M ^. j3^ P ■■''( ii' EXPLANATORY NOTE This new volume in the "Debaters' Handbook Series" is uniforrn with its predecessors, and like them, offers as the chief reason for compilation the manifest need among debaters for material on the subject under treatment, and the general lack of duplicate library copies of publications in which ma- terial may be found. The best articles on the subject have been collected and reprinted entire or in part, the aim being to furnish the best available material on both sides of the question, without unnecessary repetition. "Resolved that capital punishment should be abolished" is the adopted form of statement for the question ; so it will be apparent that the affirmative refer- ences give arguments against and the negative references, argu- ments in favor of capital punishment. ^ 209172 \ 1 ' CONTENTS Bibliography Bibliographies i General Works i Magazine Articles General 2 Affirmative 3 Negative 7 Selected Articles Palm, Andrew J. Capital Punishment American Journal of Politics 9 Wiley, Re\r. Charles, D. D. Retributive Law and Capital Punishment American Presbyterian Review 10 Garner, James W. Crime and Judicial Inefficiency Annals of the American Academy 10 Barrows, Samuel J. Legislative Tendencies as to Capital Punishment Annals of the American Academy 12 Cutler, J. E. Capital Punishment and Lynching Annals of the American Academy 17 Shipley, Maynard. Homicide and the Death Penalty in Mexico Annals of the American Academy 22 Shrady, George. Death Penalty Arena 28 Ferguson, John. Death Penalty Canadian Magazine 39 Capital Punishment Denounced Charities 39 Neuman, B. Paul. Case against Capital Punishment Fortnightly Review 42 Galbreath, Charles Burleigh. Shall the State Kill? '^ Friends' IntelHgencer 56 Buckley, J. M. Death Penalty Forum 73. Stillman, James W. Abolish the Death Penalty Green Bag 84 viii CONTENTS Mosby, Thomas Speed. Does Capital Punishment Tend to \ Diminish Capital Crime ? Harper's Weekly 84 /JjSpitzka, Charles. Should Capital Punishment Be Abol- ished ? Harper's Weekly 86 Roberts, W. J. Abolition of Capital Punishment International Journal of Ethics 87, \j Heath, Carl. Reform and the Death Penalty International Journal of Ethics 91 Heath, Carl. Treatment of Homicidal Crhnes , . ■ International Journal of Ethics 92 McClure, S. S. Increase of Lawlessness in the United States McClure 93 ^Maude, W. C. Shall We Abolish the Death Penalty for . Murder ? Month 97-^ W^Substitute for Hanging. « , Nation loer 7/Lilly, W. S. In Praise of Hanging New Review loi "^ Cheever, George B., Hand, Samuel and Phillips, Wendell. Death Penalty North American Review 103 n,^^^ Adelman, Abram E. Capital Punishment.' Public 131 Qallows in America Putnam's jMagazine 134 MtGilvary, E. B. Is Capital Punishment Justified ? /) Review;^of Reviews 34 TJoes Capital Punishment Prevent Convictions ? .>^fi Review of Reviews 136 . Vicars, G. Rayleigh. Ought Capital Punishment to be Abol- ished ? Westminster Review 137 Hopkins, T. M. Capital Punishment: Ineffectual and Mis- chievous Westminster Review 144 Hort, G. M. Emotion as a Law-Maker : a Sociological Sug- gestion Westminster Review I44 Heath. Carl. Homicidal Crime and the Death Penalty Abroad Westminster Review 146 lJ^ Ingram, Advocate C. J. Shall We Abolish the Death Pen- alty? Westminster Review 1 56 Heatii, Carl. Modern Penology and the Punishment of Death Westminster Review 166' UNIVERSITY^ \JN\V, OF SELECTED ARTICLES ON CAPITAL PUNISHMENT BIBLIOGRAPHY A star (*) preceding a reference indicates that the entire article or a part of it has been reprinted in this volume. BiBLIOGRARHIES Brookings, W. DuBois and Ringwalt, Ralph Curtis. Briefs for Debate, pp. 57-9. Contains good brief. Ohio State Library ^lonthly Bulletin. Vol. I. No. 10. Ja. '06. pp. 3-6. United States Bureau of Education. Circular of information No. 4. 1893- PP- 409-10. United States. 54th Congress, ist Session. House report 108. pp. 12-22. General Works Bierce, Ambrose. Shadow on the dial. Death Penalty. Chap. VIII. Bliss, William D. P. New Encyclopedia of Social Reform. Death Penalty, p. 363. Cheever, George B. Defence of Capital Punishment. Wiley and* Putnam, New York. 1846. Contents: Essays oja'^unishment by Death; Argument in Re- ply to J. L. O'Sulllvan; Brief Examination of a Late Work en- titled "Thovights on the Death Penalty," by Charles E. Burleigh. / Du Cane, Sir Edmund Frederick. Punishment and Prevention,' of Crime, pp. 28-9. 1885. Dymond, Jonathan. Essays on the Principles of MoraHty. pp. 351-65. 1896. Encyclopedia Americana, Capital Punishment. Vol. IV. Lalor, John J. Cyclopedia of Political Science. Death Penalty. Faustin Helie. Vol. I. pp. 721-4. Prisons and Prison Disci- pline. Fred H. Wines. Vol. III. pp. 352-3. Livingston, Edward. Capital Punishment. In Moore, Frank. American Eloquence. Vol. II. pp. 225-36. : K-'"'.' ':: ,.2.'* '-SBLECTED ARTICLES Mittermaier, Karl Josef Anton. Capital Punishment, ed. by John Macrae Moir. 1865. Moore, Frank. American Eloquence. Capital Punishment. Ed- ward Livingston. Vol. IL pp. 225-36. New International Encyclopaedia. Capital Punishment. Vol. IV. pp. I7S-6. Ohio State Library Monthly Bulletin. Vol. I. No. 10. Ja. '06. Has valuable statistics on capital punishment in the states of this country. Palm, Andrew J. Death Penalty : a Consideration of'TlTe' Ob- jections to Capital Punishment. Phillips, Wendell. Speeches, Lectures and Letters, 2d series. pp. 77-109. Lee and Shepard, Boston. 1891. Robespierre, Maximilien Marie Isidore. Against Capital Pun- ishment: a speech delivered in the Constituent Assembly, My. 30, 1791. In World's Best Orations. Vol. IX. pp. 3326-9. Romilly, Henry. Punishment of death. John Murray, London. 1886. Shelley, Percy Bysshe. Prose Works. On the Punishment of Death. Vol. II. p. 167. 1888. Sumner, Charles. Works. Letter to a Committee of the Massa- chusetts Legislature, F. 12, 1855. Vol. III. pp. 527-8. United States. 54th Congress, ist Session. House report 108. Contains many valuable statistics. Wines, Frederick Howard. Punishment and Reformation. Cap- ital Punishment, pp. 50-69. World's Best Orations. Against Capital Punishment. M. M. I. Robespierre. Vol. IX. pp. 3326-9. Magazine Articles General Annals of the American Academy. 17:366-9. Mr. '01. Death Penalty as a Preventive of Crime. *Annals of the American Academy. 29:601-18. My. '07. Crime and Judicial Inefficiency. J. W. Garner. Contemporary Review. 28:628-47. S. '76. Capital Punishment in England. Francis W. Rowsell.- Detailed history of capital punishment in England from Anglo- Saxon period to 1876. CAPITAL BUNISHMENT 3 Fraser's Magazine, 'jz - 232-5^. F. '66. Review of Report of the Capital Punishment Commission. J. Fitzjames Stephen. Green Bag. 9:129-31. Mr. '97. Death Penalty in the United States. Reprinted from Harper's Weekly. Green Bag. 11 : 15-6. Ja. '99. Death Penalty in Olden Times. Florence Spooner. Harper's Magazine. 105 : 569-72. S. '02. The Headsman. Agnes Repplier. Same condensed in Current Literature. 33: 418-9. O. '02. *McClure. 24 : 163-71. D. '04. Increase of Lawlessness in the United States. S. S. McClure. ♦North American Review. 133:534-59- D- '81. Death Penalty. George B. Cheever, Samuel Hand and Wendell Phillips. North American Review. 144 : 221-2. F. '87. Should Women be Hanged? Helen Mar Wilks. Says punishment should be same for man and woman. Op- posed to use of gallows. Does not discuss justice of death penalty. Public Opinion. 13:33-4. Ap. 16, '92. Death Penalty. Press comments. Westminster Review. 155:424-31. Ap. '01. On the Abolition of Capital Punishment. Mark Drayton. Affirmative ♦American Journal of Politics. 2 : 323-32. Mr. '93. Capital Pun- ishment. Andrew J. Palm. American Law Review. 40:240-51. Mr.-Ap. '06. Abolition of Capital Punishment in Italy and San Marino. Maynard Ship- ley. Presents evidence to show "that the abolition of capital pun- ishment has not resulted in an increase of homicide in Italy; but that crimes of violence in general are fast disappearing before the lecent rapid advances industrially and educationally, homicide having already become almost as rare in some parts of Italy as in the New England states of our own country." American Law Review. 41 : 561-4. Jl.-Ag. '07. Abolition of Capi- tal Punishment in France. Maynard Shipley. American Law Review. 43 : 321-34. My.-Je. '09. Does Capital '^^unishment Prevent Convictions? Maynard Shipley. Extracts reprinted in Review of Reviews. 40: 219-20. Ag. '09. J >. I 4 SELECTED ARTICLES American Statistical Association. 9:307-14. S. '05. Results of the Practical Abolition of Capital Punishment in Belgium. Maynard Shipley. American Statistical Association. 10 : 253-9. Mr. '07. Homicide and the Death Penalty in Austria-Hungary. Maynard Ship- ley. Quotes official statistics to show "so far as Austria-Hungary is concerned, there is no ground for the contention that capital crimes have increased as a consequence of tlje decline of capital executions." *Annals of the American Academy. 29 : 618-21. My. '07. Legis- lative Tendencies as to Capital Punishment. Samuel J. Bar- rows. *Annals of the American Academy. 29 : 625-9. My. '07. Homi- cide and the Death Penalty in Mexico. Maynard Shipley. Arena, i : 175-83. Ja. '90. Crime of Capital Punishment. Hugh O. Pentecost. *Arena. 2 : 513-23. O. '90. Death Penalty. George F. Shrady. Arena. 38 : 259-63. S. '07. Anomaly of Capital Punishment. Thom- as Speed Mosby. Arena. 41 : 525-34. Ag. '09. I Cannot Keep Silent. Leo H. Tolstoi. ^Canadian Magazine. 2 : 467-75- Mr. '94. Death Penalty. John Ferguson. ^Charities. 15:248-9. N. 18, '05. Capital Punishment Denounced. Quotations from report of Committee on Enforcement of Law, William O. Stillman, Chairman, at Sixth New York State Con- ference of Charities and Correction. Congressional Record. 23: appendix 427-41. Speech against Capital Punishment. N. M. Curtis. Delivered Je. 9, '92. Also printed separately in pamphlet form by Government Print- ing Office. Very full argument and includes many and lengthy quotations from prominent men. Current Literature. 29 : 190-2. Ag. '00. Shall Hanging End ? Josiah Oldfield. Quoted from the Humane Review. Democratic Review. 10 : 272-88. Mr. '42. Wordsworth's Son- nets on the Punishment of Death. Quotes fourteen sonnets and points out his "false argumt< ts and false assumptions." Democratic Review. 12:227-36. Mr. '43. Gallows and the Go - CAPITAL PUNISy-M&NT 5 pel: an appeal to clergymen opposing themselves to the abolition of one, iji the name of the other. Confined to "disproving the existence of any mandatory Scrip- tural authority, applicable to us and our times, requiring the maintenance of the death punishment." Democratic Review. 12:409-24. Ap. '43. Capital Punishment. Attempts to answer and expose Cheever's "Capital Punishment." Democratic Review. 19 : 90-103. Ag. '46. An essay upon Ground and Reason of Punishment. Democratic Review. 20 : 71-3. Ja. '47. Capital Punishment. Comment on Report of the Select Committee on Capital I^unish- ment. Democratic Review. 20 : 204-8. Mr. '47. Capital Punishment. Comment on Report of the Select Committee on Capital Punish- ment. Democratic Review. 20 : 300-6. Ap. '47. Punishment and Penalty. Outlines general principles, "which the wnsest and best of modern jurists have established for the guidance of legislation. It is significant, that not a single one but condemns, positively and emphatically, the penalty of death." Foreign Quarterly Review. 25 : 394-406. Jl. '40. Victor Hugo and Sir P. Hesketh Fleetwood on Capital Punishment. Gives a short analysis of "Last Days of a Condemned" and quotations from it. ^Fortnightly Review. 52:322-33. S. '89. Case against Capital Punishment. B. Paul Neuman. ^Friends' Intelligencer, sup. O. 6, '06. Shall the State Kill? Charles Burleigh Galbreath. An address delivered before the Friends' General Conference at Mountain Lake Park, Md. S. 3. '06. Green Bag. 10:50-2. F. '98. Judicial Killing. Florence Spooner. *Green Bag. 10 : 92-6. Mr. '98. Abolish the Death Penalty. James W. Stillman. Green Bag. 19 : 359-60. Je. '07. Abolition of Capital Punishment. James H. Vahey. Harper's Weekly. 48 : 196-8. F. 6, '04. State Manslaughter. W. D. Howells. Shows that death by electricity has proved not merely ap- palling and disgusting but ineffective. ,*Harper's Weekly. 50:1028-9. Jl. 21, '06. Does Capital Punish- ment Tend to Diminish Capital Crime? Thomas Speed Mosby. Summarizes opinions of attorney-generals of the states having death penalty. 6 SELECTED ARTICLES \^ Harper's Weekly. 50:1903. D. 29, '06. Plato on Capital Punish- ment: a Lesson for To-Day. Maynard Shipley; Harper's Weekly. 51:890. Je. 15, '07. Homiaide and the Death Penalty in France. Maynard Shipley. Independent. 61: 1124-5. N. 8, '06. Abolishing the Death Pen- alty in France. , ^"-international Journal of Ethics. 15:263-86. Ap. '05. Abolition ^ ^ of Capital Punishment. W. J. Roberts. *International Journal of Ethics. 17 : 290-301. Ap. '07. Reform and the Death Penalty. Carl Heath. ^International Journal of Ethics. 18:409-17. Jl. '08. Treatment of Homicidal Criminals. Carl Heath. Literary Digest. 33:711-2. N. 17, '06. End of Capital Punish- ment in France. Living Age. 258: 349-57. Ag. 8, '08. Government by Executions. Leo Tolstoy. North American Review. 62 : 40-70. Ja. '46. Punishment of 2/^ Death. Reviews and replies to arguments in reports and boolvs. North American Review. 116:138-50. Ja. 'jt^. Rationale of the Opposition to Capital Punishment. E. S. Nadal. Outlook. 90:1-3. S. 5, '08. Russian Torture Chamber, Potters American Monthly. 18:145-52. F. '82. Death Penalty. Charles T. Jerome. ♦Public. 10:102-3. My. 4, '07. Capital Punishment Abram E. Adelman. *Putnam's Alagazine. 13 : 225-35. F. '69. Gallows in America. Reader. 9:383-92. Mr. '07. Thou Shalt Not Kill. Brand Whit- lock. Review of Reviews. 34 : 368-9. S. '06. Capital Punishment and Capital Crime. Summary of Mosby's article in Harper's Weekly. 50: 1028-9. Jl. 21, '06. ♦Review of Reviews. 40:219-20. Ag. '09. Does Capital Punish- ment Prevent Convictions? Extracts from American Law Review. My.-Je. '09. CAPITAL PUNISHMENT 7 Westminster Review. 8i : 185-95. Ap. '64. Prerogative of Par- don and the Punishment of Death. Review of articles and books. Westminster Review. 91 : 34-48. Ja. '69. Our Criminal Procedure, especially in Cases of Murder. Condemns system of trial in England. Westminster Review. 91 : 429-36. Ap. '69. Mr. Mill's Speech on Capital Punishment. * Westminster Review. 143 : 561-6. Mr. '95. Ought Capital Pun- ishment to be Abolished? C. Rayleigh Vicars. * Westminster Review. 155:144-9. F. '01. Capital Punishment: Ineffectual and Mischievous. T. M. Hopkins. Westminster Review. 165 : 512-6. My. '06. Is Capital Punishment Defensible? Chester Warren. Future state argument is concise. *Westminster Review. 168:178-86. Ag. '07. Emotion as a Law- Maker. G. M. Hort. *Westminst«r Review. 169:333-41. Mr. '08. Homicidal Crime and the Death Penalty Abroad. Carl Heath. ♦Westminster Review. 170 : 325-9. S. '08. Modern Penology and the Punishment of Death. Carl Heath, Reply to Westminster Review. Jl. '08. Completes article of Westminster Review. Mr. '08. Westminster Review. 172 : 96-9. Jl. '09. Argument for Abolition of Capital Punishment. Cosmo G. Romilly. Contains argument from Thucs^dides, iii, .45-6. Negative ♦American Presbyterian Review. 20:414-31. Jl. '71. Retributive Law and Capital Punishment. Rev. Charles Wiley, D. D. *Annals of the American Academy. 29 : 622-5. My. '07. Capi- tal Punishment and Lynching. J. E. Cutler. Arena. 21 : 469-72. Ap. '99. Failure of the Death Penalty. C. G. Garrison. Gives list of states and countries where capital punishment is without qualification, where abolished, where life imprisonment may be substituted by jury, where like discretion is given to trial court. 8 SELECTED ARTICLES Bibliotheca Sacra. 4 : 270-323 ; 435-70, My., Ag. '47, Capital Pun- ishment. Daniel R. Goodwin. Blackwood's Magazine. 27:865-78. Je. '30. Qn the Punishment of Death. Blackwood's Magazine. 58 : 129-40. Ag. '45. On Punishment. Protests against "the reasoning which would divest punish-r ment of its proper and distinctive cliaracter, wliich spreading about wealc and effeminate scruples, would paralyse the arm which bears the sword of justice." Eraser's Magazine. 69 : 753-72. Je. '64. Capital .Punishments. J. Fitz James Stephen. Discusses these questions: Oujght capital punishment to be in- flicted under any circumstances whatever? Ought any alteration to be made in the definition of the crime for which it is inflicted; namely, Wilful murder? Ought any alteration to be made in the present administration of the prerogative of pardon? *Forum. 3:381-91. Je. '87. Capital Punishment. J. M. Buckley. *Harper's Weekly, 53 : 8. Jl. 3, '09. Should Capital Punishment be Abolished. Edward Charles Spitzka. *Month. 65 : 168-79. F. '89. Shall We ^Abolish tlye Death Pen- alty for Murder? W. C Maude. " * Nation. 8 : 166-7. ^^'*- 4' '^- Death Penalty. *Nation. 16 : 193-4. Mr. 20, '7^. Substitute for Hanging. Nation. 16:213-4. Mr. 27, 'js- Argument against Capital Pun- ishment. Nation. 24 : 263-4. My. 3, '77. Crime and Hanging in Maine. Gives history of capital crime and its punishment in Maine. New Englander. i : 28-34. Ja. '43. Capital Puiji^hment. New Englander. 3 i 562-6. O. '45. Right ofv Civil Government over Human Life. New^ Englander. 4:563-88. O. '46. Shall P -' ^- Abol- ished? L. B. *New Review, it : 1^-200. Ag. '94. In P«-aise of Jriangmg. W. S. Lilly. *Review of Review?. 21 : 608. My. '00. Is Capital Punishment Justified? Dr. E. B. McGilvary. Southern Literary Messenger. 18:650-4. N. '52. Death Punish- ment. D. S. G. C. ♦Westminster Review. 170:91-8. Jl. '08. Shall We Abolish the Death Penalty? Advocate C. J. Ingram. A reply to Mr. Carl Heath (Westminster Review. Mr. '08). SELECTED ARTICLES American Journal of Politics. 2:323-32. March, 1893. Capital Punishment. , Andrew J. Palm. It needs no extraordinary judgment to comprehend the truth that if government wishes to teach that human life is sacred it must not set the example of deliberately destroying it, x^s well might it steal from the thief or burn the house of the in- cendiary as to snuff out a human life to teach that human life is sacred and should be held inviolable. The evil force of bad example is the strongest argument that can be made against the death penalty and in itself should be sufficient to annul the law of life for life in every civilized country on the globe. The Quakers believe in the sacredness of human life and they con- sistently and persistently refuse to make their actions belie their belief. They refuse to go to\ vtar and refuse to assist in putting men to death either legally or illegally and the re- sult of this teaching for centuries is that Oyyikers do not rom- mit murder. The man who has proper respect for the rights of property needs no law to prevent him from taking his neigh- bor's goods. The man who has proper reverence "for human life needs no law to restrain his hand from murder, but he who would argue *'- -'high regard for human life can be in- stilled by t ^idnded executioner, legal though his mur- derous trade may be, shou'd be sent to an institution for the feeble-minded. Under the old Jewish law the violation of every command- ment but one was punishable with death and when it has been shown that according to the Old Testament we should abolish slavery and polygamy and cease to kill the wife who believes in a different god from the one adored by her husband, th^n it will be time to advocate capital punishment for murder on a Hebraic basis. Though our early fathers were a savage peo- ple, the law of death for murder, so emphatically enjoined, was 10 SELECTED ARTICLES flagrantly violated, and even they, ignorant and savage as they were, were better than their cruel law. If the law of life for life, as laid down by Moses, was good, it surely should have been carefully observed in those early days, and yet Cain was a murderer as were Moses, Lamech, David, Simeon, and Levi, and yet not one of them was made to atone for his crime by giving up his life. The law seems to have been a failure even then as it has been in all ages since. American Presbyterian Review. 20:414-31. July, 1871. Retributive Law and Capital Punishment. Rev. Charles Wiley, D. D. We think it, in fact, one of the features of degeneracy of the present age, that the sentiment of national justice appears to be so feebly recognized. It is this sentiment that lies at the foundation of all vigorous administration of law. It presides at the first formation of law. It sustains the judge upon the bench. It fortifies and supports the whole process of criminal adjudication, and to this, as we have already said, we shall have occasion to appeal, in the sequel of our subject, as hav- ing an important place in any sound views that may be taken of the question of capital punishment. . . . We advocate the practice of capital punishment on the broad p rinci ple that it is in accordance with the clearest dictates of natural justice.^^. .Annals of the American Academy. 2gr6oi-i8. May, 1907. Crime and Judicial Inefficiency. James W. Garner. Ex-President Andrew D. White, in a recent address at Cor- nell University, declared that as a result of extensive studies carried on through a long period of years and in all parts of the union he had become convinced that the United States leads ^ e civilized world, with the exception perhaps of lower Italy ai. 1 Sicily, in the crime of murder and especially of unpunished murders. CAPITAL PUNISHMENT II The truth of this severe arraignment is easily established by reference to the statistics of crime in this and other coun- tries. The appalling increase in the one^ crime of murder in the United States is apparent from the following table com- piled by the Chicago Tribune and published in its issue of De- cember loth last. Year Number of murders and homicides in the U. S. Number for each million of people. Number of executions in the U. S. Numbei "^ of murders and homicides to each execution Number of lynchings 1885 1.808 1,499 2,335 2,184 3,567 4,290 5.906 6,791 6.615 9.800 10.500 10.652 9,520 7.840 6.225 8,275 7.852 8,834 8,976 8,482 32.2 26.1 39.8 36.4 58. 2 68.5 92.4 104.2 99 5 144.7 152.2 151.3 132.8 107.2 83.6 108.4 100.9 111.7 112 104.4 108 83 79 87 98 102 123 107 126 132 132 122 128 109 131 117 118 144 124 116 17 18 29 25 36 42 56 63 52 73 79 87 74 72 S7 71 67 61 72 73 181 1386 133 125 1887 1888 144 1889 175 1890 123 1891 19"? 1892 230 1893 2C0 1894 189 1895 166 1896 1^1 1897 1898 166 127 1899 107 1900 115 1901 135 1902 96 1903 . .. 1(4 ,' 1904... 87 Total 131,951 2.286 57 2 917 < . It will be seen from the above table that within the space of twenty years the number of homicides has increased nearly 400 per cent ; that the proportion of thirty-two homicides to each million of thew population has grown to one hundred and four, and that the number of legal executions has remained substantially what it was when the number of homicides was only one-fourth as great as now. Compared with conditions in other lands, the situation in the United States, as revealed by the statistics quoted above, is not only disgraceful to American civlization, but is highly serious and deserves the thoughtful consideration of all good citizens. As against nearly 9,000 homi- cides in the United States in 1903, only 321 were reported in 12 SELECTED ARTICLES the German Empire, with approximately sixty mirlHori inhabi- tants; only 322 in England and Wales, with a population of thirty-two and a half million; 526 in France, with a population of thirty-eight million, and 61 in the Dominion of Canada,' with a population of five million. With 112 homicides to each million of the population in the United States in 1903, England and Wales had less than 10 (1902), France 13^ (1899), the Ger- man Ejnpire less than 5 (1899), and Canada about 12 (1903). In the city of Chicago in 1906 one hundred and eighty-seven homicides were reported, as against twenty-four in London, with a population three times as great, twenty-two in Paris and forty- four in Berlin, including attempted murders. The worst feature about the situation in the United States is the small number of convictions and executions, the latter being but little more than one per cent of the homicides, one in seventy-three (1904), while the number of lynchings exceeds the number of legal executions. With 187 homicides in Chicago last year, there were but two cases of capital punishment, and the Cook County jail- er informs me (April, 1907) that there are no murderers await- ing execution. Annals of the American Acadeniy. 29:618-21. May, 1907. Legislative Tendencies as to Capital Punishment. Samuel J. Barrows. Public sentiment in regard to the infliction of the death penalty in the United States shows itself both in the enactment of law and in the violation of law. In the violation of law it takes the form of lynching. It is not my purpose to speak of the lawless use of capital punishment. Two governors of south- ern states, Governor Jelks, of Alabama, and Governor Aycock, of North Carolina, in 1903 pointed out to their respective legis- latures that lynching instead of furnishing any social protection actually becomes a great moral danger; for it leads to the tak- ing of the life of innocent people. Mob murder is not justified by statute but little has been done by statute to prevent it. Two things are important to note in regard to it: First, that lynch- ing does not occur in the states that have abolished capital pun- CAPITAL PUNISHMENT 13 ishment — Michiga n. Rhode I sland, WisQ onsin. Main e. In no states is the respect for human life held more sacred by the peo- ple than in those states where it is held most sacred by the law. Secondly, as was said by Governor Aycock, of North Carolina, "the crimes for which this summary punishment is meted out do not decrease." Setting aside these lawless hysterical spectacles of torture, the result of mob vengeance, which constitute a terrible reproach to the civilization of our country, what are the cooler, saner tendencies of modern legislation concerning the death penalty? 1. With a single exception, the states of the Union which have abolished the death penalty show no disposition to re- store it. Michigan abolished the death penalty in 1847, Rhode Island in 1852, Wisconsin in 1853, Maine abolished it in 1876, restored it in 1883, and again abolished it in 1887. Thus in Mich- igan it has been abolished for sixty years, and in two other states for more than fifty years. During that time the condi- tions of civilization have been much modified in Michigan and Wisconsin, passing as they have done from the ruder condi- tions of frontier communities and development into states of great power and influence. Without invoking statistics as to the influence of the abolition of the death penalty upon crime, a subject outside of the special range of this article, it is sufficient to point out that these states have discovered no reason for re- pealing the laws which have been in existence for more than half a century. Colorado is the only state in which the death penalty has been restored. It was abolished in 1897, but as the result of a lynching outbreak in 1900, was restored in 1901, but under the amended law the jury fixes the penalty for murder as death or life imprisonment. 2. - A marked tendency in the United States is toward the abolition of public executions. Publicity was formerly regarded of the greatest importance. It gave an exemplary character to the punishment. Even after death the body of the criminal was exposed on the gibbet for weeks as a warning to malefactors. This feature, once considered important and necessary, is now regarded as more harmful to society than healthful. The prac- tice of gibbeting the criminal has long since been abandoned; 14 SELECTED ARTICLES # the practice of public executions is gradually following it. As the result of a dramatic exploitation by the sheriff of Boston, of a criminal executed in the Charles Street Jail, which was turned into a vast theatre to see the • execution, the people of that state, protesting against this form of legal vaudeville, en- acted that all executions should be private. Since 1903 several states have enacted laws providing that persons convicted of offenses punishable with death should be executed in the state penitentiary or under conditions of com- parative privacy. New Mexico enacted that execution should take place within an enclosure before not over tw^enty persons. North Dakota passed a similar law. Governor Chamberlain, of Georgia, recommended that all executions should take place in the penitentiary, out of hearing and out of sight of all ex- cept officials, and such a law was passed. Arkansas, in- 1906, decided that executions should take place in the county in which the crime was committed, and also amend- ed its law so that executions of persons convicted of ^^ape are not to be public. The argument for public executions at the stat* penitentiary was presented by Governor Beckham, of Kentucky, in his mes- sage to the legislature in 1906 : **I recommend that you provide that a-ll executions of the death penalty be done in the Frankfort Penitentiary. The hanging of a man in the community where he is tried produces a sensation, a nervousness and excitement upon the part of the people, and it has a brutalizing effect upon the large numbers, in spite of the law,'^who witness it." 3. Still another tendency of American legislation is to sub- stitute the electric chair for the gallows,^ This was introduced first in New York and has been followed in Massachusetts, Ohio, New Jersey, and a bill to this eft'ect is before the legislature of Minnesota. The adoption .of this form of the death penalty which, for want of a better word, we seem forced to call "elec- trocution," is urged on the ground that it is instantaneous and therefore more merciful and is less spectacular than the gal- lows. It takes but small space and therefore permits more easily private execution. Other prisoners are not disturbed or excited by the erection of the gallows. All of these arguments. CAPITAL PUNISHMENT 15 it will be seen, are in the direction of softening and mitigating the harsher features of the death penalty hy relieving it of all aspects of physical torture, and by removing its exemplary character. Opponents of this change have pointed out that when all these aspects of capital punishment are removed there is very little left of moral value in the punishment. But this argument has not prevented the substitution of electrocution for hanging. 4. A fourth tendency in modern legislation is to reduce the number of capital crimes- To illustrate this it is not neces- sary to go back a hundred years when, under English law, 200 offenses were included in the list of capital crimes. More re- markable does it appear that until 1894, under the federal laws of the United States, twenty-five offenses for which the pen- alty was death were catalogued under the military code; twen- ty-two under the"nav nl code ; under the extra-territorial juris- diction granted to consuls by section 4192 Revised Statutes, three offenses, viz. : Insurrection, rebellion and murder, and under "•the jurisdiction of the civil code of the United States there were no less than seventeen, namely: ' " ' (i) Mu#der; (2; iviurder upon the high seas; (3) Ma- liciously striking, etc. from which death results; (4) Rap,e; (5) Owner destroying vessel at sea; (7) Piracy; (8) Sea- man laying violent hands on his commander; (9) Robbery, up- on the high seas; (10) Robbery on shore by crew of piratical vessels; (11) Any act of hostility against the United States, or any citizen thereof, oil the high seas, under color of commis- sion from a foreign state, or on pretense of" such authority; (12) Piracy by subjects or citizens of foreign states; (13) Pi- racy in confining or detaining negroes on board vessels; (14) Piracy in landing, seizing, etc., negroes on foreign shore; (i^) Arson of dwelling-house within a fort, etc.; (16) Arson of vessel of war; (17) Treason. Through agitation, brought about by General Newton M. Curtis, in the Fifty-second Congress, in 1892, the number of of- fenses was reduced to three. The special joint committee on the revision of the laws re- porting to the Fifty-ninth Congress just closed a bill to revise, codify, and amend the penal laws of the United States, say in i6 SELECTED ARTICLES their report: "We have abolished the punishment of death in all except three cases — t reason , murder, and rape — and have provided that even in these cases it may be modifieTlo imprison- ment for life; and as humane judges in England avail them- selves of the most technical irregularities in pleadings and pro- ceedings as an excuse for discharging prisoners from the cruel rigors of the common law, so jurors here often refuse to convict for joffenses attended with extenuating circumstances rather than submit the offender to what in their judgment is the cruel re- quirement of a law demanding a minimum punishment." 5. Finally, the culmination of modern legislative tendencies, with reference to the death penalty, is seen in the abolition of the death penalty altogether. Governor Savage, of Nebraska, in 1963, urged the legislature to "place Nebraska among the states representing the highest types of civilization, and the teachings of the meek and lowly Nazarene" by abolishing capital punishment. In the same year, New Hampshire abolished the death pen- alty for murder in the first degree unless the* jury affix the same to the verdict ; otherwise the sentence is for life imprisonment. During the past winter the most conspicuous center of legis- lative discussion on this subject has been the French parliament. In its session of November 5, 1906, the Chamber of Deputies referred a bill for the abolition of the death penalty to a com- mittee on judicial reforms. This committee, by a small ma- jority, voted in favor of the abolition of the penalty ; but the substitute offered for the guillotine — perpetual imprisonment, six years of it in solitary confinement — has raised many objections. At last accounts no final action had been taken. The argument for the abolition of the death penalty, accompanying the bill which was presented by Monsieur Guyot-Dessaigne, Minister of Justice, is a very effective and telling presentation of the case. That the death penalty is not a living question in some of the other parliaments of the world is because they have actually abolished it and do not desire to restore it. Thus Russia w^as one of the first countries to respond to the appeal of Beccaria, abolishing it in 1753, except for political offenses. It was abol- ished in Portugal in 1867. in Holland in 1870, in Italy in 188^; CAPITAL PUNISHMENT 17 in the majority of the Swiss cantons ; in Costa Rica, Brazil, Ecua- dor, Guateinala, and Venezuela. It is to be further noticed that some countries which have not formally abolished it by legis- lative act have, in fact, suppressed it in practice. This is .true of Belgium and also of the state of Kansas. Apropos of the discussion of the death penalty the history of the recent treatment of prisoners condemned to execution in Kansas is interesting: In 1872 the Kansas legislature provided a peculiar penalty for murder in the first degree. It provided that one convicted of this crime should be condemned to death, but that he should be incarcerated in the penitentiary for one year before, his exe- cution, and then his execution should take place only upon the order of the executive. No governor has ever exercised this discretion by ordering the executioa of any prisoner^ sentenced under this law ; hence there have been no official hangings in this state since that time. The recent legislature, which adjourned a few weeks ago, amended this law making the punishment for murder in the first degree imprisonment for life. There are some fifty or more prisioners in the penitentiary who come under the provisions of this law. — (Editor.) Annals of the American Academy. 29:622-5. May, 1907. Capital Punishment and Lynching. J. E. Cutler. The attempt has often been made to prove from the statis- tics of crime, and of the legal action taken against criminals that, on the one hand, capital punishment has no deterrent pow- er and, on the other hand, it prevents the enforcement of la|W because conviction is rare in cases which involve the death pen- alty. It is obvious, however, to any one who has examined the available statistics of crime and its punishment, that the va- lidity of such statistical conclusions is open to some question. The plea for the abolition of capital punishment is most ef- fective and conclusive when made, frankly and avowedly, on f i i8 SELECTED ARTICLES the ground of humanity and of what may perhaps be properly termed abstract justice. The conviction that capital punishment ought to be abolished has its origin primarily in humanitarian instincts, and the most effective arguments that can be advanced in favor of this action are those that make direct appeal to the humanitarian impulses and sympathies. It is then pointed out that human life is too sacred a thing to permit of its being de- stroj'ed as a penalty for any crime whatever. ,It is argued that two or more men, organized under a form of government, or acting under the authority of a government, have no more right to take human life than one man has. It is murder in either case and brutalizing in both. Furthermore, it is argued that capital, punishment 'prevents reparation in cases of subsequently proven innocence. It is said also that capital punishment is a relic of barbarism. As civilization has advanced, punishment has always become less severe. The old law of retaliation is now obsolete. But, admitting the strength of this appeal, humanitarian im- pulses and considerations of abstract justice cannot be accepted as the sole criteria in the formulation of a criminal code. ,These motives and standards are wisely followed ofity in conjunction with the modifying influences of existing conditions. A criminal code, to be effective, must be constructed with regard to tht cif^^' cumsta nces and conaitions that prevail within the teri ilui'v" (jf ll^* application. YJiere is nonsuch thin^ as a universal criminal cocfeT one that is equally appl icable to all parts of the world, to all peoples and to all stages and varieties o t civilization, jjnless"* the code of the criminal law is sufficien tly adapted to the char- a ft*'^ ?p d yomoosition of a particmar gr oup7t'o"t!ie^ social aiTcl Vetfiical standards of t he citizens of a particular country of" c ommmuty^ li will prove unentorceable an d pccnUarh ineffective, A noteworthy illustration of this fact is to be found in con- nection with the history of the lynching of negroes in the United States. In the midst of the increased criminality that has been manifested among the negroes since emancipation, the Southern whites have found the law and its administration utterly un- suited to the function of deaHng with negro criminals — hence, the frequent adoption of summary and extra-legal methods of punishment. CAPITAL PUNISHMENT 19 It was assumed, after the emancipation of the slaves, that a judicial system, adapted to a highly civilized and cultured race, would be equally applicable to a race of inferior civilization. It was not then recognized that it is really a serious question whether two races, differing as widely in physical and mental characteristics, in their interests and attainments, as do the negroes and the whites, can occupy the same territory and live side by side in peace and harmc^ny, on terms of equality, under a legal system that has been worked out and established exclusively by the more highly civilized and more cultured race. The failure to recognize this fact, and the failure to make spe- cial provision for the control of the negro population during the reconstruction period in the South, constitute the fundamental reasons for the disrepute into which legal procedure has fallen, as regards negroes accused of offenses against the whites. We are just beginning to realize that if the lynching of ne- groes is to cease, there must be much less reliance than in the past on abstract principles concerning the rights of man, re- gardless of his training and his capacity. The great mass of the negroes, the negroes as a race and people, have not the same standards as the whites, either intellectually, morally or industrially. Measured by the white man's standard of judg- ment, the frequent atrocity of the crimes committed by negroes of low character, without apparently any particular provocation, is something scarcely to be understood — the adjectives wanton, bestial, outrageous, brutal and inhuman, all seem wholly inade- quate to express the feeling of utter disgust and abhorrence that is aroused. It is this inability to imderstand the motives, impulses and characteristics resulting in heinous crimes by ne- groes, which affords some explanation of the tendency to adopt heinous methods of punishment for the perpetrators of these crimes — such as burning alive with attendant tortures and cruel- ties. The fact is lost sight of that the colored race in the United States is a child race, in the sense that it is attempting to ac- complish, by absorption in the course of a generation or two, all that the white race has been able to develop and establish only after centuries of effort. In the matter of the adminis- tration of justice, in cases where negroes are concerned, the / 20 ) SELECTED ARTICLES line of action followed by the whites in recent years has been similar to that of the unreasonable father, who talks to his child and lays down rules of conduct for him, on the assump- tion that the child has all the experience and maturity of judg- ment of an adult, and then punishes him with capricious and savage severity when he disobeys or fails to attain the standard that has been set for him. Under such circumstances it is not the part of wisdom to abolish capital punishment. The presence of racial contrasts in the population of the United States, particularly that between the negroes and the whites, must not be omitted from consid- eration in the legal treatment of crime. Experience has shown that it is extremely difficult to secure an invariable observance of due process of law in this country, especially when heinous crimes are committed that cross racial lines. If there be no death penalty that can be invoked by law under such circum- stances, it is commonly assumed that there is ample justifica- tion for action outside the law. One mstance_may be cited where apparently there was a direct connection between the abolition of capital punishment _ and recourse to lynchings. The legislature of Colorado, in the year 1897. adopted a measure that abolished capital punishment ^ in that state and provided that every person convicted of mur- ~3er in the^iirst degree should suffer imprisonment for life. at hard labor in the penitentiary. ' In the year 1900 there were three lynchings in the state, all the victims of which were charged with murder. Two Of the victims were negroes. One of these negroes, who was lynched on November 16, 1900, was charged with the assult and murder of a twelve-year-old girl. He was lynched publicly by burning at the stake in the presence of some three hundred citizens, and it was stated that he was brought to the scene of the lynching by the sheriff who had him in cus- tody. The newspapers of Colorado thereupon unitedly made demand that the next legislature pass a bill legalizing capital punishment. The spirit of the demand is expressed in the fol- lowing: "If that bill had never been repealed, there is a gen- eral public opinion that the causes for the various lynchings that have taken place in this state would not have existed." CAPITAL PUNISHMENT At the next session of the legislature the act of 1897 was repealed, and it was provided that when a person was found to be guilty of murder in the first degree, the jury, in its verdict, should fix the penalty to be suffered, either at imprisonment for life at hard labor in the penitentiary or at death by hanging. Since 1901, therefore, it has been the law in Colorado that the perpetrator of a heinous crime shall, upon conviction, receive, in the discretion of the jury, either the sentence of death or of life imprisonment. A possible excuse for lynching, on the ground that the guilty person cannot be adequately punished under the law, has thus been removed, and at the same time one frequent objection to the legal infliction of the death penalty has been an- swered by a provision that no account of the details of the ex- ecution shall in any manner be published in the state. It is not possible in very many cases to show that the appeal of the death penalty has thus directly promoted lynching. In general, however, the history of lynching in this cotpftry fur- nishes evidence, which may be accepted as fairly conclusive, that for certain crimes, no legal punishment other than ignominious death to the perpetrator, can satisfy the popular sense of justice or receive the effective support of public opinion. So deeply rooted in our American life and spirit has this practice of lynching be- come, that only a very slight excuse, a mere shadow of a justifica- tion, is necessary to induce private citizens to take the law into their own hands under any circumstances which appear to be especially exasperating In the mind of the average citizen what is conceived to be the enormity of the crime committed and the depravity of the accused completely overshadow all other con- siderations. To a considerable degree lynchings represent an attempt on the part of private citizens to inflict a penalty that in severity will be proportionate to the heinousness of the crime committed. In following the lead of the humanitarians, therefore, an accepting the principle that has been laid down by the penologist that the penalty must be fitted to^the criminal rather than crime, it must not be forgotten that the foundation of the law of retaliation is laid deep in human nature and primitive tradition. It is not too much to say that to abolish capital punishment in 22 SELECTED ARTICLES this eountry is likely to provoke lynchings. Whe never un - usu ally brutal and atroci ous crimes are committed, particularly if TtTey cross racial lines, nothing less thalTlKe" "iSHth^penalty W ill — ^ satisfy the general sense of justice that is to be found in tKe aver- ap American gQ^^nttV \ Annals of American Academy. 