7 SEPTEMBER 1861, Page 17

CAPITAL PUNISHMENT.

THE Attorney-General of Ireland, in his very able address at the recent meeting of the Social Science Association, raised a very old question, which, however, is ever new, and is daily gaining new interest and a very painful significance. What is the proper aim of punishment? Is it purely preventive and reformatory, or is there any further end involved which we may call retributory ? Can we justify the punishment of death by any consideration except that of social self-defence? As day after day brings us new tidings of murder— often of murder of the most heinous kind, for a patricide and a matricide have both been committed within the last few weeks, and every week adds some fresh story of horror to the terrible tale—we cannot help reviewing the remedies and asking ourselves afresh, with Mr. Deasy in his eloquent address, whether the exigencies of the State require or justify a punishment which seems to answer its deterrent purposes at present so inadequately?

"Whether the exigencies of State do require it," said Mr. Deasy, "is indeed a momentous subject of inquiry; whether consistently with their requisitions, which are plainly paramount, consideration may not be fairly given to the importance of avoiding, if possible, an act which is irrevocable and may be erroneous—which has sometimes stricken down the innocent designing to reach the guilty—which involves the earthly annihilation of a creature bearing the image of God, however distorted by passion and deformed by sin, deprives him of all opportunity of com- pensation to those who have suffered through his crime, and shortens the period of his preparation to meet his Eternal Judge. Thoughts like these have passed through many minds, and will arise in many more. They are not without en- couragement from the course and the results of modern penal legislation, or with- out countenance from striking passages in the history of other lands. But, be the solution of this great problem what it may, we have gathered from the ex- perience of the past some truths as to the theory of punishment, which have re- ceived very general acceptance ; and amongst them, I think, are these: That, for all practical purposes, human law should deal with crime not to avenge, but to prevent, and to reform:—that merely vindictive and repressive action defeats its own purpose, and increases the mischief it would do away with :—that severity, disproportioned to the character of offences, and pressed beyond the point at which it may suffice to check by example, and restrain from repetition, is at once unnecessary and injurious :—that the justice of human punishment is bounded by its necessity ; and while the wise legislator should labour to make it fall with certainty on guilt, and carry it out with unflinching firmness, he should reconcile, so far as may be permitted, the claims of the community to complete protection against crime, with the reformation of the convict, and make that re- formation, where he can, the aid and the instrument for securing that pro- tection."

It is easy from this passage to see in what directions Mr. Deasy's own sympathies tend. Nor can we wonder, when we see how prac- tically ineffectual the physical terror of death still proves to deter men from the most brutal of crimes, that all the considerations against it should occur with tenfold force to the benevolent minds which shrink from the responsibility it implies. We confess, however, that the more we have thought about the subject, the more anxiously we have weighed it in that strictly practical light which Mr. Deasy claims for it, the less able are we to arrive at his conclusions, and for this we will state our reasons as succinctly as possible.

In the first place, we do not think that practical experience will bear out Mr. Deasy in saying that "the justice of human punishment is bounded by its necessity ;" we believe it would be much truer to say that "the necessity of human punishment is bounded by its justice." Of course we admit with him—nay, are eager to main- tain—that over-severity has always failed, and deserved to fail,— has defeated its own end. But why has it failed ? Simply because it was felt as over-severity, because juries could not be found to convict, because the administration was naturally inclined to remit punishments when the penalty seemed disproportioned to the crime. But where arose this sense of disproportion? Why was a man thought to be punished disproportionately who was hanged for shoplifting? Certainly not from any intuitive apprehension in the mind of the jury of the kind or degree of punishment which was best calculated to deter from crime. The punishment best calculated to deter would be, certainly, if it could be only inflicted, the most terrible penalty conceivable. Many a man who might be willing to risk a short imprisonment would not be willing to risk a long; many a man who might be willing to risk drowning would not be willing to risk hanging ; many a man who might be willing to risk hanging would not risk torture first and hanging afterwards, and so on. So far as mere deterring influence goes, the most terrible certain penalty is the most deterring; and the reluctance of men to inflict a "disproportionate" punishment cannot, therefore, mean a punishment disproportionate to the deterringeffect, but must mean disproportionate to something else. Now, does any one really doubt what it actually means P A jury hesitates to be the means of inflicting any punish- ment that seems to them, according to their rough way of thinking, disproportionate to the guilt of the offender. They think hanging,

