# The Pamphleteer/Volume 8/On the Punishment of Death

ON THE
Punishment of Death.
BY
JOHN WILLIAM POLIDORI, M. D.
1816.
ON THE
PUNISHMENT OF DEATH.
While events so momentous to the welfare of Europe; while scenes, that excel all the imagination of an Asiatic ever painted to our minds, were passing daily before our sight, we might find excuses for not paying a minute attention to the wants of our domestic and internal policy. But now that all these stimulating scenes have passed—now that legitimate authority has been every where restored, and that on the wide surface of the earth no trace is left of all those convulsions which once seemed to threaten destruction to civilization and liberty, we should indeed be inexcusable, if, after having, with so much anxiety and perseverance, been intent on the interests of the world, we did not pay a little attention to the few dark spots of our own internal government. For though, without doubt, England is the nation the most fortunate in its domestic government; though, owing to the wisdom and continued perseverance of our ancestors in ​the cause of liberty, we may boast of a constitution perhaps as nearly approaching to perfection, as human powers allow; still we must not wonder, that some things have been left by our ancestors to their posterity, which either through the want of time, of sufficient light upon the subject, or through the pressure of greater matter, they were unable to perform. Nor should this prove to us a cause of complaint; for indeed has not this gradual, though continual course towards the reformation of the first sketch of our constitution, formed the great and only cause of the permanence of our rights, by the security it afforded against the workings of impatient, though honorable feelings, against the fixing as corner-stones in our constitution, rotten principles of action? but chiefly by its impeding the overbearing flood of hasty reformation from sweeping with it in its course, all the good that was united even with the bad?
Following the same course, it is now the time to look to our laws, which though they may not appear to some immediately to concern the welfare of our constitution, still have the most intimate concern therein; for so closely linked are private and public good, that we much doubt the possibility of drawing the separating line. It is not, however, our intention, to enter into the whole of this subject at once, but to confine ourselves, for the present, to the examination of the relative proportion of punishment and guilt, in those cases where death is ordained by our criminal code. A subject which every one, who is in the habit of reading our daily papers, must perceive requires strong attention and gradual reform. The multiplicity of crimes, the great number of those yearly condemned to death, the great number of cases in which both judges and jury are obliged to use modifying powers, certainly point out the existence of some radical error in the very foundation of our criminal laws.
​In the last century, the relation of punishment and crime drew the attention of many: many authors have written upon it, and some princes have put in execution the ideas of philosophers. Italy, the nation which has set the example, almost in every pursuit, either of good or bad, was in this also the first nation whose philosophers entered this career, and whose princes showed the example of availing themselves of the light thrown upon the subject. Beccaria, whatever might be the harshness of his disposition in private life, has rendered the public a great service by his attempts to introduce a milder spirit in the hearts of the administrators of justice—and Leopold of Tuscany, though some may complain of his frivolity, and others of his weakness; had first the merit of forming a code upon the principles of this philosopher. In every country, the work of the Roman sage was read; in every country it was translated and purchased; but it was not in every country that his principles were adopted, or even noticed in the manner becoming a subject of a nature so important. Following the example of Tuscany, Russia under Elizabeth and Catherine was the only great nation that amended its code according to this just though mercy-breathing system. Thus that nation, which every rival stigmatised with the name of barbarian, had first the glory of adding to her other glorious wreaths the more honorable civic crown of reforming her code according to a system that does honor to the feeling heart. The French sages, though perhaps it was owing to them that Russia adopted the system, in their own country were content with examining, criticizing, and commenting on it, and never, during the whole of that sanguinary revolution, when stretching forth hands imbrued in the blood of their innocent countrymen, they talked of reason, philanthropy, and universal love, never was a single voice raised to propose a system of penal laws, the spirit of which was true ​love of the human race. No; they wore the mask of friendship and love, that unsuspected they might present the cup of poison, or point the knife of the assassin; there was no hatred on their lips, as there was no love in their hearts. In this country the subject has been brought before the public by a lover of his country, (Sir Samuel Romilly;) the public have listened, and only wait till the whole of the facts, and till the reasoning of both parties be fully developed, ere they determine which side they will sanction with their authority. The subject, till now, has not found the minds of our countrymen sufficiently at rest to take it up: accustomed to the intoxicating draughts of war attended with victory, they could not immediately descend from the highly elevated car, whence they viewed our armies victorious on land, our navies floating triumphant by the wrecks of their world-oppressing rivals, to the more humble, though equally useful, scenes of helping individual humanity. To prove, however, the justice and necessity of such a reform as this proposed, it is only required that we consider the subject coolly. Let us weigh it in every scale, and in every way we shall find the necessity of reform is pressing.
