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    Capital Punishment

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    Chapter 4
    Previous Chapter
    I will take for the subject of this letter, the effect of Capital
    Punishment on the commission of crime, or rather of murder; the only
    crime with one exception (and that a rare one) to which it is now
    applied. Its effect in preventing crime, I will reserve for another
    letter: and a few of the more striking illustrations of each aspect
    of the subject, for a concluding one.

    The effect of Capital Punishment on the commission of Murder.

    Some murders are committed in hot blood and furious rage; some, in
    deliberate revenge; some, in terrible despair; some (but not many)
    for mere gain; some, for the removal of an object dangerous to the
    murderer's peace or good name; some, to win a monstrous notoriety.

    On murders committed in rage, in the despair of strong affection (as
    when a starving child is murdered by its parent) or for gain, I
    believe the punishment of death to have no effect in the least. In
    the two first cases, the impulse is a blind and wild one, infinitely
    beyond the reach of any reference to the punishment. In the last,
    there is little calculation beyond the absorbing greed of the money
    to be got. Courvoisier, for example, might have robbed his master
    with greater safety, and with fewer chances of detection, if he had
    not murdered him. But, his calculations going to the gain and not
    to the loss, he had no balance for the consequences of what he did.
    So, it would have been more safe and prudent in the woman who was
    hanged a few weeks since, for the murder in Westminster, to have
    simply robbed her old companion in an unguarded moment, as in her
    sleep. But, her calculation going to the gain of what she took to
    be a Bank note; and the poor old woman living between her and the
    gain; she murdered her.

    On murders committed in deliberate revenge, or to remove a stumbling
    block in the murderer's path, or in an insatiate craving for
    notoriety, is there reason to suppose that the punishment of death
    has the direct effect of an incentive and an impulse?

    A murder is committed in deliberate revenge. The murderer is at no
    trouble to prepare his train of circumstances, takes little or no
    pains to escape, is quite cool and collected, perfectly content to
    deliver himself up to the Police, makes no secret of his guilt, but
    boldly says, "I killed him. I'm glad of it. I meant to do it. I
    am ready to die." There was such a case the other day. There was
    such another case not long ago. There are such cases frequently.
    It is the commonest first exclamation on being seized. Now, what is
    this but a false arguing of the question, announcing a foregone
    conclusion, expressly leading to the crime, and inseparably arising
    out of the Punishment of Death? "I took his life. I give up mine
    to pay for it. Life for life; blood for blood. I have done the
    crime. I am ready with the atonement. I know all about it; it's a
    fair bargain between me and the law. Here am I to execute my part
    of it; and what more is to be said or done?" It is the very essence
    of the maintenance of this punishment for murder, that it does set
    life against life. It is in the essence of a stupid, weak, or
    otherwise ill-regulated mind (of such a murderer's mind, in short),
    to recognise in this set off, a something that diminishes the base
    and coward character of murder. "In a pitched battle, I, a common
    man, may kill my adversary, but he may kill me. In a duel, a
    gentleman may shoot his opponent through the head, but the opponent
    may shoot him too, and this makes it fair. Very well. I take this
    man's life for a reason I have, or choose to think I have, and the
    law takes mine. The law says, and the clergyman says, there must be
    blood for blood and life for life. Here it is. I pay the penalty."

    A mind incapable, or confounded in its perceptions--and you must
    argue with reference to such a mind, or you could not have such a
    murder--may not only establish on these grounds an idea of strict
    justice and fair reparation, but a stubborn and dogged fortitude and
    foresight that satisfy it hugely. Whether the fact be really so, or
    not, is a question I would be content to rest, alone, on the number
    of cases of revengeful murder in which this is well known, without
    dispute, to have been the prevailing demeanour of the criminal: and
    in which such speeches and such absurd reasoning have been
    constantly uppermost with him. "Blood for blood", and "life for
    life", and such like balanced jingles, have passed current in
    people's mouths, from legislators downwards, until they have been
    corrupted into "tit for tat", and acted on.

    Next, come the murders done, to sweep out of the way a dreaded or
    detested object. At the bottom of this class of crimes, there is a
    slow, corroding, growing hate. Violent quarrels are commonly found
    to have taken place between the murdered person and the murderer:
    usually of opposite sexes. There are witnesses to old scenes of
    reproach and recrimination, in which they were the actors; and the
    murderer has been heard to say, in this or that coarse phrase, "that
    he wouldn't mind killing her, though he should be hanged for it"--in
    these cases, the commonest avowal.

