A CORRESPONDENT, who writes in an argumentative spirit well calculated to advance opinion, takes exception to a view recently promulgated in our pages. TO THE EDITOR OF THE SPECTATOR.
Glasgow, 20t4 July 1846.
Sin—This is not the first time I have taken the liberty of addressing you on a subject of importance, which, never altogether overlooked for some years past, seems now about to command more than ordinary attention. I have still the misfortune to differ from you and many other enlightened advocates of the aboli- tion of capital punishment: the view taken of the subject being narrowed to the question of expediency or non-expediency, to which I presume you also confine yourself; that is to say, while the abstract right of the state over the life of the subject is not denied—Does the punishment of death operate as a preventive of crime, or does it not? My attention has been recalled to the present question by certain remarks in the Spectator of the llth instant, in which the criminal Tawell is referred to as having effectually dared the terrible penalty of the law; being impelled by his murderous purpose, and relying on such precautions as his skill and opportunities afforded him. Now, Sir, if an argument is to be founded upon the fact of the mere continuance of crime, such an argument, if it proves anything at all, proves too much. It applies, not to capital punishment alone, but to every kind of secondary punishment whatever; and, if legitimate, would alike prove their in- ecacy, and, of course, their inexpediency. This consequence see= to be over, looked in the case of lesser punishments fir an obvious reason; but the principle is of general application. It should be punishments, in mind, however, that the obj%t of penal infliction is to repress the outbreaks of evil passions and propensities; while the discontinuance of crime must depend on the eradication of the evil propensi- ties themselves: but this must, and ever will be, the office of a higher and holier ministry than that of the judge and the executioner. To revert to the case of Tawell: it is not denied that the dread of punishment entered as an element into his calculations. But it being essential that Mrs. Hart should be disposed of, the criminal placed such reliance on his plans and precautions, as to gain the ascendancy over his fears; hence the inference of the inefficacy of death punishment to deter from the commission of crime. I venture to think, however, that the matter will bear to be looked at a little more closely. Here' then, we have a remorseless individual,—unmoved by any consideration save that of the hope of impunity,—yet urged by his fears, to use all the expe- clients which his knowledge of drags, his habitual caution, and his means and op- portunities afforded him. True, his resolution overcame his fears,—but it was not without a struggle; and it is certainly worth while to inquire whether, sup- posing capital punishments to cease' we might not anticipate an increase of crime to be committed by persons animated by malignant passions, but restrained by stronger fears and possessing fewer resources than Tawell? It is as clear that, relying on hopes and contingencies, the criminal proptnsities will rise superior to the dread of whatever penalties the law may threaten, 26 it is that, for the sake of society, crime must not be allowed to pass with impunity. And in the melancholy necessity that exists for punishment, even death must be inflicted, if, upon the whole, it be considered most efficacious in repressing crime. The subject is, however, a most painful one, and beset with difficulty. For while there are gradations of crime, there must of necessity be gradations of punishment. But for atrocious crimes what punishment would you award? You could not shut up the criminal as you would a tiger,—thrusting his scanty subsistence through the iron-grating of his cell, pointing him out as an object of scorn and execration, leaving him a prey to his gloomy thoughts, and to this living death, for, it might be, a period of half a century. Neither would it do to introduce him to an easy and unfettered captivity—to supply all his desires, to sooth and caress him, and to habituate him to a condition that many a poor debtor might envy. It may indeed be said, that there are other modes of pumsh- ment not liable to such objections: but these are all already preoccupied; and if they are found insufficient to repress lesser offences, how could they be expected to put down the greater?
I remain, Sir, respectfully, Disommus.
We admit the force of this exception so far as it applies to our tegument. In the effort to be brief, the argument was left in- complete ; wanting a consideration which we will now supply.
It may be premised, however, that the question above is stated too narrowly: it is not "does death operate as a preventive of crime, or does it not "; but "does death operate as the best and properest preventive of crime in those cases to which it is applied?' If atten- tion be paid to the calculations of crude, reckless minds, whe- ther young or old, it will be observed that they make small account of any contingency which is short in its duration—they are al- ways comparatively ready to "run the risk." The willingness is much quickened by a sense that the chances of escape preponder- ate. Now hanging is short, single, inflicted once for all. The Chances of escaping it altogether are forcibly exhibited in the fact that the punishment is exceedingly rare of occurrence in propor- - to the crimes that legally merit it. There are other reasons abstaining from its infliction besides the mere applicability of the punishment,--eapecially that irrevocableness which gives
such fearful influence to any doubt of guilt however small: those reasons operate so often as to make death the exception; and thus they deprive punishment of its greatest hold on the guilty mind—certainty.
The question of punishment is a question of human motives : inquiry is seldom carried so deeply as to penetrate that portion of the subject, though it cannot be well settled without. It is a pre- sumption, and a very gross one, that punishment can only act through the bad passions, or that it acts best through the passion of mortal fear. There is no occasion either to assume that the only alternative of death is the "living death" indicated by " Discipulus." The question is, what kind of deterrent would on the whole—that is, considering the nature of the minds to be impressed and the machinery for putting it into operation—act with the most beneficial influence. Now we conceive that such a deterrent should fulfil the following conditions—and we would. urge honest thinkers like Discipulus to ponder them well. 1. It. should not be too cruel for infliction on all occasions. 2. It should accommodate itself to circumstances ; compelling on the criminal all that must be forced upon him for the good 'of society, conceding to him all that humanity would allow to his miserable case. 3. It should impress the public mind with a feeling that it is inevitable—that the criminal cannot evade it—that he cannot, after capture, get away unaltered. The last condition would be much facilitated by attention to the first. All together iniply a departure from our present system of fixed punishments. The condemnation of the criminal would consist of two parts,—a sen- tence consigning him to prison discipline ; a discipline regulated according to his state of mind and his conduct. The discipline should be capable of being rendered more or less severe, after he
is submitted to its operation : the screw should be capable of, loosening or of tightening to any desirable degree ; playing,
strictly in accordance with his demeanour. It will be remembered' that the person so treated is a convict who would under the ei-; isting code be condemned to death. The object is, not through threat of death, through provoking of scorn, or through inffiating a fixed amount of vindictive pain. to evoke vindictive feelings ; but to produce the feeling that the law is inevitable in its grasp, hopelessly irresistible in its compulsion. These principles of a complete correctional law differ from the principles of the present law ; but the question must not be begged; that what is IS right.