When man voluntarily joined himself with man, whether it was that he was tired of a life in which every moment was a moment of anxiety and fear, or that he was originally ordained by nature, to be an aggregating animal, none have denied, but that there were some stipulations, which, though neither exposed in writing, nor expressed by word of mouth, were supposed to have tacitly been formed—one of which must undoubtedly have been, that he should not be exposed to insult or offence from others—but in doing this, did he yield his life to be played with by the erring breath of every petty Lycurgus or Solon, who might with power in his hand lay down the ​rule—No, there were supposed stipulations: the punishment was supposed equal to the offence—hence that law which we find so universal in practice amongst those nations, which have not had the better sense of a community perverted by the wisdom of a cruel legislator like the Athenian Draco, or the Spartan Lycurgus—the lex talionis.
It is a matter of surprise, that the enlightened Greeks, who in speculative doctrines and in refined theories, have perhaps never been excelled, should submissively have bowed to their sanguinary laws, and should not have advanced any doubts with regard to the right of inflicting death. Even Plato in his treatise de Legibus can, without at all entering into the question of right and wrong, content himself by giving, as reasons for putting those whom he calls incurables, to death—first, that as a scarecrow they may be useful in deterring others; secondly, because by this means we clear the city of wicked men. How is it possible that Plato, one, whose name itself might be used as synonymous with wisdom, should write such reasons as this, and not perceive, that whatever might be the pretended use, still the justice was not proved by it. How could he speak on the subject of the punishment of death, and not inquire into the origin of the right. For to us it seems one of those questions, which would most naturally arise in the mind of every man. And the only manner in which we can explain its never having been started by the ancient sages, is by the knowledge of how perhaps unwilling, certainly how sluggish we are, in the discussion of those points which we find received by all, and by the knowledge of the reluctance in going over ground that has not yet been trod by others. We believe, Beccaria was the first who started the question, where resides the right of inflicting that death which is so constantly used without hesitation, by our judges, our jury, by individuals and nations? He, in that excellent work, Dei Delitti e Delle Pene, has ​clearly, and in few words expressed his opinion on the right of death; an opinion in which we cordially agree, and which as we cannot better express than in his own words, we will extract.
"What can be the right which men have assumed to themselves of killing their equals? certainly not that which results from the sovereignty and the laws—these are but a sum of minute portions of the private liberty of each one—they represent the general, which is an aggregate of individual wills. Now in this small sacrifice of the liberty of each one, can there be that of the greatest of blessings, life? And if it were so, how agrees this principle with the common one, that man is not master of killing himself—which power he certainly should have, if he could either yield it to another or to society in general." Becc. dei Delitt. &c. sect. xvi.
We believe all will agree with the above quoted, in condemning the suicide; for whatever may be the dispute with regard to the courage possessed by the man, who makes away with himself, all must agree, that our being here originating from God, it is not allowable to take into our own hands our own dismissal. All nations in their laws have condemned the suicide, and whatever might be the doctrines of a Cato, or other stoic, antiquity itself generally condemned them. Agreeing in this point, we would ask, wherein is the difference, whether Brutus kills himself, or consigns the sword to a slave? he is still a suicide. If then Brutus could not give to the slave a power of life and death over himself, does not this reasoning hold if he were to attempt giving it to two, and if to two to many, or finally to a nation? Some will, however, argue, that his giving his life brings to himself here no benefit, whereas in the instance of society’s requiring his life, amongst the other pledges of its safety, he gains indi​vidual security. If this is the reasoning we are to follow, which is indeed the argument adduced by Montesquieu and Rousseau—then why, the suicide will argue, why am not I allowed to barter my life for peace, which I believe dwells in the grave? And what can we answer, if man is allowed to barter life for peace with society? For if wrong in one case, it must be also wrong in the other. Then this right could certainly never have place since none could ever yield it.