    It seems to me, that in this well-known scrap of evidence, there is
    a deeper meaning than is usually attached to it. I do not know, but
    it may be--I have a strong suspicion that it is--a clue to the slow
    growth of the crime, and its gradual development in the mind. More
    than this; a clue to the mental connection of the deed, with the
    punishment to which the doer of that deed is liable, until the two,
    conjoined, give birth to monstrous and misshapen Murder.

    The idea of murder, in such a case, like that of self-destruction in
    the great majority of instances, is not a new one. It may have
    presented itself to the disturbed mind in a dim shape and afar off;
    but it has been there. After a quarrel, or with some strong sense
    upon him of irritation or discomfort arising out of the continuance
    of this life in his path, the man has brooded over the unformed
    desire to take it. "Though he should be hanged for it." With the
    entrance of the Punishment into his thoughts, the shadow of the
    fatal beam begins to attend--not on himself, but on the object of
    his hate. At every new temptation, it is there, stronger and
    blacker yet, trying to terrify him. When she defies or threatens
    him, the scaffold seems to be her strength and "vantage ground".
    Let her not be too sure of that; "though he should be hanged for

    Thus, he begins to raise up, in the contemplation of this death by
    hanging, a new and violent enemy to brave. The prospect of a slow
    and solitary expiation would have no congeniality with his wicked
    thoughts, but this throttling and strangling has. There is always
    before him, an ugly, bloody, scarecrow phantom, that champions her,
    as it were, and yet shows him, in a ghastly way, the example of
    murder. Is she very weak, or very trustful in him, or infirm, or
    old? It gives a hideous courage to what would be mere slaughter
    otherwise; for there it is, a presence always about her, darkly
    menacing him with that penalty whose murky secret has a fascination
    for all secret and unwholesome thoughts. And when he struggles with
    his victim at the last, "though he should be hanged for it", it is a
    merciless wrestle, not with one weak life only, but with that ever-
    haunting, ever-beckoning shadow of the gallows, too; and with a
    fierce defiance to it, after their long survey of each other, to
    come on and do its worst.

    Present this black idea of violence to a bad mind contemplating
    violence; hold up before a man remotely compassing the death of
    another person, the spectacle of his own ghastly and untimely death
    by man's hands; and out of the depths of his own nature you shall
    assuredly raise up that which lures and tempts him on. The laws
    which regulate those mysteries have not been studied or cared for,
    by the maintainers of this law; but they are paramount and will
    always assert their power.

    Out of one hundred and sixty-seven persons under sentence of Death
    in England, questioned at different times, in the course of years,
    by an English clergyman in the performance of his duty, there were
    only three who had not been spectators of executions.

    We come, now, to the consideration of those murders which are
    committed, or attempted, with no other object than the attainment of
    an infamous notoriety. That this class of crimes has its origin in
    the Punishment of Death, we cannot question; because (as we have
    already seen, and shall presently establish by another proof) great
    notoriety and interest attach, and are generally understood to
    attach, only to those criminals who are in danger of being executed.

    One of the most remarkable instances of murder originating in mad
    self-conceit; and of the murderer's part in the repulsive drama, in
    which the law appears at such great disadvantage to itself and to
    society, being acted almost to the last with a self-complacency that
    would be horribly ludicrous if it were not utterly revolting; is
    presented in the case of Hocker.

    Here is an insolent, flippant, dissolute youth: aping the man of
    intrigue and levity: over-dressed, over-confident, inordinately
    vain of his personal appearance: distinguished as to his hair,
    cane, snuff-box, and singing-voice: and unhappily the son of a
    working shoemaker. Bent on loftier flights than such a poor house-
    swallow as a teacher in a Sunday-school can take; and having no
    truth, industry, perseverance, or other dull work-a-day quality, to
    plume his wings withal; he casts about him, in his jaunty way, for
    some mode of distinguishing himself--some means of getting that head
    of hair into the print-shops; of having something like justice done
    to his singing-voice and fine intellect; of making the life and
    adventures of Thomas Hocker remarkable; and of getting up some
    excitement in connection with that slighted piece of biography. The
    Stage? No. Not feasible. There has always been a conspiracy
    against the Thomas Hockers, in that kind of effort. It has been the
    same with Authorship in prose and poetry. Is there nothing else? A
    Murder, now, would make a noise in the papers! There is the gallows
    to be sure; but without that, it would be nothing. Short of that,
    it wouldn't be fame. Well! We must all die at one time or other;
    and to die game, and have it in print, is just the thing for a man
    of spirit. They always die game at the Minor Theatres and the
    Saloons, and the people like it very much. Thurtell, too, died very
    game, and made a capital speech when he was tried. There's all
    about it in a book at the cigar-shop now. Come, Tom, get your name
    up! Let it be a dashing murder that shall keep the wood-engravers
    at it for the next two months. You are the boy to go through with
    it, and interest the town!

