The subject will be found to fall under the following heads: First, Ought capital punishment to be inflicted under any circumstances whatever? Secondly, Ought any alteration to be made in the definition of the crime for which it is inflicted; namely, Wilful murder? Thirdly, Ought any alteration to be made in the present administration of the prerogative of pardon? These three questions are perfectly independent of each other; and the matter will be greatly simplified if they are separately considered.
First, then, Ought capital punishment to be inflicted for any crime whatever, and particularly ought it to be inflicted for murder? We think it ought. First, because no other punishment deters men so effectually from committing murder; secondly, because no other punishment gratifies and justifies in so emphatic a manner the vindictive sentiment, the existence of which is one of the great safeguards against crime; thirdly, because no other way of disposing of great criminals is equally effectual, appropriate, and cheap.
First, no other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which it is difficult to prove, simply because they are in themselves more obvious than any proof can make them. It is possible to display ingenuity in arguing against it, but that is all. The whole experience of mankind is in the other direction. The threat of instant death is the one to which resort has always been made when there was an absolute necessity for producing some result. Those who argue that the punishment of death does not terrify, may be challenged to answer this single question. Suppose a pistol were levelled at the head of a man proposing to commit murder, and suppose he knew that the death of his victim would immediately be followed by his own, does any one suppose that the murder would be committed? Again, men, in a good cause, and under the influence of good sentiments and favourable circumstances, are capable of acts of the most heroic courage; yet even in the heat of battle it is hardly possible to get men to encounter certain death. They will run great risks, but, as Sir William Napier said of himself, there is always 'a secret springing kind of hope,' which sustains them. No one goes to certain inevitable death, except on compulsion. Put the matter the other way. Was there ever yet a criminal who, when sentenced to death and brought out to die, would refuse the offer of a commutation of his sentence for the severest secondary punishment? Surely not. Why is this? It can only be because 'All that a man has will he give for his life.' In any secondary punishment, however terrible, there is hope; but death is death; its terrors cannot be described more forcibly. If we look at facts, not at the narrow and inconclusive facts which are put forward as statistical arguments on this subject (as to which more will be said hereafter), but at broad facts, notorious to all mankind, it is plain that the punishment of death, when rigorously inflicted, has tremendous deterring force. Take two instances—the Reign of Terror and the suppression of the Indian mutiny. Can any one say that in these cases the punishment of death did not deter? In the Reign of Terror the crime punished with death was disaffection, even in the slightest degree, to the establishment in France of a democracy. This crime was not recognized as such by the adherents of the old order of things. They did not consider themselves morally bound to favour the Revolution. Not only had they no scruples of conscience about opposing it, but they considered opposition to it as a virtuous action. They were brave men, and showed in fields of battle all over Europe how little they feared death; but they were cowed by the guillotine. The Reign of Terror was a reign in the proper sense of the word. The Revolutionary Government held down their antagonists, and forced them for the time being into submission. The same thing happened at the Indian mutiny. Hindoos care less for their lives, we are told, than Europeans. The mutineers, no doubt, thought themselves in the right; yet the tremendous vigour with which they were punished effectually put them down. By executing every man taken in arms, a lesson was read to them which as long as India is India will never be forgotten. It is idle to say that the process of shooting and hanging men by scores caused no terror. It did strike terror, and that a terror deep enough to enable a handful of Europeans to set their feet on the necks of enemies many times more numerous than themselves. The same lesson has been read repeatedly in different parts of the world. Did the Inquisition, with its stakes and its tortures, strike no terror into heretics? Did Alva do nothing towards terrifying the Flemings and the Dutch? Did hanging, shooting, and flogging play no part in putting down the Irish rebellion in 1798? Did the storming of Drogheda have no effect on other Irish towns? Did not Yeh, even in China, where human life is held far cheaper than with us, maintain his power at Canton by the execution of 70,000 men? Be bloody enough and pitiless enough, and human nature will give way. Few things, indeed, hardly even great virtues, will bear up against the threat of death enforced without shrinking by irresistible power. If this is the case where the object is to overcome the strongest passions of the human mind, such for instance as patriotism and religion, is it to be supposed that mere vice will fail to be affected by it? If the fear of death will make men desert their country and deny their God, is it to be supposed that it will have no influence at all on the mind of a man who is plotting murder? It would require the strongest evidence to prove a proposition so improbable; but if it were proved, it would prove too much. It would prove that legal punishments do not deter at all, for it can hardly be contended that of the two, the fear of penal servitude or imprisonment is more terrible than the fear of death. Mr. Bright said, in the late debate, that the punishment of death 'is a terrible one to a man on the verge of the grave; but months before, when the crime is committed and the passions are aroused, the punishment is of no avail whatever.' If this is so, what is to be said of penal servitude? The words are unfamiliar, and the notion which they convey confused and indefinite. Is it to be supposed that months before the trial, and at the time when the passions are aroused, the contingency of penal servitude will influence the criminal's imagination more strongly than the contingency of death? The notion is obviously absurd. The truth is, that if it is denied that the punishment of death deters from crime, the deterrent theory of punishment ought to be altogether given up, and we ought to resort to the doctrine maintained (amongst others) by Theodore Parker, that crime ought to be treated exclusively as a disease, and that punishment ought to be considered only as a medicine.
So obvious are these considerations that they are seldom directly disputed. It is more common for those who wish to see the punishment of death abolished to contend that that punishment has less deterring power than others, because of the uncertainty as to its infliction. They say that juries are so averse to capital convictions that they will not convict in cases of murder, and that thus the proportion of acquittals to convictions in this crime is far greater than in other cases. No doubt it is true, that the introduction of the element of uncertainty into the prospect of legal punishment does seriously interfere with its efficiency. To obtain an object on which they have set their hearts, men will run a very considerable risk of death with comparatively little hesitation. It is thus undoubtedly a very important question of fact, whether there is much uncertainty in the administration of the law, and whether juries are in the habit of perjuring themselves rather than deliver a verdict likely to lead to an execution.
It is unfortunate that the examination of this subject is beset by difficulties, which enable those who are opposed to capital punishments to make irrelevant facts look relevant, and to found upon them arguments as plausible as they are fallacious, in favour of their views. Several of the speakers in the late debate insisted at great length on a variety of statistical returns showing the proportion between acquittals and convictions for murder, and for other crimes. These statistics, they said, showed that 'the chances of escape for murder were four and a half times greater than in cases of crimes not punishable with death.' The answer to this is, that the definition of murder is so unskilful, and that the legal and popular meanings of the word differ so widely, that the number of persons tried for what is technically called murder bears no proportion to the number tried for what would generally be understood by the term. The author of this paper has constantly heard barristers on circuit, on being told that there were two or three murders in the calendar at a particular place, ask whether they were real or hanging murders. To this the answer has generally been: 'No— concealments and manslaughters.' It is a constant practice with magistrates to commit persons for murder in cases which are sure to turn out to be either manslaughter or concealment of birth; and it is hard to say that they are technically wrong: inasmuch as the law presumes that the man who kills another has committed murder, till the contrary appears in evidence. The statistics are thus no guide at all. It by no means follows that juries are apt to acquit improperly in real cases of murder, because in many instances, where the grand jury find a bill for murder, they convict either of manslaughter or concealment. Upon this point there is no doubt a conflict of testimony. Mr. Denman, in the recent debate, said that he had prosecuted and defended many persons in trials for murder; that he believed he spoke the experience of all persons who had been in a similar position when he said that juries required far more evidence to convict for murder than for other crimes; and that he had known cases in which juries had wrongfully acquitted because of their dislike to capital punishments. Mr. Alderman Rose, on the other hand, declared that he believed, that 'in the main, juries performed their functions faithfully and honestly. They were no doubt jealous of the evidence on which a man was to be convicted, but that was nothing more than what was in accordance with the law of the land and of humanity.'
