Considerations on the Punishment of Death (by Charles Neate, 1857).
Capital punishment is a hackneyed subject, and it is difficult to write or say anything on it which has not been said before. We therefore only refer to a pamphlet lately published on the subject by Mr. Neate, because it seems to us to stand out from the body of literature to which it belongs, by the ability with which the question is argued, and the manner in which the author's arguments are expressed. We differ entirely from Mr. Neate in the general conclusion at which he arrives, for he strongly condemns the infliction of capital punishment; but although he does not convince us, he certainly stimulates thought, and gives a charm to a dry subject by an attractive and forcible style. Every now and then we come upon instances of rhetorical exaggeration, but the bulk of the pamphlet is temperately written. There is no gain, in matters of this sort, greater than that of having all that is to be said on one side put clearly and ably before us; and Mr. Neate's pamphlet furnishes us with all, or almost all, that can be said in favour of abolishing the supreme penalty of the law. It has the great merit of passing lightly over the preliminary subtleties with which the inquiry is so often clouded. If the infliction of death is by far the most effectual punishment, and if it is useful on account of the moral lesson it conveys, Mr. Neate is quite willing to allow that the State ought to have resort to it. He goes at once to these two points, and denies that capital punishment is either morally useful or efficacious. We will briefly state the nature of his arguments, and the objections to which we think them open; but we may repeat that we enter on the subject, not so much from the wish to discuss it at length—for it is one on which we have often expressed an opinion—as from a desire to call attention to a publication which is, we think, well deserving of notice.
We will first take the utility of capital punishment as a means of conveying a wholesome moral lesson. Mr. Neate admits that, by singling out murder as the one crime to be punished with death, we inspire a feeling of the sacredness of life, and invest this exceptional crime with an artificial horror. But he says that we undo our own work even in the moment of accomplishing it; for the State, by taking life—by showing how easy and simple it is to destroy a man—suggests to its members the possibility of following its example. Murder, again, provokes fear and pity so strongly, that no additional aid is necessary to intensify the hatred with which mankind regard the murderer. Of course, as far as the mere spectacle of a violent death affects the mind, the sacredness of life is violated as much by the State hanging a man as by a neighbour assassinating him. But we should be setting a very low estimate on the understanding and the moral culture of a people if we supposed them incapable of viewing the two deaths in a very different light. Even the rudest mind can instantly comprehend that the State sets a value on life, and that the murderer disregards it. Two persons may do exactly the same thing, but if the motive of action is avowedly different, the lessons derived by others from witnessing what is done have a corresponding variance. Nor can we say that the object of the execution is to make us hate the murderer, and that he is already regarded with sufficient abhorrence.
The moral lesson which the State teaches is not to make us hate the murderer, but to hate and dread the mere notion of murder—to impress upon us that murder is a crime standing by itself, black with a particular guilt, and burdening the soul with a special and singular weight of sin. The moral lesson intended to be conveyed is, however, a secondary matter. The real question is, whether capital punishment inspires much greater dread than any other punishment? Unless it does, we might hesitate to take a man's life in order to give a good moral lesson to his fellow-creatures. Now, we think the real test of this is to ask any man who is in health and strength, who is under no temptation to commit a crime, and has no reason to suppose that he will be tempted to commit one, whether he would rather be imprisoned for life or hanged. We do not believe that, in the estimation of the mass of mankind, life is, even for a moment, to be compared with anything else. To live is above everything. But, even then, we ought to add something more; for we ought to suppose that the person to whom the question is put has committed some very dreadful crime, and the real test is, whether he would rather die suddenly with the consciousness of guilt, or live in prison with it. The dread of the future world is so overpowering, when its terrors are fairly held up to the reflection of man, that we do not believe that any human being, who could set himself to answer calmly and deliberately, would feel a shadow of doubt on this point. Mr. Neate says, that even if we found a man who declared beforehand that he should prefer death to imprisonment, and who yet, when the moment of death came, changed his mind, we should not still be sure but that his real wish—the wish of his wiser and more reflective self—was to die. And he adduces, as an analogy, the case of a man who, although he might truly and deliberately prefer to have his tooth out rather than suffer continual toothache, might yet flinch at the time, and shrink much more than he would have done from the first access of the pain of a mild tooth-ache. The parallel, however, is not complete. When the tooth is out, all is over; but when death is over, life in death begins. If we were quite certain that, when we died, we were extinguished, body and soul, death would be a small punishment. It is the terror of going we know not where that makes us regard death with so much horror; and it is this terror which would, we have no doubt, make any one, under no temptation to commit a crime, prefer any term of imprisonment to death if he placed himself in imagination in the position of one who has a great stain on his soul.
