is the penal safeguard of society; and we must be cautious that we do not so far diminish its terrors, that it should cease to hold out any threat to a needy malefactor. But before we allude to the discipline of the prison, we must take a glance at this great exception of death, which it is the object of many of our zealous reformers entirely to erase from the penal code.
That this extreme punishment should be reserved for the extreme crime of murder, seems generally admitted; and the practice, if not the letter, of our law has conformed to this opinion. It would be useless, therefore, to argue on the propriety of inflicting this penalty on other and less enormous offences. The question is narrowed to this—shall death continue to be the punishment of the murderer?
Those who contend for the entire abolition of this punishment, are in the habit of enlarging much on the inadequate effect produced upon the multitude who witness the spectacle of an execution. This is their favourite and most frequent theme. They seem to overlook the much more powerful effect produced on the imagination of that far greater multitude who never behold, or are likely to behold, an execution. It is curious to observe how pertinaciously a certain class of reasoners will dwell on the picture which a crowd presents at a public execution;—much like a crowd, we may be sure, at any other public spectacle. Whatever the object which gathers together a mob of the lowest class, they will soon begin to relieve the tedium of expectation by coarse jests, drunkenness, and brawling. Yet these descriptive logicians are never weary of painting to us the grotesque and disgusting scenes which the mass of spectators exhibit on these occasions, as if this were quite decisive of the question. That ragged children, who have never thought of death at all, play their usual pranks at the foot of the gallows—that pickpockets ply their trade in this as in every other gaping crowd—what has all this to do with the impression produced on the mind of every man and woman throughout the kingdom, by the knowledge that if he, through sudden passion, or the instigations of cupidity, take the life of a fellow-creature, he shall be—not a spectator at such an exhibition—but that solitary crawling wretch who, after having spent his days and nights in agony and fear, is thrust forward, bound and pinioned, to be hanged up there like a dog before the scoffing or yelling multitude?
We willingly concede that a public execution is not an edifying spectacle. The coarse minds who can endure, and who court it, are the last to whom such a spectacle should be presented. And, although the punishment might lose some portion of its terrors, we should prefer that the execution should take place in a more private manner; in the court-yard, for instance, of the prison, and before a selected number of witnesses, partly consisting of official persons, as the sheriffs and magistrates, and partly of a certain number of persons who might be taken from the several jury lists—the option being given to them either to accept or decline this melancholy office. This would be a sufficient publicity to ensure an impartial administration of the laws. The only doubt that remains is, whether it would be sufficient to prevent the spread of false rumours, and absurd suspicions, amongst the people. It is a prevailing tendency with the mob, whenever any one at all above their own condition is executed, to believe that he has been favoured and allowed to escape. Even in the face of the most public execution, such rumours are circulated. We understand that Mr Tawell is confidently reported to be living at this moment in America. Such suspicions, however ridiculous and absurd, must be cautiously guarded against.
After all, the mode of execution is but of secondary importance; arrange it how you will, it is a lamentable business. Like all other punishments, and still more than all other punishments, the actual infliction of it is an evil to society. When the law passes from the threat to the execution, it is a social disaster. The main point is, that we present to the imagination of every man a great threat—that of almost immediate extermination—if he lift his hand against his neighbour's life.
That which renders the punishment of death peculiarly appropriate, in our estimation, in the crime of murder, is not by any means its retaliative character; the sentiment, that "blood must have blood," is one which we have no desire to foster; and if some less grievous penalty would have the same effect in deterring from the crime, we should, of course, willingly adopt it. Our ground of approval is this, that it presents to the mind an antagonist idea most fit to encounter the temptation to the crime. As this temptation must generally be great, and often sudden, that antagonist idea should be something capable of seizing upon the apprehension at once—of exercising at once all its restraining efficacy. Imprisonment for length of years—the mind must calculate and sum up the long list of pains and penalties included in this threat, before its full import is perceived. But death! And then the after-death! For what makes the punishment of death so singularly applicable to the case of murder is this, that it awakens whatever may exist of religious terror in the mind of him who contemplates the crime. On the one hand, he is about to commit a deed on which there are not two opinions; it is not a crime made such by the laws; it is not even a robbery, for which he may frame excuses out of his destitution, and the harsh distinctions of society; it is murder, which heaven and earth, rich and poor, equally denounce. On the other hand, his guilt will bring him almost immediately before the tribunal of God, as well as the judgment-seat of man. No long interval weakens the impression, no long space holds out the vague prospect of repentance and amendment, and compensatory acts of goodness; but if he will lift the knife, if he will mingle the poison, there is the earthly executioner at hand to transfer him to the still more dreadful sentence of the after-world! The same opinion which condemns the crime of murder here on earth, as the most atrocious that can be committed, follows him to that other tribunal; and all that his imagination has been accustomed to depict of the horrors of internal and eternal punishment, rushes at once upon him.
When the temptation comes in the shape of sudden anger and impetuous passion, there is a threat as sudden to encounter it. When the crime is revolved in the secret and guilty recesses of the mind—as when some individual stands between the tempted man and the possession of a fortune, or some other great object of desire—there is religious terror as stealthy, as secret, as unconquerable, as the strongest desire that takes possession of the human heart, to assist always at his deliberations.
M. Zschokke's little treatise, to which we have alluded, contains the usual, together with some unusual, arguments against the punishment of death, and contributes also a novel substitute for it. He begins, in true German manner, by explaining (inter alia) the difference between reason and understanding; the exact distinction between man and the rest of the animal creation; and some other metaphysical generalities, which, fortunately, are not concerned with the business in hand. For, as no two writers agree in their explanations, and as none succeeds in perfectly satisfying either his reader or himself, it would be impossible, if such preliminaries were first to be adjusted, ever to arrive at the discussion itself. The work is written in letters, addressed to a young prince; and, at the thirteenth letter—there are but sixteen in the whole—he approaches his main question—"Nun denn es sei zur sache!" "Now then to the matter." And first he protests that death is no punishment at all. The venerable historian absolutely flies to such aphorisms as were the delight of Seneca, to prove that death is no evil, and can consequently be no punishment; although there are some who, under the dominion of mere instinct, may deem it such. "The death," he writes, "of the criminal is no punishment; but for him, as for every other mortal, only the end of earthly troubles, cares, and sufferings. In vain," he continues, "does the multitude of suicides show us daily that death is no evil, and therefore no punishment; for the men who thus abridge their days manifestly prefer death to the endurance of the evils of life."
It has been said, that "he who can look at death starts at no shadows." And certainly, reason on the matter how you will, and prove life to be as worthless as you please, if a man can defy death, and solicit it, there is no other punishment that can be effective. It would be all but impossible to prevent a criminal, if so resolved, from laying violent hands upon himself; and altogether impossible to prevent him from contemplating suicide as his last resort in case of detection, and so nullifying the threat of any other punishment. There is no hold whatever on the man in whom the love of life, or the fear of death, is really extinct. But we are far from thinking that Seneca and the Stoics have yet made so deep an impression on mankind that there is a very general indifference to death, especially to a death inflicted by others—the
