CHAPTER VI.
THE DEATH PENALTY.
“If consciousness be aught, of all it seems to be,
Souls are something more than lights that gleam and flee.”
ONE of the most striking results of the scientific progress which has marked this present century has been a new revelation of the truth, that life and death alike are to us inscrutable mysteries, of which, it may be, the true meaning is as yet altogether hid from us. Side by side with this conviction, which impresses itself mainly on the cultured classes, there has been a remarkable awakening of the great mass of the people to all questions affecting their own rights and the administration of the justice meted out to them. In view of both these characteristics of our own page: 226 time, it is perfectly certain that sooner or later the question of the continuance of the death penalty as the law of the land will be brought to the bar of public opinion, and forced with irresistible power on the consideration of those in authority.
The days have vanished into the past when the people of this country were submissively content to see the perpetrators of small offences driven in shoals to the gallows week by week, like sheep to the slaughter; and the time is now not far distant, when they will rise up and demand by what right judicial murders are to be committed in retaliation for those which have been the result of crime. To us who have been face to face with the death penalty, as it may be known and studied within the walls of the condemned cell, the question of its righteousness as between man and man can only be decided by a reference to those higher mysteries in the conditions of the human race of which we have spoken; but we will leave such considerations to the last, while we touch on the more practical page: 227 bearings of the lex talionis, and the arguments by which it is generally upheld. The fact is admitted on all sides, that the advance of enlightenment and civilisation has surrounded the enforcement of capital punishment with rapidly increasing difficulties. The probability that in a short time we shall witness the establishment of a Court of Criminal Appeal, sufficiently proves that this is the case. It is felt to be a great anomaly that the mercy of the Crown should be lodged in the person of one State official, who has practically to try over again any doubtful case, while for those of clearer evidence he simply refers to the judge who presided at the trial, and who naturally reaffirms his former decision.
There is no doubt that this system is eminently unsatisfactory, and it seems to be extremely likely that the new court will be so also, in a still higher degree. Indeed, in the opinion of men of great legal experience, it will be found almost impossible to work it in accordance with the existing law as regards trial by jury. We may judge of the difficulties involved in its constitu‐ page: 228 tion constitution from the following words of the Master of the Rolls, who, in dealing with the subject, insists on five primary conditions. “The first condition, in my opinion,” he writes, “is that the court should be the strongest which can be invented. To ensure this, it should, as to its members, not be a varying court, but should consist of judges nominated by the Crown once for all for life or until resignation. The number of the judges should be seven, with a quorum of five. The judges should be bound, in case of a conviction and sentence of death, at any inconvenience to other business, unless absolutely prevented, to attend in London within seven days after any such sentence, and in other cases at any time fixed by the president of the court. The second condition, in my opinion, is that the appeal should be as large as possible, on law, facts, and sentence, with the largest discretionary power as to any means by which, in the opinion of the court, it could be assisted to arrive at a right, just, and merciful conclusion. Thirdly, it should be declared in the Act that the decision in each case page: 229 must be made to depend on the circumstances of the particular case. Fourthly, in my opinion, the consideration of mercy arising from particular circumstances—as, for instance, youth, extreme sickness, intolerable though not legal exasperation, despair—should not be excluded from the power of the court. Fifthly, the decision in any case should not necessarily be final, if after it new facts should arise or could be brought forward. Although I would allow the consideration of mercy to be given to the court, I would not take away the prerogative of mercy in the Crown to be exercised beyond and above the power of the court.”
There is one obvious difficulty with regard to the proposed court which it requires no legal acumen to foresee. It is quite certain that when once it is known to exist, the right of appeal to it will be exercised on every occasion when a death sentence has been pronounced under any circumstances whatever. The remark of a woman who saw a notorious criminal being led to the scaffold, “Ah! but he was somebody’s bairn,” embodies a page: 230 sentiment which holds good for all time. There is no living being, however brutal and depraved, who has fallen so completely out of the range of our common humanity, that there remains no one on earth who has an interest in his fate. How far soever he has made himself a curse, and outraged all natural affection, he will still to this extent be in touch with his fellow‐creatures, that there will always be a mother or wife, a friend or brother, sometimes even a victim of his cruel propensities, who will seek to save him from that hanging by the neck till he is dead, against which there is so strong a sense of revolt among the lower orders.