29: -625-9. May, 1907. Homicide and the Death Penalty" in ^Mexico. Maynard Shipley. In Mexico, as in the United States, each state reserves the right to enact its own penal laws, and- in accordance with this constitutional prerogative, the states of Campeche, Yucatan and Puebla long ago abolished the death penalty, a movement fol- lowed more recently by the legislators of Nuevo-Leon. It is the general opinion of jurists and criminologists in Mexico that the death penalty is justifiable only under martial law, or when suit- able places of detention for criminals are not available. Comparison of the judicial statistics of the states, wherein the death penalty is abolished with others in which capital pun- ishment is still prescribed, shows that human life is fully as safe in the former as in the latter states. In the state of Cam- peche (with a population of about 90,000) there were but seventy- one persons convicted of homicide during the fifteen years 1871- 85. In Yucatan (with a population of about 393.000) the number of convictions for homicide during the same period was 336. On the basis of the population of 1882, the annual average of con- victions for murder and manslaughter in both Yucatan and Cam- peche was but 5.5 per one hundred thousand of inhabitants. For purposes of comparison, it may be stated in this connection that the annual average of convictions for homicide in the Province and City of Buenos Ayres (where the death penalty has always been enforced), is 11.5 per one hundred thousand of population; in Paraguay, the annual average is 6.1 ; in Uruguay, 25.5; in Italy, y.6 ; in Spain, 5.9 per one hundred thousand of population. The table below shows the number of convictions for murder ' and manslaughter in the states of Yucatan and Campeche during the fifteen years 1871-85, given in quinquennial periods, with the annual averages (based on statistical data derived from an offi- UNIVERSITY OF CAPITAL PUNISHMENT 23 cial document coiTipiled by Dr. Antonio Penafiel, and published by the Mexican government in 1890) : Yucatan Campeche Annual average in quinquen- nial periods .' 1871-75. 1876-80. 1881-85. 97 129 110 21 21 29 19.4 23.8 22.0 4.2 42 5.8 Annual average 22.6 4.1 The figures above show that the advance of civilization in Mexico has been attended with a slight increase in the number of convictions for homicide in these two states ; this does not, how- ever, imply a greater number of homicides committed, but rather greater certainty in the detection and conviction of and for crime. Statistics of convictions for homicide in Puebla cover only the four years 1881, 1882, 1883 and 1885, but Senor Emilo Al- varez, Procurador-General of the Federal District, and author of the latest statistical work on Mexican criminality, assures the present writer that there is nothing to indicate that human life is less Secure in Puebla than in the states wherein the death penalty has not been abolished, 'Tor it is easy to see," says he, "that se- curity depends on many causes foreign to the application of the death penalty." The table below gives the number of convictions for cer- tain crimes committed in the state of Puebla during the four years named : Offenses 1 1 s C8 CO -s ■5 ■Sv Years u 1 c C3 C 9 Ml "is 11 .£5 _ S s £ M B Pi K = 1881 3 207 3 45 1,113 971 87 1882 1 2.S4 10 16 1.337 725 80 1883 1 250 9 9 1.153 629 94 1885 2 7 208 1 7 7 957 600 60 fc, Totals 919 1 29 77 4.560 2.928 321 24 SELECTED ARTICLES Although capital punishment was practically abolished in Nue- vo-Leon many years ago, it was not legally prohibited until 1905. There have been but three executions in that state since 1885, though the number of culprits condemned to be shot (tlie Mex- ican method of inflicting capital punishment) during the seven- teen years ending in 1905 was thirty-one. On the basis of the population of 1900 (326,940) there were, during the same period, in the state of Nuevo-Leon, 0.61 death sentences annually in each one hundred thousand of population. The crimes punishable by death during this period were treason, premeditated murder, in- cendiarism, highway robbery, piracy, parricide, and "holding up" a pedestrian in the streets or roads. Mexico has the same number of states in which the death penalty has been legally abolished as have the United States, and also one state which offers an exact parallel to the state of Kansas, where death sentences are regularly pronounced which everybody knows are never to be executed. During the eighteen years of Governor Villada's administration, in the state of Mexico, only two capital sentences were carried into effect. The official statis- tics show that no evil results followed this policy of executive clemency. During the five years, 1897-1901, Governor Villada had occasion to grant (on an average) but six commutations yearly, in a population of about 900,000, or 0.7 per one hundred thousand of population. It will be remembered that the annual average of death sentences in Nuevo-Leon was 1.8, or 0.61 per one hundred thousand of inhabitants (on the basis of the popula- tion in 1900, which was 326,940). In the state of Vera Cruz, also, the death penalty is so seldom applied as to be practically inoperative. "In almost every state in the republic," writes a native authority, "legal executions are authorized, but, except in the case of soldiers, there is every chance that the sentence pronounced may be changed before the date of execution, to imprisonment for twenty years. This is the limit of imprisonment that may be pronounced for any crime. It it supposed that a man will either be dead at the end of that time or so harmless that he may be permitted again to enter so- ciety." CAPITAL PUNISHMENT 25 Passing now to the federal district, we find that here, too, capital punishment is practically abolished for all but grave crimes of the military order. Though homicide is of deplorable frequency among the lower classes of the capital (70.72 per one hundred thousand of population in 1899), no. ordinary criminals have been executed in the federal district for about fourteen years. To quote an anonymous writer in a Mexican journal: "In the courtyard of Belem the wall against which the con- demned men were stood is scarred with bullet marks, but prison- ers have ceased to regard it with the terror they once might have felt, and prison officials have fallen into the habit of regarding it more or less as a curiosity rather than as a part of the working machinery of the institute. Possibly no man condemned to death can rest with assurance that by exercise of official clemency he will escape death, but it is doubtful if there is an attorney in the country who would not feel almost confident that in the end he would obtain for his client a commutation of the sentence to twenty years imprisonment." President Diaz expresses himself as being quite willing to sub- stitute imprisonment for the death penalty .if the experiment now in progress proves successful. That the death penalty was re- garded by the Mexican jurists as a merely temporary makeshift, useful in the absence of a properly equipped penitentiary, is im- plied in the paragraph on this subject in the federal constitu- tion, which read as follows (Art. 23) : — "Pending the abolition of capital punishment, it remains in the charge of the administrative power to establish, as soon as pos- sible, the penitentiary regime. In the meanwhile it is abolished for political crimes, and cannot be extended to any other cases than to the traitor of the country in a foreign war, to a highway- man, to an incendiary, to a parricide, to a homicide when accom- panied by treachery, or premeditated vengeance, to grave crimes of the military order and to those of piracy, which the law will define." That death sentences are not usually carried out in the federal district may be seen from the fact that of 246 applications for executive clemency during the twenty-one years, 1881-1902, only twenty-one were refused. 26 SELECTED ARTICLES The fact that capital executions are becoming more and more rare in the federal district woiilr^ seem to indicate that the aboli- tion of the death penalty in Mexico has been attended by no evil results, a conclusion justified by the facts. Notwithstanding the increase of population during the last twenty years, the number of convictions on capital charges in the federal district during the decade 1881-90, was no, while there were but 122 during the decade 1891-1900. In 1899. with a population of 500,000, there were sixteen capital sentences pronounced. In regard to the history of homicide in Mexico as a whole, no statistics have been published since the year 1890. The report then published shows that murder had been constantly on the de- crease for the fifteen years ending with 1885, despite the fact that the proportion of capital executions to homicides com- mitted was growing smaller and smaller year by year. When it is considered that the court records are avowedly in- complete for the years preceding 1879, it is apparent that hom- icides in Mexico are decreasing both in actual numbers and in proportion to the population. Previous to the advent of the rail- roads and telegraph many crimes of violence escaped the notice of the authorities, and the apprehension even of known murderers was an exceedingly difficult task. During the last seven years of the period covered by the above statistics the police force of the re- public was being constantly augmented, and the service and dis- cipline improved, while the population increased by about two and one-half millions; yet the annual number of capital sentences pronounced diminished year by year, the records showing 216 for the eight years 1871-78, and 211 for the eight years 1879-86. Homicides, as the results of quarrels and drunken brawls, among the lower classes, are still deplorably frequent in Mexico; but premeditated murder, perpetrated with a view to robbery, or murder accompanied by treachery, and highway robbery are be- coming of relatively rare occurrence. Only a few years since no one could safely walk the streets of the capital after nightfall. "One may now traverse this city from end to end at any time, night or day, without any fear of being molested," writes Mr. John Hubert Cornyn. Meanwhile, capital punishment has been CAPITAL PUNISHMENT 27 practically abandoned throughout the republic. A native writer declares : "Unless there occufs some check to the growth of the feeling of revulsion against capital punishment, the next gen- eration in Mexico is likely to glean all its information regarding that interpretation of justice that demands 'a. life for a life' from history or from reports of legal executions in other countries." The table following shows the annual number of convictions for various forms of homicide in the republic during the fifteen years 1871-85, with the annual number of death sentences pro- nounced.i Offenses Years Murder Man- slaughter Parricide Infanticide Death sentences lg71 375 404 408 448 401 987 927 969. 1.24flf 1.062 7 4 5 I 87 53 39 58 50 41 1872 23 1873 30 1874 23 1875 18 Total 2,036 5.185 28 287 135 1876- 461 440 642 594 486 ].099 1,106 ],252 1,321 1,182 5 9 10 15 15 42 41 61 98 71 26 1877 12 1878 43 1879 29 1880 28 Totals 2,623 5,960 54 313 138 1881 615 533 627 528 532 1,447 1,322 1,349 1.322 1,315 14 13 18 10 18 96 85 83 61 62 30 1882 20 1883 36 1884 1885 24 18 Totals 2,835 6.755 73 387 128 Totals in Quinquennial Periods 1871-75 2,036 2,623 2,835 5.185 5,960 6,755 28 54 73 287 313 387 135 1876-80 . ... 138 1881-85 128 Grand Totals 7.494 17,900 155 987 401 1 statistics for Puebla are not included in the above table, fignres for this state not being available. - During- the civil war of 1876 and 1877 many of the archives were destroyed. Since 1878 the archives have been in perfect order. 2S SELECTED ARTICLES Arena. 2: 513-23. October, 1890. Death Penalty. George Shrady. The execution by electricity which has recently taken place has brought to the surface a general discussion of a subject of the greatest concern to society at large. Upon the electric chair at Auburn was focussed the high light of a world-wide interest. It was promised that the new method of getting rid of a murderer should be an improvement upon all others. History must now record its failure from many points of view. When the harrow- ing details of the death chamber were tingled along the telegraph wires of tht country, and their impluses were throbbed through the cable, the entire civilized world viewed the scene with aston- ished horror. The criminal became a martyr and the manner of his execution was anathematized by the daily press as a disgrace to civilization. He came to it submissively, trusting to an easy death, but was killed like a writhing dog. He kept his promise to do as well as he could, and the only mercy was that he was rendered unconscious frorti the first. Viewed even as a scientific operation, however, it transcended in apparent brutality anything that can be imagined. And yet this was claimed to be the true and improved way of doing it. This, too, after all the discussion by expert electricians, after all the experiments upon the lower animals, after the careful examination of the power of different machines, the accurate measurement of volts, the elaborate estima- tion of resistance to currents, and the exhaustive study of the generating power of different dynamos. It was the first dreadful trial on a human being to measure the terrible force of quickly repeated lightning strokes against his vital tenacity. Seemingly every precaution had been taken to make the result a certainty, when exactly the opposite was proved. As now shown there was no accurate and reliable way of de- termining positively when real death occurred. None of the ex- perts dared examine the victim while the deadly current was coursing through its circuit. No one could go near to feel the pulse, or to listen to the heart beat. All the chances were taken upon the actual number of seconds required to make Hfe extinct. CAPITAL PUNISHMENT 29 That there was an error of judgment in that regard was shown in in the respiratory struggles of the criminal after the first shock was administered. Although there was no more pain or agony during these efforts than if the man had been under the influences of an anaesthetic and had been undergoing a severe surgical operation, there was scarcely less doubt, under such conditions, that he might not have rallied if the shock had not been re- peated. Viewed from such standpoints it can hardly be claimed that the first use of electricity as a means of producing death easily, quickly, and as some have claimed "pleasantly," was, by any means, a success. All this was done for the sake of making an improvement upon the other forms of execution. When, however, we compare electricide with these, we are forced to ad- mit that it utterly failed to meet the extravagant claims of its advocates./- The scene in the death chamber .was well calculated to impress any impartial observer with this fact. For the poor victim's sake we are glad to believe that he suffered no pain, but at the first stroke he was simply shocked, not killed, then after a torturingly long interval the shock was repeated and continued, until the burning flesh of his back demonstrated that the sacrifice had been complete. From the administration of the first stroke until the second circuit was finally interrupted, five minutes and twenty-eight seconds elapsed. In view of these facts it can hard- ly be said that the execution was a speedy one, certainly not as quick as lightning. That the murderer suffered nothing is no argument in favor of the apparent brutality of failing to kill him at the first blow, then striking him again and accidentally roast- ing him afterwards. The start was well enough, perhaps, but who can contemplate the finish without a shudder.^. The only comfort those can take who have advocated the new plan, is that the first current was a stunning one. But in the other methods of inflicting the death penalty is there more suffering? Excepting perhaps the Russian plan of execution by the knout — beating the life out of the victum with a loaded lash — the dreadful element of pain to the individual is hardly worthy of consideration. The guillotine is certainly very rapid in its action, and, as far as can be judged by analogy with similar phenomena 30 SELECTED ARTICLES all sensation is abolished on the instant of the stroke. The com- munication with the pain centers is at once cut off, and the sensa- tion current is instantly interrupted. The only revolting part of the proceeding is the necessary shedding of blood ; but this, scrip- turally speaking, should render the killing contract more valid. As to rapidity and effectiveness the same thing is done with the heavy Japanese sword, and with scarcely less precision. The Spanish garrotte crushes the cervical spine and upper spinal cord by means of a screw quickly working through' the back of an iron collar. Death here is practically instantaneous. The same may be said also of hanging. The instant the noose tightens its choking grip, consciousness is gone. The contorting spasms of the larger muscles are merely involuntary movements that have no connection with appreciable pain. At least, this is the testi- mony of men who have been cut down while insensible from at- tempted suicide by such means, or who have been similarly res- cued from accidental hanging. When there has been a bungHng, the rope should not be blamed. Even the electric chair may not have had its chance. The objection to hanging on the grounds of simple humanity has been that some moments must elapse before actual death can be a certainty. When the neck is not broken (and this is the rule), the heart continues to beat in a more or less irregular manner for several minutes after the suspension. But if the hanging is prop- erly done, death is always sure and there are never any attempts, reflex or otherwise, at respiration. The victim, free from pain and absolutely unconscious after the first convulsive throes, swings motionless in mid air, a limpid nothing of humanity. Unconsciousness and consequent loss of sensation are in such instances evidently due to the combined effects of the shock of the fall and of the congestive brain pressure caused by the grip of the noose. Of the five forms of execution now in vogue, that adopted by military tribunals is often open to the most objections. The bullet oftentimes misses its aim and a vital part is not always struck. There is a sentiment associated with dying a soldier's death that cancels in a measure its otherwise revolting aspect. CAPITAL PUNISHMENT 31 It is well-known that no individual of the firing squad is aware that his particular rifle is loaded with ball and he naturally hopes it is not. There is never a heart in the work of shooting a com- rade. The aim is almost purposely wide of its mark and con- sequently with a risk to the condemned man, of pain and suffer- ing when death is not speedy. In times of war, when military executions are most frequent, the life of an ordinary soldier is of such small value that little if any attention is given to technioal details, and still less is any criticism invited as to the mere human- ity of the proceeding. In studying the technique of executions it is interesting to note a desire on the part of those who believe in these forms of pun- ishment, to inflict as Httle suffering as possible upon the con- demned one. This is as it should be and is so far a credit to our present civilization. Those who hold a contrary view are happily in the very small minority. There is only pity fo.r such a claim that the more severe, revolting, and cruel we make an execution, the better will it serve its purpose. It is to be regretted, in this age of enlightenment, liberality, and progress, that even clergy- men should be found among the staunch advocates of this obnox- ious doctrine. By their training and mission it would be quite reasonable to expect from them something in advance of the religion of the fire and sword. Thinking men now ask a better argument for revenge than the quotation of a text or the literal interpretation of a scriptural injunction. Strange to say in a newspaper column of personal interviews representing the opin- ions of scores of leading preachers there was scarcely a man among them who was not in favor of some form of capital pun- ishment, and not one who was not willing to advise it as a last and effectual remedy for murder. Such conclusions are, to say the least, sorry comments upon a gospel which for nearly nine- teen centuries has lent its best efforts toward Christianizing hu- manity. V "But," say the advocates of this doctrine, "executions are highly beneficial in that the very horror which attends them acts as a direct preventive of similar crimes in others. Capital punishment has a direct deterrent effect upon murder. This is its chief, if not only aim." Let us candidly enquire if this is ^ 32 SELECTED ARTICLES really so. How much of truth and fact is on their side? Viewing this question of the death penalty in its broadest sense, we are led to look at it from many aspects. What effect, for instance, has it upon a murder already committed? It cer- tainly does not cure the crime. That is past cure. The deed is done and the victim is beyond help. We cannot remedy one murder by committing another. Whether this is under the sanction of law or not does not alter the principle upon which this so-called justice is founded. Retribution* in this sense is but another name for revenge. When we stigmatize it thus, we ap- proach the real point at issue. Society has no more moral right to take this punishment upon itself than has an individual who is the nearest of kin to the victim. The law holds the matter in its own hands on the plea that the murderer shall have a fair trial. So far there is a show of justice in the proceeding; but if found to be guilty, the result to the culprit is the same. Society then simply revenges the death, instead of allowing any single in- dividual to do so. So far as the criminal is concerned, we have done nothing more than kill him. (It has been an eye for ^»eye, a tooth for a tooth, a life for a life. The account in this respect is squared up, — ^blood for blood. The crime of murder is expiated — technically and judicially speaking, remedied, \ ' — / To such as believe in the deterrent effect of execution it may he well to consider the uncertainty of convictions for murder. It is fair to presume that the reasonable hope of escaping the gallows offsets in no small degree the fear of it. No sooner is the crime committed than the legal adviser is consulted, and, in the majority of cases, fulfils his promise to obtain a verdict of acquittaD(^ Conviction thus becomes the exception rather than the rule. The criminal classes know this and act accordingly. An experienced criminal lawyer of New York is quoted as saying that of nearly six hundred cases of murder of which he was the counsel, scarcely a score were punished. The lesson which this teaches cannot be misinterpreted ; the criminal who is actually sentenced and executed, is looked upon more as an unfortunate victim of the law than one who justly deserved his punishment. He has a funeral largely attended by sympathizing friends who CAPITAL PUNISHMENT 33 never tire in praising his noble, plucky, but untimely death. He is the hero of the hour, with virtues that invite emulation, rather than the criminal whose disgraceful end should be a last- ing example to all evil doers. Of course it is hardly to be ex- , pected that the murderer should confess his guilt. He thus leaves nothing behind him for good. He simply goes to glory an innocent man and the hanging lesson thus endeth. A lie is, to all intents and purposes, not a lie when uttered under the gal- lows. A murderer facing death is the last person in the world from whom a good moral precept can be extracted. As an ex- ample he is by no means a success, and consequently has no very striking deterrent effect upon the community. What could be expected from hanging what the victim says is an innocent man? We get him out of the way in a very radical manner, to be sure, but do we do so as a warning to others of his ilk? Do they profit by it? Take up the morning papers and read of mur- der everyw^here. In the next column to the report of the execu- tion is that of an assassination in broad daylight and in a public thoroughfare. The execution was horrible, so was the new murder. They occur entirely independent of each other, it is true, but the coincidence is quite striking enough to shake our faith in the deterrent theory. Even to ordinary observation it is quite evident that murders are not on the decrease ; on the contrary, if we interest ourselves enough to count them as they are reported almost daily, we are inclined to take the opposite view. If, however, we attempt to solve the reasons for the commission of crime as we would any other problem and look -for an ex- planation of apparent inconsistencies, some very interesting and instructive explanations offer themselves. And, strangely enough, all these facts are directly opposed to the ordinarily accepted doc- trine of prevention ; in truth the fear of death by execution is so far in the background as hardly to be worthy of consideration. To properly appreciate their significance we must study the philos- ophy of crime not only as regards the individual criminal, but also in his relation to society. Let us get at this part of the question as directly as possible by asking, what is murder? In the vast majority of cases it is i^ 34 SELECTED ARTICLES an accident of passion in an individual who has lost his self- control. He is in ninety-nine cases out of a hundred a weak vessel, a crooked pot that has been jarred out of his equilibrium. He tumbles over and we smash him in pieces accordingly. He was born crooked ; we are hardly prepared to discover that the criminal is born not made. But this can be proved to be true, nevertheless. There is as much heredity in crime as in con- sumption, cancer, or insanity. The statistics of prisons show that crime in one shape or another can trickle through families even to the sixth generation. With insanity this is notoriously so. The records of our insane asylums are filled with such his- tories. Occasionally the criminal proclivities, eccentricities, and other mental defects of ancestry are the subjects of legal in- quiry before the courts, but as this is done more to prove heredi- tary insanity than to excuse crime, sociologists have been compelled to look to other sources for their data. The criminal belongs to a class distinct in itself, which has its own peculiari- ties, its own statistics, its own laws, and its well-defined relation to society. He comes into the world with a defect in his moral constitution and unless this is counteracted by the proper edu- cating influences, he is in the long run as sure to commit crime as are the sparks to fly upward. The seed always produces its kind in the proper soil. The criminal will always fit his en- vironment. The murder, for instance, is the fruition of the seed in the proper ground. The act is almost an instinct of his living. To prevent it would be to kill him before, not after it is done, or, better still, we should be able to forbid the matrimonial bans of his ancestors. All this goes to show how far back lie the causes of the crime. It is a latent principle in his very blood that awaits the ferment of unguarded passion. These seeds of crime are being sown constantly in our midst, and in the present state of society such will be the case, do what we will to prevent it. We can no more guard against this condition of things by executing criminals than we can by de- stroying the fruit of one seed hinder other and similar seeds from taking root. We are thus attacking the eflfect rather than the cause. But the real cause in the individual is mostly be- CAPITAL PUNISHMENT 35 yond our reach. We have no means of knowing his procliv- ities towards murder until the deed is done. Even if it were otherwise the gallows would have no more terrors for him than for any other man. Until after the murder is accom- plished he has been accustomed to believe that the guillotine or the rope was intended for some one else. No individual, no matter how depraved he is, ever expects to be a murderer, and, consequently, he never feels the need of the lesson from the scaffold. If he learns it at all, it is -too late either to do any good to his victim or himself. We say that it is necessary when deeds are done that man should fit his environment. It is quite true that society in its retroactive inifiuence has as much to do with the commission of the crime as does the criminal. There is a social as well as a physical law for crime. Given a certain condition of so- ciety and the ratio of murders is always the same, no matter how severe the punishment for the crime may be. The mere fear of the death sentence" apparently has no effect upon the would-be-criminal. If it were otherwise, we should expect a proportionate decrease in the number of murders committed as compared with the number and severity of the executions. But, strangely enough, the number of murders never varies. It is as constant as the birth rate and the^ieath rate. We have an individual with certain instincts on one side and a certain condition of his surroundings on the other, and we predict the result with a mathematical certainty. It may be a comforting thought that crime is prevented by punishment, that a great many who might be murderers are de- terred from becoming such by the death penalty, but we have no means of proving it. It is hard to estimate how a thing which does not happen is prevented from happening. When we argue from such premises we are swinging around a circle of negative proportions. When, however, we start from a fixed point, when we actually know the exact rates of certain crimes, we expect if there is any good in certain so-called deterrent in- fluences, to see the results in lowering the crime record. If the fear of death has had any real influence in that direction, it w ^^u^'^^ 36 SELECTED ARTICLES should have shown itself long ago. It has had no effect on the criminals who crop up year after year, keeping the roster full. - Why did not the last murderer fear the gallows in time to avoid it2_We know he did not, that the next criminal will not, and yet we go on talking of the necessity for capital pun- ishment-r- If fear of the death penalty deserved a tithe of its claim as a preventive of murder, the crime would long ago have been banished from the face of the earth. It should certainly have proved its utility by this time. No matter what theory may be advanced as to the prevention of murder, it is quite evident that the fear of execution is not one that can be demonstrated by the facts of experience. So far as we can see, the dread does not show itself until the criminal cools his passion and has opportunities for reflection. Naturally at this stage of the discussion comes the question, Why kill the criminal at all? If society wishes to enforce the estimation of the value and sanctity of human life, why does it take life itself for any reason? Even an enlightened and powerful commonwealth has no excuse for allowing two mur- ders for one crime. If we really desire to show our horror of killing, we should have it understood by word and act that so precious is human life that even the murderer shall not be deprived of ijQ *^. When we are unable to prove that execution has a deterrent effect upon murder, when we do not wish to have it said that such a punishment is dictated by revenge, the real question nar- rows itself to that of protecting society by doing away with the criminal in the simplest and most effectual manner, Prac- tically in the present state of our knowledge ever3'thing must turn upon this. But must we necessarily kill him to get rid of him? 4 Life imprisonment becomes the only satisfactory solu- tion to this problem. Society by such means absolves itself from the crime of a second murder, and as securely guards itself from future harm as if the criminal were dead already.'l^he culprit is simply left to his own punishment, which is ample and severe enough. What, indeed, is more dreadful than the remorse of a blighted life ; what greater torture could be devised by the CAPITAL PUNISHMENT 2,7 most revengeful man ?^ No argument is needed to prove this. History and tiction vie with each other in depicting the horrors of a bad conscience. The most thrilling terrors have it as their dark background. It is the cold shadow by day and the black wing by nighti^CThere need be no fear on the part of those who even believe in the severest measures on ounishing mur- der that imprisonment for life is not sufficientV Even the ma- jority of criminals prefer hanging when they' Wiow that this form of confinement is sure. In order to be effective, how- ever, it must be so!VThe conviction of the murderer must be certain. Let the trfal be as thorough as law and justice can / make it, but let the sentence be final, without the chance of technical appeal, executive clemency, or other hope for pardon. Let the criminal know and fed that there is nothing for him outside of his cell, that he is as dead to the world as if he had swung upon the gibbet. When he is made to realize this, * he has the mark of Cain upon him, and his punishment is as great as he can bear. It is not difficult to imagine that the knowledge of such a fate awaiting the wrong doer would have a far more deterrent effect than the most horrible execution imaginableS^ It has been often said that you cannot put a man to a worse use than to kill him. This is eminently true, even with a criminal. Something good can be obtained from the most depraved characters. They can at least be made to work and thereby benefit society. Better still, perhaps, they may be forced to support by their labor' the family of their victim. > Viewing the murderer as a bad man and one who is in dan- ger of contaminating his fellow prisoners, it would be neces- ary to keep him by himself — a moral leper from whom others should be protected. An effectual way of accomplishing this would be the construction of prisons in each state solely for murderers, and the placing of them in charge of experienced disciplinarians, who should have ample powers for carrying out the strictest letter of the law. Scientifically speaking, if such prisons were established, much good might be gained by the study of criminal character. Every- thing is to be learned in this direction if we would gain a ^v 38 SELECTED ARTICLES rational insight of the causes and prevention of crime. The want of some positive knowledge on these points explains, in part at least, the reason why we still kill murderers. We should study their characteristics as we do the symptoms of a dis- ease, as we do fevers in our hospitals and insanity in our asy- lums. What valuable statistics could thus be obtained if the hereditary predispositions that worked their sad result in each case could be properly classified, if the influences of particular environments upon the individual could be carefully noted and if the varied psychological processes which made murder al- most a foregone conclusion could be rightly understood ; we could thus make an autopsical examination of the dead char- acter as effectually useful in the collection of trustworthy data, as we could a similar study by the use of the dissecting knife upon an equally veritable cadaver, r Let us punish the criminal —X If we will; let us brand him with his mark; let us show, if you please, that society is outraged by his doings ; let us make his punishment as severe as possible and thus deter others from crime if we can, — but while we are lookinp^ for m^ye lip^k t^ }et us study him, not kill him . NThere are laws for crime which are as well founded as those/for the winds, the tides, light and darkness, birth and death, even suicide and so-called accident. The whole philosophy of jurisprudence must be based upon a proper understanding of them. Exhaustive statistics are at hand waiting for the earnest student to marshal them in the lines of legitimate deduction. We may yet discover where the real responsibility for crime belongs ; we may be able in time to demonstrate which is most to blame, the instincts of the criminal or the influences of the society in which he lives and moves. But what if in the end society itself were found most at fault in the first as well as in the second killing? What new application could then be made for the deterrent doctrine with the blood-cry of the common murderer in our ears? How could justice strike the balance? On which side would the weight of censure be placed? Might not even the death chair itself be the fitting judgment seat from which to pass the sentence? CAPITAL PUNISHMENT 39 Canadian Magazine. 