THE

ECLECTIC REVIEW

FOR AUGUST, 1848.

ART. I.—1. Report of the New York Committee for the Abolition of Capital Punishment. 1847.

2. Returns on the Subject of Capital Punishment recently laid before the British Parliament by order of the House of Commons.

3. Capital Punishment. By Frederic Rowton, Secretary to the London Society for the Abolition of the Punishment of Death. Howitt's Journal,' Vol. I. & II.

4. Death by the Law. The Topic.'

1847.

1846.

5. The Magazine of Information on Capital Punishment. Glasgow.

1845-6.

THE remarks which we made on capital punishments in our April number, were directed entirely to the moral and religious bearings of the matter. It was our aim to show that the question of civil crime and penalty is purely one of expediency: that, subject only to the moral duty of man towards man, the institution of the gallows must be tried solely by considerations of human policy. We argued that the test of eternal morality is beyond man's power to apply; and that, for the same reason, theology must be excluded from the civil judgment-seat. The Supreme Being, we maintained, will punish crime as crime; and the province of the civil governor is, simply to treat the malefactor with reference to the welfare of the state. This conclusion established, it will follow that any argument respecting the essential turpitude of a given offence, or any application of

theological doctrine to the subject, will be extraneous to the point at issue, and must be altogether dismissed from the discussion. Morality is a balance held by the Almighty hand; and man has neither strength nor authority to determine by it. Religion is a matter between man and his Maker, and can never become a rule of judgment between man and man.

Our theory that expediency should be the sole rule of human punishment is not a new one. Seneca affirmed it when he said, 'The wise man punishes, not because an offence has been committed, but that offences may cease.' Paley tells us that, 'the proper end of punishment is not the satisfaction of justice, but the prevention of crime.' Blackstone and Bentham urge the same doctrine, in nearly similar terms. We, ourselves, have heard the present Secretary of State for the Home Department publicly contend for the same conclusion. And the Criminal Law Commissioners, in their Eighth Report, dated 1846, make the following remarkable admission:-'We apprehend that the right, even of the legislature, to inflict capital punishment, rests on grounds of strict and cogent necessity and that to go beyond that limit involves a transgression in foro cæli, which is criminal in the legislator himself.' Now these observations can have but one meaning, namely, that if a state is as secure without the infliction of death, as with it, the penalty is altogether unjustifiable.

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We are perfectly free, then, to try the question of capital punishment by the simple and easy test of its political necessity; and that test we now proceed to apply.

We start by remarking that the political necessity of death punishment has never yet been proved: it has always been taken for granted. We mean, that it has never hitherto been shown, that a smaller penalty than the gallows would not answer equally well in repressing the crime of murder; that, in a word, the ruler has been driven to adopt capital punishments, because secondary inflictions have failed to attain the object in

view.

Now, we submit that the supporters of the gallows are positively bound to demonstrate this necessity, before they can claim our concurrence in their views. Unless they can show that there is an absolute need for the extermination of murderers, that no penalty short of extermination will as effectually repress the crime of murder, we are fairly entitled to deny the existence of a 'necessity' at all, to refuse the ruler the awful prerogative he claims, and further, to charge the civil governor with the wilful cruelty of adopting a punishment which the safety of the state has not been proved to require.

It is important to establish thus early in the argument, the

undeniable and almost self-evident doctrine, that the exercise of punitive power should always be kept at its minimum. With Jeremy Bentham we hold that economy is an essential ingredient in punishment. We believe, not only that the ruler has no right to employ more punishment than will effect his purpose, but that it is in the highest degree impolitic and unwise for him to do so. 'Punishment,' says one of the writers under review, 'is always an evil, it is the infliction of evil; and, therefore, the less it is inflicted, consistently with the safety of society, the better.' Beyond the preventing point, all punishment has a hardening and depraving tendency: for then it is felt to be, not reformatory chastiscment, but revengeful infliction; and at arbitrary punishment, the mind of man instinctively revolts. Here, again, Bentham strongly confirms our views. All inflicted evil,' he writes, which does not dispose the delinquent (and by his example, other men,) to obey the laws, is not punishment, but an act of hostility. Severity of punishment is like excess of medicine; it only aggravates the distemper. It is the unskilful quack, not the wise physician, that commences by employing the most powerful drugs; and it is the ignorant ruler, not the thoughtful statesman, that inflicts at first the highest penalty in his power. 'Death,' remarks one of the writers before us, is the extreme of punishment; but is it wise to carry anything to extremes?" There is great force in that simple inquiry.