It is clear that if there is to be an appeal and a new trial by a differently constituted body, in every case where the capital penalty has been awarded by the verdict of a jury and the sentence of a judge, the possibility of its retention as a legal punishment will become a very great problem. Nevertheless there can be no doubt that any proposal for its total abolition will meet with violent opposition from a very influential majority in the page: 231 country. It is true that the extraordinary callousness and indifference to human life of former times no longer exists amongst us, as a rule. We have made a gradually progressive advance from the days, in Henry VIII.’s reign, when a thousand vagrants were hanged in one year for the crime of poverty; or from those of that eminently fatherly monarch George III. when, as an old chronicle expresses it, “a score or so of villains were turned off at Tyburn every Monday morning,” and when Mary Jones, a young married woman with a new‐born infant in her arms, was hanged for taking a small piece of cloth from the counter of a shop, which she restored on the instant when her attempt was detected. Even in the course of the present century before the change in the law, public feeling had not been much aroused on the subject. The writer can remember being told by a very benevolent old clergyman, that in his youth a man had been hanged for setting fire to one of his hay‐ricks. Being asked whether he could not have obtained a reprieve for him as the prosecutor in the case, he answered quietly that he had not tried—it had never occurred page: 232 to him to think of saving the poor culprit from a punishment in such general use.
In spite of the enthusiasm of humanity which is supposed to be rife among us now, we have not perhaps passed even yet very far beyond the spirit of these times—since a few months ago an astute politician, in conversation with the writer, strongly advocated capital punishment on the ground that it was the cheapest mode of disposing of criminals. It is to be hoped that there are not many who would share the views of this very economical gentleman; and we are quite prepared to admit that most of those who desire the retention of the death penalty are influenced by highly conscientious motives,—only we are satisfied that they are founded on absolute fallacies. That which undoubtedly weighs the most powerfully with all such persons is the conviction that capital punishment is a deterrent of crime. This idea is so deeply implanted in the sense of the community, that it seems almost in vain to hope that it may ever be rooted out. It is repeated from one to another by persons who have no possible means of knowing page: 233 whether the assertion is true or not; it is re‐echoed with parrot‐like precision whenever the subject of the extreme penalty of the law is mooted anywhere. It sounds very plausible, and it is a truly comfortable theory on which conservative minds can rest their complacent acquiescence in the existing state of matters; but we desire to state in the strongest words we can use, that this argument in favour of the death penalty is absolutely and radically false. We do not make this assertion without warrant; our practical experience has been very extensive. Even the few histories we have given in the preceding pages illustrate, so far as they go, the undoubted fact that crimes of violence are for the most part committed in the blind heat of passion by persons who are not in the habit of reasoning logically on any of their actions, and who never give a thought to the penal consequences of the deeds to which they are driven by the frenzy of the moment. Apart, however, from this practical obstacle to the deterring power of the legal murder, there remains the fact which we cannot assert too emphatically, that death is not page: 234 the punishment which lawless men dread the most. Generally speaking, as some of the cases cited in our former chapters have shown, they do not dread it at all. Is there no significance in the truth that death is constantly being sought by suicide, and that frequently the means used to obtain the shelter of the grave is the very process by which the law inflicts its supreme punishment on the guilty?
In this age, especially when pessimism has invaded all classes, men not only do not dread death, but they often fiercely desire it. They seek it, they look forward to it as the cure of all mortal ills—the sure and painless refuge from the agony of life. Would that our legislators could be brought to realise the fact that, whatever may have been the case in former generations, the fear of death will deter neither man nor woman from crime in the present day.
There is, however, a punishment which is unspeakably dreaded by the class from which most of our criminals are recruited—and that is flogging. We believe that if the infliction of the lash, page: 235 joined to penal servitude, which they also hold in horror, were to be the penalty for murder, it would have at least such a deterrent effect as any punishment can have which is pitted against the passions of men—and it certainly would operate far more effectually than the prospect of being relegated to the unconsciousness of the grave.