    The miserable wretch, inflated by this lunatic conceit, arranges his
    whole plan for publication and effect. It is quite an epitome of
    his experience of the domestic melodrama or penny novel. There is
    the Victim Friend; the mysterious letter of the injured Female to
    the Victim Friend; the romantic spot for the Death-Struggle by
    night; the unexpected appearance of Thomas Hocker to the Policeman;
    the parlour of the Public House, with Thomas Hocker reading the
    paper to a strange gentleman; the Family Apartment, with a song by
    Thomas Hocker; the Inquest Room, with Thomas Hocker boldly looking
    on; the interior of the Marylebone Theatre, with Thomas Hocker taken
    into custody; the Police Office with Thomas Hocker "affable" to the
    spectators; the interior of Newgate, with Thomas Hocker preparing
    his defence; the Court, where Thomas Hocker, with his dancing-master
    airs, is put upon his trial, and complimented by the Judge; the
    Prosecution, the Defence, the Verdict, the Black Cap, the Sentence--
    each of them a line in any Playbill, and how bold a line in Thomas
    Hocker's life!

    It is worthy of remark, that the nearer he approaches to the
    gallows--the great last scene to which the whole of these effects
    have been working up--the more the overweening conceit of the poor
    wretch shows itself; the more he feels that he is the hero of the
    hour; the more audaciously and recklessly he lies, in supporting the
    character. In public--at the condemned sermon--he deports himself
    as becomes the man whose autographs are precious, whose portraits
    are innumerable; in memory of whom, whole fences and gates have been
    borne away, in splinters, from the scene of murder. He knows that
    the eyes of Europe are upon him; but he is not proud--only graceful.
    He bows, like the first gentleman in Europe, to the turnkey who
    brings him a glass of water; and composes his clothes and hassock as
    carefully, as good Madame Blaize could do. In private--within the
    walls of the condemned cell--every word and action of his waning
    life, is a lie. His whole time is divided between telling lies and
    writing them. If he ever have another thought, it is for his
    genteel appearance on the scaffold; as when he begs the barber "not
    to cut his hair too short, or they won't know him when he comes
    out". His last proceeding but one is to write two romantic love
    letters to women who have no existence. His last proceeding of all
    (but less characteristic, though the only true one) is to swoon
    away, miserably, in the arms of the attendants, and be hanged up
    like a craven dog.

    Is not such a history, from first to last, a most revolting and
    disgraceful one; and can the student of it bring himself to believe
    that it ever could have place in any record of facts, or that the
    miserable chief-actor in it could have ever had a motive for his
    arrogant wickedness, but for the comment and the explanation which
    the Punishment of Death supplies!

    It is not a solitary case, nor is it a prodigy, but a mere specimen
    of a class. The case of Oxford, who fired at Her Majesty in the
    Park, will be found, on examination, to resemble it very nearly, in
    the essential feature. There is no proved pretence whatever for
    regarding him as mad; other than that he was like this malefactor,
    brimful of conceit, and a desire to become, even at the cost of the
    gallows (the only cost within his reach) the talk of the town. He
    had less invention than Hocker, and perhaps was not so deliberately
    bad; but his attempt was a branch of the same tree, and it has its
    root in the ground where the scaffold is erected.

    Oxford had his imitators. Let it never be forgotten in the
    consideration of this part of the subject, how they were stopped.
    So long as attempts invested them with the distinction of being in
    danger of death at the hangman's hands, so long did they spring up.
    When the penalty of death was removed, and a mean and humiliating
    punishment substituted in its place, the race was at an end, and
    ceased to be.


    We come, now, to consider the effect of Capital Punishment in the
    prevention of crime.

    Does it prevent crime in those who attend executions?

    There never is (and there never was) an execution at the Old Bailey
    in London, but the spectators include two large classes of thieves--
    one class who go there as they would go to a dog-fight, or any other
    brutal sport, for the attraction and excitement of the spectacle;
    the other who make it a dry matter of business, and mix with the
    crowd solely to pick pockets. Add to these, the dissolute, the
    drunken, the most idle, profligate, and abandoned of both sexes--
    some moody ill-conditioned minds, drawn thither by a fearful
    interest--and some impelled by curiosity; of whom the greater part
    are of an age and temperament rendering the gratification of that
    curiosity highly dangerous to themselves and to society--and the
    great elements of the concourse are stated.

    Nor is this assemblage peculiar to London. It is the same in
    country towns, allowing for the different statistics of the
    population. It is the same in America. I was present at an
    execution in Rome, for a most treacherous and wicked murder, and not
    only saw the same kind of assemblage there, but, wearing what is
    called a shooting-coat, with a great many pockets in it, felt
    innumerable hands busy in every one of them, close to the scaffold.