It being agreed on all sides, then, that the infliction of death 'can only be justified on grounds of strict and cogent necessity,' we now naturally come to ask for evidence that this necessity exists. We require proof, and proof of the most positive and unquestionable kind, that the minimum of punishment has been tried in respect of murder, and that it has been, step by step, advanced to the maximum, because only the maximum has been found capable of repressing the crime. But we ask in vain. To the shame of our country be it said, that we have tried no means whatever but the most extreme, and yet have the temerity to assert, that capital punishment is necessary to prevent the commission of the offence! The writer in the Magazine of Capital Punishment,' may well, therefore, ask' How do our legislators know that transportation, or perpetual imprisonment, or condemnation to labour for life in the galleys, or some other species of punishment, would not be equally, or even more, effectual than the gallows in preventing murder?' They, at least, are bound to make the experiment, before they hazard the assertion. And until they do so, we charge them with wilful and deliberate cruelty, in pleading a necessity which they have never proved;

we charge them with barbarously perilling immortal souls, for the purpose of carrying out a blind belief which they have accepted, without inquiry, from the unclean hands of Tradition; and with a daring usurpation of the Creator's sole prerogative, assumed without authority, and exercised without compassion.

It is astonishing that, with the history of the world before us, we should not always regard this word 'necessary' with suspicion. When we come to reflect upon the enormities which man has committed under the plea of necessity, we may well shudder:

'When we think,' says a writer in Howitt's Journal,' ' of the iniquities and follies which have been perpetrated in various ages, under a mistaken idea of their necessity, we must surely pause before we admit the plea. It was thought necessary, in Queen Elizabeth's time, to hang those who converted protestants to popery. In the seventeenth century, it was thought necessary to inflict death on persons found guilty of witchcraft; and between the years 1600 and 1700, nearly sixty thousand individuals were executed for this offence! It was thought necessary, in Henry the Eighth's time, to put all robbers to death; and seventy-two thousand thieves were hanged in that honest monarch's reign; the crime steadily increasing all the while! In the jubilee reign of George the Third, it was thought necessary to hang for no fewer than two hundred different offences, among which were sheep-stealing, consorting with Gipsies, sacrilege, forgery, coining, horse-stealing, breaking down the head of a fishpond, enlisting an English subject in a foreign army, horsepoisoning, letter-stealing, forging the government certificate for wearing hair-powder, returning from transportation, and other crimes, even less heinous for all of which the capital penalty has since been deemed unnecessary. Whilst the unlucky records of these facts exist, men must mind how they plead 'necessity.' The awful and ridiculous mistakes which have been made, under the delusion that the perpetration of them was necessary, will ever be a fatal bar to the success of the plea. Necessity is, indeed, no word for man to use at all. He is the subject of necessity, not its arbiter.'

But we mean to go far beyond this. We are not disposed to be satisfied with negative conclusions. We would not only nonsuit our opponents, on the ground of an unsubstantiated plea, but we challenge them to produce the best evidence they can, and will convict them even upon that. We are prepared to show, that not only is there no proof of the efficacy of death-punishments, but that there is positive proof of their inefficacy. We are ready to demonstrate-and we are willing to rest our case on this assertion-that where capital punishment has most prevailed, the crimes for which it has been enforced have most abounded; that where capital punishment has

least prevailed, capital crime has been rarest; and that, just as capital punishments have been discontinued, sanguinary vices have ceased. This statement we now mean to prove; and we beg the serious attention of our readers while we do so. We shall select our illustrations from many ages and countries; simply premising that the Jewish code must be omitted from the argument, inasmuch as it was a special and peculiar system, intended to be an exception to the general legislation of the world.

We refer, then, first to ancient times. In Egypt, under Sabaco, for a period of fifty years, as we are informed by Herodotus and Diodorus Siculus, no capital punishments were inflicted, those penalties being changed, with much success, into stated kinds of labour; which examples Grotius recommends to other nations.'* Throughout all the better age of the Roman Republic, for a period of two centuries and a half, the infliction of death upon a Roman citizen, for any cause whatever, was expressly forbidden by the famous Porcian law, a democratic enactment passed in the 454th year of Rome, by the Tribune Porcius Lecca. So high was the valuation set upon the life of a citizen, by the Roman policy, that to put him to death was esteemed almost a parricide. With respect to the operation of the Porcian law, Montesquieu says:-The penal laws of the kings, and those of the Twelve Tables, were nearly abolished during the Republic: and the Republic was not the worse regulated.' And Blackstone says:- In this period the Republic flourished under the emperors severe punishments were revived, and then the empire fell!' Amongst the ancient writers who advocate the total abolition of the penalty of death, are Juvenal, Horace, Livy, Cassius the Tribune, Caius Cæsar, Cyrus, Scipio, Tacitus, and many others. Seneca, speaking of the infliction of death for murder, tells us that 'the worst kinds of murder began with the laws thus made against them, when the punishment bore resemblance to the crime.' (De Clementiâ, I. 1. c. xxiii.) And Cicero, in his oration for C. Rabirio, finely says:— 'Away with the executioner, with the capital execution, with the very name of things like these! Let them not only not be inflicted on the bodies of our Roman citizens, but not even on their thoughts, their sight, their hearing. For of all such things, not only the acting or enduring, but the institution, the contemplation, nay the mention itself, is unworthy of a Roman citizen, and a free man.' Gibbon, in his Decline and Fall of the Roman Empire,' (vol. ix. pp. 86, 87.) speaking of the clemency of the Emperor John of Rome, who remitted several

*Report of New York Committee on Capital Punishments, p. 39. 1847. † O'Sullivan's Report to the Legislature of New York, 1842,