Independent of our fundamental principle that no dread of the capital penalty diminishes crime, the manner in which it is now inflicted is not calculated to make an impression of any kind on the people. It was undoubtedly a meritorious act of legislation when public executions were put an end to, with all the scandal of the disgraceful scenes which occurred on such occasions; but it is certain that any effect to be produced on the people by the fact that hanging is to avenge murder, could only be realised if the actual infliction of it were an open spectacle visible to the eyes of all. The private strangling or unintentional beheading of convicts in some disused cell of the prison or other hidden receptacle for the gallows, and in the presence of only half‐a‐dozen officials, is not a page: 236 ceremony which has any impressiveness for the outside public, or, we may add, any appearance of justice. They are apt to term it in their phraseology a “hole‐and‐corner proceeding”—and so it literally is. While our legislators are calmly engaged with their breakfast on some fair morning, a handful of men, concealed behind impervious walls, solemnly conduct a fellow‐creature a few steps from the bed where he has lain by night, and in some dark corner suspend him over a hole dug through the flooring, into which they let him drop with a violent shock and break his neck, or wrench his head off as occasionally happens.¹ The
¹ Those who, while wishing to retain the death penalty, are yet desirous of seeing it more mercifully carried out, would not gain much by the new American plan of execution by electricity. In a lecture given by a distinguished person on what he termed “murder by law,” he said that the electric death‐chair was the most mercilessly cruel invention that ever emanated from the human brain, and certainly his assertion is borne out by the description given of the manner in which it is to operate. After mature deliberation, the following plan has been devised for this new form of execution: A stout table, covered with rubber‐cloth, and having holes along its border for binding, or a strong chair, should be procured. The prisoner, lying on his back or sitting, should be firmly bound upon this table or in the chair. One electrode should be so inserted in the table or into the back of the chair, that it would impinge upon the spine between the shoulders. The head should be secured by means of a sort of helmet fastened to the table or back of the chair, and to this helmet the other pole should be joined, so as to press firmly with its end upon the top of the head. The chair is recommended in preference to the table. The rheophores can be led off to a dynamo through the floor or to another room, and the instrument for closing the circuit can be attached to the wall. The electrodes should be of metal, not over one inch in diameter, somewhat oval in shape, and covered with a thick layer of ponge or chamois‐skin. The poles and the skin and the hair at the points of contact should be thoroughly wet with warm water. The hair should be cut short. A dynamo‐generating and electromotive force of at least 3000 volts should be employed. Either a continuous or alternating current may be used, but preferably the latter. The current should be allowed to pass for thirty seconds.
page: 237 waving of a black flag in the air for a short time as the outward token of this secret proceeding, is not a powerful means of arousing attention except in the most transitory manner. Thus it is that, unless some peculiarity in the case has created a special interest in the criminal, his death at the hands of the common hangman passes by with very little notice indeed, from those it is supposed to influence.
The idea strongly supported by some writers, that through the infliction of death for the crime page: 238 of murder the public mind is to be educated into a sense of the enormity of the act, is an absolutely baseless theory which has no standpoint in reality. Even if such a result were possible in the old times, when a legislation of terror was supposed to be the only means of controlling the brutish masses of untaught, unreasoning people, it is a manifest truism that we have now to deal with totally different forces, in the intelligence and mental independence of our existing populations. They are much more concerned to criticise the acts of the legislature than to be morally influenced by them. In the course of the last few years, before it was decreed that executions should no longer be public, it happened that several of these ghastly tragedies followed each other quickly; and it is, we believe, a known fact that several of the men who then expiated their guilt on the scaffold had been present as spectators at the execution preceding their own, and had closely watched all the appalling details. Their own violent actions, in the course of a very short time afterwards, sufficiently proved that their education in tender‐ page: 239 ness tenderness or morality had not been advanced by the painful sight. And here we arrive at a point of the highest importance in the question we are discussing; for we feel bound to affirm on the most substantial grounds that so far from the death penalty being a deterrent to murder, it operates, in fact, as an actual encouragement to it. It has the effect of destroying the intuitive sense of the sanctity of human life among the people. They no longer, as of old, look upon their legislators as infallible, and are in the habit of subjecting their enactments to a certain rough logic which cannot easily be gainsaid. They are disposed to take rather an ironical view of the singular arrangement which punishes the crime of murder by the perpetration of another murder in cold blood under the ægis of the law. Our working men, who now think and reason for themselves, are wont to say that if it is lawful and right in the authorities to kill a man deliberately because he has taken the life of another, it must be equally justifiable on their part to knock on the head any scoundrel who has done them or theirs some deadly page: 240 injury, of perhaps a much more diabolical character. The fact that they do maintain this argument, and exemplify it by their actions, ought to weigh heavily in the scale against the continuance of the capital penalty. This element in the question was strongly felt by the late Mr Bright, whose hope was not realised that he might, as he expressed it, see the gallows‐tree cut down before his death. Speaking on the subject, he said “that whenever the shocking punishment of hanging was inflicted, we weakened by so much that security to society resulting from the reverence with which human life is regarded.”