But even allowing to the opponents of the alteration of our code, that the right of life and death is inherent in society, do our laws require no amendment? is it right to inflict death as do our laws for every petty offence? What hurt can one man inflict upon another, except murder, that can in justice require he should receive the most dreadful punishment man has in his power to ordain?
He who has read the annals of America, he who has heard the accounts of travellers and voyagers amongst savage nations, must be astonished to find savages in this so superior in mercy and illumination to European nations. For who ever heard of an American being put to an ignominious death for stealing a day’s subsistence? Who ever heard of an American, as a judge sitting in all the dignity the appointment of a people could give, condemn in cold blood the father of a family to death, for having felt the silent grief of his wife and the tears of his children around him, the dimned lustre of whose eyes would move the hardest heart, that had seen how once they were wont smiling with joy to play around upon nature. Yet such things have been heard of here where they boast of an Howard, of generosity, nay more, humanity. Is it fit that for crimes, which merely abridge the comforts of those around them, that men should be condemned to death? But what do we say comforts, what comforts are often ​abridged? sometimes for stealing what none would feel the want of, what many would not know they had lost, is condemnation passed.
No one will deny that punishment is necessary, but is it necessary that the punishment should breathe a spirit worse than the crime itself? Is it necessary that society should have murder on murder arranged in formidable array against it, for the smaller crimes of individuals of robbery and swindling? Let us consider the proportion of the punishment to the guilt, before we inflict the sentence. Acting as Christians, let us consider how great is our crime, if as the English law directs, we send men unshrived by repentance of their sins into another world in despair. For how must these criminals think of their crimes? If man, they will say, if man, weak, frail, and mortal as he is, punishes with the greatest severity he can inflict, these crimes; if man, sinful man, acts thus, they will say, how will God, who knows not human weakness, who is justice itself, how will he look upon our sins? They will step from this world into the next despairing and cursing their fellow-creatures, and we, if maturely we reflected on the subject, should have thoughts, which like corroding poison would work upon our peace, of having sent them for an eternity, for an eternity of pain into the deep, unconsumed, unconsuming abyss of fire. Even leaving out all religious views does it not strike us as out of all proportion? For having deprived another of a small sum we tear one from the bosom of his family for ever; we tear him from his wife, his children, we cast an unredeemable stain upon him, nay upon his innocent family, which if more mercy had been shown, he might have lived to wash away by tears and by deeds; but we rend him from all, consign his family, his posterity to ignominy, to shame, to want.
Not only are all the punishments awarded by the letter ​of the law, coming under the title of crown pleas, excessive, but even if we compare them with those awarded in civil cases, where, according to the arbitrary division of lawyers, the injury only affects individuals, we shall find them not only unjust but even ridiculous. To thieve from the person a few shillings is a crime, which by our laws nothing can expiate but the death of the guilty. Yet to set fire to a field of ripe corn is but a misdemeanour entailing some petty punishment. According to the statutes 9 George I. c. 22.—31 George II. c. 42. found in the 18th century, it is capital either to break down the mound of a fishpond so that the fish escape, or to cut down a cherry tree, while if some greater knave detains the property of the starving widow, or naked orphan, nothing but restitution can be enforced. Can this be justice, can this be equity? Whatever may be pretended by some that the difference in frequency may require a different punishment, we hope all will agree with us in the negative. Amongst those however who maintain this doctrine of the frequency of a crime being a warrant for more severe punishment, even death, is Sir Mat. Hales, whom Blackstone denominates the great and good. He writes, "when offences grow enormous, frequent and dangerous to a kingdom, or its inhabitants, severe punishment and even death itself is necessary to be annexed to laws, in many cases by the prudence of legislators." But can the injustice of one allow or render fit the injustice of another? We remember hearing a master once say to his scholar, who brought as an excuse for a fault, the example of another—if he hung would you hang too—so, though men may have committed an enormous crime, are we to be allowed the commission of another, and because many chuse to commit a small crime, are we to be allowed to punish a small crime with death? This was the legislation of Draco. Sir Mat. Hales might be a great and good man, but certainly upon this subject he could neither have ​reflected thoroughly or felt humanely. Even Blackstone, a man who perhaps has written the most clear and certainly a most beautiful exposition of a difficult subject, who in all things, whether simple or intricate, has shown judgment and learning, seems, in spite of his great veneration for so high an authority, to lean to the opinion of the injustice of this passage.