    I have already mentioned that out of one hundred and sixty-seven
    convicts under sentence of death, questioned at different times in
    the performance of his duty by an English clergyman, there were only
    three who had not been spectators of executions. Mr. Wakefield, in
    his Facts relating to the Punishment of Death, goes into the
    working, as it were, of this sum. His testimony is extremely
    valuable, because it is the evidence of an educated and observing
    man, who, before having personal knowledge of the subject and of
    Newgate, was quite satisfied that the Punishment of Death should
    continue, but who, when he gained that experience, exerted himself
    to the utmost for its abolition, even at the pain of constant public
    reference in his own person to his own imprisonment. "It cannot be
    egotism", he reasonably observes, "that prompts a man to speak of
    himself in connection with Newgate."

    "Whoever will undergo the pain," says Mr. Wakefield, "of witnessing
    the public destruction of a fellow-creature's life, in London, must
    be perfectly satisfied that in the great mass of spectators, the
    effect of the punishment is to excite sympathy for the criminal and
    hatred of the law. . . I am inclined to believe that the criminals
    of London, spoken of as a class and allowing for exceptions, take
    the same sort of delight in witnessing executions, as the sportsman
    and soldier find in the dangers of hunting and war. . . I am
    confident that few Old Bailey Sessions pass without the trial of a
    boy, whose first thought of crime occurred whilst he was witnessing
    an execution. . . And one grown man, of great mental powers and
    superior education, who was acquitted of a charge of forgery,
    assured me that the first idea of committing a forgery occurred to
    him at the moment when he was accidentally witnessing the execution
    of Fauntleroy. To which it may be added, that Fauntleroy is said to
    have made precisely the same declaration in reference to the origin
    of his own criminality.

    But one convict "who was within an ace of being hanged", among the
    many with whom Mr. Wakefield conversed, seems to me to have
    unconsciously put a question which the advocates of Capital
    Punishment would find it very difficult indeed to answer. "Have you
    often seen an execution?" asked Mr. Wakefield. "Yes, often." "Did
    it not frighten you?" "No. Why should it?"

    It is very easy and very natural to turn from this ruffian, shocked
    by the hardened retort; but answer his question, why should it?
    Should he be frightened by the sight of a dead man? We are born to
    die, he says, with a careless triumph. We are not born to the
    treadmill, or to servitude and slavery, or to banishment; but the
    executioner has done no more for that criminal than nature may do
    tomorrow for the judge, and will certainly do, in her own good time,
    for judge and jury, counsel and witnesses, turnkeys, hangman, and
    all. Should he be frightened by the manner of the death? It is
    horrible, truly, so horrible, that the law, afraid or ashamed of its
    own deed, hides the face of the struggling wretch it slays; but does
    this fact naturally awaken in such a man, terror--or defiance? Let
    the same man speak. "What did you think then?" asked Mr. Wakefield.
    "Think? Why, I thought it was a--shame."

    Disgust and indignation, or recklessness and indifference, or a
    morbid tendency to brood over the sight until temptation is
    engendered by it, are the inevitable consequences of the spectacle,
    according to the difference of habit and disposition in those who
    behold it. Why should it frighten or deter? We know it does not.
    We know it from the police reports, and from the testimony of those
    who have experience of prisons and prisoners, and we may know it, on
    the occasion of an execution, by the evidence of our own senses; if
    we will be at the misery of using them for such a purpose. But why
    should it? Who would send his child or his apprentice, or what
    tutor would send his scholars, or what master would send his
    servants, to be deterred from vice by the spectacle of an execution?
    If it be an example to criminals, and to criminals only, why are not
    the prisoners in Newgate brought out to see the show before the
    debtors' door? Why, while they are made parties to the condemned
    sermon, are they rigidly excluded from the improving postscript of
    the gallows? Because an execution is well known to be an utterly
    useless, barbarous, and brutalising sight, and because the sympathy
    of all beholders, who have any sympathy at all, is certain to be
    always with the criminal, and never with the law.