The author of this article entirely agrees with Alderman Rose. He has paid great attention to the reports of criminal trials, for some years, and has himself been engaged as counsel, on the one side or the other, in many cases of murder, and his decided opinion is that in cases of real murder, juries usually do their duty without regard to consequences. The following short note of a number of cases which have come under his own observation will throw a good deal of light on the working of the law, and on the worthlessness of statistics proceeding on the present definitions:—
1. Reg. v. Woolfitt.—This was a case of child-murder. The woman was convicted of manslaughter. Pity may have had some influence in this.
2. Reg. v. Carroll. — This man killed his wife by blows and kicks. It did not seem that he meant to kill, or that his violence was of a kind obviously likely to produce death. Guilty of manslaughter.
3. Reg. v. Carey and another. — These men waylaid and brutally murdered an old man, in order to rob him. A timid jury might have doubted as to one of them, as they threw the blame on each other, and one only had property of the murdered man found on him. They were both convicted, and hung.
4. Reg. v. Allridge. — An old woman tried for murdering her daughter's illegitimate child, by burying it alive. The medical evidence made it doubtful whether the child was buried before or after death, and the prosecution gave up the case.
5. Reg. v. Moody. — This man knocked down another with his fist: possibly, indeed not improbably, in a fight. He then threw him into a drain, where he was drowned. It was suggested that he threw him into the drain supposing him to have been killed by the blow on the head, which had struck a part of the skull as thin as a sheet of paper, and fractured it. He was convicted of manslaughter. Technically this was no doubt murder, but it is not what is commonly so called.
6. Reg. v. Feel.—This man was indicted for murder, and the evidence proved that he had struck his servant in a way which possibly might have slightly accelerated his death from another cause. He was convicted of a common assault, and imprisoned for six months.
7. Reg. v. Ullyatt.—A girl charged with murdering her baby. It appeared in the evidence that it was probably accidentally stifled by a shawl. The jury stopped the case.
8. Reg. v. Dodd.—A woman tried for poisoning her husband. The evidence was certainly doubtful, and she was acquitted. It was proved that the poisoned man used to rub his gums with arsenic, for the toothache.
9. Reg. v. Richardson.—This man shot a policeman who stopped him on a poaching expedition. The evidence was very strong, and he was convicted, and sentenced to death, but his sentence was commuted, apparently because there was no premeditation. The county magistrates were much dissatisfied, and sent a memorial to the Secretary of State on the subject.
10. Reg. v. Wyatts and others.— These men, six in number, were committed for murdering a prostitute in a stable, in a most horrible manner. They were tried for manslaughter, and acquitted, as the medical evidence was very unsatisfactory, and the other evidence scanty.
11. Reg. v. Wilson. — A woman who drowned four children, obviously in a fit of madness.
12. Reg. v. Smith.—This man shot his father for the sake of stealing his savings. He was convicted, and hung.
13. Reg. v. Garner and Wife.—The Garners were tried for poisoning the man's mother. They were convicted of manslaughter. No doubt in this case the jury were influenced by an opposition to capital punishment; but the circumstances were most peculiar.
14. Reg. v. ______.—This man shot his fellow-servant from a puerile fit of jealousy—indeed almost without a motive. It was suggested, and there was room for the suggestion, that the gun went off by accident; but he was convicted, and hung.
15. Reg. v. Beere. — This man meeting A and B, got into a quarrel with A, who struck him; after driving off A he fell upon B, knocked him down, and killed him by a violent kick in the face. Found guilty of manslaughter; sentenced to penal servitude for life.
16. Reg. v. Townley.—This case is fresh in every one's recollection. Townley was convicted, and received sentence of death.
17. Reg. v. Hall.—The same remarks apply to this case.
These seventeen cases, taken at random, and occurring in the experience of a single person, throw light on several matters connected with the administration of the law. They show, in the first place, how widely different are the actions included under the general name of murder. If a person not technically familiar with the law were to classify the different cases, he would have little difficulty in dividing them into classes. In Nos. 4, 6, 7, 8, 10, and 11 an acquittal would have been the proper result, whatever the punishment of murder might have been. Looking at the substantial and not at the technical distinction between murder and manslaughter, Nos. 2, 5, and 15 would be described as aggravated manslaughters; No. 1 was probably a case of infanticide; and Nos. 3, 9, 13, 14, 16, and 17 were cases of what not only the law but the general public sentiment would describe as murders in the full sense of the word, fully proved: No. 17 being murder accompanied by circumstances of hardly endurable provocation. In every case except one— the case of the Garners (No. 13), the result was that which the state of the law required; and the Garners' case was one of great singularity. The evidence no doubt pointed strongly to murder, but the possibility of finding a verdict of manslaughter was suggested in the first instance by the judge, in his summing up; and the jury to whom it was suggested were not in a condition, either of mind or body, to do justice to the case. The trial began about the middle of the last day but one of the assizes. The jury were locked up for the night (owing to a misconception of the law on the part of the sheriff, who was fined £20 for his neglect), in a single room, where they had no beds, and which in other respects was uncomfortable. They came into court next day at nine or ten o'clock, after a sleepless night, and passed the whole of the second day, from nine till about five, in listening to the trial. Several of them could hardly keep awake towards the end of the case; and it was natural enough that in such a state of exhaustion they should shrink from the responsibility of a capital conviction, especially when the judge suggested to them a way of escaping from it. In Townley's case, and in Hall's case, the jury felt the strongest sympathy with the prisoners. They recommended Hall to mercy in the most earnest way, and it was easy to see how deeply they were affected in the case of Townley; yet in neither instance was there the least hesitation about the verdict. These cases are mentioned because they can be specifically vouched in support of a general statement; but many other cases might be produced, if necessary, to show that the statistics properly interpreted and understood, prove, not the reluctance of juries to convict, but the jealousy of magistrates and grand juries in all cases where human life is taken. Inasmuch as a man can be convicted for manslaughter on an indictment for murder, he is almost always indicted for murder when there is a doubt which of the two crimes he has committed. In the same way very slight evidence that a child was born alive will induce a coroner's jury to return a verdict of murder, or a grand jury to find a bill for that offence, though the case breaks down before the petty jury. Wherever a death takes place under suspicious circumstances there is sure to be an inquiry, and there very likely will be a trial for murder; but inasmuch as the prosecution of thefts and other ordinary offences rests entirely with the parties interested, it is probable that for every case that actually comes before a court of law there are many cases passed over, notwithstanding the existence of a suspicion sufficiently strong to have put the suspected person on his trial had the charge been murder. That juries require clear evidence to bring the charge home, is perfectly true; but would it be desirable to have people imprisoned for life on less evidence? Judicially to declare a man guilty of murder—to convert the whole of the rest of his life into one long punishment, whilst there was a substantial doubt about his guilt—would be a horrible iniquity. The tribunal which really does start at straws is to be found, not in the jury-box, but in the Home-office. The jury had no doubt in the case of Jessie McLachlan, nor in the case of Smethurst, nor in the case of Townley.