or even life imprisonment, quite disproportionate to the guilt of ordinary thieving, and therefore they will not convict when such punishments are the result of conviction. But this shows that some- thing hovers in their mind quite apart from the reforming or deterring effect ofpunishment—namely, seine rough notion of its justice, as deeper and more fundamental than its deterring power. No punish- ment could be too deterrent, if it could be only certain. Jeremy Bentham's plan of loading with the heaviest penalty the lightest offences, expressly on the ground that, as there was much more dif- fused temptation to commit a small crime than a heavy one, it was necessary to balance that temptation with a heavier counterweight, only failed because it offended the moral instincts of men. People felt that the most guilty men deserved the most punishment, and could not be persuaded to apportion punishment to anything but criminality. Common people never dream of thinking that the justice of a penalty depends on its preventive effect. They know that its preventive effect depends in great measure on itsjustice. But if this be so, one of the first criteria of efficiency of a penal system is to award punishments which the popular conscience more or less justifies, a heavier punishment to a heavier guilt, a lighter punishment to lighter guilt—of course with that rough average justice which is all we can attempt in these deep matters. And if there be any crimes which pass far beyond all others in the horror and detestation they excite, then, for the sake of efficiency only, there should be for such crimes a penalty marked beyond all others by an impassable gulf. We confess that, for deliberate murder or demonstrated intention to murder, and for the worse forms of unnatural violence, this punishment seems to us the only one that is adequately solemn and distinctive. Nor can we think that in this respect it has practically failed. We are convinced that public executions have not only failed but actually stimulated the very morbid feelings which lead to murder. But the question of public executions and of capital punishment is widely different. No other punishment is inflicted in public. All others are inflicted under the eye and responsibility of a proper number of officials, and, so inflicted, are far more severe, far more dreadful, appeal far more to the imagination, than when wrapped up with all the complex influ- ences of publicity. Indeed, to the vain and morbid men who commit so large a proportion of the great crimes of every country, the pub- licity of punishment is a strong temptation. And those to whom it would be an additional horror would not often belong to the class whom it is most needful to deter.

Nor do any of the moral arguments against capital punishment, except the risk of inflicting an immediate injustice in case of error, seem to us of moral worth; and the latter risk is practically inap- preciable in an age when any real doubt is certain to ensure a com- mutation of sentence. Great as is the responsibility of taking away life, we doubt if strict imprisonment for life is not far more cruel ; and one of these two punishments is actually demandhl in the case of the more heinous class of murders by the principle of social self- protection. Nor can it be denied that it is practically a very Feat evil to have no punishment distinctive in its kind, which goes, in human estimation, as much beyond any kind of imprisonment, as deliberate murder and crimes of unnatural violence go in human estimation beyond any other kind of crime. There is a point of guilt at which we say, " This man is not fit for human society : he has done such violence to all those parts of human nature which dis- tinguish man, that he can no longer be tolerated in human society, and it is worse than death to keep him for ever in a hopeless living grave. . No guarantee of repentance could be accepted as adequate after such crime by any who cannot see the heart. With God that is possible which is not possible with man, and to Him we must give back all such criminals as threaten the very basis and foundation of human society." Such language is, we think, not at all inconsistent with the most hearty admission that all human penalty ought to be reformatory. There are cases of crime so foul that no man ought to venture to undertake to reform them. The worst kind of murder— deliberate matricide, for instance—is certainly one of them. The most thoughtful and the most benevolent man should shrink from the hardihood of relying on any course of reformatory training for sins of this dye. Liberty could never again be granted ; and where no appearance of reformation would warrant us in trusting the criminal again with liberty, it seems to us far more humane es well as far more just to resign the treatment of such offenders into the hands of the Almighty.