    I learn from the newspaper accounts of every execution, how Mr. So-
    and-so, and Mr. Somebody else, and Mr. So-forth shook hands with the
    culprit, but I never find them shaking hands with the hangman. All
    kinds of attention and consideration are lavished on the one; but
    the other is universally avoided, like a pestilence. I want to know
    why so much sympathy is expended on the man who kills another in the
    vehemence of his own bad passions, and why the man who kills him in
    the name of the law is shunned and fled from? Is it because the
    murderer is going to die? Then by no means put him to death. Is it
    because the hangman executes a law, which, when they once come near
    it face to face, all men instinctively revolt from? Then by all
    means change it. There is, there can be, no prevention in such a

    It may be urged that Public Executions are not intended for the
    benefit of those dregs of society who habitually attend them. This
    is an absurdity, to which the obvious answer is, So much the worse.
    If they be not considered with reference to that class of persons,
    comprehending a great host of criminals in various stages of
    development, they ought to be, and must be. To lose sight of that
    consideration is to be irrational, unjust, and cruel. All other
    punishments are especially devised, with a reference to the rooted
    habits, propensities, and antipathies of criminals. And shall it be
    said, out of Bedlam, that this last punishment of all is alone to be
    made an exception from the rule, even where it is shown to be a
    means of propagating vice and crime?

    But there may be people who do not attend executions, to whom the
    general fame and rumour of such scenes is an example, and a means of
    deterring from crime.

    Who are they? We have seen that around Capital Punishment there
    lingers a fascination, urging weak and bad people towards it, and
    imparting an interest to details connected with it, and with
    malefactors awaiting it or suffering it, which even good and well-
    disposed people cannot withstand. We know that last-dying speeches
    and Newgate calendars are the favourite literature of very low
    intellects. The gallows is not appealed to as an example in the
    instruction of youth (unless they are training for it); nor are
    there condensed accounts of celebrated executions for the use of
    national schools. There is a story in an old spelling-book of a
    certain Don't Care who was hanged at last, but it is not understood
    to have had any remarkable effect on crimes or executions in the
    generation to which it belonged, and with which it has passed away.
    Hogarth's idle apprentice is hanged; but the whole scene--with the
    unmistakable stout lady, drunk and pious, in the cast; the
    quarrelling, blasphemy, lewdness, and uproar; Tiddy Doll vending his
    gingerbread, and the boys picking his pocket--is a bitter satire on
    the great example; as efficient then, as now.

    Is it efficient to prevent crime? The parliamentary returns
    demonstrate that it is not. I was engaged in making some extracts
    from these documents, when I found them so well abstracted in one of
    the papers published by the committee on this subject established at
    Aylesbury last year, by the humane exertions of Lord Nugent, that I
    am glad to quote the general results from its pages:

    "In 1843 a return was laid on the table of the House of the
    commitments and executions for murder in England and Wales during
    the thirty years ending with December 1842, divided into five
    periods of six years each. It shows that in the last six years,
    from 1836 to 1842, during which there were only 50 executions, the
    commitments for murder were fewer by 61 than in the six years
    preceding with 74 executions; fewer by 63 than in the six years
    ending 1830 with 75 executions; fewer by 56 than in the six years
    ending 1824 with 94 executions; and fewer by 93 than in the six
    years ending 1818 when there was no less a number of executions than
    122. But it may be said, perhaps, that in the inference we draw
    from this return, we are substituting cause for effect, and that in
    each successive cycle, the number of murders decreased in
    consequence of the example of public executions in the cycle
    immediately preceding, and that it was for that reason there were
    fewer commitments. This might be said with some colour of truth, if
    the example had been taken from two successive cycles only. But
    when the comparative examples adduced are of no less than five
    successive cycles, and the result gradually and constantly
    progressive in the same direction, the relation of facts to each
    other is determined beyond all ground for dispute, namely, that the
    number of these crimes has diminished in consequence of the
    diminution of the number of executions. More especially when it is
    also remembered that it was immediately after the first of these
    cycles of five years, when there had been the greatest number of
    executions and the greatest number of murders, that the greatest
    number of persons were suddenly cast loose upon the country, without
    employ, by the reduction of the Army and Navy; that then came
    periods of great distress and great disturbance in the agricultural
    and manufacturing districts; and above all, that it was during the
    subsequent cycles that the most important mitigations were effected
    in the law, and that the Punishment of Death was taken away not only
    for crimes of stealth, such as cattle and horse stealing and
    forgery, of which crimes corresponding statistics show likewise a
    corresponding decrease, but for the crimes of violence too, tending
    to murder, such as are many of the incendiary offences, and such as
    are highway robbery and burglary. But another return, laid before
    the House at the same time, bears upon our argument, if possible,
    still more conclusively. In table 11 we have only the years which
    have occurred since 1810, in which all persons convicted of murder
    suffered death; and, compared with these an equal number of years in
    which the smallest proportion of persons convicted were executed.
    In the first case there were 66 persons convicted, all of whom
    underwent the penalty of death; in the second 83 were convicted, of
    whom 31 only were executed. Now see how these two very different
    methods of dealing with the crime of murder affected the commission
    of it in the years immediately following. The number of commitments
    for murder, in the four years immediately following those in which
    all persons convicted were executed, was 270.

