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À GENERAL REVIEW
OF THE SUBJECT OF
CAPITAL PUNISHMENT.
Reprinted from 11 The Soolal Science Review,"
BY
WILLIAM TALLACK,
Secretary to the Society for the Abolition of Capital Punishment.
SOCIETY FOR THE ABOLITION OF CAPITAL PUNISHMENT.
Samuel Gurney, Esq., M.P., Treasurer ;
Thomas Beggs, Esq., Charles Wise, Esq., Hon. Sees.
OFFICE : SOUTHAMPTON STREET, STRAND, LONDON, W.C.
��A GENERAL REVIEW OF THE SUBJECT OF
CAPITAL PUNISHMENT.
By William Tailack, Secretary to the Society for the Abolition of
Capital Punishment.
The large amount of public attention which has been drawn
by recent events, and especially by the appointment of a
Royal Commission of Enquiry, to the subject of Capital
Punishment, renders the present a suitable time for a careful
consideration of the question, “ Whether the death-penalty
renders life more secure 1 ”
Before we proceed to answer this inquiry, it may be useful
to glance at the changes which have been made in our penal
code during the last fifty years.
At the commencement of the present century, about one
hundred and fifty crimes, some of them very trivial, were
punishable capitally, as for example, stealing one shilling from
a dwelling, five shillings from a shop, forty shillings from a
dwelling, or letting water out of a fishpond; and so frequently
was the fatal sentence executed, that throughout the “ good
old days ” of George the Third, London fully deserved the
name given to it by a popular writer—“the City of the
Gibbet; ” and there was at least some reason for the poetic
taunt of Dr. Johnson :—
“ Scarce can our fields, such crowds at Tyburn die,
With hemp the gallows and the fleet supply.”
But notwithstanding the number of executions, there were
so many motives for interference with, and obstruction to,
the enforcement of the law, that the great majority of criminals
escaped. Mr. Wilberforce said in the House of Commons in
the year 1812, “I remember having, many years ago, been
informed by Mr. Justice Buller, that out of thirty-eight capital
convictions, not more than one execution, upon an average,
took place. Can it then be doubted that offenders will calcu
late upon the probability of escape ? ”
The first steps towards ameliorating the state of the law, in
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respect of Capital Punishment, were taken in 1808 and 1810,
when Sir Samuel Romilly introduced a bill into Parliament for
abolishing the death-penalty for stealing from bleaching grounds.
In 1811, this bill became law, chiefly through the earnest
petitions of the Irish linen manufacturers, who pleaded the
utter insecurity of their property in consequence of the
determined resolution of juries not to convict capitally for an
offence so comparatively small as that of stealing linen.
Several other proposed ameliorations of the penal code were
rejected, both at this period and in subsequent years.
Nearly a quarter-of-a-century elapsed without further progress
in this direction.
In 1828, an Association for promoting further appeals of
the capital statutes were organized (under the patronage of
the Duke of Sussex) by Messrs. Sydney Taylor, Fowell Buxton,
William Allen, and other gentlemen, including the Right Hon.
Stephen Lushington, D.C.L., and the late Peter Bradford, Esq.
With these was also associated the late John Thomas Barry,
whose exertions were most indefatigable and effective. His
friend, William Allen, records of him, on one occasion in his
Journal : “ I called on J. T. Barry, at Trinity Square; he
Works there constantly, doing almost all that any committee
could do.” In 1830, this Association procured the signatures
of a thousand bankers to a petition for the abolition of the
death-penalty for forgery; and although the Government did
not immediately alter the law, yet no execution for that
crime subsequently occurred.
In the year 1832, William Ewart, Esq., M.P., commenced
that series of vigorous parliamentary efforts towards diminishing
the number of capital statutes, which continued session after
session, until, at the commencement of the reign of Queen
Victoria, there were only ten capital offences remaining on the
statute-book, as compared with one hundred and fifty in the
previous generation. In 1833, the barbarous statute of “hanging
in chains” was abolished; and in 1836, Mr. Aglionby carried
a bill repealing the law for executing murderers within forty
eight hours after sentence. In 1836 and 1837 there was a
sweeping abrogation of the death-penalty for a number of
offences, leaving about eight nominally capital, and of these
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only three continued virtually so. In 1840, the first parliamentary
motion for the total abolition of Capital Punishment was
introduced by Mr. Ewart, and receives the support Lof ninetythree members.