There are, no doubt, two classes of cases in which juries do hesitate about giving effect to the law, and the list given above supplies an instance of each. They are cases of infanticide and of constructive malice-cases like Nos. 1 and 5 in the list given above. As to infanticide, there can be no doubt that the temptation is so strong, the power of resisting it, under the circumstances, so weak, and it must fairly be owned the mischief done is so much less, that there is no use in calling it by the same name as the deliberate destruction of a grown-up person.
A new-born child, or a child in the act of being born, certainly falls within the only definition of a human being that can be given, but that is all that can be said of it. Murder is a great crime, because it inflicts a terrible loss on a circle of people more or less extensive; because it puts an end to all the interests, occupations, and objects of the person murdered; because it gratifies bad passions, and alarms those who are in circumstances similar to the murdered person. In the case of a new-born child, murdered by its own mother, every one of these evils is of necessity at a minimum. No one except the mother even knows of the child's existence, the child itself loses nothing, the motive is always the same; and it is one on which the fear of punishment will operate less than on any other likely to lead to such a result, especially when the bodily and mental pain under which the offender is suffering are taken into account, and newborn children are incapable of feeling alarm. Under such circumstances it certainly would seem reasonable to inflict a lighter punishment in these cases, which form a class easily definable. Mr. Ewart said that this was 'illogical.' Mr. Ewart must have wonderful notions of logic if he holds that because you have improperly called two dissimilar things by the same name, you are for ever estopped from recognizing the difference between them. He might as well have argued thus some years ago:—'To murder the Queen is high treason; it is also high treason to clip the coin. Capital punishment is given up in the one case. How illogical it is to maintain it in the other.' The question of constructive malice will be more conveniently considered under the head of the definition of murder; but it must no doubt be admitted in general terms, that whenever the law is made by traditional interpretations to bear a meaning which its terms do not suggest to plain minds, it is difficult to put it in force. Twelve farmers or shopkeepers are told that murder means killing with malice aforethought, and that manslaughter is killing in hot blood and without malice. This they can understand and act upon, but they can hardly be expected either to understand, to remember, or to apply with technical accuracy, the various subtleties connected with the subject which are to be found in law books.
The deterring power of the punishment of death is often denied not on the grounds that the uncertainty of its application diminishes its effect, but because it is said that statistics afford direct proof that it does not deter. Statistics are the most dangerous of all weapons. They are almost always ambiguous, and in this case perhaps more so than in almost any other. The proof given is, that in certain periods there were a great number of executions, and many convictions for murder, and that in certain other periods there were fewer executions and fewer convictions for murder; thence it is argued that the fewer convictions there are, the fewer murders there will be. As the executions generally take place after the murders, this fact would seem to be accounted for equally well by saying that when there are few murders there are few executions, and when there are many murders, many executions. If the Inspector-General of Belgian prisons was correctly quoted by Mr. Denman, his argument is certainly open to this remark; for, according to the Times' report, he argued that 'the infliction of the punishment of death had the effect of increasing the number of murders. In support of that position he stated that, while in the five years ending in 1804, there were in Belgium 235 executions, there were in the five years ending 1829 only 22 capital executions; the result being that there were in the latter period only 34 convictions for murder, as against 150 in the former; there being no executions in the five years ending 1834, and only 20 convictions for murder.'
The truth is, that to make any use of figures like these, many other facts must be known besides those stated. Can any reasonable man suppose that the reason why there were so many murders committed in Belgium from 1799 to 1804 was that there were many executions? The simple truth is, that those years were amongst the most disturbed in modern Flemish history. Throughout the whole period Flanders and Holland were the seat of war, or, at any rate, were occupied by large armies. The Duke of York's expedition to Holland took place in 1799, and there was fighting all along the Rhine at various times during the years in question. That there should be many crimes at such a period, and that they should be severely punished is not at all unnatural. It is impossible to make much of the figures which Mr. Denman relies on. He read the following table to prove that executing sentences strictly has no tendency to diminish the number of murders.
There were, in England, in
1859, 18 convictions, 9 executions,
1860, 17 convictions, 9 executions,
1861, 26 convictions, 14 executions,
1862, 28 convictions, 15 executions,
1863, 29 convictions, 22 executions.
This table appears to prove only that, from some cause or other, the number of murders has slightly increased in the course of the last five years, and that it increased considerably in the years following those in which half of the sentences were commuted; but the difference in the proportional severity between 1861 and 1862, and 1859 and 1860 is very small. The difference between 9/18 and 14/26 is only 1/26; the difference between 9/18, and 15/28 is only 1/28; the difference between 9/17 and 14/26 is only 2/221 or about 1/120 the difference between 9/17 and 15/28 is 3/476, or about 1/158. What inference can be drawn from such figures as these? No doubt greater severity was shown last year; but what the result may be we have yet to learn: nor is there any reason to suppose that it can be shown in figures. The plain truth is that statistics are no guide at all. In order to make them prove anything, it would be necessary to repeat the periods in which they were collected, altering only the one circumstance of the existence of capital punishment. But as it is impossible to recall the past, the question as to the effect of capital punishments on crime must always be referred, not to statistics, but to the general principles of human nature.
The second reason for maintaining capital punishments is that no other penalty gratifies and justifies in so emphatic a manner that vindictive sentiment, of which the existence is the greatest safeguard against crime. That putting men to death for murder does gratify the vindictive sentiment or desire for revenge, which most people feel on hearing of a great crime, will not be denied. Indeed this fact is made the main objection to it. Hence the question to be considered is whether the desire of revenge is one which ought to be gratified and justified. The argument that it ought is thus summed up by Bentham:—
'Every kind of satisfaction which involves a punishment for the criminal naturally produces a pleasure of vengeance for the party injured. This pleasure is a gain. It recalls the parable of Samson. It is sweetness produced from terror, honey from the lion's throat. Produced without expense, the net result of an operation necessary on other grounds, it is an enjoyment to be cultivated like any other; for the pleasure of vengeance, considered in the abstract, is like every other pleasure, a good in itself. It is innocent so long as it is confined within legal limits, and becomes criminal only when it oversteps them.' [Dumont's Bentham, vol. ii. p. 129.]In two of his most remarkable sermons [Sermons viii. and ix.], Bishop Butler enforces the same conclusion, though upon different grounds. He points out that the vindictive feelings form a part of human nature, and insists on the advantages which accrue to mankind from their operation.