    "In the four years immediately following those in which little more
    than one-third of the persons convicted were executed, there were
    but 222, being 48 less. If we compare the commitments in the
    following years with those in the first years, we shall find that,
    immediately after the examples of unsparing execution, the crime
    increased nearly 13 per cent., and that after commutation was the
    practice and capital punishment the exception, it decreased 17 per

    "In the same parliamentary return is an account of the commitments
    and executions in London and Middlesex, spread over a space of 32
    years, ending in 1842, divided into two cycles of 16 years each. In
    the first of these, 34 persons were convicted of murder, all of whom
    were executed. In the second, 27 were convicted, and only 17
    executed. The commitments for murder during the latter long period,
    with 17 executions, were more than one half fewer than they had been
    in the former long period with exactly double the number of
    executions. This appears to us to be as conclusive upon our
    argument as any statistical illustration can be upon any argument
    professing to place successive events in the relation of cause and
    effect to each other. How justly then is it said in that able and
    useful periodical work, now in the course of publication at Glasgow,
    under the name of the Magazine of Popular Information on Capital and
    Secondary Punishment, 'the greater the number of executions, the
    greater the number of murders; the smaller the number of executions,
    the smaller the number of murders. The lives of her Majesty's
    subjects are less safe with a hundred executions a year than with
    fifty; less safe with fifty than with twenty-five.'"

    Similar results have followed from rendering public executions more
    and more infrequent, in Tuscany, in Prussia, in France, in Belgium.
    Wherever capital punishments are diminished in their number, there,
    crimes diminish in their number too.

    But the very same advocates of the punishment of Death who contend,
    in the teeth of all facts and figures, that it does prevent crime,
    contend in the same breath against its abolition because it does
    not! "There are so many bad murders," say they, "and they follow in
    such quick succession, that the Punishment must not be repealed."
    Why, is not this a reason, among others, for repealing it? Does it
    not go to show that it is ineffective as an example; that it fails
    to prevent crime; and that it is wholly inefficient to stay that
    imitation, or contagion, call it what you please, which brings one
    murder on the heels of another?

    One forgery came crowding on another's heels in the same way, when
    the same punishment attached to that crime. Since it has been
    removed, forgeries have diminished in a most remarkable degree. Yet
    within five and thirty years, Lord Eldon, with tearful solemnity,
    imagined in the House of Lords as a possibility for their Lordships
    to shudder at, that the time might come when some visionary and
    morbid person might even propose the abolition of the punishment of
    Death for forgery. And when it was proposed, Lords Lyndhurst,
    Wynford, Tenterden, and Eldon--all Law Lords--opposed it.

    The same Lord Tenterden manfully said, on another occasion and
    another question, that he was glad the subject of the amendment of
    the laws had been taken up by Mr. Peel, "who had not been bred to
    the law; for those who were, were rendered dull, by habit, to many
    of its defects!" I would respectfully submit, in extension of this
    text, that a criminal judge is an excellent witness against the
    Punishment of Death, but a bad witness in its favour; and I will
    reserve this point for a few remarks in the next, concluding,


    The last English Judge, I believe, who gave expression to a public
    and judicial opinion in favour of the punishment of Death, is Mr.
    Justice Coleridge, who, in charging the Grand Jury at Hertford last
    year, took occasion to lament the presence of serious crimes in the
    calendar, and to say that he feared that they were referable to the
    comparative infrequency of Capital Punishment.

    It is not incompatible with the utmost deference and respect for an
    authority so eminent, to say that, in this, Mr. Justice Coleridge
    was not supported by facts, but quite the reverse. He went out of
    his way to found a general assumption on certain very limited and
    partial grounds, and even on those grounds was wrong. For among the
    few crimes which he instanced, murder stood prominently forth. Now
    persons found guilty of murder are more certainly and unsparingly
    hanged at this time, as the Parliamentary Returns demonstrate, than
    such criminals ever were. So how can the decline of public
    executions affect that class of crimes? As to persons committing
    murder, and yet not found guilty of it by juries, they escape solely
    because there are many public executions--not because there are none
    or few.

    But when I submit that a criminal judge is an excellent witness
    against Capital Punishment, but a bad witness in its favour, I do so
    on more broad and general grounds than apply to this error in fact
    and deduction (so I presume to consider it) on the part of the
    distinguished judge in question. And they are grounds which do not
    apply offensively to judges, as a class; than whom there are no
    authorities in England so deserving of general respect and
    confidence, or so possessed of it; but which apply alike to all men
    in their several degrees and pursuits.