During the twenty years intervening between 1840 and
1860, the Society for the Abolition of Capital Punishment
steadily continued its operations, which were greatly aided by
the assistance of Messrs. Charles Gilpin, Thomas Beggs, and
A. H. Dymond. These three gentlemen from time to time
visited the principal towns in the kingdom, and held influential
meetings, by which the expediency of totally abolishing the
death-penalty was brought prominently and repeatedly before
the public mind. During this period the parliamentary efforts
of Mr. William Ewart were continued, and were especially
aided by the co-operation of Sir Fitzroy Kelly, and the late
Lord Nugent. Important service has also been rendered to
the cause by the writings of Messrs. Charles Neate. M.P.,
Charles Phillips, Edward Webster, Frederic Rowden, and
Thomas Beggs. Mr. Phillips’ pamphlet, in particular, entitled
“ Vacation Thoughts on Capital Punishment ” (London : Ridgway,
Piccadilly, price one shilling), has had a very extensive
circulation. Very recently two excellent pamphlets on the same
subject have been put forth by Lord Hobart and Mr. Sheldon
Amos. Lord Hobart’s Essay (London: Longman and Co.)
is distinguished by its impartiality, breadth and cogency.
In October, 1860, the Manchester Town Council unanimously
memorialized the Home Secretary for an inquiry into the
operation of the present law, on the motion of Mr. Councillor
Fildes, whose speech on the occasion (published by John son
and Rawson, 89, Market Street, Manchester) is one of the most
valuable of modern essays in favour of the abolition of the
death-penaltyBy the consolidation of the Criminal Statutes in 1861, several
crimes, including attempts at murder, ceased to be capital—
leaving actual murder the only crime, except treason, punish'
able with death in this country.
Considering the marked success that has attended this long
course of repealing sanguinary laws;—considering the increased
security from the crimes once capital, such as forgery, horse-»
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stealing, burglary, and sheep-stealing; and also considering the
greater proportion of convictions now resulting from committals
for these crimes;—it is strange that there has not been a
universal readiness to effect a similar reform in the treatment
of the crime of murder.
The plea of the necessity of Capital Punishment to ensure
public safety and to deter the criminal, has been abundantly
answered in relation to those crimes against property to which
reference has been made. They have been removed from the
imposition of the extreme penalty with the most favourable
practical results. And there is every reason to believe that a
similar course in respect to the crime of murder ‘would also
be efficacious. Indeed, experience has proved it to be so in
various countries, as in Tuscany, Michigan, Wisconsin, Rhode
Island, and in several States of Germany and Cantons of
Switzerland, as well as, approximately, in Belgium, Prussia,
Russia, and elsewhere, where murders have decreased as a less
extreme penalty has been substituted for the punishment of
death.
The experience of Tuscany is very interesting, as it has
extended over a long period. Capital Punishment was virtually
abolished in that State by the Grand Duke Leopold, about
the year 1770, and absolutely so in 1786. The result was a
remarkable diminution of murders. In consequence, eventfully,
of the political confusion attendant on the wars of the
French Revolution, and chiefly through Austrian influence and
the dread of conspiracy, the death-penalty was re-enacted in
Tuscany in 1790. But the remembrance of former experience
procured its repeal a second time. Once more, however, did
Austrian influence, as it is alleged, effect a re-imposition of
Capital Punishment; but yet again have Tuscan convictions
obtained for the third time the abolition of death punishments
in the State. In 1864, the new code of the recently formed
Kingdom of Italy, whilst nominally recognizing Capital
Punishment as the extreme penalty throughout the Peninsula,
yet makes provision for the virtual maintenance of its entire
abrogation in the province of Tuscany, The infliction of
permanent imprisonment is the substitute imposed.
The German States of Oldenburg, Anhalt, Nassau and Bremen,
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abolished Capital Punishment in 1849, jyid have not seen
reason to restore it. In Brunswick it has been virtually
abolished since 1854. During the last five years it has also
been abandoned in Venezuela, New Grenada, Equador, Mol
davia, Wallachia, San Marino, and the Swiss Canton of
Zurich. Also, virtually, in Portugal.