Many of those who uphold the lex talionis do so on the high ground that it is a Divine command. A dignitary of the Church, who was most vehemently in favour of it, admitted to the writer lately, that unless it were the distinct ordinance of God we had no right to take, even judicially, the life of a fellow‐creature. He seemed to have no doubt whatever that it was a decree of the Eternal Justice; but where, we may ask, is there page: 241 any real warrant for such a belief? In these critical days, when every line of the sacred text is submitted to a searching examination, it is surely no longer possible to found this sanguinary law on one obscure verse in the earlier portion of the Pentateuch, of which the translation is so doubtful that it is quite open to question whether it does not imply a prophecy instead of a command. In those rude times, when the avenger of blood followed swiftly on the track of slaughter, it might well be predicted that whosoever shed man’s blood, by man would his blood be shed. Is it not a very significant fact, in opposition to the construction generally put on that verse, that according to the same Record, the first murderer, Cain, was divinely sentenced to life and not to death? Supposing even, however, that it did suggest a command at that period, are we in our widely different days to hold ourselves bound by a single isolated enactment of a primeval Theocracy whose elaborate rules on other subjects we systematically ignore? It is simply part of the old Hebrew law, “an eye for an eye and a tooth for a tooth,” page: 242 which the Divine Founder of Christianity distinctly repudiated.
Another theory of the supporters of capital punishment is undoubtedly entitled to respect, inasmuch as it does breathe a certain spirit of charity, though arising from a merely imaginary hypothesis. This is the favourite idea that a man who suffers death on the scaffold escapes a future retribution, receiving his punishment in this life and passing to the Divine Judgment with an assurance, or at least a reasonable hope, of pardon which he could not otherwise possess. If we had any reliable ground for this belief, it might certainly go far to reconcile us to a law which cannot in other respects be defended; but the theory is a pure assumption, for which not a shadow of proof can be brought forward. Taking a common‐sense view of the matter, it amounts to an attempt on our part to arrange the affairs of Providence according to our own ideas—and that is a proceeding which can hardly be justified even by the highest benevolence. Were it possible, however, for the advocates of this vision‐ page: 243 ary visionary argument to prove that it rested on a substantial basis, we should still hold that the powerful reasons which preponderate against the death penalty, outweigh a thousandfold everything which can be suggested in its favour.
We are at present looking at the subject merely in its practical bearing on the interests of the community, leaving aside the higher principles on which the most unanswerable objections to the law are founded; and dealing only with this lower ground, it is at once evident that the strongest argument against the lex talionis rests on the fallibility of human judgment. It is a fact which cannot be disputed, that innocent persons have repeatedly suffered an unjust death on the scaffold. In an article which lately appeared in the ‘Fortnightly Review,’ entitled “The Case against Capital Punishment,” we find the following statistics: “Sir James Mackintosh, a most cool and dispassionate observer, declared that, taking a long period of time, one innocent man was hanged in every three years”; while the late Chief‐Baron Kelly stated as the result of his experience, that in a page: 244 period of thirty‐eight years no less than twenty‐two innocent persons had been sentenced to death, of whom seven were actually executed; and other cases are instanced where condemned men were only saved by the confession of the actual culprit.
It is not, however, only in cruel mistakes of this nature that the imperfection of human judgment operates most forcibly: there are gradations in the guilt which consists in taking the life of a fellow‐creature, and there ought to be gradations in the punishment assigned to it. But no distinction is made between the heinous wickedness of a murder elaborately planned and deliberately carried out, and that which has resulted from a sudden stroke given in a moment of wild exasperation by a man driven almost mad through unendurable provocation. If the act comes technically under the head of murder and not of manslaughter, the penalty is the same. Recent scientific researches into the law of heredity have gone far to prove that propensities to crime may be the result of physical causes, even where they page: 245 cannot be classed with cases of actual insanity; and how is any fallible human judge to discriminate as to the greater or less guilt of individuals so constituted? A punishment not irrevocable would leave time for the development of the truth. Apart from these more subtle difficulties, the inequalities of the justice meted out to our fellow‐mortals under the law we are considering, may be seen and estimated in cases that are continually recurring. We will instance two that might be cited, out of numbers within our own knowledge.