    It is certain that men contract a general liking for those things
    which they have studied at great cost of time and intellect, and
    their proficiency in which has led to their becoming distinguished
    and successful. It is certain that out of this feeling arises, not
    only that passive blindness to their defects of which the example
    given by my Lord Tenterden was quoted in the last letter, but an
    active disposition to advocate and defend them. If it were
    otherwise; if it were not for this spirit of interest and
    partisanship; no single pursuit could have that attraction for its
    votaries which most pursuits in course of time establish. Thus
    legal authorities are usually jealous of innovations on legal
    principles. Thus it is described of the lawyer in the Introductory
    Discourse to the Description of Utopia, that he said of a proposal
    against Capital Punishment, "'this could never be so established in
    England but that it must needs bring the weal-public into great
    jeopardy and hazard', and as he was thus saying, he shaked his head,
    and made a wry mouth, and so he held his peace". Thus the Recorder
    of London, in 1811, objected to "the capital part being taken off"
    from the offence of picking pockets. Thus the Lord Chancellor, in
    1813, objected to the removal of the penalty of death from the
    offence of stealing to the amount of five shillings from a shop.
    Thus, Lord Ellenborough, in 1820, anticipated the worst effects from
    there being no punishment of death for stealing five shillings worth
    of wet linen from a bleaching ground. Thus the Solicitor General,
    in 1830, advocated the punishment of death for forgery, and "the
    satisfaction of thinking" in the teeth of mountains of evidence from
    bankers and other injured parties (one thousand bankers alone!)
    "that he was deterring persons from the commission of crime, by the
    severity of the law". Thus, Mr. Justice Coleridge delivered his
    charge at Hertford in 1845. Thus there were in the criminal code of
    England, in 1790, one hundred and sixty crimes punishable with
    death. Thus the lawyer has said, again and again, in his
    generation, that any change in such a state of things "must needs
    bring the weal-public into jeopardy and hazard". And thus he has,
    all through the dismal history, "shaked his head, and made a wry
    mouth, and held his peace". Except--a glorious exception!--when
    such lawyers as Bacon, More, Blackstone, Romilly, and--let us ever
    gratefully remember--in later times Mr. Basil Montagu, have striven,
    each in his day, within the utmost limits of the endurance of the
    mistaken feeling of the people or the legislature of the time, to
    champion and maintain the truth.

    There is another and a stronger reason still, why a criminal judge
    is a bad witness in favour of the punishment of Death. He is a
    chief actor in the terrible drama of a trial, where the life or
    death of a fellow creature is at issue. No one who has seen such a
    trial can fail to know, or can ever forget, its intense interest. I
    care not how painful this interest is to the good, wise judge upon
    the bench. I admit its painful nature, and the judge's goodness and
    wisdom to the fullest extent--but I submit that his prominent share
    in the excitement of such a trial, and the dread mystery involved,
    has a tendency to bewilder and confuse the judge upon the general
    subject of that penalty. I know the solemn pause before the
    verdict, the bush and stifling of the fever in the court, the
    solitary figure brought back to the bar, and standing there,
    observed of all the outstretched heads and gleaming eyes, to be next
    minute stricken dead as one may say, among them. I know the thrill
    that goes round when the black cap is put on, and how there will be
    shrieks among the women, and a taking out of some one in a swoon;
    and, when the judge's faltering voice delivers sentence, how awfully
    the prisoner and he confront each other; two mere men, destined one
    day, however far removed from one another at this time, to stand
    alike as suppliants at the bar of God. I know all this, I can
    imagine what the office of the judge costs in this execution of it;
    but I say that in these strong sensations he is lost, and is unable
    to abstract the penalty as a preventive or example, from an
    experience of it, and from associations surrounding it, which are
    and can be, only his, and his alone.

    Not to contend that there is no amount of wig or ermine that can
    change the nature of the man inside; not to say that the nature of a
    judge may be, like the dyer's hand, subdued to what it works in, and
    may become too used to this punishment of death to consider it quite
    dispassionately; not to say that it may possibly be inconsistent to
    have, deciding as calm authorities in favour of death, judges who
    have been constantly sentencing to death;--I contend that for the
    reasons I have stated alone, a judge, and especially a criminal
    judge, is a bad witness for the punishment but an excellent witness
    against it, inasmuch as in the latter case his conviction of its
    inutility has been so strong and paramount as utterly to beat down
    and conquer these adverse incidents. I have no scruple in stating
    this position, because, for anything I know, the majority of
    excellent judges now on the bench may have overcome them, and may be
    opposed to the punishment of Death under any circumstances.