Two other Cantons abolished it at an earlier date, viz.;
Neufchatel in 1854, and Freiburg in 1848.
In the latter Canton the effect of the repeal has been
recently investigated by an official commission of inquiry, and
the result is thus stated in a letter (dated January 4, 1864)
addressed by the Swiss Minister of the Interior at Berne, to
the -writer, as Secretary to the Society for the Abolition of
Capital Punishment:—“ The Deport resulting from this inquiry
stated that neither crime in general nor special crimes against
life and personal security have been, in any way, relatively
more numerous in the fifteen years since the abolition of
Capital Punishment than in the fifteen years which immediately
preceded that abolition.”
In the debate on Capital Punishment in the House of
Commons, May 3, 1864, Mr. Bright read extracts from three
letters addressed to him a few weeks previously by the Gover
nors of Bhode Island, Michigan, and Wisconsin, in which
they reported favourably on the practical experience of the
abolition of the death-penalty in their respective States. The
dates of the repeal in those States were as follows:—by
Michigan in 1847; by Rhode Island in 1852; and by Wis
consin in 1853.
It is thus evident that both at home and abroad there is
no ground for asserting that an increase of crime has resulted
from the abrogation of Capital Punishment, so far as it has
been tried.
The principal, and now almost the only plea, urged in
defence of the gallows, is its necessity as a deterrent. It is
agreed, that abstractedly no influence is so powerful for the
repression of crime as the fear of death. The same plea
was formerly set up for the retention of the extreme penalty
in the case of other offences. But practical results have not
justified these alarmist fears and objections,
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There is no doubt but that the dread of absolutely certain
death is a most powerful and overmastering feeling, although
even this is often successfully defied, under the influence of
duty, love and patriotism, and under the denomination, of
the fiercer passions. It is also beyond dispute that after
arrest and sentence, condemned criminals are found to welcome
almost any form of punishment, however enduring and severe,
rather than be deprived of life. But none of these facts
prove that Capital Punishment is the most deterrent of penal
ties. Its preventive influence ought to operate before the
commission of crime, and with sufficient power to hinder its
consummation. Dread of punishment only felt after the act,
implies the impotence of that punishment to deter. And, on
the other hand, even assuming the deterrence of a death
penalty under abstract conditions of positive certainty, this can
no longer be logically urged for its retention, if it is found
in practice that public feeling and the general circumstance of
criminal trials necessarily impart a large and peculiar degree
of uncertainty to its infliction. It is notorious that no
secondary punishment can be compared with the capital penalty
for the uncertainty of infliction, or for the great difficulties
found to attend upon the attempts to convict the criminal.
This special accompaniment of peculiar uncertainty is uniformly
ignored by the defenders of death-punishment, although
practically, it is the great difficulty—and one which goes far
to nullify the claims for the assumed deterrence of what is
only formidable under imaginary conditions not found to exist
in reality. And further, it is found that a large proportion
of the murders committed are perpetrated under circumstances
either of headlong passion, blind fury, sudden impulse, intense
jealousy, or drunken frenzy—conditions which show that the
dread of punishment is not present, or not sufficiently powerful
at the moment of temptation. Those temporarily overmastered
by passion are often too exclusively possessed by such emotions
to admit, of calm and sufficient reflection upon probable con
sequences, and, if they are, they speculate upon the chances
of escape. Again, it can be shown by numerous instances
that there is a peculiar tendency in executions, and with the
crimes which are rendered specially notorious, to reproduce
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themselves through their inflneiice on morbid minds of a
certain type. At any rate, it is often observed that the occur*
rence of an execution in any town is a strong presumptive
evidence that another will, before long, be witnessed in the
same place.
Thus at Liverpool, in the spring of 1863, two men were
hanged for the Ribchester murder. Again in the autumn,
eleven persons were on trial for murder: of these, four men
were hanged for four separate murders, all committed in Liverpool,
Here were spectacles, sufficiently deterrent one would think, if
capital punishments are deterrent at all. Yet in spite of them,
at least four more murders occurred in the same town before
the year 1863 ended.