2:467-75. March, 1894. ^ — Ueath Penalty. John Ferguson. The state is the sum total of the will of the people; and as such has no feeling one way or the other in this matter. The duty of the state is to do justly in all things pertaining to the weal of every citizen. Viewed from this standpoint, the state has some important functions to fulfil. One of the first problems the state has to solve is to allot to each offender a punishment suitable to the crime and the nature of the criminal. This latter aspect of the case must never be lost sight of. The recidivist must be treated in a very different manner from the person who for the first time -s commits some petty offence. The punishment should be ad- J justed to the person rather than the crime. . . . Among the ^ hardest criminals to reform are vagrants and habitual drunk- ards. On the other hand, among the most easily reformed are persons who have committed a serious crime under con- ditions that might never recur. Clearly then, the duty, of the state is to fit the punishment to suit each case, and the basis for this adjustment must be the offender — not the offence. ^ Charities. 15:248-9. November 18, 1905. Capital Punishment Denounced. Blood and flame, an eye for an eye, a tooth for a tooth, talon md claw — these old watchwords of primitive retaliation were lade use of in a scathing arraignment of capital punishment 'in the report of the Committee on Enforcement of Law, of which Dr. William O. Stillman of Albany is chairman. In part he said : "This committee desires to draw renewed attention to that well-known and justly lauded principle developed in the mod- ern 'enforcement of laiif which seeks the reformation of the criminal for his own good, as well as for the benefit of society, ' rather than the exhibition of mere legal revenge or even ex- emplary punishment which has been the prolific mother of habit- 40 SELECTED ARTICLES ual criminalism. We cannot be too thankful that the old theory of criminal law, which was in primitive states largely retaliatory and in more advanced forms of govcrnm'ent be- comes pmiitive or exemplary, is rapidly becoming obsolete. We think that penologists are every day realizing more strongly the futility of the severe treatment of prisoners. The law of the moral world is like that of the physical and intellectual. Like begets like. Savagery begets savager}-. Legal brutality educates a brutal populace. What chance is there for reform of an evil-doer if you have destroyed all his self-respect and caused him to harbor resentment instead of proper hopes and ambitions ? "A great blot still lingers on our conception and practice of criminal law. It is an example of primitive retaliation, of an eye for an eye and a tooth for a tooth ; a relic of a remote past when talon and claw were the only law, a theory in our en- lightened times as indefensible in its principle as it is useless and debasing in its practice. The infliction of capital punish- ment, which is practically limited to homicides in civilized coun- . tries, is a stain on our civilization and should be abolished. In j its place, when habitual and desperate criminality has reached ' the limit fixed by a wise and tolerant society, should be sub- stituted special prisons which should become permanent re- positories for these lost members of mankind. These should be rendered as silent and inexorable as the tomb. Release should be permitted only upon action of the highest court upon posi- tive proof of innocence. The inmates should be forever re- moved from a continuance of their evil practices but not beyond the opportunity for repentance and spiritual expiation. "It is a law of human development that severe punishment does not reform or deter. It does not change character or belief. It does not produce that conviction of mind which is essential for moral elevation. On the contrary, it excites re- action, a reflex hardening, an antagonism, and so defeats its own purpose. Who ever heard of physical abuse or perse- cution, however extreme and rigorous, stamping out a right- , eous cause or an evil cabal. Reformations, political or religious, u f ^ CAPITAL PUNISHMENT 41 have ever flourished best on the blood of their leaders, and vice has waxed under the shadow of the gallows. Each ex- treme has had its martyrs to the wild beast in the spirit of man. Blood and flame have ever been impotent against that impalpable thing, a condition of mincl. Progress, purity and peace, must come from the heart and the intellect developed in conjunction. Violence cannot reach the fountains of right living. "The arguments against capital punishment may be sum- marized as follows : k "i. The strongest argument is that it prevents enforcement * /oty law. Conviction is rare in cases of murder. During the last / t^^enty-two years previous to 1963 out of 129,464 homicides m the United States but 2,611 murderers were executed. "2. It ,does not deter from the commission of murder. In 1881 there were 24.7 murders to each million of the population. In 1883 the number had reached 112. There are fewer mur- ders in states which have abolished the death sentence, hs in Maine and Wisconsin, than in New York and Pennsylvania, which still retain it. "3. Innocent individuals are occasionally executed, which makes the state a murderer of the worst kind. Capital punish ^ ment prevents reparation in cases of subsequently proven inno- cence. "4. Two or more men, organized under a form of gov- ernment, have no more right to take life than one man has. It is murder in either case and brutalizing in both. ^^^ ''5. The sanctioning of capital punishment degrades and / hardens any community which allows it to stand as its highest^ ideal in dealing with any crime, ilV "6. It is certainly a relic of barbarism. To abolish it would \ be a step forward. As civilization has advanced J)unishment has always become less severe and crime has also become less common. The old law of retaliation is obsolete. "7. Capital punishment usually deprives the criminal of the one due which civilized society owes its unfortunate chil- dren of this class, the chance for spiritual reformation and ex- piation, to prepare for the hereafter, 42 SELECTED ARTICLES "8. Life imprisonment is a severer and juster punishment for a murderer than to be given early his earthly quietus. Those states which sanction legal murder do more; they murder civ- ilization." Fortnightly Review. 52:322-33. September, 1889. Case agaiiTfet Capital Punishment. B. Paul Neuman. "Forasmuch as the ende of their wrath and punyshmente in- tendeth nothyngeV elles but the destruction of vices and savynge of menne." — Utop^ (Arber's edition, p. 50). In these wordsNthe noble-hearted More laid down a prin- ciple which the penAl code of his own country has consistently violated. For his language clearly points to reformation as the object of punishment, and English law has persistently clung to that one form of punishment which makes reformation almost impossible unless by a miracle. In More's own time and in the reign of Elizabeth the proportion of executions to the number of the population is almost incredible, while as late as the reign of George III. there were on the statute book something like two hundred crimes punishable with death. No doubt in many cases the law w^s a dead letter, but even so, the state of things was a scandal to the rest of the civilised world. Well might Mirabeau say : 'The English nation is the most merciless of any that I have heard or read of." Douglas Jerrold, a writer by no means given to "sentimentalism," draws a picture of Georgian justice: — The Lords of the Privy Council had met with good King George III. at their head to correct the vices of the land.. There was death for the burglar, death for the foot-pad, death for the sheep-stealer, death, death, death for a hundred different sinners. The hangman was the one social physician, and was thought to cure all peccant iUs. Horrible, ghastly quack! And yet the King's Majesty believed in the hideous mountebank, and every week, by the advice of his Lords of the Council — the wise men of St. James's, the Magi of the kingdom, the starred and gartered philanthropists — every week did sacred royalty call in Jack Ketch to cure his soul-sick children! Yea; it was with the hangman's fingers that the father of his people touched the people's evil. And if in sooth the malady was not allayed, it was not for lack of paternal tending, since we find from the Old Bailey Register- that thing of blood and bigotry and ignorance — that in one little year, in almost the first twelve months of the new drop, the hang- man was sent to ninety-six" wretches who were publicly cured of I / CAPITAL PUNISHMENT 43 their . ^^ in tlie front of Newgate! And the King in Council thought tbere was no such remedy for crime as the grave; and therefore by the counsel of his privy sages failed not to prescribe death warrants. To reform men was a tedious and uncertain labour; now hanging was the sure work of a minute. Slowly and in the face of strenuous opposition from "strong" judges and weak prelates the statute-book was purged of most of these monstrous enactments, until at the present day, put- ting on one side martial law, the capital penalty is inflicted only in cases of treason or murder. It is pretty generally ad- mitted that increase of crime has not followed the successive relaxation of the penal code, and hence the question has been of late years constantly mooted: — Why retain the penalty of death at all? How uneasy and unsatisfied public opinion is at the present time, is shown by the fact that when sentence of death has been passed, in almost every case an agitation for a reprieve follows as a! matter of course. The remarkable outbreak of feehng in the Maybrick case has furnished the most recent illustration of this dissatisfaction. Men are hap- pily growing less and less enamoured of that robust civic vir- tue which often appears so excellent an imitation of cynical indifference. The sacrifice of an innocent life, however rare, is felt to be a heavy price even though it purchased for the rest of us comparative immunity from crime. Mr. John Bright, speaking at University College, London, a few years ago, expressed a pathetic hope he might live long enough to see the uprooting of the gallows-tree. It still flourishes and brings forth fruit after its kind, but his was the hand that laid the axe to its root. The literature of the subject, though sufficiently copious, is not very accessible to the ordinary reader, being for the most part contained in Blue Books and in Hansard's reports. Perhaps this may explain why, in spite of the interest shown in particular cases, so few people take the trouble to inform themselves accurately upon the general question. In^any case it may be useful to recapitulate and summarise the facts and arguments upon which the opponents of capital punishment take their stand. 44 SELECTED ARTICLES There will probably be little difference of opinio ^^^"l?) the ultimate objects of punishments. They are : — (i) The protection of society; (2) the reformation of the criminal. Some persons might be disposed to add a third, namely the vindication of the outraged majesty of the law; but this, if analysed, .will be found either to fall under (i) or else to be only a euphemism for revenge. Bearing in mind these objects, let us. next inquire what are the tests or marks of suitability to be applied to any par- ticular punishment. The most important of these tests appear to be the following: — (i) . It should be capable of certainty in application. ^ (2) It should be susceptible of graduation. (3) It should be revocable. (4) It should be of a reformatory character. (5) It should not shock the moral sense of the community. (6) It should not destroy sources of evidence. (7) It should be an efficient deterrent. Let us try the punishment of death by these tests. (i) As to the certainty of application. "If it were possible," says Sir Samuel Romilly, "that punish- ment, as the consequence of guilt, could be reduced to absolute certainty, a very slight penalty would be sufficient to prevent almost every species of crime except those which arise from sud- den gusts of ungovernable passion." The converse of this proposition appears to hold good.- Where the penalty is very heavy its incident is apt to become erratic and uncertain. Of all punishments used by civilised na- tions the punishment of death is most open to this objection. Under the old law, when death was inflicted for rninor offences, this feature was even more apparent than it is at the present day. Mr. Harmer, a solicitor with a very large Old Bailey practice, said, when examined before a parliamentary commit- tee in 1819 — The instances, I may say, are innumerable, within my own ob- servation, of jurymen giving verdicts in capital cases in favour of the prisoner directly contrary to the evidence. I have seen acquit- tals in forgery where the verdict astonished everyone in court, be- I cause the guilt appeared unequivocal, and the acquittal could only / be attributed to a strong feeling of sympathy and humanity in ■< the jury to save a fellow-creature from certain death. The old CAPITAL PUNISHMENT 45 professed thieves are aware of this sympathy, and are desirous of heingr tried rather on capital indictments than otherwise. The late Sergeant Parry on a subsequent occasion gave the following evidence — It is a common observation in our profession that there is nothing more difficult than to obtain a verdict of guilty from a jury where the charge is murder. It has frequently occurred that the jury have asked — Can we find a verdict of manslaughter? No, you cannot. And the prisoner is allowed to go free. It may be objected that such evidence as this has no appli- cation at the present day, but it is easy to supplement it from more recent sources. In the course of a recent debate in the House of Commons, Sir Colman O'Loghlen said he had within the last forty-eight hours prosecuted a man in County Cork, about whose conviction, but for the penalty of death, he felt certain, but who, as it was, was acquitted. Every one of the Crown solicitors on the Munster Circuit, and he believed, the majority of the judges, were of opinion that if capital punish- ment were done away with the number of convictions would be increased. The experiment of doing away with capital pun- ishment has been tried in several of the American states, and the result throws a light upon the subject which only inveterate bigotry or stoUd prejudice could venture to disregard. Take, for instance, the case of Wisconsin. Writing to Mr. John Bright in 1864, the governor of that state thus expresses himself — The evil tendency of public executions, the great aversion of many to the taking of life, rendering it almost impossible to ob- tain jurors from the more intelligent portion of the community, the liabil:ty of the innocent to suffer so extreme a penalty, and be placed beyond the reach of the pardoning power, and the disposi- tion of courts and juries not to convict, fearing the innocent might suffer, convinced me that this relic of barbarism should be abol- ished. The death penalty was repealed in 1853. No legislation has since re-established it, and the people find themselves equally secure. Some years later, in 1873, we find this passage in Governor Washburne's message: — There can be no doubt that the change in the law has made punishment more certain, and I but express the opinion of those who have most carefully considered the question, when I state that but for that change in the law, at least one-half of those convicted would have escaped all pvmishment — so difficult is con- viction when the punishment is death. Reverting to 1864, the governor of Michigan writes : — Before the abolition of the death penalty murders were not un- frequeht. but convictions were rareh' or never obtained. It be- came the common belief that no jury could be found (the prisoner 46 SELECTED ARTICLES availing himself of the common law right of challenge) which would convict. There can be no doubt that public opinion sus- tains the present law, and is against the restoration of the death renalty. Conviction and punishment are now much more certain than before the change was made. Similarly, the Chief Justice of Rhode Island, where the death penalty has also been abolished, writes : — My observation fully justifies me in saying that conviction for murder is far more certain now in proper cases than when death was the punishment of it. (2) As to susceptibility of graduation. Tt is hardly neces- sary to say that scarcely any two instances of the same species of crime show precisely the same degree of turpitude; motive, provocation, surrounding circumstances, age, character, all have to be taken into consideration in estimating the amount of punishment requisite. Hence the need for graduation in the punishment. Simple imprisonment, hard labour, . penal servi- tude, even the lash are all capable of more or less accurate graduation. Nowhere is there greater room for diflference in the degree of guilt than in the case of murder, and yet the punishment inflicted is one and the same in every case. In some- cases, indeed, even death may be a severer punishment to one man than to another. To a man brought up in the higher ranks of society the social infamy and the personal degradation may add a sting to the punishment which may be entirely absent in the case of one less fortunate in his birth. But this distinction which in other punishments can be taken into account and al- lowed for. operates, in the case of death, altogether independent- ly of the judge. Hence it may, and no doubt often has hap- pened, that the punishment has borne most heavily where the ' guilt was lightest. (3) As to revocability. Here again it is perfectly obvious that of all punishments, that of death is, tried by this standard, the most unsatisfactory. For although it is perfectly true that in one sense all punishment is irrevocable as soon as it has com- menced to operate, yet in every other case, as long as the victim is 'alive, it is possible either to remit a portion of the sentence or to make substantial reparation. If, therefore, it can be shown that there is an appreciable danger of so fatal a miscarriage of justice, CAPITAL PUNISHMENT 47 most people would freely admit that the case against capital pun-^ ishment is a very serious one. The risk of such a mi^eafrlage might, no doubt, be lessened by the adoption oftJiafSimpIe meas- ure of reform which for so many years4»<'clamoured vainly at our gates — the creation of a Court of Criminal Appeal. Even then, however, the danger would not be removed, and the argu- ment against capital punishment would to many minds still re- main overwhelming. >sliiow, what are the facts of the case? / Some time ago Sir James Mackintosh, a most cool and dis- passionate observer, declared that, taking a long period of time, one innocent man was hanged in every three years. The late Chief Baron Kelly stated as the result of his experience that from 1802 to 1840 no fewer then twenty-two innocent men had been sentenced to death, of whom seven were actually executed. These terrible mistakes are not confined to England : Mittermaier refers to cases of a similar kind in Ireland, Italy, France, and Germany. In comparatively recent years there have been sev- eral striking instances of the fallibility of the most carefully con- stituted tribunals. 1 In 1865, for instance, an Italian, named Peliz- zioni, was trietHJ^ore Baron Martin for the murder of a fellow- countryman in an affray at Saffron Hill. After an elaborate trial he was found guilty, and sentenced to death. In passing sentence the Judge took occasion to make the following remarks, which should always be remembered when the acumen begotten of a "sound legal training" and long experience is relied on as a safeguard against error : — In my judgment it was utterly impossible for the jury to have come to any other conclusion. The evidence was about the clear- est and the most direct that after a long course of experience in the administration of criminal justice I have ever known. . . . I am as satisfied as I can be of anything that Gregorio did not inflict this wound,^and that you were the person who did. The trial was over. The Home Secretary would most cer- tainly, after the Judge's expression of opinion, never have in- terfered. The date of the execution was fixed. Yet the unhappy prisoner was guiltless of the crime and it was only through the exertions of a private individual that an innocent man was saved from the gallows. A fellow-countryman of his, a Mr. 48 SELECTED ARTICLES Negretti, succeeded in persuading the real culprit (the Gregorio so expressly exculpated by the Judge) to come forward and acknowledge the crime. He was subsequently tried for man- slaughter and convicted, while Pellizioni received a free pardon. Again in 1877 two men named Jackson and Greenwood were tried at the Liverpool Assizes for a serious offence. They were found guilty. The Judge expressed approval of the verdict and sentenced them to ten years' penal servitude. Subsequently fresh facts came to light and the men received a free pardon. Once more, in 1879 Habron was tried for the murder of a policeman. He was found guilty and sentenced to death. An agitation for a reprieve immediately followed. The sentence was commuted to penal servitude for life. Three years after, the notorious Peace, just before his execution for the murder of Mr. Dyson, confessed that he had committed the murder for which Habron had been sentenced. With these incidents fresh in our minds, let us turn once more to 5"/. Giles and St. James, and listen to the indignant words of Douglas Jerrold: — Oh that the ghosts of all the martjTs of the Old Bailey — and though our profession of faith may make moral antiquarians. stare, it is our invincible belief that the Xeicgate Calendar has its black array of martyrs; victims to ignorance, perverseness, prejudice: creatures doomed by the l>igotiy of the council table; by the old haunting love of blood as the best of cures for the worst of ills — oil, that the faces of all of those could look from Newgate walls! That but for a moment tlie men who stickle for the laws of death as for some sweet domestic privilege, might behold the grim mistake; the awful sacrilegious blunder of the past, and seeing, make amendment for the future. (4) As to its reformatory character. It was boldly asserted by Mr. Roebuck in the House of Com- mons that a murderer was not to be reformed. Few humane or reasonable people will be inclined to endorse such a statement, least of all those who look up with reverence to Him who came to seek and to save that which was lost. It must be remembered, too, in this connection that many of those convicted for murder are quite young. Thus in three years, from 1878 to 1881, there were among such criminals young men of 18, 20, 21, 22, 23, 24, 26, and 27. Then the circumstances of the criminal class from which many of these cases come ought surely to be taken into CAPITAL PUNISHMENT 49 r account. Born in vicious homes, brought up amid the vilest sur- roundings, the abject slaves of their own worst passions, it is not too much to say that sometimes the prison chaplain's is the first good influence that seriously touches the convict's life. But think of the cruel irony of giving three weeks in which to reverse the habits of long years ! Nor is this the worst. At the present day, except under very unusual circumstances, efforts to obtain a re- prieve almost always follow a conviction for murder. Of these efforts the prisoner is of course aware. Hence, though guilty, he feels he has still a chance of life if he can lie hard enough to create a doubt in the Home Secretary's mind. At the very foot of the gallows, therefore, he goes on adding sin to sin, and too often invoking the name of God to witness to his falsehood. (5) As to its accord with the moral sense of the community * /( It is nothing less than a disaster when the public sympathy is en-^^N^ listed against the law and in favour of the criminal. Yet this is \^v what constantly happens now in cases of murder. In the old days \ ^ the highwayman on the road was an unmitigated nuisance, but, \ once trapped, he became a hero. Many a Beau Brocade has gone to Tyburn amid something very like a popular triumph. And this short-lived popularity he owed partly to the feeling that his pun- ishment exceeded his deserts, and partly to the sympathy which is almost always extorted by the sight of a man engaged in a struggle for dear life. Both these sentiments still operate in the case of those sentenced to death. It is the spectacle of a desper- ate man fighting for his life against overwhelming odds that in- vests the lives of such scoundrels as Burglar Peace and Bush- ranger Kelly with quite a halo of romance. Then, too, it is now recognized that the crime of murder is not separated from all other crimes by such a gulf as to make it justly visited by a pen- alty inflicted in no other case. Take a simple instance. A, a half-starved miserable tramp, goes out on a lonely coun- try road armed with a knife, intending to rob the first passer- by. A farmer returning from market comes along. A demands his money, is refused, and in the struggle that follows, stabs him to the heart. B, a well-to-do artisan, has a grudge against X, a former em- ployer, who has dismissed him for gross misconduct and refused 50 SELECTED ARTICLES to give him a character. He purchases a dagger-knife, waylays X at night in a field, and makes a desperate stab at his heart. The knife, however, strikes against a sandwich box in X's pocket, and the intended victim escapes absolutely uninjured. ' Now of the two, as far as moral guilt is concerned, B's offence rj is the blacker, yet A will be hung while B will escape with a term of penal servitude liable to abridgment on ticket of leave. There is, however, no need for particula^r instances. There are offences which, whether looked at from the point of view of the guilt involved, or from that of the suffering entailed, are more grievous and terrible than many a murder ; yet the offenders either escape scot-free or with wholly inadequate punishment. Hence in case after case of murder the punishment seems too heavy for the offence, and hence the now almost invariable ^ agitation for a commutation of the sentence. '"Another circumstance that has to be taken into account is that the religious sentiment of the country is growing more and more antagonistic to the death penalty. The Friends, and perhaps the Unitarians, have hitherto stood almost alone in the thorough- ness with which they have applied the teachings of Christ to the social questions of the day. Now the bulk of the religious world in England is following their example. But they perceive that the maintenance of the death penalty involves them in a horri- ble dilemma. They, at any rate, cannot, in the face of their Master's teaching, assent to the proposition that all murderers are past repentance. When the alloted interval has expired, the convict is either impenitent or penitent. If impenitent, how awful to hurry him with all his sins upon his head into the pres- ence of that God who — more patient than we — would have given hitn a longer time for repentance ! If sincerely penitent, forgiven by God, born into a new life, what but the clearest, most absolute proof that his death is necessary to the safety of society can justify us in forthwith strangling him? True, says the Attorney-General (Sir J. Holker) in a recent debate, it is a terrible thing to give so brief a time for repentance before you execute the sentence, but you must remember the murderer gave his victim still less. Was there ever a more CAPITAL PUNISHMENT 51 shocking application of the discarded principle, dear to law- yers of an earlier age, "An eye for an eye, and a tooth for a tooth" ? Finally the development of medical science makes capital punishment seem more and more of an anachronism. Out of every hundred committals for murder in England there result about forty-nine convictions, and of these forty-nine convicts about fourteen on an average are insane. But besides this, there can be little doubt that many have been hung who were prac- tically not responsible for their actions. In fact, the whole ques- tion of moral responsibility is surrounded with so much doubt and difficulty as to furnish one more strong argument against taking an irrevocable step. The tendency of medical science at the present day is more and more to refer moral delinquencies in part at least to physical causes, and it may often happen that a convict's reformation is begun by the prison doctor sooner even than by the chaplain. •^ (6) As to its effect upon the sources of evidence. Under this head it is unnecessary to say more than that of all punish- ments that of death is necessarily in this respect the worst. Many a convict is the depositary of information which cannot be ob- tained from any other quarter, information which, as in the case of Habron, may result in the undoing of a grievous wrong. To kill such a prisoner is to finally seal against ourselves one of the most important sources of information. (7) As to deterrent effect. I have left this to the last, as being the most important test, and one that requires the fullest consideration. I feel perfectly certain that nine out of every ten believers in capital punishment base their devotion solely on the ground that without it murders would increase to an alarm- ing extent, and society would not be safe. If it can be shown that the facts of the case do not warrant these apprehensions, eight out of the nine would in all probability gladly abandon their position and join the movement for abolition. First of all, however, it must be noticed that the supporters of the death penalty stand as to this matter of deterrence in a very different position from that occupied by its opponents. The 52 SELECTED ARTICLES other arguments used in its favour are arguments of despair, sometimes ingenious, sometimes not even that, as the diligent student of Hansard can sadly bear witness. The one plea for the gallows, strong in its plausibility, is this :— There is nothing so dear to a man as his life; therefore the threat of death must be the most terrible and the most efficacious. But the opponents of capital punishment do not hazard their cause on the issue of a single argument. . They might admit, if facts were against them, that the death penalty is the great- est deterrent, and yet urge its abolition on the other grounds I have already alluded to, especially on the ground of its un- certainty and irrevocability. For, after all, deterrence is not everything. If the threat of hanging deters men from crime, surely the threat of burning or a preliminary course of torture would be still more efficacious. Nay, why not hand over the convict to the vivisectors, and thus at one stroke safeguard society, spare dumb animals, and further the advancement of science? The only logical answer that could be given to such a query would be, that we should in the long run lose more than we should gain. It would be like Bastiat's famous illus- tration in political economy. That which is seen would be a diminution for the time in the number of murders. That which is not seen would be the slow, but certain deterioration and brutalisation of society by the use of such means. And precisely the same reasoning applies to hanging without torture. As Mr. John Bright well said: — Whenever you hang a man in the face of the public under the circumstances to which we are so accustomed in this country, if you do in the sliglitest degree deter from crime by the shocl<- ing ratuie of the punishment, I will undertake to say that you by so much — nay. by much more — weaken that other and greater security which arises from the reverence with which human life is regarded. Another point worth remembering is that it is quite possi- ble to exaggerate the value men — especially men of the class from whom most murderers come — set upon life, their own or their neighbour's. The trivial grounds upon which men, women, and even children, will commit suicide is a proof of this, which the benevolent verdict "of unsound mind" fails to impeach. CAPITAL PUNISHMENT 53 Another proof affecting a higher class in the community is found in the alacrity with which thousands of men, under the stimulus of a shilling a day and a brass band, will lay down their lives in a quarrel as to the merits of which they know little and care less. But the great fallacy which underlies the plausible argu- ment that the fear of death must deter is this — it assumes that the fear operates on the murderer's mind at a particular moment, at the moment, namely, when he is committing the crime. But this is an extravagant assumption, contradicted by the facts I am about to refer to. It may very well be that, when brought to bay in a court of justice, confronted with all the solemn paraphernalia of the law, the passion of hatred, lust, or greed long since extinguished, it may very well be that then death looms before the unhappy wretch as the most terrible of possi- bilities. But that is perfectly consistent with his having com- mitted the crime uninfluenced by the slightest thought of the penalty. We are not, however, left to mere opinion on this question of deterrence. We have fortunately a considerable body of evidence to guide us in forming our judgment, and this evi- dence I will now briefly, and I hope impartially, summarise. In several foreign countries capital punishment has been either expressly abolished or practically dispensed with. The re- sults of these experiments ought, one would think, to be decisive. Taking at first the cases of entire abolition we find as follows : — HoLL.\XD. — Capital punishment abolished September, 1870 (as a matter of fact there has been no execution since 1860). The statistics of murder were as follows: 1861-9, 19 murders; 1871-9, 17 murders; and this notwithstanding an increase of population. Finland. — There has been no execution since 1824. The Judge of the Couit of Appeal states: "The security of person and prorerty has not been in the least diminished by the suspension of capital punishment. Murders are extremely rare." SwrrzKULAND. — In 1874 capital punishment was abolished by the Federal Council. In 187^ Cantons were allowed to choose for themselves, and two or three have elected to reinstate the death penalty. Bklgit-m. — No execution since 1863. In the 10 years before 1863, 921 murders; in the 10 years after 1863, 703 murders. I'RissiA. — In decade 1869-78, 484 persons sentenced to death, only one execution (Hodel). PouTroAi.. — Capital punishment abolished. Ror. MANIA. — Capital punishment abolished. 54 SELECTED ARTICLES TuscAxy. — No execution for fifty years. Russia. — Capital punisliment only retain^ for treason and military insubordination. J|/^ America. — Michigan, capital punishmelH^bolished in 1847; Rhode Island. 1852; Wisconsin, 1853; ^oig^JWIfllZ; Maine, 1876. In Michigan the statistics show^that sn'fce 1847 murders have decreased, relatively to the population, 57 per cent. As to Wis- consin, Governor Washburne writes in 1873 : — It is twenty years since the abolition of capital punishment. No state can show greater freedom from homicidal crime. With a population representing almost every nationality, statistics show that Clime instead of increasing with the growth of the state has actually diminished. Of Iowa, Senator Jessup writes in 1876: — Murder in the first degree has not increased/ but has for four years decreased. Previous to the repeal of the old law there was one murder for every 800,000 people. For the four years since abolition there has been one in every 1,200,000. There is more lynch law where the gallows is retained. This evidence might easily be multiplied, and, so far as I know, it all points in one direction. Next let us take the cases of partial discontinuance. Austria. — In decade 1870-9, 806 death sentences, 16 executions. SwKDEN. — From 1869-78, 32 death sentences, 3 executions. Norway. — From 1869-78, 14 death sentences, 3 executions. America. — In Illinois, Tennessee, Indiana, and Oregon, capital punisliment is practically discontinued, and in Louisiana and Min- nesota almost so. Of all these cases Switzerland is the only one that even a perverse ingenuity can use in favour of the deterrent effect of capital punishment. Even there, however, the majority of the Cantons dispense with the death penalty, and that in face of the fact that no efficient substitute has been provided. But I am not concerned to haggle over every single item of evidence. In the face of the grievous disadvantages which everyone must admit are inseparably 'connected with this punishment, it surely lies upon its advocates to prove by overwhelming evidence that society is nft safe without it. Instead of this, the evidence points in an exactly opposite direction. Society seems safer and human life more secure where reverence for it is taught by precept and not violated in practice. It may be true some- times, as Canning said, that nothing is so fallacious as figures except facts ; but it is a dangerous thing to assume that because facts and figures both point to a certain conclusion, therefore CAPITAL PUNISHMENT 55 that conclusion is wrong. Yet this, or something very like it, i£ the position into tAkh the advocates of the death penalty ilUch Ymaar are driven. There are several Spim^r points which I cannot discuss within the necessary limits of an article such as this. The irregular and practically secret appeal to the Home Secretary; perpetual im- prisonment as a substitute for death ; the question of how to deal with attacks on warders where such imprisonment is re- sorted to ; these and other kindred matters are subordinate to the main question. That question as it presents itself to me • is shortly this. -If other countries and our own kin across the sea can dispense with the awful penalty, why not we? Is there still any grain of truth left in Mirabeau's reproach, or are Eng- lishmen so intractable and ferocious that they must be kept in with a more galling bit and bridle than suffices for their neigh- bours ? It is sometimes said that the judges and the Church are both in favour of the gallows. As to the former, Burke's fine say- ing is as true now as it was in the days of Thurlow. The law is a science which does more to quiclcen and invigorate the understanding than all the other kinds of learning put together; but it is not apt, except in persons very happily born, to open and to liberalise the mind exactly in the same proportion. Lord Ellenborough predicted chaos if men were not to be hanged for petty larceny, and Lord Eldo.n heartily agreed. As to the Church, if the pews lead the way, the pulpit, as it has often done before, will gird up its loins and follow meekly afar off. Sir William Harcourt, speaking as a member of the Govern- ment, in a recent debate, refused to support the bill for the Abo- lition of Capital Punishment on the ground that, though he personally was ripe for the change, English public opinion was not. If this be so, it is surely the duty of those who look upon the gallows as an outrage on justice, humanity, and religion to do their best to arouse public interest and ripen public opinion. Lowell's brave words are singularly apposite : — New occasions teach new duties, time makes ancient good un- couth, Thev must upward still, and onward, who would keep abreast of truth. 