The common arguments against capital punishments never take notice of' this. They are all founded on the assumption that the vindictive feeling is a bad thing, and ought on no occasion whatever to be indulged. If this view were advanced only by those who suppose the Sermon on the Mount to constitute a complete treatise on morality and on the moral relations of human nature, it would be intelligible; but this is not the case. Many people who are quite capable of understanding the difference between a solemn warning against the abuse of natural passions, and a systematic inquiry into the nature and relations of those passions and their normal modes of operation, appear to take it for granted that revenge is a bad thing. To those who take this exaggerated and incorrect view of the purport of the Sermon on the Mount, it may be sufficient to say that in every part of the Bible, vengeance is treated as an attribute of God himself: 'Vengeance is mine: I will repay.' The Bible also uniformly views the civil magistrate, 'who beareth not the sword' (the instrument of death) 'in vain,' as God's agent for the purpose of executing vengeance. If it be said that capital punishment is repugnant to what is called 'the mild spirit of Christianity,' what is to be said of eternal damnation? Where is the repugnancy between hanging men here and damning them in hell? A creed totally unprovided with vindictive punishments would be very different from all that has hitherto been known as Christianity. The God in whom Christians believe has always been a God to whom vengeance belongeth. That sin is a rebellion to be chastised and avenged in some way or other, here or hereafter, is the fundamental tenet not only of Christianity but of all creeds which can influence human conduct.
Such is the answer which may be given to those who denounce revenge on scriptural grounds. Those who object to it on other grounds, must find an answer to these questions. Is not the desire of vengeance natural to man? Is there any part of human nature for which human institutions ought not to provide a normal regulated satisfaction?
The argument, however, may be carried further than this. It requires no great amount of acquaintance with human nature to be aware of the fact that the imagination usually influences the conduct far more powerfully and directly than the reason. When a man proposes to commit a murder, he does not extract from the Bluebooks a table of crimes and convictions, calculate the chances of escape and the value of his booty, and act upon the balance. The process is, in all human probability, entirely different. The thought occurs to the mind. It is dallied with, acted in imagination, thought over as possible under contingencies. The murderer says to himself, 'Of course I do not mean to do it; but if I did, I could buy a pistol at such a shop, and there's a nice one there which I should think might cost half a crown, and I have half a crown in my pocket, and I do really want a pistol. It could do no harm just to ask the price.' The mind creeps to the crime as a cat creeps towards a bird; and it is no difficult matter to trace in the circumstances which lead up to a murder, the vacillation in the criminal's mind. ‘I will do it now. No, I will not. At all events I'll load my pistol.' This is not mere imagination: many real cases show that this sort of indecisive swaying backwards and forwards generally precedes premeditated murder. For instance, Hall (the man whose reprieve attracted so much attention) bought the pistols the night before he shot his wife; but there was every reason to believe that he had no intention whatever to use them except under contingencies which unhappily occurred. Smith, who shot his father (No. 12 in the above list), after buying the pistol, hesitated for hours over the actual commission of the offence.
The bearing of this upon capital punishments is as follows. The excited imagination and the reluctant conscience are in a state of war: to use Mr. Denman's quotation—
‘The state of man,In this state of things, if the imagination has by long habit and association been taught to regard murder with special horror and indignation—if it has learnt to connect the word with an infamous death, and with a feeling of detestation of which that death is only the outward expression, it is likely to offer a far more determined resistance to the insurrection than it otherwise would. On the night when Hall shot his wife, he passed some hours at her mother's house, in conversation. One of the subjects of the conversation was a murder which had lately taken place in the neighbourhood. Hall expressed his horror at it; and in the struggle which was then probably going on in his mind (for he had the pistols in his pocket), there can surely be no doubt as to the direction in which that feeling of horror would weigh. When a murder is committed it follows of necessity that all checks have been too weak to prevent it; but it does not follow that the checks have had no weight. We cannot tell how many murders have been prevented. The first thing that a murderer says when he is arrested usually is,' I shall die for that.' 'I have done it, and I shall be hung for it,' was the remark of Townley when asked who had killed Miss Goodwin.
Like to a little kingdom, suffers then
The nature of an insurrection. ‘
A man liable to those violent feelings which produce murder, is usually by no means deficient in sympathy, or unable to appreciate the indignation of his fellow-creatures; but this indignation itself depends to a great extent upon association, and is strongly fortified by it. The fact that men are hung for murder is one great reason why murder is considered so dreadful a crime. If cowardice, or lying, or unchastity in a woman were visited with less severe social penalties than they are at present, that fact alone would greatly diminish their moral enormity in common estimation. The reason why people in general think so much of unchastity in a woman and so little of the very same thing in a man, is that women are so much more severely punished for it. The severity may be justified on good grounds, but in most cases it is the parent and not the child of the moral sentiment. Practices which the Greeks regarded with the slightest possible censure are by modern Europeans, and especially by Englishmen, viewed with a degree of horror which hardly anything else exerts. Why is this? Because the Jewish and ecclesiastical antipathy to them (founded no doubt on good grounds) found for itself an expression in jurisprudence, and converted them into a capital crime in almost every part of Europe.
There can be little doubt that the real objection to capital punishments—the objection which gives the greatest amount of weight and point to the proposals made for their abolition—is what, without offence, may be called the sentimental objection. Few people really doubt that they are or may be made efficient; still fewer venture in the present day to use the arguments which once were popular about natural rights and the like; but those who would have done so resort to their antipathy to the punishment. Mr. Ewart, in the late debate, said, 'He believed that experience showed that, for a time after capital punishment was abolished crime increased, but that the increase was only temporary. The feeling of the times was against capital punishment; civilization was against it; there was in men's souls an abhorrence of it which no legislation could eradicate.' So Mr. Bright said,' Whenever paragraphs appear in the papers intimating that on a certain day of the month such a one has to meet his fate for some crime, however foul, there is in every city, in every parish, almost in every house in the kingdom where there is any regard for humanity or Christianity, a feeling of doubt whether the law is right, and also a feeling of disgust and horror among hundreds of thousands of the best portion of our people.' Mr. Bright also, in perfect consistency with the general line of his criticism on English legislation and habits of mind, observed, 'This country has always been the most barbarous of all civilized countries in its punishments, and at this moment is still the most barbarous country.' . . . 'We still remain the most merciless of all Christian countries in reference to this matter, and if any one wishes to satisfy himself upon this point he has only to refer to the late instances of Townley, Wright, and Hall at Warwick, and I will undertake to say,' . . . 'that there is not a country in Europe nor a state among the free states in America in which either of those criminals would have been put to death.'
Such expressions as these raise an issue decisive of the way in which people will feel upon this question; and not the less so because it is not capable of being stated in a perfectly definite form. It may be stated thus—What is the temper in which it is desirable that people should regard great crimes? Is it healthier that they should excite nothing but regret for the occurrence and pity for the criminal, or ought they also to excite indignation, and a desire for vengeance? To the present writer it appears manifest, that in our age especially, it is desirable that the stern and harsh view of the case should be fully recognized, and that the tender view should be discouraged. We are too soft and pitiful. The one great drawback to the advantages of civilization is, that an increase of comfort makes men look with indulgence on matters which ought to stir up the warmest indignation. The toleration of what ought not to be tolerated is nearly as great an evil as the persecution of what ought to be tolerated. There is as much moral cowardice in shrinking from the execution of a murderer as in hesitating to blow out the brains of a foreign invader. A mind which feels this shrinking, and calls it a Christian feeling, must have a strangely partial and one-sided notion of Christianity. The conception of God as a meek, good-natured being, who has no anger in him, is not a Christian notion, whatever else it may be. The Christian creed does not teach that sin is a mere mistake to be corrected, or a mere inconvenience to be put out of sight. 'The Lord thy God is a jealous God,' is the teaching of each Testament. The Sermon on the Mount stands in front of a background on which is the worm that never dies and the fire that is not quenched, Dives praying in vain for a drop of water to cool his tongue, and the devil and his angels gathering the tares to be burnt in the fire. This is no doubt imagery; but what does such imagery represent? It must be coupled with the Old Testament history and with the character of the law which was to be fulfilled and not destroyed, before the spirit of vengeance is called unchristian. The spirit of Christianity is to be read in its history, like the spirit of other creeds and other institutions. Will Mr. Bright tell us that the Quakers alone have been Christians? Have not all the constitutions and most of the legislation of modern Europe grown up under the auspices of Christianity, and have they no stern side? When Charlemagne erected an empire over half Europe, and carried on wars in every part of it, did he do nothing for Christianity? Is not the Church of Rome a Christian body—and what is its history?
