The Sun.
London, England, 1853-01-27 00:00:00

THE UNCERTAINTY OF CAPITAL
PUNISHMENT.

(Prom the Weekly _Dispatch,. )
Mr. Editor,—The ushering in of the new year with
three hangings in less than as many weeks naturally
recals attention to the subject of capital punishment,
and the wisdom of continuing its infliction, at least as
at present managed in this country. The Times has
taken up the subject in its usual way, pooh-poohing the
efforts of those who have devoted the labours of their
lives to it, and then proceeding magisterially to enun-
ciate its own views as law, and declare the kind and de-
gree of improvement which it is royally disposed to
sanction. Just thus, on a former occasion, did the
same journal first ignore the League, then abuse it, and
at last, on the eve of the great free trade triumph, march
into the arena, and crown itself with laurel as the
abolisher of the corn laws. Now, we are told, " the
question of capital punishment can hardly be said to be
mooted in this country, a few sentimental ejaculations
being all that one ever hears on the side of the oppo-
nents." This statement is the very reverse of the fact.
" Sentimental ejaculations" are what one does not hear.
They are the coinage of the brain for the sake of cutting
a joke. And so far from the question not being mooted
there are two classes of persons, neither of them likely
to die out, and neither of them at all answering to the
description of sentimental ejaculators, who are sure to
keep this question before the public mind until it be
brought to some just, reasonable, and humane settlement.
There are those, and they constitute the first class of
opponents, with whom the question is a religious one,
and consequently of a permanent character. They deny '
the rightful power of man over the life of his fellow-man.
They regard the infliction of death as the prerogative of
the Giver of life. Their hostility to the gallows is an
article of faith. It is part and parcel of their Chris-
tianity. Their feelings may, and doubtless do, accord '
with their convictions, but there is no sentimentality in '
the matter. If they sometimes become excited, it is the
direct and manly result of principle. Who, except the
Times, would think of calling the Quakers a sect of sen-
timentalists ? The second class of opponents consists
mainly of utilitarian philosophers. They deal with the
subject secularly, and not theoreticaily. From the battle
of Bible texts they stand aloof. They push aside the
question of abstract right. If they indulge in sentiment
at all, it is after the fashion of Voltaire, who lamented
over hanging as the worst use to which we could put a
human being. The objection of this class is to the in-
efficiency of the punishment. They appeal to experience
against the notion that it prevents crime. They watch
the returns from year to year, and point to the condem-
natory results of the practice. The philosophy of this
class is no vague theory. It is clear, defined, and en-
during. To the extent of abolishing the gibbet (unless,
perhaps, in certain extreme cases, rare and exceptional),
they have common cause with the religionists, who rest
upon the Bible for their hostility ; and these two wit-
nesses are never likely to be silenced, until something be
done towards the purification of our criminal code.
And the Times, by implication, to the useful labours
of these classes, even while jeering at them, and thruet-
ing them aside, that it may take the questioninto its
own most potent hands. It takes up the subject, as it
always does, because the public mind gives indication of
a change ; and that change is the result of the labours
to which I have adverted. People are dissatisfied. The
good of hanging is obscured to their perceptions. The
Times falls in with the doubt of its efficiency. It ecu-
fesses a flaw somewhere. It repeats, after the " silly
philanthropists," who have said it a thousand times be-
fore, that " the secret of moral effect is certainty." In
that axiom, though the Times does not see it, lies the
whole question, compressed as in a nut-shell. It con-
tains, closely folded up, but yet there in its strength, the
essence of the growing objections to the present prac-
tice ; and for this reason, that yuu cannot dissever death
punishment from uncertainty.
In the ten years from 1842 to 1851 inclusively, capi-
tal convictions were obtained, and the sentence of death
pronounced, in 612 cases. Only 107 were executed.
The murderer's chance, therefore, after the final solemn-
ity, -is nearly 6tol of escape with life. Of these 612
cases, 179 were for actual murder, and 62 for attempts
to murder, attended by dangerous bodily injuries; total
of cases distinguished by the accidental results, and not
by intent, guilt, or danger to society, 241. Measured
by this test, and throwing all other capital offences
(such as high treason, arson of dwelling-houses with
persons therein, &c.) out of the question, the chance of
escape with life for the convicted and sentenced murderer
is still about 24 to 1. Can anything like moral certainty
_be predicated of such proceedings ? And how is any
close approximation to be obtained ? "Bring it to pass,"
says the nines, "that every rational man who entertains
and acts on the thought of murder shall feel that, on
proof of his crime, he will certainly suffer the extreme
penalty of the law." Aye, it comes to this postulation
—"Bring it to pass." " Give me a fulcrum " said the
philosopher. " Bell the cat," said the conspirators.
Not one syllable do we find in reply to the fatal "How? '
And the dictate of actual experience is that you cannot
" bring it to pass."
The chances of escape, described above, are chances
after detection, trial, conviction and sentence. What
are they, compared with the chances which exists before-
hand ? The chances of not being detected, not being
convicted, and not being sentenced, we must multiply
them more than tenfold. And it is the very nature of
the punishment to raise these chances to their maxi-
mum. The burglar commits murder for the sake of one
of these chances. He disposes of the probable prose-
cutor. He puts the most important witness out of the
way. He destroys the life which most of all imperils
his own life. He thus gains one point in the awful
game which he plays against the laws of his country.
The punishment suggests the crime, and so promotes
its own uncertainty. When the case comes into court,
every legal technicality is strained to the utmost.
Over the minds of witnesses, jurors, and perhaps of
the judge himself, there is the natural recoil from
bloodshedding, though blood has been already shed.
The growing objection to capital punishment has doubt-
less, its effect also. The laws of evidence are tampered
with. Proof, which in ordinary cases would be deemed
convincing, is resisted on account of its consequences.
All these are elements of uncertainty; not of the uncer-
tainty which, in some degree, attends all human proce-
dures, but of a peculiar and much larger uncertainty
which specially belongs to the case of capital punish-
ment. There is no extrication from it. Ineradicable
sympathies and feelings in human nature provide for its
recurrence. Criminals take these sympathies into ac-
count. They reckon them amongst their chances, even
in the worst cases and to the last moment. Barbour
persisted in solemn asseverations of his innocence till
within a few brief minutes of eternity. Others have per-
severed still longer. They have not felt that the uncer-
tainty was over, even when the rope was adjusted. The
wretch Horler ventured a struggle while the drop was
falling. The difficulty with capital punishment is to
make anything like certainty ever felt. "Bring it to
pass," indeed ; you must first change human nature,
both in the culprit and in all who have to deal with him.
There will always be some, stimulated by their general
condemnation of death-punishment, to strain every nerve
to avert it, in any particular case, whatever may be the
merits of that case. There will always be some deeply
impressible by the solemn assertions of a man condemned
to speedy death, ready to believe him, and the more so
when, as frequently happens, he exhibits the marks of
religious conviction, and is fervent in devotional exer-
cises. And there will always be some whose naturally
acute minds will be almost preturnaturally excited to
disoover flaws in a chain of evidence, reasons for doubt
on particular points, want of technical completeness, and
theories which may comport with the facts, and with the
innocence of the accused, even by directing suspicion
towards others, who are not upon their trial, and for
whom, if they were, a most obvious and triumphant
acquittal must be the result. Who in the world ever
seriously dreamed of putting M'Cormack upon his trial
for the murder of Robison ? Or the Irish boatman for
that of Mrs. Kirwan ? And yet Barbour himself tried
the dodge of inputation in the one case, and the friends
of Kirwan in the other. These are only instances, which
might be multiplied, of the warfare which society wages
against any certainty in death punishment. They show
an invincible propensity not to let it alone, nor allow it
quietly to take its place even amongst the common and
inevitable uncertainties of the law. They insure its
being, and continuing to be as long as it exists, the most
uncertain of all punishments, and therefore the most un-
wise and inefficacious.