On an occasion like this, there is neither time, nor would it be allowable, to occupy too much space on the minuter parts of the subject; or else, if we chose to go into a minute examination of the relative proportions of crime and punishment in our crown pleas, we should find not one or two more instances like those here named, but should be astonished at every step by the visible injustice of our penal laws. But what need of more, for do we not see by what is above stated that depriving a cherry-tree and a man of life, are liable to the same punishment?
But as justice has got very little to do in this world, and as that fable of Astræa flying to heaven, is we fear but too true, we must also show not only the injustice, but also the impolicy of retaining, and the expediency of changing these laws.
To judge of the fitness of a punishment we should examine whether it fulfils all the uses intended in its adoption. The cause of our using punishment, says Blackstone, is as a precaution against future crimes, and this, punishment does in three ways, 1st, by amending the individual, 2dly, by deterring others from the commission of the same crime, and 3dly, by depriving the offender of the means of future mischief.
Examining the punishment of death, by the test of these uses, what is the result? Can we pretend that it improves the man? The question seems ridiculous, without some will pretend, that death improves the man, because from the form whose every motion, gesture, glance of the eye, seem to ​breathe a divinity, we change him into a corpse; the sparkling lustre of whose eye is gone, the graceful motion of whose limbs is changed into rigidity, and which at last gradually becomes fit but for the food of worms. In what other view can they pretend it improves man? for they cannot suppose they improve his morals by hanging him. But if a different course had been followed, then we might have hoped to see the man improved, his heart might have opened to nobler sentiments, his mind might have been rendered capable of feeling the value of virtue, nay more, its beauty.
Does it deter others from the commission of crimes, for which they see it inflicted? Let us consult the criminal records of every country, and every page will show us its insufficiency, every line will contradict those who maintain that by the dread of death, men are hindered from pursuing the path that leads to crime. This punishment not only does not render less frequent the crimes of robbery, and forgery, for which it is so wantonly ordained, but if it were not for the palliative, which we have been forced to adopt, of showing more leniency to mere robbers, whose life has been spared, would render frequent the worst of crimes, murder. For in Italy, where formerly no difference in punishment was established between the robber and murderer, every highwayman with the purse took also the life of his victim that he might thus ensure his safety. But in China, where robbers are whipped and murderers cut to pieces, murders are seldom heard of. That the dread of death does not even deter men from the commission even of the smaller crimes, have we not every day demonstrated to us? Does not every day bring to our newspapers an increase of crimes? It has been found that the numbers of executions every year increase: and what is the cause of this, if not that the populace of great towns are become now so accustomed to the sight of death that they attend the execution of a felon, as a farce at which they laugh or applaud, just as he may show more ​cowardice or courage? This alone is sufficient to show the impolicy of inflicting the highest punishment on smaller crimes, for the frequent repetition of it renders the mind callous to fear. Need we wonder that when we daily see so many go with a firm tread and an unchanging eye to execution, that man should lose all fear of it? Man, we think, does not naturally fear death,—having the certainty of death always before his eyes; seeing his friends, his relatives, drop one after another into the grave; forgetting, neglecting, nay, laughing at every religious feeling, as man in these cases generally does, he grows gradually accustomed to the thoughts of death, at last divests it of all its terrors; and hence alone will not fear to increase the chance one in a hundred of his dying within a certain time, by stealing, to gain some important end. What serves to preach to men like this on eternity? they have no religious feeling, and they are not capable of imagining any other state than the present for the future. Conscious that eternity has already begun its reign, that they are under the wings of that monster, whose extremities are hid in the interminable abyss of night, capable from the degradation of their minds, of imagining no different state from the present, they will not grieve to part from their friends, for they must know, that the few years they may survive, will be but as the passing of a cloud before the firmament, and that when it has flitted from their gaze, their friends, if friends they can have, will be joined to them for an immortality.