56 SELECTED ARTICLES Lo, before us gleam her camp-fires, we ourselves must pilgrims be- Launch our Mayflower and steer boldly through the desperate wmter's sea, Nor attempt the future's portal with the past's hlood-rusted key. Friends' Intelligencer, sup. October 6, 1906. Shall the State Kill ? Charles Burleigh Galbreath. \ Sixty years ago the distinguished reformer, whose name I am unworthy^o bear, in his "Thoughts on the Death Penalty," declared : "Among the most important subjects now claiming public attention, is the duty of society towards its offending members. The world has enjoyed, not altogether in vain, for eighteen cen- turies the precepts and example of the great Reformer, and is learning, slowly indeed, but it is to be hoped surely, the heaven- taught lesson that it is better to save life than to destroy, that it is more worthy a civilized and Christian community to re- form than to exterminate transgressors." Such was the language of Burleigh in the early days of op- position to capital punishment. Such is the thought of sober- minded men in these later years that have ushered in the renais- sance of humanitarian effort and rational reform. It is the old problem revived again on the vantage ground of a nev^ cen- tury. The theories of those early days are to be tested in a measure by the experience of intervening years. An eminent divine has averred that the basis of argument for the death penalty is found in the familiar Scriptural dec- laration, "Whoso sheddeth man's blood, by man shall his blood be shed." In extended reference to divine authority, he adds : "This is the secret of some of the most terrible tragedies of ret- ribution by the Divine Vengeance, otherwise so unaccountable, but as startling and warning for nations as for individuals." Under this ancient code, invoked as the source of authority, the death penalty was prescribed not only for murder and man- slaughter, but also for idolatry, blasphemy, licentiousness, dis- obedience of the magistrate, Sabbath breaking, and about thirty other offenses. Under the rectifying hand of time this code CAPITAL PUNISHMENT S7 of blood is fading away. From the statutes of some of our progressive states it has been obliterated forever. Others re- tain it only for premeditated murder. Still others hold to the form, but veto the penalty. Against this dread decree, in the morning light of the twentieth century, flash the inspired words of our Whittier, "All revenge is crime." Retribution yields to rational justice. Hatred foregoes its hideous rite, for the ref- ormation of the individual and the safety of society. Before entering upon the formal consideration of this theme, it is interesting and a little disappointing to note to what ex- tent those who have written on the subject have been moved by prejudice. In the consideration of few other questions, per- haps, has there been a more palpable invention of premises to warrant preconceived conclusions. A case in point is found in the argument of Dr. J. M. Buckley, editor of The New York Christian- Advocate. He quotes a letter from Dr. James T. Edwards, a former member of the Senate of Rhode Island, a state that has abolished capital punishment. "Murder," writes Edwards, "has disproportionately increased since abolition, and in fact it reduces itself to this : We neither hang nor imprison for life for murder in the first degree. The criminals are pardoned, and I think no man 'imprisoned for life' has ever died in our prison." This statement, if true, would not necessarily justify the res- toration of the death penalty; but the fact is that Senator Ed- wards was mistaken. Had he taken the trouble to examine the records of his state, he would have found that the very first man sentenced "for life" to the state prison died there. His commitment bears date of November i6th, 1838, and his demise occurred April 3rd, 1849. Nor is that all. Had he ex- amined the records further, he would have found that others committed since capital punishment was abolished have died in prison. The senator did not examine the records. He learned, probably, that life prisoners had been pardoned. He waxed indignant and eloquent. He longed for a return to the halcyon days of the gallows. He simply did what others have been tempted to do. Regardless of facts, he reached the conclusion S8 SELECTED ARTICLES "dear to his heart." He communicated his guess to the Rev. J. M. Buckley, who innocently published to the world this bit of misinformation which has been bandied about in debating halls and legislative assemblies for the past fifteen years. Other instances of similar character appear in the literature on this subject. To these we may have occasion to allude as we proceed. The consideration of a question so grave should not be ap- proached in the spirit of special pleading. The evidence should be weighed and the arguments marshaled with the judicial poise and the logical acumen of Charles C. Burleigh. Inherited pre- dilections toward the lex talionis, the decree of vengeance, the fang and talon of animal instinct, should be set aside. Equally unworthy a ^lace in this discussion are the morbid sympathy and maudlin sentimentality that would exalt guilt and bend an aureole about the brow of crime. Our concern for the inmates of dungeons and the victims of the gallows should not Wind us to the claims of thousands tvho, against an adverse star and beset with temptation, walks erect to the end. When society and the state attain more nearly to the ideals of Christ, proclaimed on the Mount, the occasions for punishment shall pass away, the instruments of torture and de'ath shall crumble to dust and prison cells shall be tenantless. Until that millen- nium is reached, however, if the two be incompatible, the safety of the many must outweigh our sympathy for the few. Under the milder sway of an era that magnifies the humani- tarian spirit of the new dispensation, it is a little singular that eminent theologians should appeal to the Old Testament in support of the death penalty. They would not enforce it for the thirty odd other ofifenses specified in Holy Writ. They would retain it for premeditated murder only. Dr. Buckley has profound reverence for this mode of punishment. Life im- prisonment in Rhode Island, at the time of the publication of his famous argument, was too mild and uncertain ; in Michigan, it was too severe and cruel, but death by the gallows, or any other route, was just the thing. The Doctor would now proba- bly register a different opinion in regard to the treatment ac- CAPITAL PUNISHMENT cape the death penalty. The same element has been found to be of great importance in in- ducing persons to turn state's evidence. It is the opinion of some penologists that only criminals of unusually refined and reflective natures would prefer death to imprisonment for life; and it is probable that the thoughts voiced in Hamlet's solil- oquy : rather bear those ills we have, ( Than fly to others that we know not of, would be sufficient to keep them from "shuffling off this mortal coil," except under circumstances to be hereinafter mentioned. A point of the first importance is that^ imprison ment for life offers a premium on additional murder. If a man has aP ready comlmitteB murdeF" m i[he first degree, has been sen- tenced for life for the commission of that crime, and is un- repenitant; if this be the highest penalty allowed, what is to deter him from attempting to escape by the murder of his keep;- ersf* If he shall make a dash for Hberty and kill his keeper, and shall be brought back, he is simply where_^he was before — senteTiced for life. And the same views which would lead to the abolition of capital punishment would prevent the infliction of iJhysical pain upon him. Murders have been perpetrated by prisoners under a Hfe sentence, in states where capital pun- ishment is not allowed. Nor is there any reason to suppose, if prison discipline were in any case relaxed so as to offer the hope of escape, that many such murderers would be deterred from the attempt by any fear that they might be the meaiis o f the dea th of an officer. Again, if imprisonment for life be the penalty for one "murder, and^capTt al punishment in no case ^fefi. allowed, then the commission of two or three mur- ders at the time of the original crime, or to destroy witnesses thereof, would not add to the penalty. / 78 SELECTED ARTICLES ^9r„is_ it lust to say that persoiis in.t£jaL-iipmi.aiiurder are [neve r mindful of such considerations as these. Murder in the fijist degree involves premeditation ; and authentic instances exist of murderers decoying their victims into jurisdictions where the death penalty does not prevail so that in case they should" fail to escape after the mnrder which they had planned, they would be liable_tamiprisonment only. And the elaborate scheme to take them out of the state in which capital punishment existed into one in which imprisonment for life was the sole penalty, was as deliberately contrived as the murder itself. I have seen a man in prison for life who had murdered his fa-_ ther, his mother, and Jhis wife ; murdering his wife that he_ niight be free to marry a woman of whom he was enamored, and his parents that he might get hold of their property. There were no evidences of insanity, and he constantly assigned after his conviction, as a reason for killing them all, Jhat_"he might "as well be hung for a sheep as a lamb, and if he killed only his wife he would be as badly off if he was caught as if he killed the whole of them." ^^To" prevent escape is the first essential to the execution of a life sentence, and this was originally accomplished by soli- tary confinement. But solitary confinement almost invariably produces insanity in a comparatively short time. I have seen seven insane murderers in the penitentiary of a state where the death penalty had been abrogated. Not all of them became insane through soHtary confinement, but some did, and the tendency is unquestionable. Instances in former years, in Eng- land, were so common among solitary life prisoners that the number was published, and used in every discussion of this subject. Civilization cries out against soHtary confinement, except as a penalty employed for short periods, for the pur- pose of keeping order in prisons. Co-operative work is the concomitant of non-solitary con- finement; for to allow men to be together and to be idle would destroy order, and afford the opportunity for rebellion, riot, and escape. Co-operative work gives an opportunity for es- cape, and for crime; and it is not very uncommon for one CAPITAL PUNISHMENT prisoner to assault or murder another, or an officer, or to es- cape. The use of tools, the change of place, and many other things combine to inspire hope of escape in the minds of des- perate criminals. The subject of pardon is even more important. The manner in which pardons are procured and granted in the United States has attracted the attention of observers in foreign lands, who have often asserted in the periodicals of Europe that nothing like it can be found elsewhere in the civilized world. Compara- tively few who receive a life sentence remain in prison until death. The number of those having friends and personal or political influence who do so is very small. In 1870, having occasion to make some inquiries into this subject, I wrote to Dr. James T, Edwards, at that time a member of the Senate of Rhode Island, in which state capital punishment did not exist. I wrote to Dr. Edwards, because I had read a short time before a remarkable address delivered by him in the Sen- ate upon the subject of pardons and the exercise of the par- doning power. His reply I now place before the reader : . — -— tt East Greenwich, R. I., March 21, 1870. / J. M. Buckley. Dear Sir: Last year I had occasion to in- vestigate the wliole subject of punishment for crimes, and in the couise of my Investigation I communicated with every governor in the United States. After a thorough and impartial comparison of our own system with that of other states, and a full investigation into the statistics of crime here and elsewhere, both now and in the past, I have formed the deliberate conviction that it would be for the interests of humanity, and the promotion of public security and order, to establish capital punishment in the state of Rhode Island. Murder has disproportionately increased since its abolition, and in fact it reduces itself to this: We neither hang nor Imprison for life for murder in the first degree. The criminals are pardoned and I think that no man "imprisoned for life" has ever died in our prison. Be that as it may, had I time I could give you ) startling facts to show you how justice is tampered with here 1 under the present system. Truly yours, J. T. Edwards. / On the other hand, if pardon be rendered impossible under-^ any circumstances, two things are to be considered: that the rectification of mistakes would be attended with difficulty, and the maintenance of order in prisons would not be possible with- out cruelties from which humanity would recoil. The case seems, therefore, to reduce itself to this : that to make escape practically impossible, cruelties must be constantly perpetrated. 8o , SELECTED ARTICLES or the pardoning power must exist. And after the memory of the crime is forgotten, sympathy usurps the place of judg- ment; the murderer's friends are persistent; the friends of his victim are silent; fables are told concerning his health; his wife, perhaps, dying, pleads that he may be pardoned; political influence is enlisted, and he comes forth, the hope that he took with him of escape or pardon fulfilled. About the same time that I wrote to Dr. Edwards, I wrote to the mayor of the city of Detroit, of whose sentiments upon the subject I was entirely ignorant, and received from him the following reply: I am of the opinion, after a residence in tliis state of over six- teen years, that the security of life would be increased, and the ends of justice promoted bj* the adoption of capital punishment for murder in the first degree, when the party is convicted upon positive evidence. I also wrote to an eminent lawyer of Detroit, Mr. D. Bethune Duffield, who replied as follows : I am decidedly of the opinion that life is by no means as secure with us under our laws, which some years since abolished capital punishment, as it was before, or as it would be in the event of its restoration. ... It is admitted by those who prefer soli- tary confinement to the death penalty, that the murderer has for- feited his life so far as all intercourse with his kind is concerned, and he must be put out of the way and shut up the balance of his days; "but with a view to his reformation!" His reformation, for what end? If they mean for his entrance into the next world (and they can mean nothing else, as the man cannot return to society), that may be done and the death penalty be still inflicted. . . . But to say that the abolition of the death penalty, and the substitution of solitary confinement, is humanitarian in its i:ractical workings, is not trucpTPfe statistics of our state prison show that death or insanity comes to the rescue of the prisoner in about the eighth or ninth year of, his confinement, and in the case of a woman generally sooner. I refer you to a table of statistics on this point, in the Report of our State Prison In- spectors for 1868, page 58. Doubtless the death and insane record would aprear even larger, but that another modification of the law's penalty leaves it discretionary with certain of ovir execu- tive authorities to relieve the convict from his solitarj' confine- ment, and nut him to hard labor with the rest of the prisoners. It was in the prison referred to by Mr. Duffield that I had seen seven insane murderers, and in that same prison an officer of high grade was subsequently murdered by a life convict. In Michigan the feeling against the present law, and in favor of the re-enaction of capital punishment, has been constantly in- creasing : and while this article was in preparation a bill for CAPITAL PUNISHMENT ^ 8i that purpose failed in the House of Representatives by only one vote. Into the subject of statistics I do not enter; not because of any fear as to the result, but on account of the fact that mere figures, independent of an analysis of national temperament, social condition, climate, history, and government, reflect no more light upon such questions as this than they do upon suicide, insanity, longevity, or the increase of the population. ,y The most common objection to capital punishment is the possibility of mistake. That some innocent persons have been executed cannot be denied. That the number is very small is the opinion of those best informed ; but the possibility of error must be admitted. The common form of stating the case is : "When a government takes human life, it takes what it cannot restore in case of a mistake." But the possibility of mistake did not prevent the infliction of the death penalty un- der the divine administration. The whole history of the Jews confirms this point ; and unless it is held that in the times cov- ered by the Bible every judicial decree was infallible, this should be sufficient to dispose of the question in the minds of believers in the Bible as a divine revelation. But as many citizens would not be governed by considerations drawn from any form of religion, it would seem sufficient to remind them that the lia- bility to mistake attends all human judgments. False imprison- ment takes away from a man what can never be given back; the time for which he was imprisoned is forever gone; and the possibility of spending an entire life in prison upon a false charge has been demonstrated. Besides this prisoners under such circumstances are liable to become insane, and cases of suicide from despair, where the prisoner was subsequently proved innocent, are not unknown. So that to denounce any form of punishment, justifiable on other grounds, on this consideration alone is unreasonable. " In this age men will rarely be sentenced to death where the J> evi3ence is not conc lusive be3^ond the possibilitv of a doubtj^ and with the r^^W^^J: fhaf ^-^^^^ In th^ ftxeriitton of the law, ^he opportunities for new trials and commutations of sentence, th e mterests of the prisoners are far better protected than those of 82 / SELECTED ARTICLES ths^ state, or those of private individuals who are the subjects of. criminal outrages. In the course of my investigations of this subject, having heard that the late John A. Kennedy, for many years Superin- tendent of the Metropolitan Police in the city of New York, had originally disapproved of capital punishment, I addressed a letter to him, to w^hich I received the following response, in which the whole subject is clearly and unanswerably stated: Office of the Superintendent of Metropolitan Police, New York City, March 17, 1870. J. M. Bi CKLEy, Dear Sir: To inquiries such as yours I have uniformly declined to make reply. My theoretic opinions, formed in early life, were adverse to taking life under any circumstances, and during a term as petit juror of nearly twenty years, I man- aged to avoid being on the panel of capital trials, excepting in two cases, where the verdicts were manslaughter. But I mvist acknowledge that my views have undergone a change on this, as on other subjects, where experience and observation have operated on my judgment. And especially so since circumstances have brought me in immediate contact with the criminal classes. The first lesson I learned was that our so-called reformatory prison discipline was a failure, so far as reformation is concerned; that its only benefit consisted in keeping the criminal out of the way of doing harm, so long as he was incarcerated; that, with scarce an exception, criminals come out of prison better schooled for crime, more hardened to undertake desperate chances in crime, and with increased personal acqviaintanceship with the criminal classes, than when they entered the establishment. Indeed, I regard the reform of a criminal, after a second conviction, as very nearly impossible. In- legard to the class of offenses known as capital, the per- petrators are usually among persons who are not regarded of the dangerous classes; as jealousy, disappointment, drink, or sudden passion may influence a person, theretofore of good char- acter, to commit a murder. And if there could possibly be such a thing as leformation by prison confinement, it would probably be more in consonance with modern ideas of humanity that im- prisonment for life should be substituted for capital punishment. But no such reformation follows imprisonment as a rule. Reforma- tion is exceptional. Then, should the class I have described be so sentenced, our experience in this country is, unless the prisoner dies early, that our sympathies operate upon the pardoning power, and the prisoner is released a much worse inan than he was when first convicted. In regard to the bad classes, who commit such offenses for revenge, or hire as an assassin, or in the perpetration of some other felony, or mere wantonness and recklessness of human life, I have to say that, frequently as these occurrences now take place, the number would undoubtedly be frightfully increased were the fear of the gallows entirely removed from their depraved appre- hensions. Uncertain as are convictions for the higher crimes by courts in this community, yet, that there is a possibility of their worth- less lives being the forfeit of such crime, holds in check, to an astonishing extent, the worst population now having existence on CAPITAL PUNISHMENT 83 the footstool of the Almighty. Should the legislature of New York ever abolish capital punishment in this state, I should regard the vicinity of this city as a very unsafe place as a residence, or even to visit. I would bid the locality a final adieu. The last case of conviction for murder in this city presented, under testi- mony, that the reckless peipetrator, immediately after arrest, showed his confidence in his safety, by explaining, "Hanging's played out," immediately after having confessed that he had committed the crime. r In conclusion, allow me to say my experiences have convinced me that it would tend to the increase of capital offenses to re- lieve the perpetrators from capital punishment by law, until we — reach that condition of moral improvement described by the prophet, when "the lion shall eat straw like the ox." When that day comes, if I have a voice, it shall be raised in favor of abol- ishing capital punishment. Yours truly, ^^„^.»'^ John A. Kennedy. ij Lynch law is the natural product of the treatment of crimi- \ ftals in too indulgent a manner. The uncertainties of the ad- I ministration of justice, and the escape of the criminals from ' even the insufficient penalties pronounced against them, account for many of the terrible scenes of burning, shooting, and hang- ing which disgrace our civilization. Nor are these crimes com- mitted in the South alone, or on the frontiers. It is extremely grievous for human nature at its best estate, to see one who has murdered a father, a wife, or a child, or ruined a daughter, alive, and, perhaps through political influence and cunningly devised fables, set free ; and not a few homicides have resulted from such provocation; whereas, if the punishment of criminals in a manner in harmony with a common sense judgment of their deserving were certain, only sudden outbreaks of passion would lead to interference with legal processes >reat The present mode of execution is not essential. Hanging is repulsive, though it is a consideration of importance whether the method of punishment should not express in some unmis- takable way the detestation of society for the crime. But the progress of civilization may devise a better way. The guillo- tine was an unsuccessful attempt to do so. What is essential is that the penalty for premeditated murder without extenuat- ing circumstances shall be more certain, speedy, and private in its execution than it now is, and that it shall be death. 84 SELECTED ARTICLES Green Bag. 10:92-6. March, 1898. Abolish the Death Penalty. James W. Stillman. No man ought to be punished for any crime which he has committed simply for the purpose of deterring others from do- ing likewise, although his punishment may ^ or may not produce that effect upon them. If any criminal deserves such treat- ment at all, it must be solely on his own account and not on that of others who have not yet committed any offence deserving of the same penalty. Harper's Weekly. 50: 1028-9. July 21, 1906. Does Capital Punishment Tend to Diminish Capital Crime: Thomas Speed Mosby. The death penalty, as a feature of the penal code, is un- dergoing a process of evolution which, judging from existing tendencies and those which have characterized the world's juris- prudence during the past fifty years, must result in its com- plete extinction. It now exists in forty states of the American union. In the investigation of this subject, the writer caused in- quiries to be addressed to the attorney-generals of these forty states, asking their opinion as to whether capital punishment tended to diminish capital crime. Eighteen of the forty declined to express an opinion. Only sixteen of the attorney-generals of states which inflict the death penalty declared themselves as clearly of the opinion that capital punishment does tend to diminish capital crime. Two of the forty were positive in their conviction that the death penalty does not tend to diminish capital crimes, and stated their opinion that the death penalty should be abolished, while four of the forty give qualified answers. In the five states of Kansas, Maine, Michigan, Rhode Is- land, and Wisconsin, where capital punishment does not exist, CAPITAL PUNISHMENT 85 the attorney-generals have noted no increase in capital crime since the abolition of the death penalty, and generally express themselves as satisfied with the conditions existing in their respective states. In Michigan, Wisconsin, and Rhode Island capital punishment was abolished over fifty years ago, and has not since been re-enacted. Though nominally prescribed by law in Kansas, the death penalty can be executed in that state only upon the governor's warrant, and the Kansas governors have persistently declined to issue a death warrant, the con- demned persons, meanwhile, remaining in prison. In five other states where the death penalty exists the trial juries have pow- er to commute it to life imprisonment. The death penalty was abolished in Iowa several years jago, but was again en ^^^«*^ >7 th*" i^gigl^<^"t-^ as the attorney-gen- e ral saySy "because of the incre ase of murders in the state.]' T.t aoes not follow, of course, that these sequent murders were c(7nsequent upon the abolition of the death penalty. Singular- ly enough, the experience of Maine has been quite the reverse of this. The death penalty was abolished in Maine in 1876. In 1883 it was re-enacted for the crime of murder alone. In 1885, just two years later, the governor of Maine, in his message, referring to the death penalty, remarked that there had been "an unusual number of cold-blooded murders with- in the state during the two years last past," and that the change in the law relating to murder had not afforded the pro- tection anticipated. Two years later, in 1887, the death pen- alty was again abolished, and advices from Maine are to the effect that the sentiment of the people of that state is so strong- ly against capital punishment that there is little likelihood that the death penalty will ever be re-established there. 86 SELECTED ARTICLES Harper's Weekly. 53:8. July 3, 1909. f Should Capital Punishment Be Abolished? Edward Charles Spitzka. There are a number of cases on record of men who, after serving a sentence for felonious murder and being released, have committed a second murder oi the same character. Last year M. Delyannis, the Prime Minister of Greece, was about to step into his carriage outside the Parliament House when a man named Gherakaris, who had come forward to open the door, turned upon him and murdered him. This mur- derer had recently been discharged from jail, where he had served a sentence for the murder of his wife. The motive of the crime reveals the reformative efficacy of imprisonment to be of a rather questionable kind. The victim had under- taken to abolish gambling-houses in Athens. The murderer was a professional gambler, and resented this, being additionally stimulated by others of the same profession. Auxiliary mo- tives of a financial nature were suspected. A second case of this nature occurred thirteen years ago in Leghorn, where the editorial writer Bandi was stabbed to death by a certain Lucchesi, whose skill in the science of assassination need have caused no surprise, since he had al- ready served his apprenticeship in jail for a previous crime of the same character. On the occasion of his previous trial his counsel had pleaded the Lombroso degeneracy doctrine, where- upon Bandi wrote an editorial denouncing this procedure, and ridiculing the doctrine. The article was so convincing that the Public Prosecutor waived the ordinary summing up and, in place of it, read Bandi's words to the jury, who promptly convicted Lucchesi. During his term in jail the murderer nourished a fierce hatred against the man whom he regarded as the cause of his condition, and as soon as he was released he murdered him. Had capital punishment prevailed the li ves of Bandi and the Greek Premier wou ld have^T)e'^ — ^ar^d- at the expense.-jof those of the assassins. Th<5se who preserved the latter, to the CAPITAL PUNISHMENT 87 sacrifice of the for m er, hv ttif a hnlit^^*i nr diKiisp, n i the death s p enalty, are arressorv to t he wantoii murd^iL^j ^ useful ^ nd eminent citizens. The ppnrinje^ res ponsible for suc h a para- rlox and travesty of msti^fi mav ^filL^$elt_humar^ MiF from genuine humanity it is as far remnved as anti-vivi- section. anti-vaccination, and the Emmanuel Movement are from science, safety of the public, and common serisaJTTffglllJfieSSr of rattle-snakes_may be re garded as an enthusiastic^ Jierpetolo-^ gist, but, should he liberate his dangerous pels in <^he nilf^^ of an assemblage of his own kind, he would 1)e looked u poo^ as anything but a philanthropist. International Journal of Ethics. 15:263-86. April, 1905. Abolition of Capital Punishment. W. J. Roberts. Let me call attention to a class of people whose interests are not often considered in this connection, namely, the in- mates — prisoners and officials — of the place in which the ex- ecution takes place. It might easily befall an innocent or highly refined person to be confined to a prison at such a time; and his feelings as well as those of his less fortunate fellow- prisoners surely deserve our most earnest consideration. These people share very slightly, if at all, in the benefits which the public is supposed to have secured from the diminishing pub- licity of executions; and our objections acquire a tenfold force w^hen we protest that the criminal class, which we desire to make less criminal, and the persons in charge of the criminal, should not be subjected to influences so degrading and ruinous. I need only mention the obvious fact that the death pen- alty is in great part responsible for the fascination which stories of crime and violence exercise over youthful and un- disciplined minds. The amount of crime produced by dis- ordered imaginations, which have, through contemplating deeds of violence, become irresistibly fascinated and obsessed, is in- calculable. 88 SELECTED ARTICLES The Deterrent Power of Punishment and of Capital Punishment in Particular Thackeray complained that, with a certain kind of person, it was no use arguing about capital punishment. "You may talk to a man for a year upon the subject, and he will always reply to you, Tt is natural, and therefore it must be done. Blood demands blood.' " We may hope that this is not an argument which at the present day would give much trouble to any thoughtful per- son; and its employment is usually confined to an abstract and unscrupulous controversialist, when every better argument failed him. What chiefly frightens many good people from the thought of abolishing capital punishment is an instinctive apprehension that the country would immediately begin to swarm with murderers and life would not be safe for an in- stant. Death is the only effective deterrent, they say, for a certain class of people, and the state cannot relax its hold of this weapon. This general abstract doctrine is often found to co-exist with a willingness to intercede for any condemned person, whose case is brought effectively under the theorist's notice, i^ We contend that the theory is without foundation, and that the benevolent impulse to uplift the individual criminal not least by sympathy, patience, and mercy, provides the basis for a much better moral and legal theory. ' I. As a general principle of punishment, it is hap-hazard and illogical. If deterrence be your object and harshness be your means, why should the present condition of the law, which is only, as regards murder, a matter of some forty years, give you such complete satisfaction? There is no reason, on this theory, why the harshness of the punishment should not be augmented and the same principle extended to other crimes. The criminal codes of Western Europe were long dominated by this principle, and they had a fair opportunity of "stamping out" crime if it could be done by such means. The statistics of crime in the centuries of this regime are a sufficient comment upon the claims of the deterrent principle. CAPITAL PUNISHMENT 89 2. Like the rest of mankind, criminals vary extremely in their desires and fears. We very often read of murderers jesting with prison warders about "being swung," and walk- ing with alacrity to the scaffold. And what shall we say of the constant combination of murder and suicide, or of murder followed by the immediate self-surrender of the homicide to the police? We even read of some who accuse themselves of a crime which they never committed, or who commit murder with the deliberate intention of confessing, and obtaining through the scaffold a release from a disordered and miserable life. In general, we ought to learn, if only from the increasing prevalence of suicide, that it is idle to think of frightening desperate men with the threat of death; and that men need much rather to be encouraged to live bravely and nobly, in spite of their past, than to be cowed by spectacles and narra- tives of deliberate and professional homicide. 3. A close acquaintance with our own hearts and with actual cases of crime shows us that the thought of the punishment is either not present at all, when a powerful impulse leads to the commission of a violent act ; or that it is commonly over- whelmed by a conviction of the certainty of escape. And, by the nature of the case, fear of capital punishment cannot pre- vent sudden and strictly unintentional acts of homicide, which, according to circumstances, are liable to be treated by our courts as murder. 4. Even if a large number of acts of violence were pre- vented by the fear of the death penalty, we might well doubt whether it would not be at the cost of producing a much larger number of such acts : whether mercy would not immediately, as well as in the long run, prevent more murders than are now prevented by severity. We are here in the region of moral probability where moral disposition and bias determine our judgments; and a man whose benevolent and merciful moral, principles extend to the tempted and the erring will not doubt for a moment from which of the two, harshness or clemency, he may expect the most favorable results. 90 SELECTED ARTICLES 5. Past experience does in no wise belie the anticipations of our moral sentiments. Statistics cannot, from the complex character of this class of phenomena, generally speaking, supply us with convincing proofs of our theories. But so far as they go they justify us in making the following inferences: (i.) The increasing humaneness of the penal codes of Western Europe has not led to an increase' of those crimes in respect of which the severity of the punishment has been relaxed. (2.) In particular, certain homicidal acts, formerly pun- ished as murder, have not increased in frequency since they have been treated more leniently. In those cases, even if an increase in the crime took place, few, if any, would suggest a return to the old policy of severity. (3.) The experience of those countries where capital pun- ishment has been expressly or in effect abolished is, in the main, favorable to abolition. The Protestant Cantons of Switzer- land, Portugal, Finland, Norway, Denmark, and Scotland, for example, do not compare unfavorably, to say the least, as regards statistics of violent crime, with Spain, France, Ger- many, England, and Ireland. (4.) The abolition of capital punishment does not, of itself, secure a community against outbreaks of violent crime. But it is equally obvious that its retention does not protect either: homicidal crime is increasing, not diminishing, in England, France, and Germany; and the last few years are among the worst on record. (5.) Even comparative failure would not discourage a com- munity which had deliberately committed itself to a merciful and reformative policy; it would only be an incentive to apply the new principle more amply and consistently in all depart- ments of criminal law and administration, and of individual and national life. George Eliot, to whom the principle of gentleness towards the erring is so deeply indebted, allowed herself, in a reaction- ary moment, to express a fear that much thinking over the causes of crime might make us unfit to punish the criminal. We face the reproach which such words commonly convey, without CAPITAL PUNISHMENT 91 fear or shame. We believe that it is only by thinking wisely, patiently, and anxiousjy of the causes of crime, and the real character of the criminal, that the deliverance of society from evil passion and violence can come. We believe, too, that much thinking or even a little thinking would make much of our punishing seem inhuman and preposterous ; and even if the policy which our thinking brought us to adopt should appear, in many if not in all cases, to be anything but "punishment," we would joyfully abandon the name as well as the thing. We are confident that the victory over evil in others can be won only as we eliminate evil in ourselves : especially as we be- come conscious of an ever-increasing debt of gratitude to those who have forgiven us and of responsibility towards those whom we must forgive ; as we realize that cruel and degrading acts do not cease to be our own, because we do not like reading about them, or would rather have nothing to do with the agents whom we hire to perform them ; as we believe more and more fully that the mercy of man to his fellow is able and mighty to heal and to save. International Journal of Ethics. 17:290-301. April, 1907. Reform and the Death Penalty. Carl Heath. Consider the hanging of a woman. It may be supposed that every man with a sense of justice and unbiased by sex antagonism, must feel there is little moral excuse and much downright iniquity and stupid cruelty in such a proceeding. For in the first place, as to its justice, it is to be noted that no woman from first to last is allowed a say in the matter: the arresting, the trying and the judging, the passing of the sentence, the refusal to recommend mercy, the chaplain's cere- monial, the hanging and the burying, each item in the via dolo- rosa of the woman who slays her fellow-creature, is the deed of a man. And is not the very excuse given for the refusing to women a part in the judging of crime, vi:^., that women as compared with men are, by their very sex temperament, and / 92 SELECTED ARTICLES physiological construction, less able to keep that evenness of mind from day to day and from week to week which it is essential for a judge to possess — is not that very fact, if true, one that would justify a differential treatment of the crime of murder by men and by women? But it is just when brought down to this simple ethical basis that capital punishment completely fails. It is true enough that many of those who are hanged are emotionally acted upon by chaplains and others, and said to confess their crime and repent ; and we hear from time to time of murderers dying confident of being shortly in heaven. But what evidence have we of, and in fact what time or environment is there for, the development of any real consciousness of the wrong done by the murderer against the community? " And obvioush' death provides no outlet for the undoing of the wrong. /^Such a consciousness would, in the majority of murder cases, be the product of the continuous pressure of reformative elements, educative, social and moral, such as the right kind of penal institution might be expected to offer. And out of such a con- sciousness would grow an effective desire for reform, and thence a healthy condition of mind and soul that would restore the criminal to the community. "\ International Journal of Ethics. 18:409-17. July, 1908. Treatment of Homicidal Crimes. Carl Heath. That the penal codes of civilized nations are invariably behind the moral sentiments and humane tendencies, if not of all, of the greater part of the peoples of those nations, is perhaps a natural condition of things. Any comparative study of the criminal laws of various countries does but serve to emphasize the fact. The dread hand of the law lies heavily upon us. and considered from an ethical standpoint, particularly the criminal law. What, then, it may be asked, should be the treatment ac- corded to the homicidal criminal? Well, in the first place, it CAPITAL PUNISHMENT 93 must be treatment and not mere punishment for crime. And in the second place, this treatment must be based on a much more elastic interpretation of the legal definition of insanity. We must recognize that the thoroughly normal man, the sane man, is much rarer than we try to believe. Thirdly, we need an extended recognition of social responsibility. With the advance in social consciousness we shall come to see that "society itself is the primary cause of murder," as A. R. Wallace tells us. And when this is recognized, and treatment replaces punish- ment, much more intelligent, trained and sympathetic staffs must replace our present prison warders, so that such treat- ment be administered in a manner at once wisely firm and in- telligently humane, I do not pretend to dogmatize as to the content of such treatment system, but often in these cases the simplest remedies are those most needed and most lacking in prison life — humane and healthy diet, open air, stimulating occupation, sympathetic teaching and wise control — all these factors, the antitheses of those provided by our horrible town life and often village life also. These are the remedies for the diseased homicide with his heavy mental cloud. McClure. 