If then, there is this enormous difference between the terror of death inflicted for crime and that of any other punishment, in the eyes of a man who has no criminal intention, there can be no reason why a man who meditates a crime should not see this difference also. If he is deterred by fear at all, he will be more powerfully deterred by the greater fear. It is true that fear is often wholly overcome. A burglar enters on a course of life in which he may be tempted to commit murder at any moment, without any immediate previous reflection. A revengeful or covetous man may be led on by his passions till he is absorbed in the desire to gratify them. But so far as fear operates on him at all, it must operate more strongly the greater it is. Fear nips crime in the bud—it does not check it when ripe and full-grown. The thought occurs that a few grains of strychnine would clear off heavy debts, or that a burglary might lead to rich booty. Fear is one of the agents that repel this thought. The thinker puts before himself the end to which he may come, and the more terrible the end, the more he is repelled. If fear is insufficient—if the motives for crime are too powerful – then the mere excitement of action does away with further reflection, and all thought of the consequences of the murder is lost in the engrossing interest of planning and executing the deed. But there is a moment when the fear of consequences comes into the thoughts of the vast majority of criminals, and all punishment sets itself to work with regard to this moment, and to avail itself of this interval between the first and the succeeding stages of guilt. That punishment, therefore, which appeals most forcibly to the mind, which causes the deepest dread, is the most efficacious. We should have thought that the experience of the effects of Lynch law would have decided this. When a community is obliged to strike terror in order to maintain its own existence, it adopts the engine of death. It strikes quickly, impartially, and is supported by the moral approbation of those who are not criminal. he end is speedily obtained, and the fear is soon found to do its work.
During the last century of English history, this principle of making the fear as great as possible was carried to an unwarrantable, extreme. Punishment, it was said, seeks to deter; and all therefore that we have to aim at is to make the deterring force as great as possible. If a pocket-handkerchief was stolen from the washing-lines, or a tree cut in the night, the State had to deter others from emulating the offender. Nothing was to be considered except how to deter most efficaciously, and as death was recognised as the most terrible punishment, it was fixed on as the penalty. A lingering good sense—or rather the impassable limit which is appointed for even the extremes of logical folly— prevented the complete application of the principle; for there was no reason why the thief who took goods of a less value than five shillings should not be deterred as effectually as one who stole goods of greater value. But the advocates of the principle saw, in a dim sort of way, that it was just possible that the end might not be worth the means, and that to send a human being out of the world might be rather a strong measure to take in order to preserve a pennyworth of bread. Gradually fuller light dawned on the public, and at last the counter-principle was established that there is nothing which it is worth while to protect at the cost of human life except human life itself, or the existence of government and society. Mr. Neate insists that we have still further limitations to make. He urges that no political crimes, such as come within the law of treason, ought to be punished with death, and that in punishing murderers we ought to take into consideration extenuating circumstances—such, for instance, as the provocation of conduct calculated to awaken jealousy. The very slightest reflection shows us that it is not always equally criminal to kill a man, although the act is still a crime. If shades of guilt are sufficiently distinct to be apprehended by the common observation and sense of all men, it is a great mistake for the legislator to ignore them; and although the law stands as it did, we know that practically the punishment of death is not inflicted in England for political offences, or when strongly extenuating circumstances can be shown to exist. There still remains very much to be done before the English law of homicide will be what it should be, and any efforts made to improve it by a mind competent to deal with so difficult a question must be acceptable; but defects in the English legal system have nothing to do with the general expediency of capital punishment, and although Mr. Neate is much too able a man not to see the distinction, we wish that he had more carefully separated the two subjects in the form and arrangement of his pamphlet.
Saturday Review, April 25, 1857.