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.”

More than a hundred such cases are known, it is said in this Report, in English criminal jurisprudence.  The same Report contains three striking cases of supposed criminals being unjustly hanged in America; and also five more in which people whose innocence was not afterwards established were put to death on evidence as purely circumstantial and as doubtful, to say the least of it, as any that was held to be sufficient in this general summary of legal murders.  Mr. O’Connell defended, in Ireland, within five and twenty years, three brothers who were hanged for a murder of which they were afterwards shown to have been innocent.  I cannot find the reference at this moment, but I have seen it stated on good authority, that but for the exertions, I think of the present Lord Chief Baron, six or seven innocent men would certainly have been hanged.  Such are the instances of wrong judgment which are known to us.  How many more there may be in which the real murderers never disclosed their guilt, or were never discovered, and where the odium of great crimes still rests on guiltless people long since resolved to dust in their untimely graves, no human power can tell.

The effect of public executions on those who witness them, requires no better illustration, and can have none, than the scene which any execution in itself presents, and the general Police-office knowledge of the offences arising out of them.  I have stated my belief that the study of rude scenes leads to the disregard of human life, and to murder.  Referring, since that expression of opinion, to the very last trial for murder in London, I have made inquiry, and am assured that the youth now under sentence of death in Newgate for the murder of his master in Drury Lane, was a vigilant spectator of the three last public executions in this City.  What effects a daily increasing familiarity with the scaffold, and with death upon it, wrought in France in the Great Revolution, everybody knows.  In reference to this very question of Capital Punishment, Robespierre himself, before he was

“in blood stept in so far”,

warned the National Assembly that in taking human life, and in displaying before the eyes of the people scenes of cruelty and the bodies of murdered men, the law awakened ferocious prejudices, which gave birth to a long and growing train of their own kind.  With how much reason this was said, let his own detestable name bear witness!  If we would know how callous and hardened society, even in a peaceful and settled state, becomes to public executions when they are frequent, let us recollect how few they were who made the last attempt to stay the dreadful Monday-morning spectacles of men and women strung up in a row for crimes as different in their degree as our whole social scheme is different in its component parts, which, within some fifteen years or so, made human shambles of the Old Bailey.

There is no better way of testing the effect of public executions on those who do not actually behold them, but who read of them and know of them, than by inquiring into their efficiency in preventing crime.  In this respect they have always, and in all countries, failed.  According to all facts and figures, failed.  In Russia, in Spain, in France, in Italy, in Belgium, in Sweden, in England, there has been one result.  In Bombay, during the Recordership of Sir James Macintosh, there were fewer crimes in seven years without one execution, than in the preceding seven years with forty-seven executions; notwithstanding that in the seven years without capital punishment, the population had greatly increased, and there had been a large accession to the numbers of the ignorant and licentious soldiery, with whom the more violent offences originated.  During the four wickedest years of the Bank of England (from 1814 to 1817, inclusive), when the one-pound note capital prosecutions were most numerous and shocking, the number of forged one-pound notes discovered by the Bank steadily increased, from the gross amount in the first year of £10,342, to the gross amount in the last of £28,412.  But in every branch of this part of the subject—the inefficiency of capital punishment to prevent crime, and its efficiency to produce it—the body of evidence (if there were space to quote or analyse it here) is overpowering and resistless.

I have purposely deferred until now any reference to one objection which is urged against the abolition of capital punishment: I mean that objection which claims to rest on Scriptural authority.

It was excellently well said by Lord Melbourne, that no class of persons can be shown to be very miserable and oppressed, but some supporters of things as they are will immediately rise up and assert—not that those persons are moderately well to do, or that their lot in life has a reasonably bright side—but that they are, of all sorts and conditions of men, the happiest.  In like manner, when a certain proceeding or institution is shown to be very wrong indeed, there is a class of people who rush to the fountainhead at once, and will have no less an authority for it than the Bible, on any terms.

So, we have the Bible appealed to in behalf of Capital Punishment.  So, we have the Bible produced as a distinct authority for Slavery.  So, American representatives find the title of their country to the Oregon territory distinctly laid down in the Book of Genesis.  So, in course of time, we shall find Repudiation, perhaps, expressly commanded in the Sacred Writings.

It is enough for me to be satisfied, on calm inquiry and with reason, that an Institution or Custom is wrong and bad; and thence to feel assured that IT CANNOT BE a part of the law laid down by the Divinity who walked the earth.  Though every other man who wields a pen should turn himself into a commentator on the Scriptures—not all their united efforts, pursued through our united lives, could ever persuade me that Slavery is a Christian law; nor, with one of these objections to an execution in my certain knowledge, that Executions are a Christian law, my will is not concerned.  I could not, in my veneration for the life and lessons of Our Lord, believe it.  If any text appeared to justify the claim, I would reject that limited appeal, and rest upon the character of the Redeemer, and the great scheme of His Religion, where, in its broad spirit, made so plain—and not this or that disputed letter—we all put our trust.  But, happily, such doubts do not exist.  The case is far too plain.  The Rev. Henry Christmas, in a recent pamphlet on this subject, shows clearly that in five important versions of the Old Testament (to say nothing of versions of less note) the words, “by man”, in the often-quoted text, “Whoso sheddeth man’s blood, by man shall his blood be shed”, do not appear at all.  We know that the law of Moses was delivered to certain wandering tribes in a peculiar and perfectly different social condition from that which prevails among us at this time.  We know that the Christian Dispensation did distinctly repeal and annul certain portions of that law.  We know that the doctrine of retributive justice or vengeance, was plainly disavowed by the Saviour.  We know that on the only occasion of an offender, liable by the law to death, being brought before Him for His judgment, it was not death.  We know that He said, “Thou shalt not kill”.  And if we are still to inflict capital punishment because of the Mosaic law (under which it was not the consequence of a legal proceeding, but an act of vengeance from the next of kin, which would surely be discouraged by our later laws if it were revived among the Jews just now) it would be equally reasonable to establish the lawfulness of a plurality of wives on the same authority.

Here I will leave this aspect of the question.  I should not have treated of it at all in the columns of a newspaper, but for the possibility of being unjustly supposed to have given it no consideration in my own mind.

In bringing to a close these letters on a subject, in connection with which there is happily very little that is new to be said or written, I beg to be understood as advocating the total abolition of the Punishment of Death, as a general principle, for the advantage of society, for the prevention of crime, and without the least reference to, or tenderness for any individual malefactor whomsoever.  Indeed, in most cases of murder, my feeling towards the culprit is very strongly and violently the reverse.  I am the more desirous to be so understood, after reading a speech made by Mr. Macaulay in the House of Commons last Tuesday night, in which that accomplished gentleman hardly seemed to recognise the possibility of anybody entertaining an honest conviction of the inutility and bad effects of Capital Punishment in the abstract, founded on inquiry and reflection, without being the victim of “a kind of effeminate feeling”.  Without staying to inquire what there may be that is especially manly and heroic in the advocacy of the gallows, or to express my admiration of Mr. Calcraft, the hangman, as doubtless one of the most manly specimens now in existence, I would simply hint a doubt, in all good humour, whether this be the true Macaulay way of meeting a great question?  One of the instances of effeminacy of feeling quoted by Mr. Macaulay, I have reason to think was not quite fairly stated.  I allude to the petition in Tawell’s case.  I had neither hand nor part in it myself; but, unless I am greatly mistaken, it did pretty clearly set forth that Tawell was a most abhorred villain, and that the House might conclude how strongly the petitioners were opposed to the Punishment of Death, when they prayed for its non-infliction even in such a case.