The plain truth is, that, like other things, Christianity has two sides. A gentle side up to a certain point, a terrific one beyond that point. It says, 'Love one another; but you will be damned if you do not.' It no doubt inculcates kindness in the private relations of life; but it assumes an external organization to exist which fully recognizes all the sterner passions. The attempt to separate the two elements, to recognize only what is soft and pleasing, has been made repeatedly, and has always failed. Quakerism was the latest attempt of the kind; but many of its characteristic doctrines and feelings may be traced amongst the heretics of the middle ages. The timid horror at inflicting death on murderers, which Mr. Ewart and Mr. Bright express, is exactly like the feeling that it is wrong for a bishop to be rich, and it lies not far from the sentiment which prohibits a clergyman from marriage. What, it is asked, has so rough a passion as vengeance, so coarse a feeling as the love of wealth, so debasing an appetite as that which is connected with marriage, to do with the pure, spiritual, holy, unworldly creed which we profess? The Christian faith would never have done what it has, if it had been fully possessed by this spirit. It is and always has been a creed for men and women; not for dreamers who try to jump off their own shadows.
Remembering these things, it is possible to read with equanimity Mr. Bright's denunciations of the character of his country. What other countries would have thought of such cases as those to which he refers, is a wide inquiry; but it would be deplorable if we came to look upon passion and sentiment as any excuse whatever for crime, after the fashion of Frenchmen and Mexicans. Such a case as that of General Sickles was a monstrous scandal; and whatever Mr. Bright may think, the verdict of guilty, with 'circonstances attenuantes' is one which, in most cases, inspires the minds of many Englishmen with disgust and contempt. Men ought to command their passions; and if they fail to do so, they ought to suffer for it. The object of the criminal law is to control the passions which prompt men to break it; and if we in England are more alive to this than other people, so much the better for us, and so much the worse for them.
That Englishmen are barbarous in the sense of being cruel, is simply untrue. Breaking on the wheel and torture were never English institutions; and in the present day secondary punishments are far more severe in France than in England. Shamefully to expel a man from the world, to turn him out and have done with him, when he is clearly fit to live there no longer, may be a stern proceeding; but it is not the proceeding of people to whom the infliction of physical pain is a pleasure. The third reason why capital punishments should be inflicted is, that no other way of disposing of great criminals is equally effectual, appropriate, and cheap. When a man is hung, there is an end of our relations with him. His execution is a way of saying, 'You are not fit for this world, take your chance elsewhere.' There are many people, with respect to whom it is a great advantage to society to take this course. If it were possible, would any one wish to recall to life Palmer and Rush and the Mannings and Courvoisier and Greenacre and others of the same character. The world is better without them. Suppose they, and a number of others, were lingering out their lives in some prison specially set apart for assassins, would there be either comfort or mercy in such an arrangement? What is the use of keeping a man shut up, perhaps for thirty or forty years, in a situation where he is a mere burden, nuisance, and expense to himself and to every one else? Such a punishment is a slow way of putting a man to death. Yet nothing less than this would or ought to satisfy the public feeling on this subject. It may be said that capital punishment cuts a man off before he has time to repent; but this is an unmanageable speculation. As to what lies beyond the grave, we have no certain knowledge. It is impossible to go beyond a general confidence that the justice of God will not suffer itself to be defeated by the acts of man; but we must regulate our conduct by reference to this life; and if it clearly appears, on the whole, that a man is not fit to live here—if he he has broken through the elementary principles on which human society is based, he ought to be put to death. He has had his chance and taken his part. He has declared war against mankind, and has been defeated.
The next great question as to capital punishments relates to the definition of murder. High treason and one or two forms of piracy are still capital, but they are so rare that it is needless to incumber the question by discussing them.
The question of the definition of murder is connected with that of the infliction of capital punishments in more ways than one. In the first place, it bears immediately and directly upon the view of the crime taken by the public. In the next place, as already shown, it has a close connexion with the certainty of the infliction of the punishment. In the third place, its importance would be rather increased than diminished, if capital punishments were abolished; inasmuch as many cases which are included within the present definition of murder are such that the public would object to the imprisonment for life of those who might be convicted of them, at least, as much as to their execution. In any point of view, therefore, it is of the utmost importance that this branch of the subject should be well considered.
Perhaps the most important of the considerations above referred to, is the relation between the definition of murder and the feelings of the public on capital punishments. There are but a very small class of persons who object to capital punishment absolutely, and under all circumstances whatever. Even Mr. Dickens appears so far to have modified his views on the subject, as to think that it ought to be inflicted in extreme cases, though in a different manner from that at present in use; and common expeperience may be appealed to with confidence upon the question, whether the feelings of the public are shocked by the execution of the worst class of murderers, such as Rush, the Mannings, Palmer, Catherine Wilson, and others. It is clear that they are not. It is only in cases which strongly enlist the public sentiment—as, for instance, the case of Wright—that any real or fervent objection to the measure appears to be entertained. A little experience will enable a person to judge with the greatest confidence upon particular cases, and to say with something closely approaching to certainty, whether an act described in a criminal calendar is a 'real' murder, or only an offence of an inferior degree. If the legal definition could be made to coincide with the popular impression on the subject, there is no doubt that the certainty of the administration of the law would be considerably increased, whilst the unpopularity of capital punishment should be almost entirely removed.
The word 'murder,' in its technical meaning, is extremely comprehensive. Indictments for the crime allege that the prisoner did wilfully, feloniously, and of his malice aforethought, kill and murder. This sounds simple enough, but no one without special technical knowledge could discover the meaning of the 'malice aforethought.' Their natural meaning is a settled premeditated ill-will against an individual, leading to, and gratified by, the act of putting him to death. This is what any person acquainted with the English language as it is commonly used would suppose these words to mean; but this is by no means what lawyers mean by them. They mean so much that they are really altogether unmeaning: for they mean that the man was killed under circumstances which by law subjected the person who killed him to capital punishment; and as the word 'murder' of itself implies this, the words 'malice aforethought' are mere surplusage.
If we look not at phrases, but at substantial and intelligible rules, it will be found that the law of England punishes with death those who kill their neighbours with any one of the following intents:—
1. An intent to kill, whether the person killed consents or not, and whether the person killed is or is not identical with the person killing.
2. An intent to commit felony.
3. An intent to do great bodily harm.
4. Wanton indifference to life in the performance of an act likely to cause death.
5. A deliberate intent to fight with deadly weapons.
6. An intent to resist a lawful apprehension by any person legally authorized to apprehend.
Manslaughter, on the other hand, is homicide committed with—
1. An intent to kill under the recent provocation either of considerable personal violence inflicted on the prisoner by the deceased, or of the sight of the act of adultery committed by the deceased with the prisoner's wife.