Besides, it is not the intenseness of punishment that most influences our mind; it is the continued impression that fixes itself most indelibly on our thoughts. The dreadful but passing spectacle of death, has little effect upon our ideas: its greatness does not make up for the ease with which we accustom ourselves to dismiss all painful sensations from our memory. Besides, such is the nature of man, ​that he is capable for a short time of resisting pain to an astonishing degree, whatever be its intenseness, so that the people around have little idea what he suffers. For man can wind himself up so as to suffer death as he would the amputation of a finger. We have seen three boys, none of whom were above 18, walk with a foot so firm and countenance so little changed to death, that we asked ourselves, is this the dread of all? And upon turning round it was not horror, it was not disgust, it was either indifference or compassion that we saw depicted on every face. Indeed we make no doubt that the ennui, the repining at imprisonment in a solitary cell, prove torture more exquisite than all the deaths invented by a Dionysius, a Perillus, a Domitian, or a Nero. Moreover, there is another point of view, under which we must examine the effect of this spectacle upon the gazer. He passes, sees an execution, asks the question natural upon such an occasion, why does he hang? He stole some goods. But do they hang him for that alone? No; there were some aggravating circumstances. What does he argue from this conversation with his neighbour?—that it is not for stealing this man was hung—but for what he neither knows nor is likely to know. And by this means the punishment is without avail, as the cause cannot be avoided, being unknown, and as the comparative value of the object gained by the crime and life cannot be impressed upon the mob. For such is the present state of our laws, that all are ashamed to put them in execution; and unless the jurors see some circumstances which render the crime of a more deadly hue, they generally return their verdicts in such a manner, that the pain is commuted; and though they even chose to inflict the highest punishment, still the circumstances that induced them so to do, not being mentioned in the registry, it is impossible for others to know, what they are to avoid in order to avoid the penalty of death.
​The impolicy of this profuse ordinance of death may also be shown in another way; for if we examine it fully, we shall find that it forms actually a nursery of vice; for at present none will load themselves with the blood of men, who have been guilty of a small theft; and as there is no other punishment decreed, the guilty escape with impunity and are encouraged in vice. We are not mentioning a circumstance that is a refined consequence of minute reasoning; it is one we are sure, that must have occurred to all: for who has not seen masters, upon the discovery of a theft by a servant, decline bringing him to justice and merely dismiss him, because the consequence would be death, if he delivered him to what is called justice; while he would not hesitate delivering him up to the laws, if they breathed a more merciful spirit; for then he would know that the vice of the individual meeting its punishment ere he was hardened in guilt, might recall him to paths of virtue. Nor do these considerations influence the masters alone; it influences all, through whose hands the guilty has to pass in his course to justice. We cannot resist here the temptation of quoting the words of Sir Samuel Romilly, upon this point of the subject, where after stating that during the seven years preceding 1809, 1872 persons were committed to Newgate for privately stealing, he says,
"In how many instances such crimes have been committed, and the persons robbed have not proceeded so far against the offenders as to have them committed to prison: how many of the 1872 thus committed were discharged because those who had suffered by their crimes would not appear to give evidence upon their trial: in how many cases, the witnesses who did appear, withheld the evidence that they could have given: and how numerous were the instances, in which juries found a compassionate verdict in direct contradiction to the plain facts clearly established before them, ​we do not know; but that these evils must all have existed to a considerable degree, no man can doubt." p. xi.
But some will say that it appears these laws are obsolete; that judges, jury, all agree in not fulfilling them; that only one in eight are executed of all those condemned; and only one condemned in 1872. Granted; but why leave to the discretion of men, what every free nation requires should be exactly fixed; why set traps, that we may let down upon the unwary, or hold firm according as it may suit the prejudice of some or the advantage of others? Besides, has not this uncertainty a tendency to render crimes more frequent? Are not men apt to count uncertain future punishment as none? And does it not call for speedy attention, when we find that our juries are continually perjuring themselves in the cause of humanity? Does it not require some attention, when we hear our judges preaching the doctrines of perjury to the jury in the hearing of the multitude around them? Has not this a tendency to subvert morality, and to introduce the worst of vices; a playing with the most sacred of oaths, that taken in behalf of justice? That we may not be supposed to exaggerate, we again willingly quote from Sir Samuel Romilly the two following paragraphs, showing how much jurors are accustomed to give verdicts inconsistent with the evidence adduced, which is breaking their oath in the most material point.