Similarly, at Chatham, in 1863, a youth named Burton
murdered an inoffensive child, and immediately afterwards
surrendered himself to the police, exclaiming, “I want to be
hangedand hanged he was. A few weeks afterwards, in
the same town of Chatham, Alfred Holden, a soldier, murdered
another innocent child. He too exclaimed, “ I want to be
hangedand he too was hanged accordingly. A third murder
was subsequently perpetrated in Chatham in 1863. What
evidence of deterrence is to be found in such instances?
As examples of the peculiar manner in which circumstances
calculated to excite a morbid imitation and love of notoriety are
peculiarly associated with Capital Punishment, and with the
interest in the criminal, attendant on its prospective or actual
execution, we may notice that a fortnight after the execution, in
1863, of George Vass at Newcastle, for a most horrible murder,
there were at least two wax-work exhibitions of his effigy,
conspicuously displayed as “correct models,” and in leading
thoroughfares of that populous town. Por many years past,
in a similar manner, the most notorious metropolitan or other
murderers have been duly “ immortalized ” by being placed in
effigy amongst the historic worthies at Madame Tussaud’s
Exhibition, for the contemplation of an admiring public. But
it is rarely, if ever, the case that either transportation,
imprisonment, or confinment in a lunatic asylum, is thus
Surrounded with such perverted “glorifications,” The evil is
�one of the class of mischievous accompaniments, peculiarly
incident to the death-penalty.
As to the great “moral lesson” taught by the gallows, it
has been most ably treated of by Dickens and Thackeray. Mr.
Dickens five letters to the Daily Neics, in January, February,
and March, 1846, form a masterly exposition of the impotence
(except for evil) of the extreme penalty of the law. And
we may add, that if anything was wanting to explode the
plea for the “ teachings ” of the gallows, it is to be found in
the report of Muller’s execution, as given in the Times of
November 15th, 1864. The reporter of that newspaper writes,
“ It was one long revelry of songs and laughter, shouting and
often quarreling,—worse in conduct it could not be.” And,
after the drop had fallen, he adds, “For five or ten minutes
the crowd who knew nothing of his (Muller’s) confession, were
awed and stilled. The impression however, if any real im
pression it was, beyond that of mere curiosity, did not last for
long, and before the slight slow vibrations of the body had
well ended, robbery and violence, loud laughing, oaths, fighting,
obscene conduct, and still more filthy language reigned round
the gallows far and near.”
A similarly powerful testimony to the failure of death
punishments to deter their witnesses, was recently borne by Mr.
Sheriff Nissen, in a paper read at the Social Science
Congress at York. That gentleman is peculiarly qualified to
give an opinion on the subject, inasmuch as during his shrievalty
in 1864, he had to witness, officially, more executions in
London than it has probably fallen to the lot of any sheriff,
in England and Wales, to witness during the past quarterof-a-century.
So far from securing the community from murderers, the
enactment of Capital Punishment peculiarly aids their escape
and non-conviction,—and more especially because, at present,
there is no intermediate course possible, for a jury in murder
trials, between absolute acquittal and a verdict involving an
irreparable result. There is no alternative. The prisoner is,
by the law of murder, either entirely innocent or guilty
to the utmost extent ; and no legal plea but that of
insanity can avail him. Yet it is evident that there may be
�9
circumstances, and such, constantly occur, of greater or
less aggravation or qualification, which largely modify the
guilt. It is true that a recommendation to mercy may be
expressed by a jury, but it is by no means a uniform
practice to act on that recommendation. Neither can a verdict
of manslaughter be substituted for one of murder; or at least
not in a variety of cases of homicidal crime.
Thus at the
trial of Taylor, for the Manchester murder, the judge told
the jurors that it was “ murder or nothing.” (Times, March
31st, 1863.)
The Hon. George Denman, recently stated in the House
of Commons (May 3rd, 1864), that “ The escapes in trials for
murder are fifty per cent. In cases of murder, evidence to a
perfectly ridiculous extent is required to insure a conviction.”