Take the case of the convict Kirwan. Is his commuted
sentence compatible with any strong doubt of his guilt
in the minds of the responsible authorities ? Is he not
treated by it as a great criminal ? It is not my purpose,
and would be beside my present argument, to enter upon
the analysis of the evidence on which he was convicted,
or the discussion of the different pleas which have been
so rife in the newspapers. I assume that, in the proper
quarter, they have been weighed and found wanting.
Had it been otherwise, common justice and common sense
demanded, not a commutation of hanging for transporta-
tion, but a free pardon. For be it remembered the case
is not one of extenuating circumstances. That ground
is taken by nobody. The question is simply guilt or in-
nocence ; atrocious guilt or entire innocence. The
highest human authority has decided for guilt, and has
also not decided not to hang the murderer. And the
public mind acquiesces in the decision. Here, then, is a
deliberate determination—a judicial, a governmental, and
a national determination—that, not certainty, but uncer-
tainty of inflction 'shall be the attribute of capital punish
ment. It is of no use to call the authorities to account
It is of no use to call public opinion to account. What
is done has been done advisedly, and will be done again
and again. A different course may be imagined—as
what Utopian theory may not be cherished I—but what
power, or what period, shall "bring it to pass ?"
I have entered upon no abstract arguments. I cite
no texts from the New Testament. I appeal to no array
of jurisprudential, philosophical, or philanthropic autho-
rities. I make no question of the right of society over
the lives of its individual members. I urge no humane
objections to the punishment itself, nor have I traced
its brutalising influences. And assuredly I have not
indulged in " sentimental ejaculations." The principle
laid down in the latest defence of the gallows is, that
"the secret of moral effect is certainty." On that has
the reasoning of this letter been constructed. Capital
punishment is, from its own nature, and that of human
beings, incapable of certainty, and, therefore, of being
efficacious, whatever Mr. Caleraft or the Timcs may say
to the contrary.

PUBLICOLA.

MORBID SYMPATHY FOR CRIMINALS.

( Front the Derby Reporter.)
Undoubtedly it is a grave responsibility for judge and
jury to try the issues of life and death. It is equally
certain that the arguments are many and cogent in sup-
port of the abolision of capital punishments. But these
broad admissions leave untouched the necessity of carry-
ing into execution the verdicts of our juries, and do not