"Some of the cases which occurred about this time are of such a kind that it is difficult to imagine by what casuistry the jury could have been reconciled to such a verdict: it may be proper to mention a few of them. Eliz. Hobbs was tried in September, 1732, for stealing in a dwelling-house one broad piece, two guineas, two half guineas, and 44 shillings in money: she confessed the fact, and the jury found her guilty; but found that the money stolen was only thrity-nine shillings. Mary Bradley, in May, 1732, was ​indicted for stealing in a dwelling-house lace which she had offered to sell for twelve guineas, and for which she refused to take eight: the jury, however, who found her guilty, found the lace to be worth no more than thirty-nine shillings. William Sherrington, in October, 1732, was indicted for stealing privately in a shop, which he had actually sold for 1l. 5s. and the jury found they were only worth 4s. 10d.
"In the case of Michael Allom, indicted in February, 1733, for privately stealing in a shop forty-three dozen pair of stockings, value 3l. 10s. it was proved that the prisoner had sold them for a guinea and a half, to a witness who was produced on the trial; and yet the jury found him guilty of stealing what was only of the value of 4s. 10d. In another case, that of George Dawson and Joe Nitch, also indicted in February, 1733, it appeared that the two prisoners, in company together, at the same time, stole the same goods privately in a shop; and the jury found one guilty to the amount of 4s. 10d., and the other to the amount of 5d.; that is, that the same goods were at one and the same moment of different values. This monstrous proceeding is accounted for by finding that Dawson, who was capitally convicted, had been tried at the same sessions for a similar offence, and had been convicted of stealing to the amount of 4s, 10d. The jury seem to have thought that, having had the benefit of their indulgence once, he was not entitled to it a second time; or, in other words, that having once had a pardon at their hands, he had no farther claim upon their mercy." p. 67.
We in these cases see oaths violated, laws evaded, the several duties of judges and juries neglected, and the juries usurping the place of the letter of the law, and decreeing indeed what punishment they think fit in lieu of the death of the offender, by English law ordained.
The third use of punishment may certainly be fulfilled ​by death: it certainly deprives the offender of the means of future mischief. But what should we say of the watchmaker, who, because a watch should gain upon time, cast it on the pavement, where it is broken to fragments? Yet this is the conduct those defend, who, because death fulfils this last intention of punishment, advise the retaining of capital inflictions.
The impolicy of the punishment must be evident from what has been said above, for not only have we found that it does not hinder the commission of the smaller crimes, but even that it has a tendency to corrupt the people, by rendering them neglectful of their oaths, and to render frequent the more horrible crime of murder. For when the same punishment is awarded to many crimes, human nature is such, that when once it has thrown off religious fear and moral restraint, it will always seek to gain the most at the same price, and will hence try to gain security as well as the purse, when the punishment threatened is equal for murder and robbery.
The very impolicy of retaining, shows the expediency of altering them. For justice is always expedient, and whatever may be the doctrines of some that in the government and policy of nations justice may be set aside, still these are but the visions of near-sighted men, who look but to the apparent immediate advantage, and see not the train of evils that follows the violation of justice. To those who maintain the contrary doctrine, we would point out the inhabitant of St. Helena, who once held the destinies of Europe, apparently in his hand, but lost them by his want of faith and political justice—when sacrificing all to his power, when treading upon all that binds man to virtue in his career, he did not think that those steps would prove at last the stumbling blocks in his way. And is there any difference in external and internal politics?—No; justice is the surest and most glorious path for all to tread in, and no less be​comes a king in the triumphal car of victory, than on the bench of justice. If it is our wish to make vice shrink and virtue flourish, let us show we pay some attention to honesty; let us not punish various degrees of vice with equal infliction,—let us appreciate what little virtue there is even in the wretch amenable to our laws.