This is not unreasonable. For a capital penalty being irreparable,
renders necessary an amount, and an absolute certainty, of
evidence, which would not be demanded with any penalty
short of death. But such evidence it is very difficult, and
often impossible, to obtain. Such difficulties in coming to a
decision would be obviated by the substitution of a secondary
punishment, however severe. Opportunity and time would be
afforded for the ultimate discovery of possible mistakes in
conviction ; and in such an eventuality, some amount of com
pensation could be made to the sufferer. Meanwhile, under
any circumstances, no irrevocable error would have been
committed, and none of that awful responsibility incurred
which specially attends the taking away of human life. Jurors,
in repeated cases, have been left no option but either to acquit
a man, of whose partial inculpation in guilt they had no doubt,
or else to condemn him to the fatal sentence, whilst grave
reasons existed for doubting his absolute and entire guilt.
What wonder that in such cases they have adopted, though
most reluctantly, what has appeared to be the less of two
serious evils. If it be argued that jurors ought not to take
such a course all experience shows that, whether rightly or
wrongly, they have done so ; and it cannot be doubted that
they will continue to do so, until the law relieves their
irrepressible scruples in such difficult cases. The abolition of
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Capital Punishment would effect the removal of this evil, and
largely increase the certainty of punishing the murderers.
At the Hertford Assizes, some years ago, two men were
tried for two different offences, one capital and the other not
capital, but under circumstances otherwise very similar and
with evidence almost identical in nature in each case respec
tively.
The man tried for the non-capital offence was
convicted and transported. The one tried for the capital
crime was acquitted.
A juror was afterwards remonstrated
with for such apparent injustice and inconsistency, considering
the identical circumstances of evidence.
He replied, “ Why
surely you wouldn’t hang a man on the same evidence that
you would transport him for ? ” He was right. For, as
already observed, a man if wrongly transported can have
compensation made, but if wrongly hanged, the injury is
irreparable. Thus it occurs that, not unfrequently, murderers
escape conviction, sorely against the feelings both of the
public and the jurors themselves.
One of the jurors empannelled to try the six persons
charged (March, 1856) with the Matfen murder (a peculiarly
brutal one), near Newcastle, was remonstrated with by a
gentleman who expressed the astonishment of himself and of
the local public generally, at the verdict of acquittal then
returned. The juror admitted that he and his fellow jurymen
believed the charge to have been substantiated, but added
that there was not absolute certainty, and, said he, “We
could not consent to hang six persons except on perfectly
certain evidence.” Now, as a legal gentleman has remarked,
murder, of all crimes, is the most likely to be secretly
committed ; for example, murders by poison, murders by night,
or in lonely places, and on solitary unprotected persons.
How can perfectly indubitable evidence of such murders ever
be expected 1 The statement of Lord Tenderden, that in such
cases we should be satisfied with “ that certainty with which
you would transact your own most important concerns in
life,” is not a fair comparison. For, in the first place, a
probability, however great, can never constitute a “ certainty,”
and, secondly, even the “ most important concerns in life ”
stand in a quite different position from, a matter of death,
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even the most important step in ordinary life, that of mar
riage, is not absolutely irreparable, if a mistake has been
made. Either the divorce court or some kind of modifying
arrangement can qualify its worst abuse ; but the infliction
of death stands widely apart from all such comparison, by
being absolutely irrevocable, and capable of being qualified
by no kind of reparation to an innocent sufferer.
It is the wide spread and irrepressible feeling as to the
possibility of mistake which gives rise to frequent interferences
with the executive authorities in capital cases. Thousands of
signatures are appended to petitions; committees sit daily;
deputations besiege the Home Office; all kinds of private
pressure and influence are exerted on the authorities, in the
efforts to obtain a commutation, or at least a delay in those
instances (and they form a majority) where there is not
absolutely certain proof of the guilt of the condemned. This
was evidenced in the atrocious murder case of Miiller, Not
only was there the vigorous action of the German Defence
Association, but even the King of Prussia, it is stated, and
the Duke of Saxe Cobourg, telegraphed for her Majesty’s
interposition, and a similar message was sent by the Duke
of Saxe Weimar to his consul in England.
Such interferences are, in themselves, most undesirable.
They are mischievous in their effect on the certainty and
dignity of legal administration.- But at present they are
inevitable, for they are a less evil than the danger and
difficulty inseparable from a capital penalty.