    I mentioned that I would devote a portion of this letter to a few
    prominent illustrations of each head of objection to the punishment
    of Death. Those on record are so very numerous that selection is
    extremely difficult; but in reference to the possibility of mistake,
    and the impossibility of reparation, one case is as good (I should
    rather say as bad) as a hundred; and if there were none but Eliza
    Fenning's, that would be sufficient. Nay, if there were none at
    all, it would be enough to sustain this objection, that men of
    finite and limited judgment do inflict, on testimony which admits of
    doubt, an infinite and irreparable punishment. But there are on
    record numerous instances of mistake; many of them very generally
    known and immediately recognisable in the following summary, which I
    copy from the New York Report already referred to.

    "There have been cases in which groans have been heard in the
    apartment of the crime, which have attracted the steps of those on
    whose testimony the case has turned--when, on proceeding to the
    spot, they have found a man bending over the murdered body, a
    lantern in the left hand, and the knife yet dripping with the warm
    current in the blood-stained right, with horror-stricken
    countenance, and lips which, in the presence of the dead, seem to
    refuse to deny the crime in the very act of which he is thus
    surprised--and yet the man has been, many years after, when his
    memory alone could be benefited by the discovery, ascertained not to
    have been the real murderer! There have been cases in which, in a
    house in which were two persons alone, a murder has been committed
    on one of them--when many additional circumstances have fastened the
    imputation upon the other--and when, all apparent modes of access
    from without, being closed inward, the demonstration has seemed
    complete of the guilt for which that other has suffered the doom of
    the law--yet suffered innocently! There have been cases in which a
    father has been found murdered in an outhouse, the only person at
    home being a son, sworn by a sister to have been dissolute and
    undutiful, and anxious for the death of the father, and succession
    to the family property--when the track of his shoes in the snow is
    found from the house to the spot of the murder, and the hammer with
    which it was committed (known as his own), found, on a search, in
    the corner of one of his private drawers, with the bloody evidence
    of the deed only imperfectly effaced from it--and yet the son has
    been innocent!--the sister, years after, on her death-bed,
    confessing herself the fratricide as well as the parricide. There
    have been cases in which men have been hung on the most positive
    testimony to identity (aided by many suspicious circumstances), by
    persons familiar with their appearance, which have afterwards proved
    grievous mistakes, growing out of remarkable personal resemblance.
    There have been cases in which two men have been seen fighting in a
    field--an old enmity existing between them--the one found dead,
    killed by a stab from a pitchfork known as belonging to the other,
    and which that other had been carrying, the pitch-fork lying by the
    side of the murdered man--and yet its owner has been afterwards
    found not to have been the author of the murder of which it had been
    the instrument, the true murderer sitting on the jury that tried
    him. There have been cases in which an innkeeper has been charged
    by one of his servants with the murder of a traveller, the servant
    deposing to having seen his master on the stranger's bed, strangling
    him, and afterwards rifling his pockets--another servant deposing
    that she saw him come down at that time at a very early hour in the
    morning, steal into the garden, take gold from his pocket, and
    carefully wrapping it up bury it in a designated spot--on the search
    of which the ground is found loose and freshly dug, and a sum of
    thirty pounds in gold found buried according to the description--the
    master, who confessed the burying of the money, with many evidences
    of guilt in his hesitation and confusion, has been hung of course,
    and proved innocent only too late. There have been cases in which a
    traveller has been robbed on the highway of twenty guineas, which he
    had taken the precaution to mark--one of these is found to have been
    paid away or changed by one of the servants of the inn which the
    traveller reaches the same evening--the servant is about the height
    of the robber, who had been cloaked and disguised--his master
    deposes to his having been recently unaccountably extravagant and
    flush of gold--and on his trunk being searched the other nineteen
    marked guineas and the traveller's purse are found there, the
    servant being asleep at the time, half-drunk--he is of course
    convicted and hung, for the crime of which his master was the
    author! There have been cases in which a father and daughter have
    been overheard in violent dispute--the words "barbarity", "cruelly",
    and "death", being heard frequently to proceed from the latter--the
    former goes out locking the door behind him--groans are overheard,
    and the words, "cruel father, thou art the cause of my death!"--on
    the room being opened she is found on the point of death from a
    wound in her side, and near her the knife with which it had been
    inflicted--and on being questioned as to her owing her death to her
    father, her last motion before expiring is an expression of assent--
    the father, on returning to the room, exhibits the usual evidences
    of guilt--he, too, is of course hung--and it is not till nearly a
    year afterwards that, on the discovery of conclusive evidence that
    it was a suicide, the vain reparation is made, to his memory by the
    public authorities, of--waving a pair of colours over his grave in
    token of the recognition of his innocence."

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

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

    "in blood stept in so far",

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

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

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

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

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

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

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

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