If reasoning has no power over our minds, let us at least be guided by experience; and has not the experience of ages shown us the insufficiency of capital punishments? does not the catalogue of crimes consist in an incessant repetition of ditto's, in spite of the penalty of death being affixed to all? Does not Asia, Europe, Africa, America, every people, every nation, nay every village of this sublunary world, demonstrate the insufficiency of this punishment? And does not the continued success—this changing of the laws has met with in every country, demonstrate its expediency? Let us look upon the effect in the Roman state. What parts of their history are most stained with iniquity, and what period is most pure from vice? Was it under the kings or Emperors,—under the Decemviri or Triumviri? Under the kings they were a nest of thieves; under the emperors an universal brothel—under the Decemviri they were unjust and blood-thirsty; and under the Triumviri, a laurelled set of butchers. It was between the expulsion of the Decemviri and the tyranny of the Triumviri, that virtue, honor, and probity reigned; it was during this time, that a Scipio, a Lælius, and two Cato's arose: it was during this time that capital punishments did not exist. It was under Sylla, that the first step was made towards capital punishments by the law of exile prohibiting fire and water; and it was under him that corruption made the first strides amongst the people. We do not pretend to give this as the only cause; by such an absurdity we should expose ourselves deservedly to the ridicule of our adversaries: but we certainly maintain that it was ​not one of the most insignificant of those that hastened the depravation of the morals of that once glorious Rome. Do we find that those who have seen Russia in its present state, discern more vice, more robberies, more murders now than before the time of Elizabeth? Do they not on the contrary find more virtue, more corrected vice? But if we wish to have a more clear and satisfactory proof of its sufficiency, let us look to Tuscany. We shall there find that the criminal records bear witness to the truth of the assertion, that lenity is the best corrector of vice; every one must have heard of the effect—the greater crimes almost disappeared; the lesser ones diminished.
But against us, many will bring that thread-worn argument of this doctrine having been from the beginning, and having been continually prevalent. From the beginning it was not; for Cain had a mark set upon him, that none should kill him: and by whom and upon whom was it placed? By God, upon a murderer. It was indeed ordained by God, against the Jews, that for certain crimes they should be stoned, but this nation was stiff-necked and obdurate of heart. Besides this, theocracy can be no rule for democracies and monarchies: guided specially by the hand of God, every crime in that nation, was a crime against him, and hence its magnitude was increased ten-fold. The Romans, besides, as above stated, adopted a contrary plan. It is therefore evident, that it has not been universally prevalent. But even if it were so, what then?—What nation on the face of the earth has not always joined with its ideas of God the passions of men? The obdurate and vindictive Jews made their God passionate, revengeful, visiting the sins of the father on the third and fourth generation.—The ​loose and cunning Greek painted his Jupiter and celestial court as lewd and treacherous—the proud though noble Roman, as vicious, but as one who with his nod shook the heavens and the earth. Has not every nation sacrificed human victims to their false ideas of God?—The Philistines, the Druids, the Hindoos, the Carthaginians, the Romans sacrificed their citizens to their angry idols. Shall we then from these early and popular errors, argue that God is but man in vice? Certainly not: then why bring this as an argument to impugn doctrines no less consonant with reason than even the goodness of God?
Some will pretend, because these laws have had the sufferance of our ancestors, that we, bowing to their superior wisdom, should not presume to touch, what (from mere rottenness perhaps) would crumble at the approach of a meddling finger. According to this kind of doctrine, man should bow to the errors of childhood, and because, when a child, he learnt to read well, he should preserve as well as the reading the trembling at going in the dark along a passage or into a neighbouring room; for what are those ages when our ancestors lived, but as it were an infancy to our present boyhood, when we are to be occupied in rubbing off those smaller imperfections, which, though not displeasing in childhood, now disgrace the state entering into manhood. Those who absurdly maintain, as we have heard many, the perfect wisdom of our ancestors, injure instead of augmenting their reputation.—Let us give them that merit which certainly they deserved, of applying, according to the best of their judgment, a remedy to whatever evil appeared in the frame of our constitution; but do not let us pretend, that they either had an insight, almost infinite, into the causes and effects in the policy of law, or that they had a foresight, worthy of any being but man, that could enable them so to form their laws, that at one moment they might serve to stop a broken lane and at another the portal of the ​edifice of our constitution. They did not expect that their laws would not want revision, any more than the laws of their forefathers, for they must have well perceived the absurdity of such a proceedure, which would, if every generation had followed it, have left nations in the hands of a king, wielding a rod for a sceptre, and applying it perhaps in the same manner, as did the first British father to his refractory children. It was not by following this line of conduct that they gained the Magna Charta, the Bill of Rights, the Habeas Corpus Act.