This interposition with judicial procedure is rendered still
more frequent, and even justifiable, at times, by the collision
which often arises between the highest legal and the most
experienced medical authorities. These collisions have occurred
in numerous cases of murder committed by persons whose
physiological or mental condition has raised just apprehensions
of their moral responsibility.' The Law, at present, virtually
declares that however powerless a man may be to control
an homicidal impulse, yet if he commits the act, he
ought to be held responsible, so long as he knows the
difference between right and wrong. It is universally admitted
that in such a case he ought to be held responsible. The
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safety of society demands it. But the question is, shall he
be held responsible to the extent of forfeiting his Ufe or
merely of his liberty for the rest of his life ? The Law
pronounces that he ought to die, however morally impotent,
provided only that he knows the nature of an homicidal act
as being a criminal one. The possession of knowledge is
here confounded with the possession of self-control. But
experience shows that the former often exists where the
latter has not been possessed even from infancy. Indeed the
very government of lunatic asylums is generally based on the
principle that their inmates have a sense of right and ■wrong,
independently of indubitable and dangerous insanity. As a
proof of the inevitableness of the medico-legal collisions
which at present frequently interrupt our courts of justice, we
may quote from the Lancet of July 30th, 1864, the following
important resolution, which was carried unanimously at a
meeting of eminent medical men, at the Royal College of
Physicians on the 14th July :—“At the seventeenth annual
meeting of the Association of Medical Officers of Asylums
and Hospitals for the Insane, it was resolved unanimously,
‘That so much of the legal test of the mental condition of
an alleged criminal lunatic which renders him a responsible
agent because he knows the difference between right and
wrong, is inconsistent with the fact well known to every
member of this meeting, that the power of distinguishing
between right and wrong exists frequently among those who
are undoubtedly insane, and is often associated with dangerous
and uncontrollable illusions.’ ” Certainly as long as the law
on this subject remains, there will also continue the vigorous,
and often successful, opposition of persons resolved to prevent,
if possible, the unseemly spectacle of an unfortunate person
labouring under an attack of homicidal mania being punished
with death for a natural and unavoidable calamity. Yet we
see no prospects of any such attainments in medical science,
or any such careful alteration of the law, as shall secure a
positive and clear line of demarcation between sanity and
insanity. The removal of the death-penalty for murder would
remove the cause of the present collision, so much to be
deprecated, between jurists and physicians. Under any cir
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cumstances a murderer, -whether sane or insane, should be
permanently separated from society; whether this takes place
in a penal or a medical establishment is a matter of com
paratively little moment, and would at any rate involve little
if any practical dispute. Again, such anomolies and difficulties
as were presented by the trials of Townley, Mac Naghten,
and others, would disappear with the abolition of Capital
Punishment.
One other objection to Capital Punishment may be thus
stated: that it makes no classification of the criminals. Is
it real justice to recognize no difference between a cold calcu
lating murderer like Palmer of Rugeley, and such exasperated
passion-driven wretches as Wright of Southwark (18G3), and
Hall of Birmingham (1864) ? Does justice truly balance her
“scales,” when the vast actual difference in cases like these is
not even recognized by her award ? It is however very doubtful
whether it will be found practicable to decrease the present
difficulties of the question, by an attempt to classify murders,
whilst retaining the capital penalty. For whilst some anomalies
would thereby be lessened, other new sources of impediment
would be opened up. But the abolition of the fatal punish
ment would entirely obviate such difficulties.
With a particular reference to the medico-legal embarrassments,
and to the inequalities of punishment just alluded to, it may
be further remarked, that those who plead for Capital Punish
ment in all cases of murder, should consider the serious
mischief of effecting a separation between the national conscience
of justice and the statutes of law. Law and justice should
be synonymous, or at least united, where the former is to
retain that uniform reverence and authority which all true
Britons would wish to be ever associated with it.
The substitution of an absolutely certain punishment, of
whatever kind (in some countries it is permanent imprisonment,
with active employment for body and mind), in place of
Capital Punishment for murderers, would remove the difficulties
and dangers of the present system, would meet the scruples of
conscientious and just jurors, would promote certainty of
conviction, would secure society from future violence from the
murderers, and would also destroy their present abundant
chances of escape.
