the door behind him--groans are overheard,
and the words, "cruel father, thou art the cause of my death!"--on
the room being opened she is found on the point of death from a
wound in her side, and near her the knife with which it had been
inflicted--and on being questioned as to her owing her death to her
father, her last motion before expiring is an expression of assent--
the father, on returning to the room, exhibits the usual evidences
of guilt--he, too, is of course hung--and it is not till nearly a
year afterwards that, on the discovery of conclusive evidence that
it was a suicide, the vain reparation is made, to his memory by the
public authorities, of--waving a pair of colours over his grave in
token of the recognition of his innocence."
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