24: 163-71. December, 1904. Increase of Lawlessness in the United States. S. S. ]McClure. I print herewith comments on the prevalence of crime and lawlessness in the United States, taken almost at random from representative and serious newspapers, and from the published statements of judges and citizens. I also print the statistics of murders and homicides in the United States which have been collected for twenty- three years by the Chicago Tribune. These statistics confirm the general impression regarding the rapid and alarming increase of lawlessness in our country. At present there are four and a half times as many murderers and homi- cides for each million of people in the United States as there were in 1881. 94 SELECTED ARTICLES The Increase of Homicide {A Judge's Charge to a Jury) In his charge to the grand jury at Montgomery, Ala., re- cently, Judge Thomas uttered strong warning against the in- crease in the number of homicides in this country and empha- sized the necessity for stricter enforceme'nt of the law, es- pecially in the punishment of crimes of violence. He quoted figures to show that the number of homicides in the United States for three years was one-third larger than. either the to- tal number of persons killed upon the American railroads in the same period or the total losses of the British army in the war in South Africa. The exact figures given by Judge Thomas were: Killed on railroads, 21,847; British loss in Boer war, 22,000; homicides in the United States, 31,395. On Southern Conditions — Man-killing in the South {Editorial in the Charleston News and Courier) "The Louisville Herald printed some days ago 'a partial record* of the crimes of personal violence committed in Breathitt County in recent years. The 'partial' list shows that during the period named there were twenty-eight assassinations, or at- tempted assassinations, in that one county of the state of Ken- tucky, and that among the persons assassinated were three wom- en. Last week one of the judges in Georgia declared from the bench that more homicides were committed in that state than in the whole British Empire. Hefe one person in a hundred is convicted and punished, while in England one in three is made to suffer. "In South CaroHna, as we have noted, the safest crime is the crime of taking human life. The conditions are the same in almost every Southern state. Murder and violence are the distinguishing marks of our present-day civilization. We do not enforce the law. We say by statute that murder must be punished by death, and murder is rarely punished by death, or rarely punished in any other way in this state, and in any of the Southern states, except where the murderer is CAPITAL PUNISHMENT 95 colored, or is poor and without influence. Now, this state of affairs cannot last forever. We have grown so accustomed to the failure of justice in cases where human life is taken by violence that we excuse one failure and another until it will become a habit and the strong shall prevail over the weak, and the man who slays his brother shall be regarded as the in- carnation of power." Statistics of Murders and Homicides in the United States Below are summaries of the statistics of murders and homi- cides collected by the Chicago Tribune since 1881, to which I have already referred. The statement of the number of mur- ders and homicides includes all deaths by violence reported in the newspapers of the various states and territories. These deaths were the results of quarrels, liquor, jealousy, love affairs, domestic troubles, robberies, resisting arrest, infanticide, in- sanity, self-defense, riots, strikes, outrages and unknown causes. To more graphically convey the meaning of these figures for each year I have had them compared for Table I with the estimated population of the United States for each year since 1881. These comparisons reveal some interesting and important facts. For example, in 1881 the ratio of murders and homicides to population is one to 40,534 inhabitants, while in 1902 it was one murder or homicide to 8,955 inhabitants. It will be seen that during the years of financial depression immediately fol- lowing the year of the panic, 1893, murders and homicides were more common than at any time before or since. In 1895 the ratio was one murder or homicide to 6,575 inhabitants. That year's record is the worst in the history of the country. In 1899 the record was better, but since that time it has been gradually growing worse. 96 SELECTED ARTICLES Table I — Number of Murders and Homicides ix the United States Each Ye.\r Since i88i, Compared with the Population (From statistics compiled by the Chicago Tribune) 2.S * St; c_« 4>.t: i| i^ 2Si SS he's V CO «j= 5 « e«> 'S ., f p ^ OQ « 204 C/2 179 49 25 126 ^ 1894 4536 1856 812 776 525 340 273 9.800 1895 4813 2466 1136 684 441 269 232 159 18 104 49 28 101 10,500 1896 5530 3561 401: 359 200 300 52 100 10 48 28 10 253 10.652 1897 4638 2654 376 518 387 321 195 128 49 97, 43 21 93 9.520 1898 3S67 2697 205 207 222 248 147 82 22 33 5 25 80 7.840 1899 3309 1699 173: 212 296 182 114 83 29 31 6 10 81 6,225 1900 4823 2187 210; 289 239 2310 159 1819 83 1096 85 841 58 365 28 440 8 188 13 132 93 827 8,275 Total 31,516 17,120 3313 • 2845 62,812 Month. 65: 168-79. February, 1889. Shall We Abolish the Death Penalty for Murder? W. C. Maude. We will now state our reasons for advocating the reten- tion of the death penalty as a punishment for murder. One great reason for retaining capital punishment for the worst crimes (and scarcely any one in England would advo- cate any other for such men, say, as the Chicago anarchists, or the Whitechapel murderer, if he is ever caught and not found to be insane) and, indeed, we think for all cases of de- liberate murder, is the almost insuperable difficulty of finding an adequate substitute. ^ Life servitude is never carried out in England, sentence be- ing revised at the end of twenty years. Colonel Henderson before the Commission said it would take almost a century to get criminals to believe in its being carried out, and if it were carried into effect, prisoners with no hope Would have 98 SELECTED ARTICLES to be treated either as lunatics and made comfortable, or as wild beasts at the Zoological ^ Gardens. "We have men now," he continued, "who are very little removed from wild beasts. I do not say they are mad, but they can never be approached by one man at a time; they are none the less obliged to be treated like wild beasts, and the warder always goes with, as you may say, his life in his hand." This point has very recently been treated by Mr. William Tallack, the secretary of the Howard Association. He is a man of the greatest experience in the matter, having devoted over a quarter of a century to the investigation of all the branches of the great subjects of crime prevention and punishment. He gives it as his opinion that life servitude is impracticable, and sug- gests as-^ substitute, a term of twenty years' penal servitude with a subsequent period of supervision, in all but the most outrageous and alarming cases, for which he advocates the death penalty. We do not think that such a punishment for intentional murder is sufficient on any ground. In the first place, we should_Jia.vje-to_10-Wer J:he wlyDk^ in__proportiqn, which would hardly be advisable. Then it p^ii^i— not be forgotten that it is a rule without exception, that the rngment the penalty (either inflicted by the law- or by public opinion) is lowered, the popular detestation of the offence is proportionally lessened. Lastly, it appears to us that the moral aspect of the matter requires greater severity. In order to show this, we must inquire what are the objects of punishment? And in answer we will accept perhaps the latest important dicta on the subject: those of Sir Edward Fry, L. J. He considers the ends of punishment to be reformation, repression, and example, but looks upon these as secondary only to the great end which he calls the moral root of the whole doctrine, namely, association in some degree, of svdiec^ ing with sin, in order to which there is a duty laid upon^s, of making this relationship as real, actual and exact in pro- portion as possible. His conclusions are that the deepest ground of punishment is this purely moral one ; that there are other and independent reasons why society ought to inflict punish- CAPITAL PUNISHMENT 99 ment; that the measure of punishment may vary with the dif- ferent reasons for its infliction; and that the highest of the measures of punishment for any given offence is that with which society ought to visit it. Now we think that the death penalty when inflicted for murder pre-eminently answers these four ends of punishment. The immediate prospect of death certainly ought to work a reform in the condemned man's spiritual condition. The penalty itself obviously prevents further crime on his part. And we feel certain that the example would have great effect upon others, if the legal definitions of murder were so conformed to the popular idea of the crime, as to make a verdict and execution certain in clear cases of deliberate murder. We submit that when death was directly or indirectly intended or looked upon as probable by the perpetrator of the deed which caused the death, although of a different person from the one aimed at, morally the crime would be murder; but we doubt whether this would not be too wide for the British jury, and probably it would have to be confined now-a-days to cases of direct intention to cause death, coupled with an act which did cause death to some one, whether the person aimed at or not. We think even with some such definition as this, some pro- vision would have to be made to enable a jury to find as a fact that the act was done through some violent and sudden tempta- tion, and to give a judge, under such circumstances, a discre- tion to lower the penalty. Perhaps, also, the question of a provocation might be treated in this way instead of as it is now, and the limits of provocation as it affects this crime might be enlarged. These suggestions, however, are thrown out with the greatest diffidence, having regard to the difficulties with which the subject is beset; but our meaning is that murder in law should be made as much as possible like murder in com- mon parlance, and that a discretion should be given to the judge in passing sentence, where, though the crime may clearly be murder, yet there exist real, and not merely extenuating cir- cumstances in the French meaning. ^ Finally the punishment of death, more than any other which ■ \ loo SELECTED ARTICLES could be inflicted for murder, associates the greatest offence with the greatest, or at any rate, the Highest form of s uffer- ui^l Tnd thus realizes the exalted standard at which the learned Lord Justice was aiming when he said, "In a word, you can never separate the idea of right and wrong from the idea of punishment without an infinite degradation .of the latter con- ception. Punishment is a part of justice if it is anything of moral worth; and I cannot bring myself to think of justice without regard to right and wrong, without regard to the ut- terances of the human conscience, without a thought behind all of an infinite and perfect Judge. To make justice a mere term for the enforcement of laws which have no moral colour, and rest only on the balance of the scales of pain and pleas- ure, is "to rob it, to my mind, not only of all its dignity, but of all its meaning." Nation. i6: 193-4. March 20, 1873. Substitute for Hanging. *' A life-sentencfe too, it ought to be said, would have no g reat advantage on the score of humanity over a death j)enalty^ If^ rr is certain, or if the criminal can get to believe that it is, it islf xcibJe. On,jllk..i)toint the reports tell a dismal tale. .^^J^^T^ sanity is fifteen times more prevalent among life convicts than _among the others. Death or Jusanity, it is estimated, disposes, jn ff>nr yi^ars of 27 per cent ^QUliieLi:a.S£s — K vou put lOQ, men in j ail for life, and took away all hope, the statistics warrant lis .in believing that in fifteen years theje would not be a man of them left ; so that our much sought for comrnu^ tation, if i t were really what it professes to be, would be the substitution of death by slow torture, for death at one stroke. eir oil CAPITAL PUNISHMENT New Review. 11:190-200. August, 1894. In Praise of Hanging. W, S. Lilly. Secondary ends of punishment, as I account of it, are that it/ should deter others^ from crim e and shoidd reform the criniiY nal. And in view of both these ends the argument for the*. 'cTeath penalty, in cases of wilful murder, seems overwhelming.j ^^^th is the k ing of_terrors. Human experience proves that\ it is the supreme deterrent. Signor Zanardelli, in the document* from which I have quoted, adduces three arguments against this view. First, he quotes a dictum of Seneca, that "many hold death in contempt, regarding it as a rest from evils, while they are much afraid of imprisonment." But assuredly mur- derers are seldom of this philosophic temperament. Cruelty and cowardice generally go together. The most reckless ifi deaTiiig with the lives of others are the most chary of their own. Signor Zanardelli's next argument is that the most atro- cious criminals do not reflect on the prol^able punishment their crime, but act recklessly, on nncontroljable impulse (con impeto irrefrenabile) and would sacrilice the universe to^ a sensation. To which it may be replied that the worst murders "are rrdTThose committed in the heat of passion, but those. per- petrated in cold blood; and that, in any case, the vision of the scaffold_or the gallows is more fitted than anything else to check homicidal recklessness and to control homicidal impulse. "T'lEt^fl't care what I get so long as I don't swing," was the expression of a recent assassin, who unfortunately, did not "swing." The sentiment is common to men of blood. Lastly, Signor Zanardelli urges that the ferocious punishments of old times, so far from preventing serious crimes, made them more frequent. But that unjust punishment failed to deter, is no argument against the deterrent ejffect_ojrjust^p~t^^ which may be added that the consequences of the abolition of the death penalty in Italy are not reassuring. It is stated that there are now in that country between three and four thousand convicts undergoing sentences of hfe imprisonment for murder — sentences which are never commuted. I ] lo- , , JSEiiE.CTED ARTICLES It would have been far better for these unhappy men them- selves, in the vast majority of cases, that they should have suffered the supreme penalty. Mr. Tallack,^ i n his work on "Penological and Preventiv-e Principles," well points out that' "death itseJXjiia3tJie..irieiix.compared with thejprolpiTged injury in^fttcTeS'upon the spiritual and mental powers,^ by means of the hopeless misery of the solitary cell, on the one hand, or by the corruptions of tilthy and blaspheming convict gangs on the other. A process thus continued may ultirnately be as real an execu- tion of death, but by slow operation, as the more visible and instantaneous deprivation of life. . . . Thp Italians in their hatred of one form of capital punishment have merely substituted another and a worse form." This is perfectly true. A sentence of life imprisonment is merely a more cruel and more cowardly mode of inflicting the death penalty. Hence, perhaps, the favor it has found with the Italian people, as pandering to their characteristic vices. It is also, in the vast majority of cases, a sentence of moral and spiritual death. There can be no question whatever that the most hopeful means of working the reformation of a murderer — and by reformation I mean the conversion of his will from bad to good — is supplied by the certainty of his impending execution. However seared his conscience, however atrophied his moral sense, however blurred his vision of judgment to come, this certainty often quickens him into new spiritual life and works, as Schopenhauer ex- presses it, "a great and rapid change in his inmost being." "When [condemned criminals] have entirely lost hope," this keen ob- server of human nature adds, "they show actual goodness and purity of disposition, true abhorrence of committing any deed in the least degree bad or iJinkind; they forgive their enemies, . . . and die gladly, peaceably and happily. To them, in the extremity of their anguish, the last secret of life has revealed itself." They obtain "a purification through suffering." t CAPITAL PUNISHMENT 103 North American Review. 133: 534-59. December, 1881. Death Penalty. George B. Cheever, Samuel Hand and Wendell Phillips. Rev. Dr. Cheever. The basis of argument for the death penalty against murder is found, along with the reason given for it, in Gen, v. 6: "Whoso. sfip^de.th man^ hlnnrJ, Uy fPf in Shall fajs blood b e sh^(^ ! fp;-..in thr imT i g - " "' ^"^ "^^^^ h^ pan-" Nothing is plainer, by con- sent of the most accurate critics and scholars, than the trans- lation and interpretation of this sentence, i. The Creator is its author. 2. It is his benevolent statute for man's protection against the violence of man, because man is made in the image of God. 3. It being an acknowledged legal axiom that a law is in force while the reason for it remains, its universal and perpetual obligations are demonstrated. 4. The origin, institu- tion, sanction, and right of human governments with penal in- flictions are here determined by authority of the Creator, and not by any imagined compacts of mankind. 5. The nature and requisitions of justice, righteousness, equity, duty, expediency are in the terms of this legislation. The social obligations of mankind, and all governmental responsibilities, being referred exclusively to the will and word of the Creator, and the dictate of a conscience toward him, there is no other possible safeguard from men's evil passions. 6. The grasp of this law — thou shalt love thy fellow-creature, in God's image, as thyself — is upon all human interests, temporal and eternal, as revealed by God. Obedience to it would insure the highest and most perfect pro- tection of all races in virtue and happiness. It is the very beginning of God's humane legislation for the new world, after a thousand years' demonstration of incurable hereditary de- pravity in the old, and the consequent perversion and abuse of God's lenity toward Cain, filling the earth with violence. 7. Every state, being a trustee for God and the people, is bound to see to it that the people for whom God's whole law is pro- mulgated are taught these truths with the consequent sacred- 104 SELECTED ARTICLES ness of law and conscience toward God. were it only for the security of men's households and their own lives. If God's covenant with mankind had been kept conscientiously by mankind, there never would have been another murder on earth from the time of the deluge to this day. nor even a religious persecutor. For God that made the world hath made of one blood all na- tions of men, and hath determined the times and bounds of their habitation, with this intent, that they should seek after God, and worship him in freedom, as being his offspring, who giveth to all life, and breath, and all things. And the powers that be are ordained of God, whose minister in an earthly government, prophetic of the divine, beareth not the sword in vain. 8. The death penalty was to be restricted to the crime of murder, and thence all penalties were to be graduated according to the of- fense, with the same unmistakable regard to the divinely con- stituted rights of family, character, property, and person, and the entire freedom and independence of a conscience toward God. With the same extreme of carefulness and exact justice, and for the perfection of its efficacy, the penalty was to be guarded from any possible mistake in its application through reliance on merely circumstantial evidence. Thus the legislation was as perfect as the benevolence and justice of God could make it. Evidently there was required, in the foundations of a new so- cial state, a penalty against murder to the last degree dreadful and deterring, fatal and final, with all the powers of human gov- ernment ordained and pledged for its execution. God himself would make Cain's own dread of being murdered, through all men's sense of justice, inextinguishable, by having it established as the first law of humanity that, if any man destroyed another's life, his own life should go for it. And all the fiends of re- morse, detection, and a righteous vengeance, with all the ener- gies and vigilance of human selfishness itself, aghast with horror, should combine to arrest, and exterminate the miscreant; This uproar of indignation and wrath was what Cain himself expected, when driven forth from the presence and protection of God. The penalty is restricted to murder, though some crimes CAPITAL PUNISHiMENT 105 against personal rights are equivalent to murder, and produce it, and even worse, as for example, slavery, and in consequence, all the infinite horrors of the slave-trade. And, therefore, there shines forth, illuminating and illustrating the law against murder, like another sun risen on mid-noon that other and later unparal- leled Hebrew law in behalf of the enslaved: "He that stealeth a man and selleth him, or if he be found in his hands, he shall surely be put to death." This is the polarized light of the first penalty, crystaUizing for all generations the meaning and in- surance of the primal blood-statute ; for no man in his senses will pretend that this grand edict of God's protecting and aveng- ing mercy was never intended as a law, but was merely a pre- diction of the prevalence of legal murder. And so of the statute, in such absolute, imperative terms : "Ye shall take no satisfaction for the life of a murderer which is guilty of death, but he shall surely be put to death." (Num. xxxv. 31.) There was this insurance of the penalty laid upon every generation. It grew into one of the ever-present Eumenides in men's minds, as in the Book of Proverbs, "A man that doth violence to the blood of any person shall flee to the pit ; let no man stay him." Hence, also, the careful and just definitions of what constitutes a murderer, and the requirement of witnesses as to the fact of the crime, evil intention being always essential, and mere circumstantial evidence not to be relied upon. Malice aforethought once proved, the crime is demonstrated, and nothing shall save the murderer, not even the city of refuge provided by God himself for a just trial, nor the intervention of any pardoning or interceding power, nor the altar of God. "Thou shalt take the murderer from mine altar, that he may die." (Ex. xxi. 14.) If not, if the murderer is let off with his life, then the whole land remains guilty, and the blood of the murdered man crieth unto God from the ground ; for the primal curse is on this crime against God's image and mankind, and no atone- ment or restitution can be made for it by man ; none shall be accepted. This is the secret of some of the most terrific tragedies of retribution by the Divine Vengeance otherwise so unaccountable. io6 SELECTED ARTICLES but as startling and warning for nations as for individuals. (See II. Sam. xxi. 1-14. See, also, the awful charge laid upon Solo- mon by David on his death-bed, II. Kings ii. 5, 6, 31, 33.) These are illustrative instances of that profound intuitive sense of the sacredness of retributive justice, manifested by the inhab- itants of Melita in the case of Paul. "No doubt this is a mur- derer, whom, though he hath escaped the sea, yet ? ?? ? — divine vengeance — suffereth not to live." This is the wonderful inspiration of similar classic utterances, so abundant, solemn, and familiar in the loftiest heathen tragedians and philosophers, whose beliefs in the providence of a just and righteous God were shared by these uncultured but thoughtful barbarians. This law is the perfection of heavenly mercy itself, taking all right of revenge away from individuals and reserving the retribution for injuries as belonging to God's own attribute of impartial universal justice. The Sermon on the Mount is not more entirely God's law of love for all mankind than was the statute given through Noah for the whole world's good a cov- enant of divine wisdom for the education of the world in right- eousness. It sets forgiveness in the heart of every human be- ing, and proclaims revenge as murder. So the handwriting of God in the rainbow binding the storm was but the prophecy and prelude of that eternal melody in the song of the angels, "Glory to God in the highest, on earth peace, good-will to men," and of that celestial doxology, belonging to the perfection of all religion, in the worship of faultless prayer, "For thine is the kingdom, the power, and the glory, forever. Amen." As everything needful for mankind to ask is in our Lord's Prayer, so in that august, comprehensive., transaction of God with Noah there was the perfection of all ni^l discipline, and just and peace-assuring criminal jurisprudence, by which men needed to be ruled on earth and educated for citizenship in heaven. Thus, all retributive punishment, and all the securities and arrangements of God for it, are a concentration of all the lessons and energies of true moral discipline. All right training of the mind, the accurate tracing of consequences, an equitable connection of cause and event, and all disposal of awards, all CAPITAL PUNISHMENT 107 retributions for guilt, must be grounded, first of all, in absolute justice. Otherwise, if utility alone were wisdom, and men the judges, the world's Caiaphases of expediency would become its glorified statesmen and saviours. Now, the impossibility for any but an Omniscient Being to know and measure the absolute desert of every action, throws the whole power and right of governmental retribution upon the revealed authority and will of God, making government itself a divine, paternal, protecting, educating institution, main- taining its permanence and right by a conscience in the people instructed toward God. The knowledge of God's law is in such education, securing obedience, independence, liberty, pros- perity, and whatsoever things are true, honest, just, pure, love- ly, and of good report. The God of peace is in and with such a socialism, and not the savageness and selfishness of the sur- vival of the fittest. And this is the mighty' educating power of law proceeding from the bosom of God as the Father of his intelligent creatures, and acknowledged and executed by human governments. The efficacy of the penalty against murder can be demon- strated (ist) by restricting it to murder, and (2nd) by making it immutable and certain. The man who murders an- other kills himself. When the most hardened villain is made sure of that, who will strike the blow? Make the penalty exceptional and inevitable, as it ought to be, and murder would be unknown under a government of infallible justice. The divine edict would be found of such deterring efficacy that the government would never need to execute it. The known cer- taint}^ of the penalty would put a stop to the crime. But the certainty that a murderer cannot at .aay.._rate_be^ punished with death would inevitably increase the crirne, pre- senting such a powerful temptation to murder in self-de fense , during the commission of any other crime whatever. Thi^ would make, murderers out of common villains. It would ten:ipt the midnight burglar even to begin his work of robbery with assassination for security in the process, and then to complete it, double-locked from discovery by the death of all t he wit- uesses. \ io8 SELECTED ARTICLES The law of God says to the criminal, Become a murderer, and you are lost. The abolition of the penalty says, Murder, and you are saved. The removal of the dreaded penalty holds out an inducement so diabolical to the highest crime, that it seems incredible that any humane form of socialism should entertain it for a moment. You may sav e your own life, it says, by killing thg,.3adiJlg§,ses ag^mst you. Y^ou can onIv:. be^ TmjprTsoned, even if you kill ; but if any one tries {r^ }{]]] y'^^V you havejthe right to kill him. ^'on m ay even escape condem-.^ nation, if tried, by the plea of sud3en msanity^ into whirh ^ the threat of death and the desire to e scape are affirm^ f j fo have driven j ^u. ^ Kill, and you may be defended, even by charge of the judge, and verdict of the jury, on the ground of sudden, ir- resistible frenzy, or delirium from intoxication, and therefore not punishable. But the stealing of a million dollars is never thus protected ; a well-planned burglary, never. Therefore the assassin has the advantage. The killing of the owner of the money may be a sudden madness ; it may be even argued that it was accidental, or in self-defense, without intention to kill, and therefore not punishable : see the trial of Webster, for the murder of Parkman; also the case of Colt. If the owner had chosen, he might have saved his life by the sacrifice of his property, and so prevented the murder. By attempting to defend his property, he has compelled the burglar to be- coifle a murderer, because that crime was the safest — an in- surance against punishment, all things considered, having made it profitable. Thus, but too surely the abolition of the death penalty would offer a recompense to the highest criminal sagacity and bold- ness.- And the more hardened the criminal may have become, through the laxity of law and the absence of any appeal to conscience and to God, the more the law defends him, in case of any midnight conflict ; and he knows this beforehand, and reasons accordingly. If he breaks into a house, and stabs its sleeping owner, that he may not testify against him, his vic^^~- tim is abandoned by the law to the death-blow of the murderer. CAPITAL PUNISHMENT 109 who secures his own Hfe by taking that of the sleeper, while the assassin is as effectively protected as if a reward of his ferocity had been guaranteed. Then, again, the moment the murderer is being tried for his life, the sympathies of the public and the press are moved in his behalf, so that even the sternest jury feel the impulse; and, if they convict, extenuating circumstances are pleaded ; and even if the murderer is sentenced, petitions for reprieve, for a new trial, for pardon, for commutation of the punish- ment, are gotten up, and powerful reasons of humanity are argued, which, if resisted by the governor, bring upon him and upon the law itself the accusation of being the actual mur- derers. And the more effectively God's law and a future final ret- ribution are denied, or obscured in the murderer's conscious- ness, by his never having heard of these truths in the common schools through which he graduated, and by the legal and so- cial habit of denying the authority of the Scriptures and of God over both government and people (a habit which the exclusion of positive religion from the state, its constitutions, and its schools, fosters from childhood), the more rational and righteous it appears, in his own view, to take care only of himself, no matter what becomes of others. He has nev- er been taught that God requires murder to be punished by death, much less that there is an endless retribution, in another world, for crime unrepented of in this. Had "the state done its duty in his education, he would nev- er have been a murderer. It is moral assassination by the state to have let him grow up in such brutality. A law so benevolent and illuminating as that of God against murder, with its very reason grounded in the immortality of man and his accountability to God, and his obligations of love to his fellow-man in God's image, binds the government to teach its whole meaning, and to proclaim it with all the light thrown upon it from God's successive revelations, from the precedents broadening down through ages, and from the final teachings of Christ. Government, in assuming the authority to punish, no SELECTED ARTICLES is bound to flash the whole lightning of the statute to the ut- termost depths of society, till its divine meaning penetrates the entire mass. To withhold such instruction, and thus educate the masses in ignorance both of God's claims and care, and then and thus to apply the penalty of death for crime, is at once such con- tempt of God, and such a process of cruelty and despotism against man, as would make government an agency of perdi- tion. The acknowledgment of responsibiHty to God for the protection of human life, and for the enlightenment and free- dom of the conscience, is incontrovertibly, therefore, the duty of all governments. Law is thus enthroned in God, and God in law; and the state, for insurance of its own permanence and usefulness, must wear its appointed seal and robes of majesty as "a power ordained of God," proclaiming that it maintains an authority received from God, by the enlightened conscience of its citizens toward God. This is the only per- fect security for human freedom. The law, without such edu- cation of the people, and without the appeal to God, becomes a defiance and violation of his will. Its efficacy depends on its divine sanction being taught, and necessitates that teach- ing by the state. How otherwise can any government be hon- est, or any of its penalties just, humane, and reformatory? Immediately after the dreadful murder of our revered and beloved Lincoln, President Garfield, then a member of the United States Congress, delivered in New York an address on the duty of the government and people, closing with these mem- orable words: "Love is at the front of the throne of God; but justice and judgment, with inexorable dread, follow behind. This nation is too great to look for mere revenge; but for the good of the future I would do everything." In the United States, amidst increasing perils from the socialism of ignorant masses, annually multiplying by millions; with all conflicting infidel speculations and political theories, from Nihilism to Mormonism, let loose, and sensual and intoxi- cating habits unrestrained ; with the suffrage universal, and vio- lent factions, and strifes for office, gain, and power univer- CAPITAL PUNISHMENT in sal also; with scientific dynamites of revenge inviting every disappointed villain's handling — the proposed abolition of the divine law against murder would be more inhuman, reckless, and unjust than it would be to make a breach in one of the dikes in Holland, letting in the sea. God proposes to abolish the crime; man to abolish the penalty. God seeks our deliv- erance from sin; man our evasion of its consequences. Self- government under God is heaven. Self-government without God is anarchy and hell. Which will we choose? Mr. Hand. The dispute as to capital punishment is, at the present time, narrowed down to the point whether it is permissible, justi- fiable, and expedient for the sovereign power, in any case, tg punish the crime of murder by inflicting death upon the mur- derer. Of the opponents of capital punishment, some deny the ab- stract right of government deliberately to destroy a human being, under any circumstances ; some, without questioning the right, deny that a past and irremediable offense of any sort will justify such action; and others deny the expediency of the punishment for murder or other crime. The theory once so generally received, that men, originally in a state of nature, voluntarily entered into a social compact, yielding some of their natural rights in return for protection, and that this was the origin of government, is now exploded, and it has been shown by the historical method, applied to social science, that social and political organizations have quite other beginnings. It seems to be quite needless to discuss the question of the natural, inalienable right of an individual to his life, not forfeitable, and over which government can acquire no control. It is necessary to be conceded not only that the individual may, by conduct absolutely inconsistent with the public safety, forfeit his life to the sovereign, but that the sov- ereign may call even upon the blameless citizen, to sacrifice his life for the common good and in resisting the public enemy. The question, therefore, of capital punishment for murder A 112 SELECTED ARTICLES is one, not of power, but of justice and expedi-ency. I, for one, believe that for that crime such penalty is necessary, justifiable, and expedient, and should be retained. For many centuries, indeed, in all the principal nations of Europe the death penalty was inflicted for various grades of crime against property as well as person, and, especially in England, for those even of trivial character. But now, in most of the civilized governments of the 'world, that punish- ment has, with rare exceptions, been reserved for wilful mur- der — the deliberate and malicious destruction of a human be- ing. As I have said, this penalty for such crime I think is necessary and proper, and should be retained. Those who are opposed to capital punishment may proper- ly rejoice that, in the last hundred years, so large a domain of lesser crime has been freed from the terrible punishment of death. The urgent reasons for the abolition of the death penalty in the case" of crimes against property, and even most of the serious crimes against the person, when not accompanied with a murderous intent, are abundant, but are certainly not applicable to the crime of murder. These bloody laws were justly repealed as in violation of the fundamental principles of penal legislation established in modern times. They vio- lated the principle that absolute necessity should alone au- thorize the destruction of mankind by the hand of man ; that it is manifestly just that punishment should be graduated according to the enormity and malignity of the crime; that to apply the extreme penalty to all grades confuses the public mind as to the atrocity of t he misdeed s tjiemselves ; that the disproportion of the punishment to the offense arouses pity for the offender, and creates indifference to the offense, and hence gives impunity to crime and contempt for the law ; and that the infliction of the same punishment for steaHng a shilling and for murder tends to lessen the horror and aversion natural- ly felt for the convicted perpetrator of the latter. . Surely, to punish with death, as was done in England be- fore the reform of its penal laws, the association with gypsies for a month (see statutes of the fifth year of Elizabeth's reign, CAPITAL PUNISHMENT 113 chapter ten), the writing an anonymous letter demanding mon- ey (see statutes of ninth George I., chapter twenty-five), the steaHng of goods to the value of a shilling, the doing ma- licious damage to Westminster bridge, and other like offenses, is not defensible upon the same ground as the punishment of the awful crime of murder by the same penalty. And it cannot be contended that the repeal of the death penalty as to all crimes of a lower grade — a penalty, if inflicted at all, unques- tionably to be reserved for the gravest offenses, and obviously disproportionate to any other — affords any argument for its abolition in all cases, however atrocious. The general grad- ual amelioration of the penal laws in Christendom for years past, and the substitution of other lesser punishments for the capital one, cannot, therefore, of themselves be insisted upon as an argument for total abolition of the latter. I have had no opportunity to see the contributions on that side of the question in the present conference, and, of course, cannot anticipate whether such an argument may be adduced. It has, however, sometimes .been used, and the mere partial abolition for the lesser crimes has been urged with some ef- fect in persuading the public that "hanging for murder" was a remaining relic of barbarism existent- in these modern days, and stood a last incongruous and monstrous monument of the illogical ferocity of our ancestors in applying death as the invariable punishment for offenses of every grade. Aside from the suggestions already made, another answer to this argument may be drawn from the Scriptures. For, by an injunction to Noah and his family, the progenitors of the human race, given after the deluge, it was divinely com- manded that "whosoever sheddeth man's blood, by maa^-sJUaU-l l^i'c Klr|Qr | he shed.