2. An intent to inflict bodily injury not likely to cause death, as where a man striking a trespasser with a slight stick kills him.
3. An intent to fight in a manner not likely to cause death, as in the case of a boxing match.
4. An intent to resist an unlawful apprehension, or one of the lawfulness of which the prisoner had no notice.
5. An intent to execute legal process with unnecessary violence.
6. Negligence in doing a lawful act, or an act unlawful but not felonious.
This is to be taken in connexion with the rule that all unlawful killing is presumed to be murder, that the burden of proof is on the person who alleges it to be anything else.
Of the six intents which are by law murderous, there is not one which would in all cases be considered so by the public at large. As to the first, to say nothing of the rare cases of being an accessory to suicide, or taking away the life of another person with his own consent, there is the case of infanticide. It is hopeless, and therefore it is probably not desirable, to try to get people to view the crime of killing a new-born child, from motives of shame, in the same light as that of killing an adult from motives of gain or revenge. Juries would be as reluctant to convict in such cases if the punishment were imprisonment for life as they are at present, and the reasons are obvious. The temptation is so great, its keenness bears such a relation to the sensibility of the offender, and the condition into which a woman is thrown by the pains of childbirth, is one in which she has so little control over her conduct; and a new-born child is so utterly unconscious and loses so little by death, that the offence, however great, does undoubtedly excite far less indignation, far less suffering, and far less alarm than any other kind of murder. It is more like procuring abortion than murder; and as it might easily be defined, there would seem to be strong grounds for making it a separate offence, subject to punishment which the judge should have the discretionary power of graduating according to the circumstances of the case.
The next of the murderous intents is an intent to commit felony. Inasmuch as the word 'felony' is absurdly wide, and includes, amongst other things, petty larceny, the consequence of this is, that if a man shooting at a barn-door fowl with intent to steal it, accidentally kills the owner, he is guilty of murder. If he intends to kill it merely, or if the creature shot at is a wild partridge, he is guilty of manslaughter at the most. The original object of the rule no doubt was to provide for cases in which, without any premeditated design to destroy life, a person did destroy it in the commission of a serious crime — for instance in the commission of robbery, rape, arson, or the like. There seems, however, to be little reason for this, unless the act done were likely under the circumstances to kill. For instance, a man intending to pick a pocket gives a push or blow to an old man, in order to get at his watch. The blow, by some accident, causes death. There is little reason in calling this murder. It would be different if a weapon were used, or if the blow were struck with great violence on the head, or if the man were garrotted and strangled.
The rule that killing, accompanied by an intent to do great bodily harm, is murder, is of necessity vague, and probably leads to a greater number of doubtful cases and of acquittals for murder than any other, except the rule which includes infanticide, within the definition. This difficulty, however, is inherent in the nature of things. It is impossible to draw the line precisely. Juries, however, not unnaturally draw it very high. They are very apt to acquit a man of murder, if they do not think he meant to kill, unless there was some special cruelty or criminality about his act. The following are real instances. A man in a quarrel, which did not go the length of blows, having a gun in his hand, shot another through the leg. The leg was amputated, and the patient died under or after the operation. A woman losing her temper with a child four or five years old, threw a poker at him and killed him. Two drunken men knocked down an old man, and brutally kicked him on the spine when he was down. In all these cases the jury convicted the prisoners of manslaughter, no doubt because they did not think that instant death was intended, or that the means employed were obviously likely to produce it. It is on the same or a similar principle that it is very uncommon for people to be convicted of murder who have caused the death of women by attempts to procure abortion; and such convictions are often followed by a commutation of the sentence. Wanton indifference to life in an act likely to cause death, is a state of mind which might make an act of killing into murder; as for instance, if a man were to fire a loaded gun into a crowd of people from mere wantonness. No such case is reported as having actually happened, though it is reckoned up as one that might happen.
The case of deliberate fighting with deadly weapons, or duelling, has happily ceased to be of practical importance in this country. The case of killing, with an intention to resist a lawful apprehension, is much like the case of killing in the commission of a felony. A thief trips up a policeman, who falls and is killed. It is extremely harsh to call this murder, and it is certain that no one would be executed for it. The enormity of the offence depends entirely upon the way in which the death is caused, the weapons used, etc. It thus appears that every part of the legal conception of murder, as it stands at present, is open to considerable objections, and is wider than the common popular notion.
The legal conception of manslaughter is not much better. It is not altogether satisfactory to include under one name killing by negligence and killing under provocation; but as regards the question of capital punishments, the most important rule is that which relates to provocation, and which provides that no provocation shall reduce murder to manslaughter except that of considerable personal violence, or the actual sight of adultery. There is much reason to think that this rule is too narrow. Provocation short of this may be quite as overpowering. There are injuries which would exasperate a man, or woman either, quite as much as blows. The case of Annette Meyers, in which a woman shot a soldier because, after seducing her, he pressed her to prostitute herself for his advantage, was one. The case of Wright, which lately attracted so much attention, was another. It is easy to imagine injuries inflicted on near relations, which would be far harder to bear than blows. Most men would resent an assault on their parents, children, wives, or sisters, at least as much as an assault upon themselves. In short, the question of provocation is one which must be dealt with as it arises, and which ought not to be made the subject of rigid rules. This is specially important, because the punishment of death makes a greater appeal to the moral sentiments than any other, and in which it is therefore of the highest importance that the legal definition and the moral sentiment of the public at large should not clash. Where the public at large sympathize with the murderer they do clash; and where such sympathy exists, it is founded in almost every instance on the degree of provocation which has been received. Wright's case was instructive in this particular. It was an instance of peculiar and complicated provocation, rendered almost unbearable by heartless effrontery and ingratitude. It would have been almost impossible to describe such conduct beforehand; but when it occurred, almost every one felt that it was a matter which, if it had been foreseen, both ought to have been and would have been admitted as a palliation of the offence.
From all this it appears that the problem in defining murder is to narrow it in such a manner as to bring the law into conformity with public sentiment, and in particular to extend the list of provocations which reduce murder to manslaughter. How is this to be done? It is one of the most singular of common facts, that whilst people in this country are engaged in debating on the possibility of codifying the law, we have provided perhaps the most rational criminal code in the world for the largest population (with the exception of the Chinese) governed by any single system of law. The Indian Penal Code represents all that is sensible in our own system, cast into a systematic and symmetrical form. If we simply abolished the Common Law doctrine of murder, and enacted in its place the definitions of the Indian Penal Code, we should obtain all that we want, and be rid of a piece of obsolete patchwork, which has long been regarded with superstitious veneration, and which has now become so unsatisfactory as to have thrown the whole subject into confusion.
The following are the provisions of the Indian Penal Code on this subject:—
'Except in cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death; or,
'Secondly. If it is done with the intention of causing much bodily injury, as the offender knows to be likely to cause the death of the person to whom the harm is caused; or,
'Thirdly. If it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or,
'fourthly. If the person committing the act knows that it is imminently dangerous, that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.
'Exception I. Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.
'Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 'The above exception is subject to the following provisoes:—
'First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
'Secondly. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.'
Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence.'