�Ï4
The practical experience of other countries proves that
these advantages do accrue from the total abolition of Capital
Punishment, and that the advocacy of the repeal is not
based on mere theoretical grounds. But even if there were
no such foreign experimental confirmations, the result of
British Legislation, so far as it has proceeded in this direction
during the past half-century, is abundantly sufficient to warrant
the adoption of the remaining measure needful to complete that
long and noble work of justice and mercy which has removed
from our administration for every offence save one, that
impotent and brutalizing remnant of barbarism—the gallows.
With reference to the objection sometimes made that the
substitutes proposed in lieu of Capital Punishment are open
to grave objections, we may briefly reply that :
Firstly, permanent detention is, when rightly managed, as
for instance, at present in some of the American States,
found to be neither productive of physical nor mental disease.
This statement is confirmed by recent official documents.
Secondly, a considerable proportion of our murderers are at
present and long have been (by the commutations of their
capital sentences) punished by secondary penalties without any
grave injury to the public security or to the prison officers.
Thirdly, the most dangerous class of all criminals, viz. :
insane murderers, are committed to the Government Asylum
at Broadmoor, where about 500 of these most ferocious and
incurable homicidal lunatics are permanently confined with
absolute safety to the public and also with scarcely any ex
ception, even to their care-takers. See a lengthy and most
interesting account of Broadmoor, in the Times of January
13th, 1865. The writer, amongst other observations, records
“A committal to Broadmoor for murderous madness is as final
as regards the chances of return to the world, as death itself.”
Fourthly, it appears clear that, however difficult the question
of a substitute may be, the capital penalty is attended by
still greater difficulties and by far graver evils than any that
exist under the strictest secondary systems.
In conclusion, we may just allude to the religious argument
sometimes adduced in favour of retaining Capital Punishment,
chiefly because of certain texts in Genesis and Deuteronomy,
�15
From these and others, it is undoubtedly evident that Capita
Punishment was both sanctified and commanded temporarily,
and on account of the semi-barbarous and comparatively dark
condition even of the most favoured people in those early
ages. But who will claim as binding amid the generally
diffused lights of modern Christianity and civilization, the
institutes of a race just emerged from centuries of bondage,
amid the degrading influences of pagan Egypt.
Those who plead for Capital Punishment on the basis of a
Mosaic permission, must, to be consistent, also plead for its
full restoration for the thirty offences for which it was enacted.
Further, if the Mosaic civil system is still binding on one
point, it is so in all. On the same plea, both slavery and
polygamy might be enforced, as indeed the former is still in
the Southern States of America. And in reference to polygamy
and easy divorce under the Mosaic system, a greater than
Moses declared that such arrangements were temporarily per
mitted as the less of two evils, or, “ because of the hardness
of your hearts.”
There are some persons who relinquished the Mosaic defence
of Capital Punishment, but yet plead the Noachian or Patriarchal.
These also, to be consistent, must demand the restitution of
altars for sacrifice, of circumcision, and. of the penalties of eating
any flesh containing blood. Of at least one of these institutes,
our Saviour declared that it had been re-embodied by Moses
in his ordinances, “not because it is of Moses, but of the
Fathers,” thus indicating that the Mosaic system entirely took
the place of the Noachian, as Christianity has of both. By
the quotation of isolated texts, apart from the spirit and scope
of scripture, almost any form of wrong and injustice may be
apparently authorized. Thus the Devil quoted texts to tempt
our Lord.
We may, however, securely rest on the broad principles of
love, mercy, and true justice, which characterize Christianity.
No isolated texts can be fairly interpreted if they appear to
justify evident injustice, to legalize cruelty, or to promote the
insecurity of society and the confusion of law.
No scripture can fairly be adduced, warranting us in taking
away criminals’ lives, when abundant experience demonstrates
�16
that such- an extreme measure can be safely dispensed with.
Christian mercy never teaches us that, by our laws of
homicide, we should visit with the gallows, in any instance,
the unfortunate victims of natural moral impotence or hereditary
mania, however subtle in its manifestations.