^^^T^TKTs solemn s anction f^r punishing mur^ (jer with death certainly is wanting as regards^'aTl oTher crime s. Indeed, tliis argument 'has a much larger application. It is impossible to see how, in the minds of those who believe in the divine character of this record, in its absolute verity and its obligation binding upon humanity for all time, this command does not put an end to the dispute, and render fur- 114 SELECTED ARTICLES ther debate useless. Unlike many provisions to be found in other parts of the Pentateuch promulgated as parts of a penal code for the government of the Jews, here is nothing local, nothing temporary, nothing merely regulating the conduct of a particular nation under peculiar circumstances and in a par- ticular country. It vv^as not intended for nor addressed to any particular tribe or people, but was a solemn compact with the new father of the human race, expressly commanding and binding him and his descendants, in all times and countries, to punish the murderer with death. It was a decree necessarily semper, ubique, omnibus. Similar injunctions to the Jewish people, referred to in the opening paper of Dr. Cheever, might repeat it in language more precise, but could not enlarge or intensify its obligation upon all men. It was the first great universal law promul- gated to the world. But that we deal, in these days, with a generation inclined to look with scant credulity upon the book of Genesis, its del- uge, its ark, and its Noah, must be confessed. By some, at least, of the opponents of capital punishment, arguments other than the divine law announced to Noah, and its binding force on the world, will be demanded. By them, its authority will be denied, its application to modern society perhaps scouted, and its punishment for murder likened to the Old Testament pun- ishment for witchcraft. To these objectors it may be said that there are sufficient reasons for the punishment of murder by death in the nature of the crime and the necessity of the case Something, indeed, should be allowed to the general usage of all civilized peoples. It creates at least a favorable presumption. The barbarous Frank, Saxon, or Goth valued human life in money. A mur- der was redeemed by a fine. The civilized Englishman, French- man, Italian, and Spaniard punish it with death, and for that crime have steadily retained that extrem.e penalty, while abol- ishing it in many other cases. With civilization came the idea of the enormity of the offense and its danger to society. From the moment the notion of a crime against the govern- CAPITAL PUNISHMENT 115 ment rather than a mere injury to the family of the mur- dered man was formed, the necessity of the death penalty was recognized. But, passing this suggestion, obviously the first duty the sovereign (whether a monarch or the sovereign people) owes to the citizen is the protection and preservation of his life from violence. In the absence of such protection, the peace and the order necessary to the social existetice must disappear, and the security of the individual, indispensable to all social progress, is at an end. It follows that every safeguard and preventive possible in the nature of the case to be provided against the crime of murder, it is the manifest duty of the government to provide. Within certain limitations, it may be laid down as generally true, that the legislature is justified in the infliction of any degree of severity necessary for the prevention of this great crime. Such severity is manifestly but a measure of self- preservation. The prevention of all crimes should be the main (although, as I suggest below, not the only) object of the law- giver. But, as to murder, it is an object necessary to the very existence of society, that its total prevention should be meas- urably attained. The punishment of death is unquestionably the most pow- erful deterrent, the most effectual preventive, that can be ap- plied. Human nature teaches this fact. An instinct that out- runs all reasoning, a dreadful horror that overcomes all other sentiments, works in us all when we contemplate it. — ^--.—.jEE^psj^ -^^.^^j,jg^ ^^^ most loathed worldly life That age, ache, penury, and imprisonment Can lay on nature, is a paradise To what we fear of death, says Shakespeare. The ancients exercised a horrible ingenuity in punishmeil They inflicted crucifixions, flayings, burnings, boilings, impale- ments, scourgings, exposure to wild beasts, and other tortures, which exhausted the invention of men; but that death was the final end of each gave even these their most awful terror. They shocked decency and humanity, and were, besides, useless refine- Ii6 SELECTED ARTICLES ments of cruelty, as preventives of crime, since the mere death of which they were the means outweighed all other horror. Take away that, and they were but temporary pains. It has been found, by the experience of many nations and many ages, that death alone impressed the imagination of the people, and alone carried so vivid a horror, as to check the malignant passions and the deadly hand of the murderer. It has been sometimes objected that facts do not bear out this assertion ; that where the capital penalty was abolished, the crime of murder did not increase ; that ah its abolition in England as a punishment for theft and other lesser crimes did not result in an increase of those, the same is foifnd to be the consequence of total abolition. The space allowed me here does not permit a discussion of the statistics collected on this question. Suffice it to sa}-, that the results, as shown from the reliable records, do iiot sustain so paradoxical a propo- sition. It would be in direct contradiction to the ineradica- ble instincts of humanity, if it were so. The loss of life is universally and instinctively dreaded beyond all other calami- ties by all classes of men — the rich and poor, the upright and vicious, the learned and ignorant alike ; it is incredible that its certain infliction as the inevitable consequence of an illegal act would not have the supremest influence in preventing that act. It may be true that communities are found, naturally law- abiding and tranquil, where capital crime is absent, although no death penalty exists ; and again, that there are turbulent communities where murders are more frequent, although the laws are nominally severe. But it cannot be claimed, unless the laws are enforced, that such facts offer any argument. There can, of course, be no prevention of crime by the fear of death among a people where crime is rarely punished at all. Death, although pronounced in the statute book the pun- ishment for murd er , can have, no" terror f oFlrnurderers when^^ itis_jievei,_inflicted. — A- known brutum fulmen can have no ef- fect except to excite contempt. This punishment is the only sufficient preservative to so- CAPITAL PUNISHMENT 117 ciety ; but to preserve, it must be inflicted. The convicted murderer cannot, of coarse, by his cutting off restore the murdered man to life, nor prevent the crime which he has already committed, but the certainty that such awful punishment will inevitably follow such crime is the preventive influence. If, as is unfor- tunately and disgracefully the case in certain sections of our own country, the crime of murder is hardly ever followed by a judicial execution, if the occasional lawless destruction of the murderer without trial is the only punishment he need fear, and depends wholly upon the mere chance momentary excitement of the community collected as a lynch-law mob, death, whatever may be the words of the statute book, is not there the actual punishment of murder, and, of course, the fear of it cannot operate to deter the would-be assassin. Comparisons of such communities, where the death pen- alty is decreed by law but scarcely ever executed, with more quiet states, may permit a deceptive argument, but are cer- tainly not proof against the efficiency of capital punishment. The question is whether a punishment, reasonably certain to be the result of an offense, will deter from its commission — not whether, in a lawless community, a law never enforced can be effective as, in itself, a scarecrow. But it is said that, even in law-abiding communities, mur- derers escape justice because of the rellictance of the tribunals to impose an irremediable and irrevocable punishment. To some extent this is true; to the extent that there never should be conviction of a capital offense to which so awful a pun- ishment is necessary, except in the clearest case, it ought to be true. But in most of those trials where an acquittal has been a clear failure and mockery of justice, it will be found that the juries have refused to find any guilt, although a ver- dict of manslaughter, punishable only with imprisonment, would have been entirely legal. In fact, the cases were those in which the mind of the tribunal was so warped by some prevailing- prejudice or sympathy, that their verdict was against the fact and the law, and would have been so, whatever were the pen- altv of conviction. v: ii8 SELECTED ARTICLES Indeed, an answer to these objections is furnished from actual experience, by the example of a great nation. In no country, since the reform of its criminal law, does the capital punishment more certainly follow the offense than in Eng- land ; in no other country do juries more implicitly obey the law, and, in clear cases, find the murderer guilty, in disregard of all passing public excitement. And in no other country has human life become so safe, so sacred, and so completely pro- tected. It contains a population who are subject to the most violent and brutal passions ; immense inequalities of wealth and poverty afford strong temptations to crime ; and yet, by the certainty of the death penalty, the crime of deHberate mur- der is, more perhaps than in any other country, completely pre- vented. But it is objected, why were not theft and robbery ex- tirpated there when the same penalty was applied to them, and why have these crimes not greatly increased since the abolition, as to them? The answer I have already suggested. The sense of justice was shocked by the discrepancy between the compara- tively trivial crime and the disproportionate punishment. For that reason, judges and juries vied with each other in dodg- ing the letter of the statute, and mitigating the punishment, and the law became almost a dead letter. But it is sometimes said, "To hang a man is a very poor use to which to put him." If the sole object of government is to deal with a red-handed murderer as "an erring brother who has sinned from ignorance, but is to be pardoned, elevated, and redeemed" ; and to aim solely at his welfare, this saying is, I admit, puzzling. If no regard is to be paid to the public safety, except in the correction and amelioration of the mur- derer as one of the public ; if the only purpose to be considered is the instruction of the poor fellow by suitable teaching, so that, perchance, he may be taught and persuaded "not to do so again," this saying has some force. But, even then, the substitutes sug- gested by the abolitionists do not avoid the difficulty. Perpetual imprisonment is hardly a more profitable use to be niade of a man than hanging him, and such use for a hardened villain is perhaps OF CAPITAL PUNISHMENT 119 somewhat more unprofitable to an overtaxed community than fairly putting him out of the way at once. But this sentimental view of the criminal is a vicious one. The writings of Victor Hugo, and others of like tendency, have done much to foster it, and it is, in the present time, danger- ously weakening the sinews and paralyzing the arm of justice throughout the world. Carlyle thus vigorously sums up the case : A scoundrel is a scoundrel: that remains forever a fact; and there exists not in the earth whitewash that can make the scoundrel a friend of this univeise; he remains an enemy, if you spent your life in whitewashing him. He won't whitewash; this one won't. The one method clearly is that, after a fair trial you difniolre parinership with him: send him, in the name of Heaven, whither he is striving all this while, and have done with him. — Essap on Model Prisons. I have already suggested that prevention, although one, was not the only purpose of the infliction of penalties. If prevention was the sole object to be sought, in disregard of all other considerations, some strange consequences would result ; and there would be no limit to any severity, if found efl^ective. to deter from crimes even of the lighter grades. At- tainder of blood, confiscation of property, would become justi- fiable. Indeed, the doctrine, certainly unsound, of Justice Blackstone (Commentaries on the Laws of England, Book IV., pages 16 and 240), that the severity of the law may be in pro- portion to the ease with which offences are committed; and that "it was but reasonable that, among crimes of equal malig- nity, those should be most severely punished which a man has the most frequent and easy opportunities of committing — which cannot be so easily guarded against as others, and which therefore the offender has the strongest inducement to com- mit," would be difficult to deny. Petty larceny is a crime "the least easily guarded against," and which the offender has the "strongest inducement to commit," and therefore, with a view to prevention alone, might be visited with the severest penalty. In truth, there is inherent in all punishment for crime the idea of executing justice, of rewarding the offender according to his misdeeds. It is an idea entirely separate from and in- dependent of any notion of prevention, or even of public safety. "Vengeance is mine and I will repay, saith the Lord," but I20 SELECTED ARTICLES vengeance— righteous vengeance— is the right and duty of the state. The state is, in this respect, the representative of the Di- vine Governor. To it, the sword of justice and retribution is delivered. By it, it must be wielded. Capital execution upon the deadly poisoner and the mid- night assassin is not only necessary for the safety of society, it is the fit and deserved retribution of their crimes. By it alone is divine and human justice fulfilled. This is the crowning and all sufficient ground for the de- struction of the civil murderer by the civil power. Although it should become absolutely impossible that any president of the United States should Jiereafter be assassinated ; although it could be demonstrated that the death of the assassin was, as a measure of prevention merely, absolutely needless ; although the sentimentalists should cry out that the murderer was a hardened villain, as unprepared to die as Barnardine, "who apprehends death no more dreadfully, but as a drunken dream, careless, reckless, and fearless of what's present or to come," and that years were needed to instruct and ameliorate him — would not the heart of every sane citizen in the republic feel that the crime must be expiated by the last punishment, and that until this was done, a solemn duty of the state was neglected, and "the voice of blood would cry from the ground" for justice? Passion, prejudice, devilish revenge there must be none. The individual is presumed innocent. The law proceeds calmly, impartially to investigate the fact. But if, after fair trial, after clear proof, he stands convicted, then let him meet the just deserts appointed by eternal justice for such as h#. The law wages no war upon any citizen. It imposes a fit retribution only upon the cold-blooded villain who has malig- nantly destroyed a human being. Its blow falls upon him only who has been found by legal trial and declared by legal judg- ment to be such a villain. Its act is far from all passion, all mob violence. It is the efifect of a holy, just indignation, not hot or temporary, but abiding and eternal. Government is a trust, and there can be no higher exercise of that trust than the cutting off, in open day, before high heaven, CAPITAL PUNISHMENT 121 solemnly and with deliberation, the man proved unworthy of a longer existence among his fellows. Mr. Phillips. I am glad to join in any debate with so earnest and brave a soul as Dr. Cheever — a man trained to the severest logic; every one of whose words comes from the depths of stern and consci- entious conviction — a prophet who, in perilous times, and at great risk, prophesied right things, not smooth things, to a re- bellious people. He is no carpet knight, and debate with him is no sham fight. Late events have intensified interest in this question, and directed public attention strongly to it. This, then, is the God- given opportunity for correcting wrong opinions and impress- ing right ones; the minds of writer and reader are both hot, and every argument suggested welds itself into the public thought with solemn and effective power, food for deliberate reflection in cooler moments. To get men to listen is half the battle, and the hardest half, in all reforms. If any one, at such a moment as this, doubts the correctness of public opinion on capital punishment, now is the hour, above all others, for him to utter his protest and enforce his views. The word punishment, capital or any other, when used in reference to human government, is a mistaken and misleading term. Punishment has relation to guilt. Only that power, therefore, which can measure guilt is competent to affix penalty and to punish. As Dr. Cheever says : "All penalties were to be graduated according to the offense" ; "retribution for guilt must be grounded first of all, in absolute justice" ; and he ad- mits the "impossibility for any but an Omniscient Being to know and measure the absolute desert of every action." "It is from an abuse of language that we apply the word punishment to human institutions. Vengeance belongeth not to man" (Eden, Princ. of Penal Law). Of course no human official can measure the strength of inherited tendency toward any act, criminal or any other ; the power of temptation, the moral and intellectual train- 122 SELECTED ARTICLES ing of the individual, or of the community and age in general, which go so far to form the moral sense of a man and educate his conscience ; the circumstances, in fact, which aggravate or lessen criminality. Only Omniscience knows these. Yet these make it a fact that one man may commit murder with less moral guilt, in the eye of God, than another steals, or lies about his neighbor. It will relieve some of the difficulties of this question if we rid ourselves of this idea of punishment, so far as human governments are concerned. Human governments are only authorized to restrain and chastise an offender, with the purpose and motive of preventing the recurrence of the harmful act he has done. To prevent the individual from repeating his offense, and to deter others from following in his steps — these are the only ends which human government can rightfully have in view. Governments are authorized to inflict pain in order to prevent evils, not with any idea of punishing guilt. Until human government has the plummet of Omniscience to sound the depths of the human soul, its weakness and its wickedness, its too ready yielding to temptation, or its vain effort to resist it — until then the attempt on its part to punish guilt is idle, because out of its power, and criminal, because sure to make it work in- justice. "Punishment," says Dr. Cheever, in his "Defense of Capital Punishment," printed in 1846, "is sometimes called for apart from the question whether it be useful or not" ; and "There is such a thing as retributive justice, apart from the purpose of se- curity against crime, or the necessity of the guardianship of so- ciety and the universe." And Theodore Frelinghuysen affirms that "the culprit is doomed to suffer because he deserves to suffer." Such statements as these have their proper place in the pulpit and in discussions touching the moral government of the uni- verse. But they mistake entirely the limited ability and authority and the proper function of human governments. The statute of Pennsylvania, 1794, well says : "The design of punishment is to prevent the commission of crimes, and to re- CAPITAL PUNISHMENT 123 pair the injury that hath been done thereby to society or the individual." With a more Christian philosophy than that which underlies the remark of Frelinghuysen, the pagan Seneca says : "Nemo pru- dens punit quia peccatum est, sed ne peccetur" ; or, is Judge Buller once roughly translated it : "Prisoner, you are not hung for stealing this horse, but that horses may not be stolen." With this view of the purpose of punishment all the great writers on penal legislation agree, — Franklin, Beccaria, Bentham, and others, — and all those who have discussed this special ques- tion, — Montaigne, Livingston, Rantoul, Romilly, Brougham, Montagu, Cobden, and the rest. As Wordsworth sings : Fit retribution, bt/ the moral code determined, Lies beyond the State's embrace. But it cannot be denied that New England and the states / planted by her sons ignore this principle, and punish murder with death, chiefly because men believe they are ordered so to do ij by the Old Testament, in that verse of the so-called covenant with Noah usually translated : "Whoso sheddeth man's blood v, by man shall his blood be shed." (Genesis ix. 6.) For myself, I am free to say that I think this whole covenant refers exclusively to food, and the verse just quoted, with those which precede it, is a prohibition of cannibalism — nothing more. But, waiving this, let me submit : First. The theory of government, as universally held in this country, is that government is a "social compact," — "a voluntary association of individuals." Therefore, as an individual has no right to take his own life he cannot confer on government any right to take it. Indeed, M. Urtis — who published in Paris, in 1831, a very able defense of capital punishment — grants his op- ponents that, if he allows government this right, he is logically obliged to admit the right of suicide. This principle, however, — that society has no right to take life as a method of punishment, — is the opinion held by Lafay- ette, Gilbert Wakefield, J. Q. Adams, Franklin, Beccaria, and many of the ablest writers on social science. Without insisting on it, at this point of our argument, is is fair to claim that on so momentous a question any supposed command to the con- 124 SELECTED ARTICLES trary should be unequivocal, positive, clear, and abundantly proved. Dr. Cheever acknowledged years ago that this Scripture proof was "somewhat limited, though plain and powerful." Almost its whole strength rests on a single verse, of very questionable meaning. Of this passage (the verse just quoted) Dr. Cheever said : "It is the citadel of our argument, commanding and sweep- ing the whole subject." Now this verse, upon which such momentous powers are rested, may, all scholars allow, be equally well translated "by man will his blood be shed," making it merely a prophecy, as "by man shall his blood be shed," making it a command. So that, as The North American Review thirty years ago suggested, this tremendous power claimed rests, not only on a single verse, but on a single word, and that word equivocal in its meaning. Again, our translation says, "by man shall his blood be shed." But "no version of the Bible prior to the fifth century contains the words *by man,' and Scripture itself has been interpolated to suit the purposes of the state." C Eclectic Review," July, 1849.) The Septuagint and the Samaritan versions omit these words; Wycliffe also, and the Vulgate; Spanish, Italian, and French versions omit them. Pascal and Swedenborg indorse the omis- sion, and Calvin calls the translation which renders the Hebrew text "by man," a "forced" construction. If these authorities are reHed upon, the verse will read: "Whoso sheddeth man's blood, his blood will (or shall) be shed," and the idea of a command becomes more uncertain and shadowy still, since "shall" in such connection is not necessarily a com- mand. For instance : "All they that take the sword shall perish with the sword." Is this a command to kill all soldiers? "Bloody and deceitful men shall not live out half their days." Are such bidden to kill themselves? "Whoso diggeth a pit shall fall there- in." Is this a command? Call this equivocal verse in Genesis a warrant from the Al- mighty! Why, a county sheriff would not arrest a sheep-thief on so ambiguous a warrant. Second. But the contemporaneous understanding of a law is CAPITAL PUNISHMENT 125 of the highest authority. Now, if this verse be a command, that every murderer shall die, it is remarkable that neither did he who gave it conform to it, nor did any of his creatures obey it, in the most s.triking instances of murder that have taken place. Cain was a murderer at the time when the idea of a mur- / derer at large and unrestrained, in a world with very few in- habitants, must have been fearful. Yet God allowed him to live. Lamech, also a murderer before the flood, was spared. After the flood, Moses, a murderer was admitted to the immediate presence of the Highest, and David, the most atrocious of mur- derers, was still the "sweet psalmist of Israel," dying in "a good old age, full of days, riches, and honor." Indeed, all the great murderers in Jewish history — Absalom, Siineon, Levi, and the rest — did not have their "blood shed" but died in battle or in their n^ beds. Third. The most ardent advocate of capital punishment, as said to be ordered by this covenant with Noah, does not, and never would, undertake to obey it. No civilized government, would obey it, or ever did. For if this be a law- of God, bind- ing on all men, in all ages and in all circumstances, then it admits of no change and no exceptions. This command, if it be one, was given before governments existed — given then to individuals. The nearest of kin — "the avenger of blood," as the Old Testament phrases it — was to exe- cute this sentence of death — as he usually did in ancient times, and especially under the Jewish law, where Moses recognized his right to do so. It is, then, the duty now of the nearest of kin to avenge the killing, without waiting for the action of any government, which can never release an individual from obey- ing a command of God issued to him. We are not allowed to substitute another in our place to carry out an order which the divine law issues to us. Nothing can excuse us from personal obedience. And especially if government acquits the man whom the nearest of kin considers guilty, which is so often the case, then the "avenger" under this law must act on his own con- science, and do the duty which the government has failed to do. Where can we find any warrant for saying that now, since gov- 126 SELECTED ARTICLES ernment exists, the "avenger" is released from a duty which this solemn command of God laid on him? Even Moses, much as he changed old customs, did not take from the "avenger" this right to slay. Hence, what we call "lynch law" becomes a religious duty and a divine ordinance. Further, we must kill every beast that kills a man ; we must, as the Jews now do, kill all animals in such a manner as to avoid eating "blood." Even the apostles, when they released the Gentile world from the heaviest of Jewish burdens, still insisted on their obeying this part of the Noachian covenant, to "eat no blood." Yet Christians have quietly ignored it, and the apostles' indorsement of it also. But the command to shed the blood of the man-killer is no more sacred a part of that covenant than this of "eating no blood." And yet any man who preached the observance of such a nicety to-day would be laughed at. / Any man who kills another by accident, without intention to harm him, must be killed. No matter what be the extenuating circumstances of any killing, no man or government is author- . ized to pardon, but the strict law must be fulfilled in every case, and in all circumstances ; the soldier who kills another in war must die ; the insane man who sheds blood, and the man who \ in self-defense kills his assailant, forfeit their lives, etc., etc. Do you object and say, "Oh, no; we must construe the com- mand, not as it was construed then, but as the circumstances of our day and our light demand?" Exactly; well, we will meet you on that ground, and cheerfully give the supposed com- mand all the weight in present legislation which we think it ought to have. Do you remind us that Moses allowed one who had shed blood accidentally, or without malice, to flee to a city of refuge — and as long as he staid there the "avenger" could not harm him? Very true. Moses then felt justified in making exceptions to this command, if it were such ; after the lapse of a thousand years, and when change of conditions and established govern- ment, and improved civilization allowed it. Moses set us a good example ; and now, after thirty-five hun- dred more years of growth, and a still more entire change of CAPITAL PUNISHMENT 127 condition, and far greater improvement of civilization, and the opening of a new dispensation, which abrogates the "eye for eye, and tooth for tooth," we take example by the great Hebrew re- former, and conform methods to our day and needs, seeking only to keep sacredly to the idea and spirit which underlie the wise and humane records of inspiration. When any supporter of capital punishment, on the ground of the Noachian covenant, eats no beef except that which is killed according to the present Jewish method; insists on the slaying of every animal that has caused a man's death; and on the killing, by government or the avenger, of every man who has even accidentally killed his fellow, I shall think he really and honestly believes in the argument he uses. I never found any such man. Until I do, I am forced to believe that such dis- putants deceive themselves, and imagine that they cherish such a faith ; but any endeavor to carry it into action would rouse their contempt or their heartiest indignation. Fourth. The moment we quit the plane of divine command, and come down to the level of human law, the argument as- sumes an entirely different shape. The first question is, has the police power in any circumstances, or for any reason, the right to take life? We may say, with Beccaria, Fayette, and Frank- lin : "The power over human life is the sole prerogative of him who gives it. Human laws, therefore, are in rebellion against this prerogative when they transfer it to human hands." Or even with Blackstone, a much narrower and more timid mind : "Life is the immediate gift of God to man, which neither can he resign, nor can it be taken from him, unless by the com- mand of him who gave it." But this argument is too large for our narrow limits. Any one interested in it can see the subject exhaustively discussed, and the right denied for the soundest and strongest reasons, in the essays of Franklin, Beccaria, Livingston, Burleigh, Rantoul, and O'Sullivan. Even those who claim that government does possess the right, have been driven by stress of argument and the most convincing experience to agree with Dr. Cheever, that the death penalty / % 128 SELECTED ARTICLES should be "restricted to murder" — not, as in centuries gone by, be visited on trifling offenses, from a mistaken idea that mere severity of punishment prevented crime. But even if we re- strict the punishment of death to murder alone, when we re- member our experience that the infliction of the death penalty nourishes the spirit of revenge, demoralizes the community (a fact confessed by the now almost universal custom of private executions), lessens the sacredness of human life, largely pre- vents the prosecution and, to a great extent, the punishment of crime, it becomes evident that you must prove the death penalty absolutely necessary before government is justified in using it. No amount of expediency will authorize "breaking into the bloody house of life" at the risk of such evil results. The opin- ion of old Sam. Johnson, that unnecessarily severe punishment "very rarely hinders the commission of crime, but naturally and commonly prevents its detection" ; of Chief -Justice Den man, that extreme severity has "operated more as a preventive to prosecu- tions than as a preventive to crime"; of Whately, that the pun- ishment which a community deems too severe leads the very suf- ferers by a crime "to promote the escape of the guilty," — all these testimonies get fresh support from the memorial of the Attorney- general of Massachusetts to the legislature in 1842, when Massa- chusetts punished only six crimes with death : In the present state of society it is no longer an abstract question whether capital punishment is right, but whether it is practicable; and there is good reason to believe that the punish- ment of death for crime would more certainly follow the commis- sion if the legislature should still farther abrogate the penalty of death. As the law now stands, its efficacy is mostly in its threat- enings; but the terror of trial is diminishing, and the culprit finds his impunity in the severity which it denounces. Now, that capital punishment is not absolutely necessary for the protection of society, in almost any epoch of civilization, is proved by the amplest testimony. Egypt, for fifty years during the reign of Sabacon ; Rome for two hundred and fifty years; Tuscany for more than twenty-five years ; Russia for twenty years of the reign of Elizabeth, and substantially during the reign of her successor, Catherine; Sir James Mackintosh in India for seven years; the state of Rhode Island since 1852; Michigan since 1847; Wisconsin; Maine since 1835; Holland since 1870; CAPITAL PUNISHMENT 129 Saxony since 1868; Belgium since 1831 ; and several other states, prove, by their experience, that life and property are safer with no death penalty threatened or inflicted, than in the neighbor- ing countries which still use the death penalty. The evidence is ample and demonstration perfect; the plea that this fearful penalty is necessary is no longer admissible. Facts annihilate its foundations. And observe that every such experiment has succeeded. The weight of this evidence is not lessened by the necessity of balancing some failures against other successes. All the tracks lead one way. And if not absolutely necessary, the death penalty must be extremely injurious. All experience / confirms the universal judgment of those who have studied this subject, and which Rantoul utters when he says, "The strongest safeguard of life is its sanctity; and this sentiment every execution diminishes." Indeed, unless the death penalty can be shown to be absolutely necessary, it has been well said that society, in inflicting it, commits a second murder. The number of persons sent to execution by the courts, and / afterward proved to be innocent, has been counted by hundreds in Great Britain, and must probably be counted by thousands, taking in even only the civilized states. When we add those I probably innocent, but never clearly proved so, and thus run up the number to tens of thousands, what fearful power such a fact gives to the protest of Lafayette : "I shall persist in demanding abolition of the punishment of death, until I have the infallibil- ity of human judgment demonstrated to me." A few such instances, even, in a century are sufficient to counteract tlie best effects that could be derived from example. There is no spectacle that takes such a hold on the feelings as that of an innocent man suffering an unjust sentence. One such ex- ample is remembered when twenty of merited punishment are forgotten, the best passions take part against the laws, and ar- raign their operation as iniquitous and inhuman. This considera- tion, alone, then, if there were no others, would be a most power- ful argument for the abolition of capital punishment. — Livingston. The "terror argument" — the idea that any punishment, cap- ital or any other, deters men, in any useful or appreciable degree, from the repetition or imitation of crime — is discredited by the best authorities. In a remarkable correspondence, forty years ago, between Lords Brougham and Lyndhurst, it is assumed, I30 SELECTED ARTICLES on the authority of all the police magistrates of Great Britain, that this idea of terror from example is a delusion, and that the expectation of relief from that influence must be abandoned. Analyzed to its last result, this attachment to the death pen- alty will be found, in most cases, to be really a feeling of revenge. All close inquirers find it to be so. Livingston records a remarkable confession of it made to himself. Sir H. S. Maine says (in his "Ancient Law") : "There is a time when the attempt to dispense with it (i.e., the death penalty) balks both of the two great instincts which lie at the root of all penal law. With- out it the community neither feels that it is sufficiently avenged on the criminal, nor thinks that his punishment is adequate to deter others from imitating him." When we remember that it has been proved, by the most abundant and trustworthy evidence, that "the greater proportion of crime is the result of poverty and early privations"; that the wisest experts agree that "in by far the greater proportion of offenses crime is hereditary" ; that one-half, perhaps two-thirds, of those who take life are flagrant instances of society's gross neglect in educating the souls God commits to its keeping; inherit ungovernable passions and minds just hovering on the borders of insanity, if not wholly insane and irresponsible; that, as Dr. Prichard says, "The difficulties with which administrators of public justice have to contend in distinguishing crimes from the result of insane impulse will never be entirely removed," — this malignant feeling of revenge toward most criminals becomes ferocious and brutal. Mr. Clay, the veteran and well-known chaplain of Preston Gaol, denounced as "selfish cowardice this cry for indiscrimi- nate vengeance on all sorts and conditions of criminals — as if the comfort and ease of self-asserting respectability, riding para- mount on the surface of society, was altogether to outweigh the rights, temporal and eternal, of the helpless, inarticulate mass below." Bulwer reminds us that "Society has erected the gallows at the end of the lane, instead of guide posts and direction boards at the beginning." CAPITAL PUNISHMENT 131 And Dr. William Ellery Channing says, in the same strain, "When I reflect how much of the responsibility for crime rests on the state, how many of the offenses which are most severely punished are to be traced to neglected education, to early squalid want, to temptations and exposures which society might do much to relieve, I feel that a spirit of mercy should temper legislation ; that we should not sever ourselves so widely from our fallen brethren ; that we should recognize in them the countenance and claims of humanity ; that we should strive to win them back to God." It is evident from the tone of the press, from the excitement and bitterness we see everywhere in the community, and from the very language of one of my comrades in this discussion, that the feeling against Guiteau is one of revenge, rather than a cool and dispassionate care for the safety of society. This pitiable and misbegotten wreck, who is only just within, if indeed he be within, the limits of moral responsibility, and who could not probably be proved the direct cause of the President's death, to the satisfaction of any jury assembled one year or twenty months hence, — if, carried away by hot revenge, the people hang him, it will be a blot on the justice of the Amer- ican people which, probably within five years men would do anything to erase, and which history will record as one of the most lamentable instances of temporary madness, or as evidence how much of actual barbarism lingers in the bosom of an intel- ligent and so-called Christian community. Public. 10: 102-3. May 4, 1907. Capital Punishment. Abram E. Adelman. If it can be supposed that a capital crime has ever been committed with full premeditation of consequences, the very fact of its commission is proof that the threatened death penalty is not a deterrent. How foolish, then, to suppose that even this extreme penalty can lessen or prevent such offenses. Instead of deterring crime, it actually incites to crime. 