There are four other exceptions applying to the cases of excessive self-defence, excessive use by a public officer of lawful powers, death caused in a sudden fight, and cases where the party killed consents to his own death. It is not necessary to go into these. The main features of the code, and especially those which bear upon the question of capital punishments, are included in the articles copied out above. One of their great advantages over our own law is, that they are far more precise. They contain no such vague rules as those relating to death caused in the commission of a felony, or in resisting a lawful apprehension. They confine murder to cases in which a man either means to kill, or does some act which shows a mind as reckless of human life as the actual intention to kill. A few illustrations will show how much more reasonable its provisions are than those of the common law. A, intending to rob B, garrots, and so kills him. This, by the Common Law, is murder, because it is a case in which death is caused in the commission of a felony; but the same reason, as already pointed out, makes it murder to push a man on one side for the purpose of picking his pocket, if the push happens for any reason to be fatal. By the Indian Code the first act would be murder, because it inflicts an intentional bodily injury, known by the person who inflicts it to be likely to cause death. In the second case, the act, by the Indian code, would not be murder, because it is neither done with an intention to cause death, nor was the act likely to kill. So, again, cases like those of Wright and Annette Meyers were unquestionably murders by the Common Law. By the Indian Code the question for the jury would have been, Was the provocation given grave and sudden, and did it for the time deprive the offender of the power of self-control? Of the gravity of the provocation in each case there could be no doubt; as to the suddenness, there was certainly more question; but every one would probably agree that their own feelings on the subject would be regulated principally by the opinion which they might form on that question. It was because people believed that Wright killed his wife under sudden fury, caused by her language or conduct, that they sympathized with him so strongly. If it had been proved that he had deliberately determined to kill her for an offence committed weeks before, and that he did so kill her accordingly, it would have been altogether a different matter. Thus the question raised by the Indian Code was the question which it would have been expedient to leave to the jury, instead of referring it to the Home Secretary.
This alteration of the law would entirely relieve the Home-office from all appeals for mercy on the ground of the undue severity of the Common Law. He would be able to say to all persons who urged such considerations, The fact of the conviction shows that this man either meant to kill, or knowingly ran the risk of doing so, and that he was under no grave and sudden provocation sufficient to deprive him of his self-control.
It may, perhaps, be asserted that the provision in question resembles the power which is given by the French law to find a man guilty with circonstances atténuantes; but this is not the case, as a fair examination of its terms will prove. If the jury perjure themselves, of course there is no more to be said; but if they do their duty—and it must, of course, be assumed that they will—they must find that the person killed gave provocation, that that provocation was sudden, and that it was so grave as to deprive of the power of self-control the person to whom it was given. These conditions are far more stringent than those which are imposed on a French jury. Circonstances atténuantes may mean anything. They generally mean that the evidence is insufficient. They sometimes mean that the jury sympathize with the prisoner, and think that there was something interesting and romantic in his conduct, or in the circumstances of the case. They mean, not unfrequently, that the jury disapprove of capital punishment . A verdict of manslaughter proceeding upon the article under consideration would have a perfectly specific and a most important meaning—a meaning so important, that even under the present state of things, proof that the facts which it asserts really exist, will generally force the hand of the Secretary of State, and save the life of the convict, even if the jury do their duty by acting upon the law as it is—a duty which they neglect far less frequently than many persons suppose. It is a strong argument in favour of the adoption of this suggestion, that the Indian Penal Code was framed by men trained in English law, but set free from the restraints of precedent, and empowered to throw the sensible and reasonable part of its provisions into a form intelligible to the world at large, and free from all superfluous technicalities.
If murder were properly defined, and if the punishment of death were thus to be freed from so much of the uncertainty and unpopularity which at present attends its infliction as arises from the harshness and clumsiness of the law, there would still remain one other question for consideration. One of the most popular arguments against capital punishment is the fact that though inflicted by a fallible tribunal it is irrevocable. If a man's innocence is established ever so clearly after his death, he cannot be recalled to life. The practical remedy for this is found in what is no doubt an abuse of the prerogative of pardon. A large proportion of the commutations of punishment which take place on the advice of the Home Secretary, are made substantially on the ground that the jury have been rash. Such a case as that of Smethurst or Jessie McLachlan, or that of the Irish murderer, Kirwan, are instances in point. This is supposed to be an argument against capital punishment. No one, it is said, would have objected to the imprisonment for life of Smethurst, though, perhaps, it may have been right not to hang him.
The true argument would seem to be the other way. The strain put on the public nerves by the punishment of death secures a far more careful administration of justice, in cases of murder, than in the ordinary run of cases. It it quite true that no one is hung for murder until his guilt has been shown to demonstration; but is it desirable that men should be imprisoned for life on suspicion? It would be a most serious matter to lower the sense of responsibility felt by the jury, and to induce them to act on a less amount of evidence than they require at present. No one who has examined the matter carefully will say that their standard, even in cases of murder, is too high. In ordinary cases there is more reason to fear that it is somewhat too low. It seems probable that the number of wrong convictions in cases which do not attract much public attention or involve capital punishment, is larger than is commonly supposed. Within a single year the present writer met with three such cases in his own experience: a case of night poaching, a case of obtaining goods by false pretences, and a case of rape. In each of these cases the prisoners were pardoned after establishing their innocence. In two of the three cases the judge was from the first dissatisfied with the verdict; in the third, the case of false pretences, the prisoner (a colliery clerk, said to have drawn pay for men who did not exist) declared all along that the names in his book were those of real people whom he could not at the moment find. His friends succeeded, after some months, in discovering them, and proving his innocence.
If these had been cases of murder (and one of them, the night poaching case, nearly involved that crime), it is highly improbable that a conviction would have been had. If there had been a conviction, it is very improbable that execution would have followed, as the judges were dissatisfied with the verdict. It must also be observed, that if these cases had been capital, the Secretary of State would have been obliged to investigate and decide upon them at once. As it was, the man convicted of rape (no doubt by perjury) was sentenced to six years' penal servitude, and was kept in prison for nearly six months; the men convicted of night poaching and assaulting a keeper were sentenced to different terms of penal servitude, and were imprisoned for about a year and a quarter before their case was decided; and the man convicted of false pretences was sentenced to a year's imprisonment, and underwent nearly half of that sentence. People in general have a radically false notion upon the subject of the reversal of sentences of death, and the way in which the abolition of capital punishment would operate in the case of persons wrongly convicted. The cases present to the minds of those who see force in the arguments in question are, generally speaking, cases in which, after a length of time, and by reason of some strange accident, new evidence is brought to light which exculpates the convict. Such cases are almost entirely confined to novels. In almost every real case, all that is ever known upon the subject is known at or soon after the trial. A few instances might be mentioned in which material evidence was kept from the jury either by accident or design; but it hardly ever happens that such evidence comes to light after a long interval. Mr. Hatch, the clergyman, was convicted of an indecent assault, because his counsel in his discretion did not think it right to call the witnesses who afterwards convicted of perjury the principal witness against him. The nature of the evidence which they were prepared to give was well known both to him and to his advisers, at the time of the trial. In the case of Jessie McLachlan, the woman kept back her own statement till after her conviction; and the elaborate inquiry which subsequently took place added nothing to the material facts of the case. Where there is a public trial, and a subsequent informal investigation, both conducted under a sense of the fact that the life of the person accused depends upon the result, the probability that all important materials for the formation of a sound opinion will be collected is as high as in the nature of things it can be. Diminish the weight of the sanction under which the inquirers act; allow them to escape from responsibility by the vague, and in almost every instance utterly delusive hope, that perhaps in future years something may occur by which the present wrong—if wrong it is— can be set right, and the chance that the wrong will be done is almost indefinitely increased. The feeling that inquiry must be made now or never, gives every man who is to be hung, on whose guilt rests the least shadow of suspicion, a certainty that he will not be neglected. If the wrong might be redressed at any time, it would be far more likely not to be redressed at all. The power of French juries to convict men with extenuating circumstances, leads occasionally to the conviction of innocent men. It frequently leads to the conviction of men whom no English jury would ever think of convicting. It is highly probable that, in the course of a hundred years after the abolition of capital punishment, a considerable number of innocent sufferers would have to regret the cruelty of what was meant to be a triumph of humanity. The public would have spared their own nerves at the expense of diminishing the security of innocent men and the terrors of guilty ones.