Some years ago an elderly gentleman holding an office which entitled him to special respect was proved to have been guilty of the murder of his wife, under circumstances of especial barbarity. He had deliberately planned it for a long time previously: he had prepared a box in which he was to place her dismembered body, when he had with his own hands reduced it to the dimensions necessary for its concealment in that receptacle. During the days that he was making these cold‐blooded arrangements, he was living in his usual daily inter‐ page: 246 course intercourse with the doomed woman, sharing his meals with her, and passing his evenings quietly by her side. When the moment fixed in his long premeditation arrived, he fell upon her and slew her, afterwards disposing of her remains in the manner we have indicated. All these facts were conclusively proved, but the murderer was acquitted on the ground of insanity—a plea which later was known to have been much more than doubtful. About the same time a fine young man of excellent character, residing in a country village near the home of the writer, was brought to trial on the capital charge. He had attached himself with all the strength of a first love to a girl he hoped to marry. They were engaged, when a rival came on the scene, and the young woman, giddy and careless, with strong tendencies to the coarse coquetry of her class, openly manifested her preference for the new‐comer. Day after day she found means to rouse the jealousy of her true lover to an almost ungovernable pitch. Still he had been forbearing and gentle with her through it all, till one evening when he was seated by the kitchen‐fire in the page: 247 house where they generally met, she came in, and after displaying her fondness for her new admirer, hurled every taunting and scornful epithet she could think of at her betrothed. Stung almost to madness, in one moment of fierce exasperation he snatched up the poker lying close to him and dealt her a single blow with it on the back of the head. It did not kill her, nor was it in the first instance in any sense a mortal wound, but he was taken into custody for the assault, full of grief and remorse for his momentary violence. The girl lived for a month, during the whole of which period her complete recovery was perfectly possible; but at last inflammation of the brain set in, and she died. The young man, who had not probably retained a spark of animosity against her after his one passionate blow had been given, was duly executed; while the wife‐murderer, in full possession of his senses it is believed, enjoyed a country retirement at Broadwood, surrounded by every comfort.
We have very recently seen a death sentence commuted to penal servitude in a case which page: 248 caused great popular excitement—mainly, it would seem, because the criminal was a person of culture and good looks. In grim contrast to her escape, only a few months previously a poor woman was hanged for a crime infinitely less heinous than that of which the lady was accused. Moreover, it became known at the time of her execution that she had been instigated to the act for which she suffered by a person who had unbounded influence over her, and who had indeed assisted her in the crime, though keeping himself well out of the way while the inquiry was going on. Yet not a hope of reprieve ever came to the unhappy pauper, born and bred in an obscure slum, where no light of knowledge touching anything in heaven or earth ever gleamed on her darkened soul, and where the struggle to get bread for herself and the little starvelings who had crossed her path without being allied to her, bounded the range of her ideas from day to day.
It will doubtless be affirmed that these inequalities in the administration of justice are quite unavoidable. It may be so; but in view of the page: 249 fallibility and circumscribed potentialities of the human nature, have we any right ever to inflict a punishment which is irrevocable? Is it not enough that we are ourselves but blind creatures of a day, groping amid bewildering mysteries on the brink of that impenetrable gulf of death which awaits us one and all; and shall we precipitate others of our race into its unknown depths, because of the evil deeds they have done in that portion of their existence which alone is visible? Within the limits of this tangible life their crime was committed,—within these limits let it be expiated. And here we touch the grand fundamental reason which seems to prohibit human beings absolutely from the judicial destruction of life that goes by the name of the capital penalty. When we look this matter in the face, stripped of all its legal claims and the associations with which custom and prejudice have surrounded it, we see that in dealing death to a fellow‐mortal we are inflicting a punishment of which we know neither the meaning, nor the issue, nor the extent. The pains and penalties which a man may be page: 250 made to suffer during his tenure of earthly existence, can be meted out to him in precise proportion to the crimes committed within the same limits. We know exactly what we are doing in the retribution with which we visit his sins on earth. The whole transaction in all its bearings is open before us, and can be weighed and measured according to the most rigid lines of justice; but we are in absolute ignorance of the very nature as well as the ultimate results of the punishment of death, and there can, therefore, be no moral justification for its infliction by human beings on their fellow‐creatures. Of the mystery of life we know nothing, save that we have not the power to create it or to bestow it on others, and consequently can have no right to destroy it; and of death we only know that it is irrevocable as well as impenetrable—that the day fixed by men for its consummation on one of their race is not that which would have brought his existence to a natural termination. He would have lived for an indefinite period longer, with what results to page: 251 his immortal being in this world or the next we cannot guess. At our bidding, subject to the convenience of the hangman, he goes—where we know not, under conditions wholly hidden from us. Not knowing in the faintest degree what we are doing with him, we fling him out of our sight—out of our knowledge; we dismiss him from our responsibilities,—and with blind eyes and hands unguided, we hurl him into the mysteries of an inscrutable eternity.
It will be said that in what we have written against the existing law of capital punishment, we have been actuated by a sentimental tenderness towards crime—a weak desire to spare the murderer the tortures he has inflicted on his victim. It is not so. All who have the welfare of the community at heart, must strongly desire that evil‐doers should receive the just reward of their deeds with all due severity. We have already specified certain punishments which criminals dread infinitely more than death, and that are in truth terrible in a far higher degree. Let their crimes page: 252 be visited by these, and the sternest legislators may rest assured that justice will be fully satisfied; but let not a human touch, even by the impersonal hand of the law, be laid on the sacred, mysterious life which God alone can give, and God alone may righteously take away.