132 SELECTED ARTICLES Nothing will ever make life and womanhood secure but a strong popular sense of their sacredness under all circumstances. This is the reason there are no crimes among the Quakers, the Moravians and other non-resistant sects. But does the state cultivate among the people the idea of the sacredness of life when it kills the criminal? Would it foster respect for womanhood by reverting to the same barbarism? Manifestly not. It is well known that wars, by fostering contempt for human life, are invarial)ly followed in countries emerging from them by long series of murders. When executions were public, children who had witnessed them were often known to torture and kill their pet animals thereafter and even to torture one another. Such executions were always followed by a carnival of crime in which there was usually at least one that resembled the offense that had just been capitally punished. There are many cases proving this fact in criminal annals. Nothing is stronger to the criminal mind, which is essentially a diseased mind, than the power of suggestion. Doubtless this explains the recorded cases of men confessing to crimes they have never committed. In a famous case in Vermont the con- fession was to a murder which had never been committed at all, and the man who made it was saved from hanging only by the timely appearance in full bodily vigor of his supposed vic- tim. The brutalizing effects of public executions on the community came at length to be noticed. For this reason public execu- tions have been abolished in civilized countries, and now the execution of the criminal is in most places strictly private. By this concession the advocates of capital punishment have impliedly abandoned the ground that the spectacle of the crim- inal's punishment is a deterrent, and have admitted it to be rather an incitement to crime. But the modern news facilities give to private executions all the demoralizing effects of public executions. It is notorious, for instance, that after the execu- tion of the reckless "car-barn bandits" at Chicago, numerous CAPITAL PUNISHMENT 133 gangs of young men of the "car-barn-bandit" caliber had to be broken up. Several of their members are now in the peniten- tiary. No advocate- of capital punishment would to-day defend it on the basis of revenge. The sole defense of it at this day is that it is a deterrent of crime. But the deterrent argument is being knocked away by hard facts, and the advocates of cap- ital punishment find themselves driven back to the primeval the- ory of bloody revenge. With most of them this is really the instinctive basis of their belief in the gallows, although they usually deny it. But be their arguments and motives what they may, it is a confession of weakness to say that public security demands the death of any member of society. The above arguments show the inexpediency of the death penalty as a means of protecting the state and its peaceable citizens. To those who believe, however, in abstract right aside from physical force, there may be adduced a further argument. Society has no right to take human life. The state itself would deny the right to any organization within it, however large, to take the life of its own members in accordance with \' its own rules. Then how can it be supposed that adding enough other persons to make a state, gives to this greater number that right to kill which a lesser number cannot claim ? Mere numbers can never make a wrong thing right. By the death penalty society violates one of the fundamental natural laws by which it governs the conduct of its individual members, namely, the natural law Hmiting the right of homicide in self-defense. I may take another's life only when I am attacked by him and in imminent danger of my own through ^^ that other's acts. Should he be advancing upon me with a deadly weapon and "murder in his eye," and I have no means of escape, the laws justify my killing him. But whatever the danger, if I overcome my adversary, and let us say, have him lying prostrate at my feet or bound hand and foot — if I then kill him, society does' not justify or excuse me. I am in such case guilty of murder. Is it not time, then, to realize that when society has the criminal bound hand and foot, as it were, it violates its own 134 SELECTED ARTICLES law of self-defense if it kills him? Could I say to society, if I were charged with murder, "It is -true I had my adversary 'down and out,' but I had to kill him, because, if I had not others as maliciously disposed to me as he, would have assailed and killed me"? Of course not. But this is exactly the "baby act" which society pleads when it takes a convict's Hfe. The killing of a human being in hot Wood is deplorable enough. But such an act cannot be compared in barbarity to the deliberate, cold-blooded killing which capital punishment inflicts. It is a barbarity that must surely disappear from the earth before an advancing civilization. Putnam's Magazine. 13:225-35. February, 1869. Gallows in America. Our foremost plea is the baneful and demoralizing effect upon society of the means resorted to for its protection. We would put an end to capital punishment, for the sake of the law-abiding classes; just as the abolition of slavery was wisely urged for the benefit of the white man. Death may be a mur- derer's desert, but for the sake of the community let us recon- sider this usage of inflicting it-V^^hether "the worst use you can put a man to" is, or is not, "to hang him," the worst use to which society can put itself is the office of the executioner.'^ Review of Reviews. 21: 608. May, 1900. Is Capital Punishment Justified? E. B. McGilvary. The inaugural address of Dr. E. B. McGilvary as Sage Pro- fessor of Moral Philosophy at Cornell University, on the subject of "Society and the Individual" is published in the Philosophical Review for March. In the course of this address Professor McGilvary discusses the general question of punishment and its justification in human society. Considering the problem from the culprit's point of view, as well as from that of the com- CAPITAL PUNISHMENT 13S munity, Professor McGilvary defines punishment as "the calm, cool, relentless expression in outer act of the fuller completer social self against the narrower passionate self which in the act of offense tries to assert its independence. No man feels that he is really punished except when he accepts the punishment as just what he himself in his saner mood would do to his in- surrectionary self. If the retaliation is not approved by the offender he calls it affront, indignity, outrage, — anything but punishment. > > Why Should the Mui'derer's Blood he Shed? "In the extreme case of capital punishment, it seems to be too much of a heartless paradox to say that the execution is for the criminal's own good or in order to make him good. But I think that without the flippancy which expresses itself in the proverb, 'only dead Indians are good Indians,' we can truly and seriously maintain that we kill some persons to make them good. This end, however, is not to be realized after their death, but before it. Apart from any outlook upon a possible future life — a consideration which is not pertinent here — the coming of the murderer to himself in the prospect of the gallows ; his recog- nition of the enormity of his offense, not against an external society, but against the interests of his better self, which, if he had only seen it, included the life and welfare of his victim; the sad but manly avowal that he has put himself by his act into such a position that the only way to save himself, to redeem himself, to re-establish the harmony he has so rudely marred — not a harmony outside himself, but his own harmony in his adjustment to a social environment that enters into the very constitution of his personality — all this result, I say, and nothing short of this result, will justify the shedding of a murderer's blood. The preservation of the external order may necessitate the execution, but necessitation and justification are two very different things. Into this difference, however, we cannot go at present. "Experience seems to teach us that with man constituted as he now is — and we are not speaking of what Mr. Spencer calls x 136 SELECTED ARTICLES 'the straight man,' 'an ideal social being,' for we know none such, and could not recognize him if we did — experience seems to show that the only way in which the murderer can be brought to himself is by the instrumentality of the death penalty. "But while all this is true, it is also true that the callousness of a certain class of persons toward the criminal is inhumane. From the time that the sentence of death is passed, some men seem to regard the convict not as a person to be brought to recognize the meaning of his deed and of his execution, but as a dangerous animal kept for slaughter. It is just such an attitude that has led by reaction to the hysterically tender hearted treatment of the criminal. Both extremes should be avoided." Review of Reviews. 40:219-20. August, 1909. Does Capital Punishment Prevent Convictions? Among the many perspicacious utterances of the late Henry Ward Beecher none was truer than his observation that "while the fear of hanging does not deter men from crime the fear of inflicting death deters many a jury from finding a just verdict and favors the escape of criminals." This is cited by Mr. Maynard Shipley in an article in tht American Law Review for May-June, in the course of which he presents some figures and opinions which tend to show that the sooner capital punishment is abol- ished altogether the sooner justice will come into her own. With regard to the states which still retain capital punish- ment, Mr. Shipley cites the opinions of a number of prominent men, all in favor of the abolition of the death penalty. Of these we summarize a few : Massachusetts. — Representative Thomas L. Davis, speaking for alolition. said: "A jviry drawn on a murder trial is often so awed by the responsibility placed upon them that rather than render a verdict that will take the man's life, for fear there is a faint possibility that he is innocent, although they knoAv that he isn't, will disagree or bring in a verdict of not guilty." Mr. William I.loyd Garrison said: "This horror of inflicting the death penalty makes juries violate their oaths." Of 104 persons Indicted for murder in 1901-7, six only were convicted of murder in the first degree. CAPITAL PUNISHMENT I37 New Yoik.— The late Edmund Clarence Stedman in 1869 said that "there was among jurymen and justices so strong a repug- nance to taking human life that it had become doubly difficult to convict a prisoner on the charge of murder." Connecticut.— Prof. William B. Bailey, of Yale, wrote: Courts of law are fallible, and the consciousness of this* fallibility Is ever present in the minds of the juries. There are many cases in which a jury is unwilling to convict when death is to ensue w^hen they might be more willing to sentence a man to life imprisonment." Labor unions generally oppose the death penalty. Mr. John J. Fitzpatrick, president of the Chicago Federation of Labor, when a candidate for the office of sheriff, said : "Organized labor every- where stands for the aboHtion of capital punishment, and if I am elected sheriff I will do my best to further this civilized reform. I never have taken human life and do not intend to, even if my act would be sanctioned by law." A member of the Stationary Engineers' Union was expelled "because he proposed that the number of capital crimes be increased." There are perhaps some who agree with Prof. John Dewey, of the Chicago University, that there may be circumstances under which the death penalty is necessary; but even he admits that "where the moral opinion of the community is highly developed and where scientific penology has made considerable progress it is likely to be more harmful than helpful." Prof. S. F. Emer- son points out another factor tending to make capital punishment impracticable, and, indirectly, leading to illogical verdicts: "Fail- ure to convict for murder is largely the result of the feeling that society is measurably responsible foi crime." Westminster Review. 143:561-66. May, 1895. Ought Capital Punishment to be Abolished ? G. Rayleigh Vicars. In this paper, we intend bringing forward the arguments in favour of the retention of capital punishment, as well as those against the extreme penalty. We must first take a rapid view of the practice of other nations in this matter. For my details, I am indebted to Mr, William Tallack, of the Howard Associa- tion, London, who has drawn up some useful papers on the subject. SELECTED ARTICLES England 1881 11 " *• 23 1882 12 ' 22 1883 13 " " " 23 1884 15 " 38 1885 12 • 25 1886 19 " .. .. 35 1887 21 " " " 35 1888 22 " " •• 36 1889 11 '-• ' 20 1890 15 " " " 24 1891 12 " " " 19 1892 18 " " .. 22 This table will give a general idea of the number of executions in our country. We now pass on to the practice of other civilised nations. France. — Taking an average year, viz., 18S7, 270 convictions of murder were recorded, of which 240 had verdicts of "extenuating circumstances," 28 were condemned to death, and six executed. Russia. — No death penalty for ordinary murder, but employed for treason and resistance to government. i Finland. — Executions unknown since 1826. V Germany and Austria. — In Austria about four per cent are executed out of total convictions. In Germany, out of 231 capital sentences in four recent years, less than 8 per cent were executed. Sweden, Norway, and Denmark. — About one execution in every twenty death sentences. Switzerland. — In some Cantons, there have been no executions for fifty years. Capital punishment was abolished in all Switzer- land in 1874, but restored in 1879, since which date no executions have occurred. India. — Capital punishment exists. Holland. — Capital punishment has been abolished since 1860! Belgium. — There have been no executions since 1863. . Italy. — Death penalty abolished in 1889. Portugal. — Death penalty abolished in 1867. "United States. — There are four states in which there is no capital punishment. Tynelings mostly occur in states where the death penalty exists. CAPITAL PUNISHMENT 139 So much, then, for the practice of various civilised nations. We have now to discuss the arguments for and against the death penalty. jr^uments in favour of capital punishment : (i) It is the most dreaded punishment, and feared by all. It rids society of criminal pests and dangerous savages. It is certaiFln its action, and cannot fail. It terrorises the masses into submission to law^. It has been in us^or many centuries all over the world. It saves the cornmunity all cost of keeping criminals for many years. (7) It was of common occurrence in the "good old times." and was witnessed by large crowds, thus teaching the long and strong arm of the law. (8) Under its influence crime has diminished. The above arguments will suffice, as being fairly represent- ative, arid it remains for us to severally answer them, thus form- ulating our reasons for the rejection of the devssiorjenalty. (i) It is the most dreaded punishment, many me-^d by all. — . From observation of the criminal's last fe-murder, but sitate not at denying this statement. At the tim sane because he anonvict, in most cases, remains unmoved. Fiiumber of suicides in-cv?n- there may be a certain amoii'-:'i ifrnporary insanity are returned, Home Secretary seems. ticlusion that a man may be insane at the age criminal rests.x§ a murder, and the act of attempted suicide the fatal morr>iroves his sanity, else our coroners' juries must be comes the .Tor. Given then, the difficulties attendant upon an occur, and.^stimate of mental responsibility in murder cases, our ing fact clear to the assertion that^[the death penalty is too certain that the2vocable, too much dependent upon human judgment, be culprit so experienced, for practical application in a civilised com- oper?ty.)^ juf*(4) It terrorises the masses into submission to law. — We fail to. see any serious argument here at all. As a matter of fact, at a time when the masses were especially troublesome, when riots were of common occurrence, executions were prolific in number and in public places, so that all might behold the maj- 142 SELECTED ARTICLES esty of the law. In the "good old times" men and women were hanged for many offences now deemed worthy of six months' hard labour, yet the hanging went on its way, unmolested by the state and in high favour with the law, as each week saw the carts bearing their motley loads to execution. Many a highwayman was hung in a drunken condition, a glorious spectacle of legal triumph and penal morality, not to say decency, yet the roads continued to be infested with these pests. (5) It has been in use for many centuries all over the world. — This scarcely constitutes a sound argument for the con- tinuation of any custom. As a matter of fact, the death penalty is notjnow in vogue all over the world. /''^(6) It saves the community all cost of keeping criminals for many years. — There is a certain amount of rude truth in this assertion, but it is scarcely one of humanity. It must be remem- bered that convicts certainly earn many pounds yearly, though their actual cost exceeds their profits. That this should be is not surprising, bearing in mind the fact that a great number of the sentences do not exceed five years, and many are but three years in length. Now it is impossible, owing to the constantly changing nature of the prison population, to ensure prolonged work to any extent, for, when a prisoner is really useful, he goes out on ticket of leave. With life sentences the cases would be very dif- ferent. Such handicrafts as watchmaking, advanced printing and lithographing would be well taught, and in a few years after admission the prisoners would become experts, and their earnings would probably exceed their cost of living. Some relaxation of prevalent discipline would be desirable, so that encouragement may be given to persevere. Whether this project ever attains ma- turity or no, one fact is certainly true, and it is that convicts can print and lithograph very well. At Wormwood Scrubbs prison, near London, a great deal of this kind of work was efficiently done some years ago. There can be no doubt whatever but that men under a life sentence could be placed in a position to earn the cost of their keep and a good margin over in addition. (7) It was of common occurrence in the "good old times." and was witnessed by large crowds, thus teaching the long and CAPITAL PUNISHMENT 143 strong arm of the law. — We have already dealt with this axiom under another heading (No. 4). (8) Under its influence crime has diminished. — There is no accurate foundation for this statement. A few years ago the wave of crime somewhat diminished in force, but of late a fresh wave has burst upon England, which still continues, especially in large cities such as Liverpool. From communities in which capital punishment has been swept away reaches us the prevail- ing opinion, viz., that murder has injno way increased under the new system. We have not space to particularise further, but we recommend all inquirers to read the sheets published by the Howard Association, and obtainable from Mr. Tallack (at the offices of the Association, 5 Bishopsgate Street Without, E. C), the Secretary, whose work we believe them to be. Now, let us summarise our conclusions briefly, and add a few suggestions. (a) The chief objection to capital punishment lies in the irrevocability of the same. A man or woman can be recalled from prison, but not from a felon's grave. (b) It is always difficult to accurately gauge the mental or moral responsibility of a murderer, especially in those very nu- merous cases where the motives of crime are jealousy, a condi- tion of morbid brooding over injuries, and unfounded suspicions. Many criminals assert that they heard voices directing them to commit murder. Who can say whether this be true or assumed? |A life sentence in all cases of wilful murder would enable the prison medical officers to watch these men, and their future lib- erty would depend very much upon the medical observation and subsequent reports. If malingerers, then there is the convict cell, if insane, then there is a special ward ready; or Broadmoor can be made use of. The obstacles in the way of determining the actual mental condition of many murderers at the time of crime, renders hanging a very dangerous and unjust method of punishment, and is a major objection to the same. (c) We would advocate the abolition of capital punishment and as a substitute make use of brick walls and strong cells, and in these the convict would spend the greater part, if not the whole, 144 SELECTED ARTICLES of his life, engaged in profitable occupation. Verdicts of murder might be classified under two heads, as first and second degrees of guilt. For the former the sentence would be an unconditional detention for life ; for the latter, detention from twenty to thirty years, the present system of marks being abolished, and ticket-of- leave done away with. A special prison would be required, built upon the lines of the most improved American -system, and into this would be received all those, male and female, who had been convicted of wilful murder. Jn case of protracted misconduct, the prisoner would be removed for a period of three years to an ordi- nary convict prison, there to undergo the usual rigorous discipline now in force. Or, during the first three years of the sentence, all convicts might be sent primarily to penal servitude, and then the removal to a special estabHshment would follow, always provid- ing that the conduct has been good during the three years of pro- bation. This proviso would ensure satisfactory discipline in the special prison, without being unduly harsh, bearing in mind the indefinite duration of the sentence. A spirit of eclecticism could do much in the choice of prison system, and a committee of visit- ors to the American goals would be a step in the right direction, by which the actual selection might be made. Westminster Review. 155: 144-9. February, 1901. Capital Punishment : Ineffectual and Mischievous. T. M. Hopkins. Reciprocity in murder is certainly, if calmly considered, an odd policy; it does violence to the old and true maxim that two wrongs do not make one right. Westminster Review. 168: 178-86. August, 1907. Emotion as a Law-Maker : a Sociological Suggestion. G. M. Hort. Revenge of a kind has left its stamp on the penalty we impose on murder; — not so much the revenge of private feud, CAPITAL PUNISHMENT 145 as a sort of a social blood-thirstiness; an animus felt by the whole community against the individual who had violated its peace. None will deny that this emotion in the beginning was a natural and lawful one; that it even, in the breasts of the men who felt it, indicated a moral advance. But it is to be regretted that this natural feeHng was allowed too hastily to cool and crystallise into a dogma, and that our death penalty should now by consequence, despite great outward dignity and moral symbolism, retain the impress of a more savage age than ours. Strangely enough, though much mild sentiment has been expended from time to time in the cause o'f the criminal, the cause of him whom the criminal has rendered necessary has scarcely found an advocate ! Yet the hangman's case is, to the clear-sighted, actually the more pitiable of the two. He must be a very high-minded man, indeed, if he does not morally suffer by the lack of moral support and the sense of degradation under which he labours. Nor are these things of the senses only. There is much in his office which is degrading in itself. It is indeed surprising that so far-seeing and prudent a folk as the English usually are, should have tolerated so long among them the rearing of a series of individuals, habituated to tak- ing human life in cold blood, to taking it from unresisting persons, and, above all, to taking it without any saving sen- timent of duty which, shed upon its sordid details, might en- lighten all. Whatever may be said for the character of the paid hang- man in his private capacity, it cannot be said that he is, as a rule, drawn from a class distinguished for its refinement or high moral sensibility. What is more likely than that he will be brutalised by his trade, that he will set a lighter and lighter value on human life, and transmit to his descendants those blunted capacities for feeling, which in later generations might easily develop into an inhuman cruelty! We can ill afford, it would seem, to perpetuate, as of set purpose, a degraded strain in a race already heavily handicapped by countless accidents ! 144 SELECTED ARTICLES of his life, engaged in profitable occupation. Verdicts of murder might be classified under two heads, as first and second degrees of guilt. For the former the sentence would be an unconditional detention for life ; for the latter, detention from twenty to thirty years, the present system of marks being abolished, and ticket-of- leave done away with. A special prison would be required, built upon the lines of the most improved American -system, and into this would be received all those, male and female, who had been convicted of wilful murder. Jn case of protracted misconduct, the prisoner would be removed for a period of three years to an ordi- nary convict prison, there to undergo the usual rigorous discipline now in force. Or, during the first three years of the sentence, all convicts might be sent primarily to penal servitude, and then the removal to a special establishment would follow, always provid- ing that the conduct has been good during the three years of pro- bation. This proviso would ensure satisfactory discipline in the special prison, without being unduly harsh, bearing in mind the indefinite duration of the sentence. A spirit of eclecticism could do much in the choice of prison system, and a committee of visit- ors to the American goals would be a step in the right direction, by which the actual selection might be made. Westminster Review. 155:144-9. February, 1901. Capital Punishment : Ineffectual and Mischievous. T. M. Hopkins. Reciprocity in murder is certainly, if calmly considered, an odd policy; it does violence to the old and true maxim that two wrongs do not make one right. Westminster Review. 168: 178-86. August, 1907. Emotion as a Law-Maker: a Sociological Suggestion. G. M. Hort. Revenge of a kind has left its stamp on the penalty we impose on murder; — not so much the revenge of private feud, CAPITAL PUNISHMENT 145 as a sort of a social blood-thirstiness ; an animus felt by the whole community against the individual who had violated its peace. None will deny that this emotion in the beginning was a natural and lawful one; that it even, in the breasts of the men who felt it, indicated a moral advance. But it is to be regretted that this natural feeling was allowed too hastily to cool and crystallise into a dogma, and that our death penalty should now by consequence, despite great outward dignity and moral symbolism, retain the impress of a more savage age than ours. Strangely enough, though much mild sentiment has been expended from time to time in the cause o'f the criminal, the cause of him whom the criminal has rendered necessary has scarcely found an advocate! Yet the hangman's case is, to the clear-sighted, actually the more pitiable of the two. He must be a very high-minded man, indeed, if he does not morally suffer by the lack of moral support and the sense of degradation under which he labours. Nor are these things of the senses only. There is much in his office which is degrading in itself. It is indeed surprising that so far-seeing and prudent a folk as the English usually are, should have tolerated so long among them the rearing of a series of individuals, habituated to tak- ing human life in cold blood, to taking it from unresisting persons, and, above all, to taking it without any saving sen- timent of duty which, shed upon its sordid details, might en- lighten all. Whatever may be said for the character of the paid hang- man in his private capacity, it cannot be said that he is, as a rule, drawn from a class distinguished for its refinement or high moral sensibility. What is more likely than that he will be brutalised by his trade, that he will set a lighter and lighter value on human life, and transmit to his descendants those blunted capacities for feeling, which in later generations might easily develop into an inhuman cruelty! We can ill afford, it would seem, to perpetuate, as of set purpose, a degraded strain in a race already heavily handicapped by countless accidents ! 146 SELECTED ARTICLES If a professional executioner is to be retained at all, he should be elected from a class which would prove itself most fit, by being the most soberly reluctant. He should be chosen from individuals, who deeply endowed with feeling, would yet be ready to set feeling aside, and sink it in a deeper sense of awful obligation. He should be a man whose thoughts could never degrade himself, and whose speech could never degrade others. In a word, he should be a man of so high an order of mind, as to be able to elevate his task, instead of sinking to its level. If the law indeed, as the thirty-seventh Article maintains, has power "to punish Christian men with death," and if it be found necessary as of old to the "King's Peace" that it should always continue to exert this power, it would be well to find some method whereby that punishment should not in- volve the demoralisation of a number of other "Christian men !" Popular agitation resulted in the end of public executions on those very grounds — that of demoralisation ; and on the same grounds it might avail to abolish the hangman too. Westminster Review. 169:333-41. March, 1908. Homicidal Crime and the Death Penalty Abroad. Carl Heath. Writing in the December number of the Nineteenth Century and After, Sir Arthur Wills, late Justice of the High Court, makes the somewhat notable confession of opinion that — "The greater the uncertainty of punishment, the less its deterrent effect. Could certainty be secured a small penalty would have much more effect than a greater punishment combined with uncertainty." I say notable, as coming from a judge, and one who, strangely enough, is not prepared to support a demand for the abolition of that greatest and most uncertain of pen- alties — the penalty of death. The latest judicial statistics obtainable for England and Wales, viz., those published in March, 1907, and which take CAPITAL PUNISHMENT 147 us up to the corresponding month in 1905, give the following for the previous twelve months : — Number of homicides known to the police 287 (Murders 137, manslaughters 150.) Number of convictions and death sentences for murder 32 Number of convictions for manslaughter 72 Number of executions for murder 17 To say the least these figures are arresting, for they show that under our present system the chances of a murderer es- caping conviction are three to one, and the chances of escap- ing the only admitted penalty according to the law are exactly seven to one. And this is the more curious and significant because the most common of all pleas for the retention of capital punish- ment is the plea of its deterrent character. Very many other- wise humane people, people who, by the way, would never be able to bring themselves to the point of personally assisting at the execution of a fellow creature, and who are otherwise very willing to help in humanising the criminal law, do, not- withstanding, seriously believe that this penalty is a "regrettable necessity," and that were it to be abolished, a serious out- break of crimes of murder would immediately take place. They believe, as so many have believed, that a terrible punishment must deter. This idea of the inherently deterrent nature of vio- lent punishment is always coming to the fore. Thus, to mention a classic example, the Whig government of Earl Grey in 1832 could conceive of no better way of meeting a rather large number of murders than the re-introduction of the ghastly business of gibbetting. Fortunately for the credit of English humanity, the violent rioting amongst the brutal mobs that assembled for the show^s of Leicester and Jarrow led to the abandoment of the idea. The truth is that one single fact vitiates the whole argu- ment for terrible punishment, and it is this — the more terrible a punishment the more impossible it becomes in modern days of civilisation, science, and humane ideas, to carry it out in- flexibly, without hesitation, and without innumerable excep- 148 SELECTED ARTICLES tions. Every step, therefore, in this direction, makes the cer- tainty of the punishment grow less and less. And as its cer- tainty vanishes, its deterrent character vanishes also. Now this is precisely the case with the death penalty. Hanging for mur- der might be a^ plausible method of punishment from the de- terrent point of view, if we always or almost always hanged the murderer. But we do not and cannot. We hang one in eight, and that one very often with protests from large numbers of people. The penalty has ceased to justify its existence then from this point of view, ceasing to be an effective deterrent. But even if we still hanged, as in the good old days, why, it may be asked, should we suppose that it would deter the murderer. In the debate of 1877 the late Sir William Har- court very truly said : — "If the punishment of death did not prevent men from stealing horses, why was it more likely to prevent them front committing, murder? Murder was gener- ally committed under the influence of violent passion ; and if it was found that the punishment of death did not deter in the case of crimes which were committed in cold blood, was it possible, was it reasonable, to suppose that it would act as a greater deterrent in the case of murder?" However, the Englishman is proverbially not a student of history, else he might be struck in this connection by the fatu- ous opposition offered in the past to the abolition of capital punishment for other crimes, such as forgery, stealing, and sac- rilege — all capital crimes eighty years ago. Said Lord Ellen- borough in the House of Lords in 1833, speaking against the proposal to abolish hanging for stealing: — "Your lordships will pause before you assent to a measure pregnant with danger to the security of property. The learned judges are unanimously agreed that the expediency of justice and the public security require there should not be a remission of capital punishment in this part of the criminal law. My Lords, if we suffer this bill to pass we shall not know where we stand ; we shall not know whether we are on our heads or on our feet." The pro-hanging portion of the community might, perhaps, with some force, say: "It is contended that we are wrong in CAPITAL PUNISHMENT 149 supposing that the abolition of capital punishment for murder would result in an increase of homicidal crime. But one opinion is as valuable as another, and we cannot afford to risk the experiment." I say with some truth only, for this position would be tenable if the experiment had never been made. I propose to show how, in other civilised countries, more particularly those allied to us by blood, by religious, social, and poHtical ideas, it has been made, and with marked success. The nearest country of which this is true is Holland. The Dutch are not sentimentalists, and their laws and customs are based on similar sanctions to our own. And their political outlook, their religious ideas, and their social organisation, make their experience a valuable one. Capital punishment was abolished in the Netherlands in 1870. The Consul-General for Holland, replying last July to a question addressed to him by the Council of the Society for the Abolition of Capital Punishment, gave the following fig- ures for ten years : — Number of Persons Convicted of Murder 1894 12 1899 8 1895 9 1900 5 1896 9 1901 5 1897 : 8 1902 3 1898 6 1903 5 These figures do not bear out the theory of an increase in murder crimes following abolition. On the contrary, tak- ing into consideration the increase in population, they emphat- ically point the other way. They also bear witness to the truth of a remark made by a recent writer in the Nation to the effect that — "at bottom, the criminal problem is not so much a pe- nal as a social problem." Fundamentally, it is not punishment that lessens crime of any kind, but improved conditions. The average of murder cases, according to the Dutch Mini- ster of Justice, from 1849 to 1869 was one in 325,000 of the popu- lation. From 1869 to 1888, it was one in 346,000. In 1878 there were 14 cases; in 1888, 12 cases; in 1898, 6 cases. 150 SELECTED ARTICLES The same kind of evidence comes from Belgium. In Bel- gium, capital punishment has not been abolished de jure, but no execution has been carried out since 1863. The Minister of Justice stated in 1890, that during the decade 1846-1855, when executions were carried out, there were 143 capital sentences. In the decade 1876-1885, when executions were not carried out, there were 87 capital sentences. In other words, with no ex- ecutions the number of murder cases had decreased by nearly 40 per cent. As regards the Northern states the following letters of last October and November are of interest: — From the Consul-General for Norway: — "I beg to inform you that by the General Civil Criminal Law of the 22nd May, IQ02, capital punishment was abolished in Norway. No death pen- alty has, however, taken place in Norway since the seventies. The last execution was performed in Bergen in 1875." From the Consul-General for Sweden : — "I beg to say that capital punishment is not abolished in Sweden, but in later years executions have only been carried out in exceptionally grave instances. As far as is known this growing clemency on be- half of the state cannot be said to have provoked any increas- ing criminality in the country." From the Consul-General for Denmark : — "I beg to say that the death penalty is still maintained in Denmark. No capital punishments have, however, taken place for the last ten years, as the King always uses his right to reprieve the condemned persons." I cannot pretend to offer statistical results of the humanising tendency in the Scandinavian states, but it is at least obvious that it has not led to an increase of murder crimes ; otherwise we may be sure that the capital sentence which still is passed in Sweden and Denmark, would not have been systematically abjured during the last decade, by the authofities concerned. When we turn to Switzerland we obtain even more valua- ble evidence. In 1874 the Federal Parliament abolished the- death penalty throughout the Republic. Many people, however, were not prepared for such a measure, and an outcry occurred CAPITAL PUNISHMENT 151 in some of the Cantons. As a consequence, permission was given in 1879 to the Cantons to individually restore the death penalty, and eight Cantons re-established it. The Society for the Abolition of Capital Punishment applied last June to the British Legation at Berne for information as to the number of executions in these Cantons since the re-introduction of capi- tal punishment. The following reply from the Legation, dated July 4th, 1907, is instructive: "I beg leave to inform you that from enquiry made at the Federal Department of Justice and Police, there have been no executions in Switzerland since 1879," This result cannot be due to Swiss sentiment for the death penalty was expressly re-introduced on the ground that it was a necessity — murders would increase, etc. The result, in fact, is due to experience — murders have not increased with a more humane execution of the law. As has been remarked, not even a defender of hanging feels less safe in Geneva than in Glasgow or Manchester. In Portugal capital punishment was abolished in 1867. Homi- cides are officially stated to have materially decreased since abolition, previous to which they were never less than 140 per annum, and they had been as high as 220. In 1880 they were just half of the latter number — viz., no. The case of Italy is somewhat difficult to deal with. Mur- ders, or rather "assassinations," are, and always have been, extremely numerous, and even so well informed a paper as The Lancet, attributes this fact to the abolition of the death penalty by the New Code of 1889. But that the death penalty has little or nothing to do with these assassinations, and that an explanation of them must be sought in factors, racial, so- cial, and climatic, is shown by the fact that although capital punishment has been abolished in Tuscany for a century, and although murders are frequent there, the number in propor- tion to the population is about one-tenth of those occurring in Sicily (vide Howard Association Inquiry, 1890). The Lancet, indeed, gives us the real explanation of these murders. They are largely due, we are told, to "the use of the stiletto, or knife, carried (illegally) by every Italian, and 152 SELECTED ARTICLES the consequent infliction of blows not intended to be lethal, but often having that issue. Youths of either sex, for ex- ample, in a fit of jealousy or vicious excitement, will whip out a knife, and before they are aware of what they have done, will have killed the object of their momentary resentment." It seems obvious that this kind of crime will never be stamped out by any kind of penalty, but needs a remedy of a more rad- ical kind, touching the cause and not the effect. When we turn to France, where the executioner's salary has been suspended, and where the President refuses to sign death warrants, we are met with the cry that crime has enormously increased of late years, and there is probably some truth in this assertion. The real weakness in France is not the lack of capital punishment, as many of the papers tell us, and as large numbers of French jurors appear to think, but a lack of the sure administration of the law. As that venerable re- former, Frederic Passy, states : "It is the certitude of non- capital punishment, not the terrors of a death penalty, which there are so many chances of escaping, that influences the mind of a criminal." It is not violence but uncertainty that breeds contempt in the minds of those who might possibly be deterred by fear of the law. The French apache or other mur- derous ruffian has no ground at present for beheving that the law, whatever it be, will be carried out. And as regards capi- tal punishment, it cannot be too often emphasized that it can only be an effective deterrent when rigorously enforced, and that that is just what is impossible under modern civilised condi- tions. Under present conditions, even when the penalty is en- forced, say in the case of a cold-blooded murder, the likelihood that it will not be, which in England is as seven chances to one, and in France has been greater, neutralises all deterrent influence. The French experiment in abolition, it must be re- membered, is but a short one of some two years. The follow- ing, which I quote from the International Journal of Ethics, of April, 1907, illustrates my point : — "A double execution took place last August twelvemonth at Dunkirk, of two Belgians named Van der Bogaert and Swar- CAPITAL PUNISHMENT 153 tewagher. These two ruffians had committed robbery and mur- der; deliberate murder, that is, for the purpose of a burglary. There was no passion or hatred of an individual in their crime. If the fear of the death- penalty had any effect, why did they not transfer the execution of their plot some few kilometers to the east, over the Belgian border, where