Though the existence of capital punishment undoubtedly secures careful inquiry into the guilt of persons capitally convicted, in cases which admit of any sort of doubt, it is certainly true that nothing more unsatisfactory can be imagined than the present mode of conducting that inquiry. Its absurdity may be summed up by saying that it is a system which throws the responsibility of a most solemn judicial act upon a man who has no judicial experience: who has no judicial authority: who has no means of prosecuting a judicial inquiry, and no power to remedy any wrong which he may discover, except by pardoning an innocent man for a crime of which he is shown not to have been guilty. The monstrous absurdity of the result can be described only by saying that it is worthy of the process by which it is arrived at.
Such being the evil—an evil of which the practical importance is fully acknowledged—what is the remedy? In order to understand the matter fully, we must clearly understand what it is that is required to be done. The evil is that there are cases—and especially that there are capital cases—in which, for one cause or another, the verdict of a jury does not give general satisfaction. Living as we do under a system of universal publicity, and general discussion of all questions relating to the public, people like to be, as it were, personally satisfied of the guilt of a man before he is put to death. They like to know whatever can be known upon the subject, and will not be satisfied to leave any matter unexplored, for any technical reasons whatever, such as are interposed by the rules of evidence and procedure, the discretion of counsel, and the like. This accounts for the great majority of the cases in which the interference of the Secretary of State is called for. The remaining cases are those in which the public think that the provocation given, though not technically sufficient to reduce the guilt of the offender to manslaughter, was, nevertheless, so great as to reduce the moral guilt in that proportion. The alteration already suggested in the definition of murder, would almost entirely do away with cases of this kind. For practical purposes, therefore, the question is whether any satisfactory plan can be suggested for reviewing the sentences of juries, in cases in which, for whatever reason, they have not in fact given general satisfaction.
Some considerations as to the precise position of the persons for whose benefit such an institution is required, will render the answer to this question easier than it is sometimes considered to be.
In the first place, the case cannot arise unless a jury have declared a prisoner to be guilty, and would arise comparatively seldom unless they had declared him to be guilty of murder. In the next place, by the supposition, the inquiry of any other tribunal than the jury cannot put the convict in a worse position than he is in already. The man will be hung unless some one interferes to save his life. Now of all possible tribunals a jury is in general the least likely to err on the side of severity, and the English rules of evidence and procedure are so framed as to give to the accused advantages which he possesses in no other part of the world; there must, therefore, be very unusual circumstances indeed in the case if a man is wrongfully convicted, or is even supposed to be wrongfully convicted of a crime in this country. The cases in which this result happens will be found, on examination, to fall under not more than two or three heads. Sometimes fresh evidence is discovered after the conviction; sometimes the rules of evidence or procedure operate in the particular case to shut out matter which ought to be considered. In Jessie McLachlan's case, for instance, the question was the weight and effect of her statement made after conviction. In the case of night-poaching, referred to above, one main point was the statement of some of the convicts, after conviction, as to the presence of others on the occasion. Sometimes questions, especially scientific questions, are raised perhaps late in, the trial (as in Smethurst's case), and the public feel that they have not been fully discussed, or that the jury has not been competent to decide them satisfactorily. Sometimes, again (though this case generally falls under one of the other heads), the judge who tried the case is dissatisfied with the verdict.
What is the proper remedy for cases of this kind? In the first place it is obvious that each of them, except, indeed, the first case (the discovery of new evidence), implies that the common method of trial has failed from one or the other of those imperfections which are incidental to trial by jury. Rules of evidence are indispensable to the system, but they must occasionally shut out the truth, from the very nature of the case. Scientific questions must be entertained and discussed; but, for the most obvious reasons, a common jury is hardly competent to discuss them properly. Here and there the judge and the jury take different views of the case; and if the professional mind happens to be more lenient than the common understanding, it is probably not without reason. Every case where such questions arise may properly be treated as a special case, which ought to be referred to a special tribunal, summoned only in exceptional circumstances. The following suggestions will show how such a tribunal might be convoked and constituted, and what should be its functions. It should be composed of a small number of judges, chosen out of a larger number of persons qualified, so that the nature of the tribunal might be adapted to the character of the case. The constitution of the Judicial Committee of the Privy Council affords a precedent. The members of the Judicial Committee of the Privy Council, the fifteen judges, and the recorders of a certain number of the most important towns in the country should be members of this body. Out of them the Secretary of State for the Home Department should have power to choose a certain number, qualified in a certain manner, according to the importance of the case; say, for instance, five, of whom at least two should be judges in a capital case, and three in cases not capital. They should be convoked as a matter of right, if the judge who heard the cause certified that he was dissatisfied with the verdict of the jury, or that new evidence had been brought before him which could not, in his opinion, have been produced at the trial. They should be capable of being convoked, as a matter of discretion, if the Secretary of State thought that for either of the other causes specified, justice required it. And when they were convoked, they should sit as a court, with power to administer oaths, hear witnesses and counsel, examine the prisoner, and take any other means whatever of discovering the truth, which to them might seem expedient, without reference to any rules of evidence or procedure whatever. As the result of all this, they should have the power finally to confirm or quash the verdict; or if new evidence were produced, and the reason why it was not produced before were satisfactorily explained, to order a new trial before a different jury.
This expedient would relieve the Home Secretary from the intolerable pressure now put upon him. It would give ample security for the full investigation of all cases which required it; and it could hardly be abused, inasmuch as the court could not be convoked unless the judge was dissatisfied with the verdict, or unless the Home Secretary thought that the justice of the case required it. It would also have the great advantage of acting not by means of a legal fiction, but in the discharge of regular legal functions under explicit legal provisions.
By the help of some such arrangement as this, coupled with a better definition of murder, all the real objections to the infliction of capital punishment might be removed. It may, indeed, be a question whether the punishment has not been unadvisedly restricted in its operation by a natural reaction against the barbarity of former times. It is greatly to be regretted that attempts to murder, which fail only by accident, should not be capital; and there are one or two other crimes of which the same might be said. For instance, certain forms of arson, and rapes committed by several men in company. Piracy in its worst form is still capital, and ought to be so, and the same may be said of high treason. The Cato-street conspiracy,for instance, was almost as wicked and dangerous an act as was ever committed, and deserved capital punishment at least as much as an ordinary murder, if not more.
Fraser’s Magazine, June 1864.