That there are cases where the death of the offender is necessary, is not what we mean to deny—Murder is a crime so heinous, so horrible, and one so above the reach of any other punishment that we think in this case, death necessarily should follow death. Some, however, have doubted, amongst others Beccaria, whether we should not inflict death in the case of conspiracy against the country and in the case of rebellion. This case at first seems to admit of doubt. It is said that the welfare of a whole nation depending on the stability of its government, and that an attempt to disturb it not injuring one but many, should induce us to inflict death, in order to deter others more quickly; thus cruelty to one being indeed mercy to the many whom it deters, and proving the welfare of all whom it saves. In cases of anarchy, in cases where all law is laid aside and the appeal is made only to the sword; there, as right and wrong have indeed nothing to do with the question, we cannot pretend to talk of the right of death—since no right is acknowledged but in cases, where the laws yet have sway. Where the sovereign yet rules over a willing people, we think that death would be useless and hence unjust; for would not perpetual imprisonment answer every purpose, if the majority of the nation was against the disturber of its peace? and if it was not so, it would not be the decapitation of one or many, that would fulfil the purpose of the weaker side.
​But after thus having attempted to show the injustice, impolicy, and absurdity of the present distribution of the penalty of death, the question will naturally be proposed, how can we change them to advantage? This we cannot better answer than by referring to the speeches and conduct of Sir Samuel Romilly; a man, who, whatever those may say, whose foolish pride is flattered, by the opportunities afforded them from the vagueness of the application of our Penal code, to use arbitrary power, is certainly not a rash disturber of the old and good constitution; but a man whom every patriot must revere, every Englishman venerate. He has begun to stamp the sandy and unsettled deserts of our criminal law with footsteps, that may guide those who follow him in the cause of humanity. Going upon the sound maxim of our ancestors, he has begun the reform in those parts which most called for the healing hand, and instead of going upon vague theories and loose ideas, he attempts the remedy of the evil by gaining the clue of experience, in the smaller crimes, to guide him through the labyrinth of various opinion and to give us an opportunity of learning by our success in these cases, whether we may adopt the same conduct in others. He is a man undismayed by difficulties, unmoved by wanton opposition, or, we should fear, the might be disgusted by the strange perverseness he has met with in many members of our parliament. Some laws, which he condemned, have been abrogated—and though the others, which he proposed altering, have been retained, still we will not despair, seeing them in such able hands but that in time he will gain not only this point, but also pursue the career he has so well begun.
The history of his proceedings in this subject can be told in a few words.—The first of our unjust and obsolete statutes that he attacked was that of Elizabeth (8 Eliz. c. 4.) which rendered the picking pockets capital; of which he obtained the repeal, and which by 48 Geo. III. c. 129. was made a felony within clergy, and punishable with transport​ation or imprisonment. He next, in the same manner as the last, but not with the same success, sought the repeal of 10—11 Will. III. 12 Ann, and 23 Geo. II, which make the crime of privately stealing in a shop to the amount of 5 shillings, and in a dwelling-house, or ship, or navigable river to the amount of 40 shillings, capital felonies. What could be the intention of the opposers of this motion? the same reasons as induced them to coincide in the first should have led them to join in the repeal of these; especially as it is a notorious fact, stated in the returns of the secretary of state, that during the space between 1802 and 9, 1872 persons were committed to Newgate on these statutes and that only one was executed. He was twice defeated, once by a majority, we think of 2, in the house of Commons, and in the next Session by the house of Lords. Not disheartened by this, Sir S. Romilly immediately after proposed, (upon petitions from many bleachers stating that from the enormity of the punishment of death against those who stole linen from a bleach-field, they could get none punished, as both jurors and judges dismissed the guilty with impunity,) the repeal of the act 18 Geo. II. c. 27, where this offence is made a felony: and since that, he has gained the abrogation of the law, 39 Eliz. c. 17. inflicting the punishment of death on soldiers and sailors who are found begging without testimonials of their discharge. This has been till now the career of this distinguished lawyer, which we hope he will pursue unmoved by the false cry of alarm for the constitution, raised by some. We hope indeed he will not stop here, but if he finds, of which we make no doubt, that vice diminishes, and does not, as these snarlers pretend, increase, that he will continue, and gradually reduce our criminal law to a form for which we may need no longer to blush in the presence of foreigners who inquire into the administration of our justice, and who till now have continually reproached us with its sanguinary nature.
This work was published before January 1, 1929, and is in the public domain worldwide because the author died at least 100 years ago.
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