their necks would have been safe." Well might the Petit Bleu call this a "saisissante preuve de I'inefficacite de la peine de mort." What will be the immediate solution of the question of the death penalty in France it is difficult to say, but while one lead- ing review declares that — "It is no use legislating on this mat- ter in advance of public opinion, and while French juries all over the country demand a return to the guillotine, there is, on the other hand, no reason to suppose that what has been the case in Switzerland, Belgium, and Portugal, will not be the case in France, and that when the death penalty finally dis- appears, the public will accommodate itself to the moral level of the law." America oflfers the best possible field for the formation of English opinion on this question, for not only are many of the states to a very large extent English in character, religion, so- cial customs, law, and language, but the forty-five states, with their forty-five criminal codes, offer a wide and useful field for comparison. Capital punishment has, as yet, been abol- ished in five states only, viz., Maine, Wisconsin, Kansas, Michi- gan, and Rhode Island. On the other hand two states, Virginia and Missouri, have the unenviable notoriety of eight capital crimes each. Between these there is every possible variety. Louisiana has seven capital crimes, Delaware six, five others have 4, three have 3, nine have 2, and nineteen have one capital crime each. Amongst the crimes which are capital in many states are murder, treason, rape, kidnapping, and train- robbing. Thus rape is capital in sixteen states, treason in ten, and kidnapping in three. Now, it is quite arguable that the peculiar conditions pre- vailing in some of the Southern states make the maintenance 154 SELECTED ARTICLES of the death penalty necessary. As an Englishman I am not presumptuous enough to deny this offhand. I would remark, however, that these are not the states from which one would draw inferences applicable to the British Isles. The Northern states, including those which have done with the hangman, are much nearer to England in point of conditions. But I may draw attention to the remarkable report drawn, up by Mr. Thos. Speed Mosby, the Pardon Attorney to the Governor of Missouri. Mr. Mosby addressed the Attorney-General of each state by circular letter requesting certain information with regard to the death penalty. He tells us that the Attorney-Generals of the five states in which capital punishment has been abolished, all report that — "There has been no increase in capital crime , since abolition." I should here state that the dates of aboli- tion are the following: Michigan 1847, Rhode Island 1852, Wis- consin 1853, Maine 1887, Kansas 1907. In the last-mentioned state there has never been a legal execution, but the death pen- alty was only formally abolished last year. Maine first abol- ished the death penalty in 1876. In 1883, it was re-enacted for the crime of murder alone. In 1885, the governor, in his mes- sage, remarked that there had been : "An unusual number of cold-blooded murders within the state during the two years past," and that "the change in the law relating to murder had not afforded the protection anticipated." In 1887, Maine finally ^ got rid of its hangman. It will be seen that there has now been some time for observation of results. It^may, perhaps, be argued that these are all Northern and Eastern states, but Mr. !Mosby draws some suggestive comparisons. Thus — "Illinois, with her large negro population, suffers no more from rape than does Missouri, yet in Missouri it is capital, in Illinois not." "Death is the penalty for murder in all Kentucky, yet in some parts of that state murder of family foes is a matter of family pride." "Murder is capital in Colorado, but murder is morei common there than in Kansas, which has no capital punishment"! On the whole it may be said that the tendency in America is very generally towards the humanising of the criminal law. the introduction of reformative and curative methods replac- CAPITAL PUNISHMENT I5S ing the old punitive ones, and that with the advance of these methods the death penalty will naturally disappear, either by direct abolition or by the introduction of gradation of murder crimes, when the capital penalty will die out by gradual disuse. Thus Mr. Mosby, writing some months later with regard to Missouri, says : "This state has recently enacted a law leaving it optional with trial juries as to whether the death penalty shall be imposed for murder in the first degree. It is thought that this law will greatly reduce the number of executions, for most juries among us are exceedingly averse to the infliction of the death penalty. The new law gives the jury the option of im- posing a life sentence in the place of capital punishment, and it is expected that life imprisonment will be the result of murder convictions hereafter in this state." The same holds good of at least sixteen other states, including Massachusetts and New York, and there is no doubt but this is the tendency in the de- velopment of the criminal law throughout the United States. Enough, however, has been said, I think, to prove the truth of the contention that the experience of other countries, and more particularly of Holland and the Northern Countries, and of certain of the states of the American union, goes to show that the time has now come when the death penalty — a pen- alty in direct opposition to all the tendencies and methods of modern penology, — not only should be abolished, on humani and ethical grounds, but that with perfect practical safety might be so. That, indeed, so far from any disastrous results fol- lowing, an increased respect for human life shown by the state in its legal expression would lead to an increased respect for human life in its component parts, the men and women of whom the state is composed. One other point may here be dealt with, though it does not directly form a part of my thesis. The English humanitarian societies, including the Society for the Abolition of Capital Pun- ishment, have adopted the policy of graduation of murder crimes first, abolition of the death penalty second. Even those who are not convinced of the practical possibility of abolishing the hangman at present, must admit that it is a monstrous thing that 156 SELECTED ARTICLES forty-one years after the strong recommendation of the last Royal Commission on Capital Punishment of 1864-6, we should have made no progress whatever in the matter of gradation — that judge and jury must still choose between guilty and death or not guilty and freedom in every case of technical murder from the most cold-blooded and mercenary crimes to crimes of passion and misery. It is a ghastly mockery that capital trials should still take place in cases of infanticide, that the judge should still be compelled to pass sentence of death upon some unfortunate girl, who, may be, has been in several cases lately, about to give birth to another child. Such a sentence must desolate every humane and decent-minded judge, and is a vile and standing disgrace to our criminal code. Compare, then, the code of this country with that of our ally, the non-Christian, but advancing Japan. Count Mutsu, of the Japanese Embassy, replying to the Council of the Society for the Abolition of Capi- tal Punishment, states: "Under the revised criminal code of Japan murder is punishable by penalty of death, or by penal servitude for life, or for not less than three years, according to the circumstances of the case." If, then, my countrymen still cling to their hangman, "one of the bulwarks of the British constitution," as it has been said, is it not at least time that his post should be reduced in im- portance to that which it occupies in the land of the Rising Sun? Surely we can, at least, afford to be as just, as intelligent, and as humane as the Asiatic Japanese. Westminster Review. 170: 91-8. July, 1908. Shall We Abolish the Death Penalty? Advocate C. J. Ingram. A Reply to Mr. Carl Heath. In a recent article in the Westminster Review the case for the abolition of capital punishment was advocated with such vigour and such a wealth of statistics that its conclusion at first sight appeared irrefragable. But if it is admissible to attempt \ CAPITAL PUNISHMENT 157 to solve a problem involving such abstract questions as those raised by penalism by recourse to concrete figures, it is well to look also at the other side of the medal. An enquiry into the efficacy of capital punishment not only involves the question of the deterrence of homicide, but neces- sarily includes the consideration of other phases of crime. Now at the outset we have this objection to the position taken up by Mr. Heath. In limiting his article almost entirely to the deterrent effects of capital punishment, he has omitted not only the preventive results, but also has made no investigation into the real reasons for which we punish with death. Reverting to the history of penalism, the subject falls natur- ally into three periods. The or iginal theory of punishment was vindictiy f; pnrf ^"^ — simple: the " ley fH^'''~>"^''^/* thf ^y^ ^"^ "* "]'" ""'^ ^^'^ fr>r>fVi fr>r. ?l^^"<^2,_j2^1d un^l^gp^^^^^ g^»^^y ^g <^hp mpagnrP .of jiigfjrfi IVQjp the end o f th^ piphtppnth r entury. And as between his victim and the wrong-doer a great deal may be said for it. For if the instinct of justice is innate in mankind, is it^nQtJlijIlSL that the juiltv p arty in his heart of hearts will admit the justi ce of the penaltYJ ^ The humanitaria n .may-JiQssibly object to_.the .applica— t ion of the supreme pe nalty to others. Iiut conceiving_tlie. pnsMbiJL- ity of his beingiDimd in such grave circumstances hiiuselirwontd he object to the justice of the punishment that demanded his^:, head ? If the aim of judgment is to fit the crime, then the death penalty is one of the few cases in which such retribution is possible. Such a phase of justice may be elementary, but it does not necessarily follow that it is incorrect. During the second period, following on the clo s e o £ t he eighteenth and during the early_ portijoa^oL.the,_nineteenth.,.ce»- - turies. the aim of punish ment was almost entirely deterrent. Public opinion, shrinking from purely retributive theories, had not so far advanced as to imbibe reformatory ideas. The law - set itself to intimidate others, not to correct the malefactor him- self. Under this theory it was held necessary to retain the \ N 158 SELECTED ARTICLES capital penalty for homicide, though its use was abrogated in the case of less serious crime. (Now it is to this conception of capi- tal punishment, namely in its action as a deterrent, that excep- tion is taken almost entirely by the humanitarian school, and against its validity as such their attack is confined. ) Omitting then for the moment its preventive and other indirect effects, it will be necessary to follow Mr. Heath's investigation of capital punishment as a deterrent pure and simple. Does the death penalty deter? At the outset one must com- bat, at any rate as far as England is concerned, the assertion that the very small percentage of executions actually carried out diminishes the effect of the capital sentence on the mijid of the public. As matters stand, the man in the street does not read statistics, and though he is aware that homicides attended by mitigating circumstances do not meet with the supreme penalty, yet in his mind the crime of murder and the hangman's rope are indissolubly connected. Whilst dealing with direct deterrence the comment is fre- quently made, how can the existence of capital punishnient pre- vent the commission of homicide undertaken under extreme circumstances of passion, emotion, or revenge? In answering this question we must notice the underlying fallacy. Crimes committed under circumstances of great excitement, sudden passion, or provocation do not generally call for the extreme penalty, for Lcchnically they do not amount to murder. Practically only three classes of homicide are attended with the death penalty. First, where the deliberate intention to kill- is manifest or may be presumed from the circumstances of the case; for instance, where poison or some other similar deadly means are employed; secondly, where the killing is preceded by or accompanied with some other very serious crime, such as rape, burglary, or robbery. The third class comprises those, cases which declare a reckless disregard of human life. Instances of this are baby-farming, where the culprit com- mits murder for a paltry gain, and sexual cases, where a tired husband or lover removes his wife or mistress in a cold-blooded and heartless fashion. CAPITAL PUNISHMENT 159 Bomb-throwing and train-wrecking afford other illustrations. So if a man finds another in the act of adultery with his wife and comes upon him shortly after and kills him, it is extremely improbable that any jury will convict him of murder, but supposing a considerable period of time to ensue and de- liberate revenge be substituted for passion, it will be a very different state of affairs. Therefore, we mav sav that only three cla sses_of h omicide re punished by the death penalty, namely: (i) where delibera- tibn is evinc edj (2) homicide accompanied by other serious rrirnp; (-^^ Y^hpr^_-±k^.rft.-l& a rprlrlp^t; di';rpp-^rr1 of luimail life. And in such cases the fact that the death penalty will follow is certain and of this certainty the public is aware. It is on these types of crime, therefore, that we must focus our investigation Til ]ans^^7mTig~4i»«»'ttiaestiGn as to the cfFect of the death penalty as a deterrent. In dealing with such a psychological problem, the value of statistics, as has been premised before, is doubtful; but if statistics are taken as to the effect of severity of punishment on homicide, and of all forms of punishment capital punish- ment is the most severe, what do we find? In France crime divides itself into two epochs. From 1828 to 1884 murders rose from 197 to 234 per annum; infanticides from 102 to 194; criminal assaults on children from 136 to 791 ; on a population showing an increase from 31 millions to 38 millions. Surely such a state of affairs cannot only be attributed to a lack of sound administration, especially when it happens to be coeval with that second period when the theory of short and reformatory punishment, the badge of the humani- tarian school, was most in vogue? The second epoch in France dates from 1886, where a small diminution of the most serious crime is apparent, coinciding with a marked increase in the severity of punishment. In Italy the declension of severity in sentences is in direct ration with the increase of crime between the periods from 1863-1880. . I i6o SELECTED ARTICLES The following table of statistics shows the remarkable rise in the figures, during this period of leniency. Crime in Italy from 1863-80 1863 1869 1870 1880 Parricides 12 22 34 39 Conjugal crimes, murder by hus- band of wife or vice versa \ 1^ 38 92 Infanticide 44 52 53 82 Other murders .285 419 450 705 In 1S00-1870. increase of crimes punishable by death. 22 per cent. Tn 1860-1870, increase of crimes i)unishal)K' I)y imprisonment /or life, 64 per cent. Im-ohi 1881 onwafd's a tendency of the more serious crime to decrease is noticeable, but in 1890 the death penalty is abolished. ^urder statistics show an annual average of 4,000 cases and an increase of crime from 254,591 cases in 1890 to 305,258 in 1899, which works out at an increase of nearly 200 criminals per joo,ooo of population. Taking the third great continental power, Austria, we find an annual increase of crime from 18,154 i» 1865 to 27,304 in 1875, and a^jnuch as 31,000 in 1898. So everywhere in the larger continental powers, statistics show a remarkable aggravation of crime. But in Great Britain we find a remarkable contrast. With reference to our criminal statistics the remark of the celebrated Italian theorist Garofalo, in his work on criminology (to whom the writer is indebted for the above figures) are illuminating. "It is only in England," he says, "that crime shows a general tendency to decrease, espe- cially in its gravest forms, looked at over a period of several years. Murder has become exceedingly rare; the number of prisoners has decreased from 20,833 in 1878 to 12,178 in 1893. Convictions for theft and perjury decrease in the same ratio as crimes against the person. But England is precisely the country where modern penal theories have had the least in- fluence, where the death penalty is frequently appHed, and where the other punishments are extremely severe." So much then for criminal statistics. If they show anything, surely the coincidence of the rise and fall of crimes in harmony CAPITAL PUNISHMENT / i6i with the stringency or the reverse of the "sanction" with whjcli . - they are menaced is remarkable. If it is legitimate to maintain a logical connection between them, then we may infer that the casuaUty of capital punishment divides itself into two channels. First, it does directly deter those tempted to commit the actual crime of murder; and, secondly, indirectly its existence per- meates through society and diminishes crime. , - — As to the first of these results, its direct action. Taking the three types of homicide mentioned above as those whose present retribution is capital punishment, surely the perpetrators of such acts are the most amenable to the terms of the penalty. ThemanjiaJiQ-- d eliberat ely u s e^ a^- see4=«t-4>,aisaau.da^..^ "ot be^ cause^ JaLs_^b>efit. i&.jabtMl£il-.Ri9re. surely than by the instrtj,- mentality of the knife or the bullet, but for *tKe^ obviojLil pur-. pose of screening himself from discovery and its overwhelming- consequences. This type of criminal is not only a murderer but a coward. But are we then to eliminate the reason for his cowardice? Baron Garofalo cites^ case whjch came to his person al ob- s^rv atTyni '\^"hlffh ^^"pf>^^pg ^ rr>nrrpfp inngi-ratin n of the direq^ * effect of th e capitaL.4i£nal^ A man from hi\ hnnse >;^w V)ig enem^TwaEiglln^yn the st^^^^ ^"^ in pn ^cc-^f^ r>f rapr^ g^^'7?rfj his rifle and ppinted it at his foe. H e took aim and was jus t abofif to plull the trigger whenji£_j|^as seen to lower his weapoa, saying, '%e Taw has re-established the death penalty.'' As a matter of fact only deliberate murders as distinct from such sudden homicides were punishable by death, but in this case the existence of the death penalty undoubtedly saved a human life. Turning to our second class of crimes punisha ble^ with death, such as robberv. or burp^lay y f,pnRnmtrLa.tPfl with murder, cai'i-_ not the e xtreme rarity of such case s in England In comparison with o thercountr lfi h'^ />V.rifn/^fp«-ic^.i -^^ ^i^^. dircci (income of Tli e judici ous severity of the la w? Snch crimen arc ahnost in— variably committed by the pro fessional criminal, the recidivist. He is awaFe fha't if"he is caught, his sentence after what is Jyrobably repeated conviction, will be_^a_Ji2Jig,jiuey-pethapA.. fifteen "years. The conclusion is obvious. The chance of the life sen- i62 SELECTED ARTICLES tence. representing -20 y-ears, .will not deter the desperado who, unless he kills to avoid capture is doomed to a sentence of prac- tically the.same-^oportions. As to our third class of homicide, wherein a reckless disre- gard of human life is manifested, such as bomb-throwing, train-wrecking, or baby-farming, even the "humanitarian" or "reformatory" school should shrink from decre'asing the penalty for a crime which most of all evinces a callous disregard for human life. Are we to "educate" such monsters to a sense of pity, whose avarice outweighs life itself in the scales? Rather let us extirpate them, though the death-penalty has in their case proved no deterrent. The indirect effects of capital punishment obviously it is a difficult matter to gauge. But that the idea of its existence in the minds of the general public is of substantial value there can be no doubt. At any rate in this respect we may perhaps see the concrete result by a comparison of the general criminal figures of the United Kingdom and the continent as exemplified above. But apart from this, the fact that the state has the supreme power to take away life must surely reinforce the gravity of other penalties in the eyes of malefactors. The professional criminal knows when plotting a fresh crime that this time it may be a long sentence, but he is also cognisant that beyond this there is yet the most potent weapon of all in the hands of the law. Still it is subjectively on the criminal and objectively on the public as to the consequences ensuing from its non-existence 'that the greatest arguments for its existence hinge. And this brings one to the third and latest theory of penology, of whose tenets in England Sir Robert Hunter and Judge Wills have been the most prominent exponents. The dogma of this school in reality springs from a revulsion from the reformatory ideas at the close of the nineteenth century. Testing the in- vestigations of Lambreso, Ferri, and other theorists of the Italian school, and rejecting their conclusions as to an anthro- pological criminal type as unsound, the most modern English school have taken up the threads where the reformatory school CAPITAL PUNISHMENT ( 163 had pushed their conclusions no further. Those penologists who designed to solve the question of crime by the reform of the criminal, when they found such a solution impossible, attempted no other settlement. The latest school, going on where the other school left off and accepting the fact of impossibility of reformation, lay down that crime must be grappled with, if not by the education subjectively of the criminal, yet if necessary at his expense and for the benefit of the public. So the logical end of their creed is elimination ; the natural evolutionary proc- ess by which those unfitted or incapable of adapting themselves to their environment must drop out. This principle then involves two premises. First, that the criminal is incapable of improvement, and secondly, the wel- fare of the law-abiding public is not to be sacrificed to the in- terests of the individual. With regard to the possibility of reformation, the world-wide results of the vogue of reformatory theory show that acting on the class of the more serious criminals that theory has proved itself a failure. The "recidivist," that individual criminal type whose increase has so insistently demanded a. solution of the problem of crime, has everywhere grown in numbers. In Austria the number of reconverted prisoners to total conviction amounted to 45 per cent. In France the percentage was 46. Belgium, held up by Mr. Heath as a beneficial example of the abolition of the death penalty, is second in magnitude on the list, her recidivists numbering 49 per cent., topped only by Italy with a percentage of 55 per cent. It is with this flotsam of humanity that measures of reform have to deal and the high percentage which speaks of convictions of the same individual, recurring again and again, gives the measure of their success. Let us take again another northern population, which Mr. Heath has cited as an example to us in its administration of the highest penalty known to the law, namely Sweden. Only in ex- ceptionally grave cases is the death penalty inflicted, he is in- formed. But, supposing his advocacy of the leniency displayed .in that country to be correct, we must be prepared for the devo- i64 SELECTED ARTICLES lution of methods, similar at least to those in vogue there at present, in substitution for what we employ as matters stand. In Sweden criminals convicted and sentenced for life, which it TT presumed would include all prisoners who would otherwise have suffered the death penalty, are released after a short period of good conduct on condition that they find a patron, a "guarantor of their gt^od coiuluci, and also subject to the proviso 'that should tliey even misconduct iheniselves again, they will be r^tegated to penal servitude for ctcv. And what are the amazing results J*. Iii_spite of the in- ducements to reform and the terrible sanction imposed on sub^ sequent recidivism, 75 per cent, of these so released, d o fall again, and return again to gaol. Is this the kind of system "even from the point of view of the offender, that the reforma- tory school would wish us to adopt in lieu of our own? The fact is that there is mentally a true criminal type, even though the physical type cannot be predicated. Drink and pov- erty may be the environment in which the bacillus of crime has the most favourable opportunity of hatching out, but just as the theory of evolution is referable to man as to the rest of the animal kingdom, so the correlative theory of atavism must inevitably also apply. Heredity and atavism between them have produced the criminal recidivist, the throw-back in the evolution of mankind. Granting then that reformation is out of the question, are we not to continue and say that the interests, and even the being of the criminal, are to be sacrificed for the welfare of the public? Surely if the first premise is correct, the second necessarily follows. The only assumption on which the giv- ing of fresh opportunity or mitigation of penalty rests, is that of promise of good conduct or reform in the future. If the fulfilment of such promise is refused or rendered impossible by the criminal, then the interests of his other fellow individuals, the public, are paramount. But the question may be asked : Cannot the interests of the latter be preserved even with the abolition of the death penalty? And herein lies the root of the matter. You cannot abolish the death penalty without also CAPITAL PUNISHMENT 165 / abolishing the sentence of imprisonment for life. The agitation which owes its -origin to a humanitarian shrinkiag!I!5EoSLlWitr * fing^^~period to human life, however ciebased. will inevitab ly be directed attain st a substitute of perpetual impfj,<^r>nmeni- Such has_ been_.jlic _j: ase in Sweden. In England it is well known after a period the "lifer" i& released, . , In Italy he getg nut mn rh ftnnn er even than here. Criminals f lourish in that rniii ptry who hnvf^ £ommitted as manv as three murders. A murderer there has — £ven been known to boa^t of his immunity from the ^raffnld ^ — -— A^ain, apart from the daiigcjl-tQ -the public- Qi_a_j;epetit ion _ of homicHe~by the same criminal, the fact of the se rious re-^ suit oi his SHlargement must nor l)c nv erlook ed. Onc e again releasee!, the" forces oF heredity regain their full scope,, and the ; serious consequences can be made plain. .Statistics have shown 1 that as many as roughly 25 per cent, of criminals have recened the criminal taint in their blood. Garofalo. as an instance, c:te> the notorious" Vukc family which numbered 200 thieves and assassins, 288 idiots, and 90 prostitutes descended from the same source during 75 years. Their common ancestor was a drunkard. Are we to risk the accrescence of such a cohort of criminals to preserve a life incapable of reform, merely for a humanitarian sentiment which contradicts the principles of. j ages? Or shall we waste money on "educating" such sub- jects, whilst innocent children lack instruction, and worked out old veterans starve for lack of old-age pensions? It is the duty of a wise legislation to look to the future, and not least should this be so in the science of criminology. In doing so, the state must once for all choose between the two theories, the comparatively modern ideas of the reformatory school, or the views of the still more recent school, which, while utilis- ing the researches of its rival, bases its logic on the real na- ture of the criminal, and does not shrink from adopting the elementary and original foundations of justice. "The law was added because of transgressions." The latest school, to carry its theory to its conclusions, de- mands elimination, and the isolation of the criminal from so- i66 SELECTED ARTICLES ciety. It aims not at vindictive punishment, nor so much to accomplish its object by deterrence, but as prevention through a denial of fresh opportunities of misconduct. Its action is thorough. It clears out the criminal growth, root and branch. No seed from it can afterwards be propagated. Such elimination where human life, present or future, is at stake, can only be accomplished by perpetual imprisonment or death. As to which is the end more merciful it is for the abolitionists of the death penalty to say. Westminster Review. 170:325-9. September, 1908. Modern Penology and the Punishment of Death. Carl Heath. Humanitarians like myself are so well accustomed to the severe animadversions of those who regard all humane pleas as sentimental, that it is refreshing to meet with so temperate, and, on the whole, fair-minded an opponent as Mr. Advocate Ingram. The truth of his charge that the article ' which he so ably attacked, was very largely confined to the deterrent nature of the death penalty, and did not deal with the question of capi- tal punishment from the standpoint of the criminal problem as a whole, must be admitted. It is one of the unfortunate factors of a controversy of any kind that you cannot say every- thing at once. And the defined purpose of the article in ques- tion was simply to draw attention to the experiences of other nations in regard to this particular penalty, the penalty of death. However, I am quite ready to meet Mr. Ingram on his own ground, and will proceed to deal with his points. The "original theory of punishment" (if there ever was one) may have been expressed by the lex talionis, but from the Mid- dle Ages, at any rate, the penalty of death has not been ap- plied on any such basis. Any and every kind of crime has been subject to this penalty. In the days of the "Tudor King- dom of Heaven," and of good Queen Bess, to cite an exam- CAPITAL PUNISHMENT 167 pie, rogues and petty thieves were sent to the gallows at the rate of three or four hundred a year. And in Georgian times the penalty of the rope was applied to nearly a hundred crimes from the theft of five shillings upwards. Penalism, in fact, until the French Revolution, was for the masses little else than a huge system of oppression and of vio- lence. But from that philosophic period onward, and with the growth of democracy, terrorism is gradually replaced by pun- ishments supposed to fit the crimes committed. Mr. Ingram, I think, is not justified in speaking of the aim of penalism at the close of the i8th century and early 19th, as being founded on the idea of deterrence. Its aim was mainly to punish the wrong-doer according to his deed, and such, in fact, is still the case, witness the protest only recently made by so anti- humanitarian a penologist as Sir Robert Anderson against the continued prevalence in our penal system of the "punishment for crime theory." Deterrence, pure and simple, as a peno- logical theory or defence of penalties inflicted on wrong-doers, has a more modern basis, combined as it is in modern laws with reformatory efforts. A very good illustration of this combination is afforded by Mr. Gladstone's prison bill, which aims at combining intimidation by striking penalties with re- formatory methods by means of preventive sentences of un- limited length. It is, of course, a mistake to suppose that the humanita- rian school confines its attacks on the death sentence to the ques- tion of its validity as a deterrent. In considering the deterrent values of penalties, the humanitarian would find much to urge against capital punishment. And even the man in the street, who, we are told, does not read statistics, must be aware that an average of fourteen executions for 140 murders per annum disposes of the supposed "indissoluble connection between mur- der and the hangman's rope." But the non-deterrent character of the death penalty is but an item in the objection of humanitarians to this penalty. The fundamental objection, strangely enough, Mr. Ingram ig- nores. Now this fundamental objection arises from a different i68 SELECTED ARTICLES conception of the meaning and cause of crime, and consequent- ly a different conception of the right treatment of criminals. / I cannot better express it than in the words of Dr. Douglas Morrison, in his introduction to the English translation of Prof. Enrico Ferri's "Criminal Psychology." "Crime," he says, "is a product of the adverse individual and social conditions of the community as a whole, and the only ' effective way of grappling with it, is to do away, as far as possible, with the causes from which it springs." It is from this point of view that the de- mand is made for really reformative methods — (which I might here remark, have not failed, for as much as they have never been tried beyond the very elementary stage of the Borstal system) — and where reformative methods are impossible, a permanent detention under reasonably humane and scientific conditions. It is this modern view of crime which makes penalties of the capital order hopelessly out of date, and penal servitude preferable, however badly it may at present be organised, be- cause it presents the possibility of gradual transformation with the growth of new ideas. Mr. Ingram thinks that you "cannot abolish the death pen- alty without abolishing also imprisonment for life." This is only relatively a fact. As long as imprisonment is simply pun- ishment, society justly objects to its being unlimited. But once this semi-theological idea is replaced by a real application of reformative treatment, or simply humane treatment, where reform is hopeless, there is no reason why the hopeless crimi- nal, if such exist, should not be permanently detained than the hopelessly insane. No one raises objection to the detention of the insane, because modern methods of dealing with such are free from the stupid brutalities of punishment which ob- tained right up to the 19th century. Our Bicetres for the in- y sane have long since disappeared, but our penal Bicetres remain. I am glad that Mr. Ingram frankly admits that the "logi- cal end of the creed," which he supports, "is elimination." The impossibility of that creed has been ably exposed by Prof. Fer- ri, who points out that if adopted — "it would be necessary CAPITAL PUNISHMENT 169 in Italy to execute at least one thousand persons every year, and in France nearly two hundred and fifty, in place of the annual seven or eight." And who is to decide on the ethical right of eliminating this or that criminal? Vast numbers of crimes in Europe are the product of the majority views of social policy. All the crimes against property, and the violence to which they give rise, who shall say where the sympathy of another age will lie? With the law-abiding and governing classes or the classes which are the product of legal privilege and economic dominance. And even if, in our complicated society, we could lay down clear and sure precepts of social, political, and economic mo- rality, is it not almost infantile to suppose that, by any man- ner of means we could "clear out the criminal growth root, and branch," short of clearing out all those causes which give rise to anti-social action which alone, when conventional mo- rality condemns, we call crime. I do not propose to follow Mr. Ingram in his statistics, because, as he points out him- self, there are so many other considerations, and statistics do not carry us far one way or the other. But his own are curious. He gives us 341 as the number of murders taking place in Italy in 1863. He would have us believe that the annual average is now about 4,000. There is certainly something lacking here. In France, he shows that murders rose in 56 years (1828-84) from 197 to 234, and infanticide from 102 to 194. The death sentence was in force for these crimes all the time, and many public executions took place, so that I am at a loss to under- stand how these figures support his views. How Baron Garofalo obtained the English statistics which Mr. Ingram quotes I do not know, but the Judicial Statistics for 1906, which the Home Office published this year, give the results for the last fifty years in striking fashion. And while it is true that, allowing for the increase of population, crimes of all kinds tend to decrease, this surely is due to the increase in social well being, education, and humanity, and certainly not to the severity of punishment. In 1829, twenty-four per- sons were publicly executed in London for crimes of theft 170 SELECTED ARTICLES and forger}-. These crimes are menaced to-day with penalties far less severe than formerly, yet theft and forgery have not increased, indeed, on Mr. Ingram's own showing, the very reverse is the case. To quote Dr. Morrison again: "If the penal laws' of the past teach us anything, they teach us that crime cannot be put down by mere severity." I confess I am more amused than impressed by Garofalo's story of the man who, "in an access of rage," was about to shoot his enemy when, at the moment of pulling the trigger, he suddenly recollected the supposed re-introduction of the death penalty. I wonder if Garofalo believed, or, for the mat- ter of that if Mr. Ingram believes, in the psychologcal possi- bility of the associated access of rage with the wonderful ac- cess of memory and prompt action thereon. One other point. The recidivist problem is one facing all penal reformers, though it is true it is not one that trenches much on the problem of capital punishment. The homicide rarely repeats his offence. But I submit that there is a better way of dealing with this problem than that of elimination — a way more consonant with science, social ethics, and common jus- tice. Let us at least try the extension of the Borstal and kin- dred systems, and for the small percentage which must ulti- mately be classed as hopeless let us treat such degeneracy as we treat insanity. For what we chiefly mean by insanity, as far as society is cc^ncerned. is a state of socially, mentally, and morally unfit. Now there are large numbers of people in Europe / who are legally recognised as insane, many hopelessly so. If we eliminate the supposed hopeless degenerate by legal exe- ' cution, why not the supposed hopelessly insane. In fact, it ^ were surely wiser to put an end, physically speaking, to these latter unfortunates whose spirits are not burdened by evil acts. Psychical science may not yet have determined belief in the survival of human personality, but It is certainly an open question. x\nd since human society is responsible for . these wrecked products, whom we designate criminals, it is surely both foolish and contem.ptible to shelve the difficulty created by these people by taking their lives. And even if it CAPITAL PUNISHMENT 171 could be shown, and I submit that in the present state of our knowledge it cannot be shown, that by the lethal chamber or other method we could finally dispose of these miserable crea- tures, what is to be said of the ethical reaction on society, the callous spirit which the constant judicial slaughter which would be necessary if the method were to be effective, would engen- der? Mr. Ingram refers to Sir Robert Hunter and Judge Wills. Perhaps he means Sir Robert Anderson and Sir Arthur Wills, late Justice of the High Court, whose recent writings on these questions in the Nineteenth Century and After, and elsewhere, have attracted attention. Sir Arthur Wills is a well-known judge, but I question if he would imagine that he had founded a new penological school. He has, unfortunately, given his support to the re-actionary proposals of the Ex-Police Commis- sioner, Sir Robert Anderson. Sir Robert Anderson, in his book, "Crime and Criminals," is at some pains to point out that he is dealing with crimes against property, and not with those against the person. His whole conception of crime, its cause and its treatment, is vitiated by a peculiar jumble of narrow theology and social prejudice, and an absolute lack of any in- telligent understanding of the social and humanitarian move- ment of to-day, which movement, I venture to assert, is, in this question of criminality, half a century ahead of Sir Robert Anderson. To call his theories and those of Mr. Justice Wills the latest in penology is truly odd. For Sir Robert Anderson, like Mr. Ingram, fondly imagines that you can "clear out the criminal growth," b}^ the simple process of locking up — (Mr. Ingram would prefer eliminating) — the caught criminal. I suggest, with all respect, that Mr. Ingram extend his studies from the criminal to the social problem, and he will then un- derstand why it is that in this particular question of the re- tention of the public executioner, every advanced party in Eu- rope is against him, and every re-actionary, every bureaucratic influence is on his side, — why, for example, the Socialists of France support President Fallieres in his refusal to use the guillotine and the Black Hundred of the Tzar rejoice over 800 executions in a single year. 14 DAY USE RETURN TO DESK FROM WHICH BORROWED LOAN DEPT. RENEWALS ONLY— TEL. NO. 642-3405 This book is due on the last date stamped below, or on the date to which renewed. Renewed books are subject to immediate recall. -gpf ^81069?^ MAVl5'b9-3PM ^ PECEIVED 8EMT N I LL APR 1 1998 U. C. BERKELEY JIJL29'69-^PN1 UOfiH P' OLCt 0\969 5^ LD. D£C17'69-lPi -SEE4 V^^^ LD 21A-407at2, (J6057* ^ General Library University of California Berkeley 8 - »!«••' WM^ M ■f^^^^'- -n^^*?-.. X UNIVERSITY OF CALIFORNIA LIBRARY If ' V^!>i'j--H^'^ ;*«J ^ -»•■>. .■srf'. W