Nor can any reasonable definition of Christian justice
accord with the irrevocable infliction of death on uncertain
proof of guilt, and still less with the inexorable enactment of
such a doom, even on the most violent of criminals, apart from
any virtual consideration of the circumstances which rendered
them such. Christian justice implies no sentimental weakness.
It involves no impunity to murderers; but neither does it
sanction that even these should be hurried out of life, without
any regard to possible reform on the one hand, or on the other
to the often almost irresistible temptations which have formed
their usual antecedents :—as orphanage, parental neglect, or
perhaps even parental nurture in vice and crime ; a childhood
of squalor, ignorance, and of strongly hereditary deficiencies;
a youth too frequently trained amid want, profligacy, and
evil companionship :—“ dragged up ” rather than brought up—
and often a manhood (like that of Victor Hugo’s Jean Valjean)
not a stranger to noble efforts and aspirations, but again and
again repressed, dwarfed and finally petrified, by repeated
failure, by excess of difficulty, and by an overwhelming sense
of aid withheld and sympathy refused.
To assert that Christianity authorizes, or that the Bible
admits, the infliction of the gallows under these circumstances,
appears to us inconsistent with the glorious perfection of the
one, and with the sacred wisdom of the other.
Since the foregoing article on Capital Punishment was
prepared, the writer has received an interesting letter (dated
Heidelberg, Dec. 6, 1864), addressed to him by Professor
Mittermaier, and from which the following is taken :—•
“Concerning the experience
“ the Capital Punishment, we have
“ abolished this punishment since
“ Oldenburg. Unfortunately, in the
“ are not published.
of the countries which have abolished
only three governments which have
1849, Anhalt Dessau, Nassau, and
three states, official criminal table?
�17
“ But I am In correspondence with eminent lawyers of Nassau and
“ Oldenburg, and can assure you that, according to the letters received,
“ the general opinion among the lawyers and citizens of Oldenburg and
“ Nassau is, that the number of murders is not increased, and that
“there is not any reason to re-establish the punishment of death.
“ Mittebmaieb.”
The writer has also received a letter from Mrs. Harriet
Beecher Stowe, enclosing another letter from the well-known
American author and theologian, Professor Thomas Upham, of
Maine, to whom Mrs. Stowe has applied for information on
the subject. He gives the following brief extracts :—
“ In answer to Mr. Tailack’s first inquiry, namely, what has been
“ the result of the abolition of the death-penalty in Rhode Island, Michigan,
“ and Winconsin, I would say, so far as my information goes, the majority
“ of the people continue to be satisfied with the change. Were it otherwise
in any considerable degree, they would be likely to return to their
c‘ former system. I have not learned that any of the States of the
“ American Union, which have abolished capital punishment, or have
greatly modified their criminal codes, in that particular, have taken any
“ steps backward. I understand that some attempts of this kind have
“ been made in Rhode Island and Michigan, but have failed.
“ On the third question, namely, whether imprisonment with hard
“ labour for life, or for a term of years, can be adopted as a safe
“ substitute for the gallows, it is certainly right to say, that the experiences
“of this country look favourably in that direction.
“ It is right, in my opinion, to remember that the criminal is still
“ a man; and while we make the protection of society the first object,
“we are not to cease to do him good. In some cases at least, only the
“ Infinite Mind can understand the amount of liis temptations and
"sufferings. And we all stand in need of forgiveness.
“Thomas C. Upham.”
P.S.
The most recent work in advocacy of the Abolition of
Capital Punishment, is entitled “Capital Punishment, based
on Professor Mittermaier’s Todes-strafe,” by John Macrae Moir,
M.A., of the Middle Temple, Barrister-at-law.
London :
Smith, Elder and Co., 1865. Price Six Shillings.
Printed by William H. Wabb & Co., 17, Featherstone Buildings, W.C.
��
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A collection of digitised nineteenth-century pamphlets from Conway Hall Library & Archives. This includes the Conway Tracts, Moncure Conway's personal pamphlet library; the Morris Tracts, donated to the library by Miss Morris in 1904; the National Secular Society's pamphlet library and others. The Conway Tracts were bound with additional ephemera, such as lecture programmes and handwritten notes.<br /><br />Please note that these digitised pamphlets have been edited to maximise the accuracy of the OCR, ensuring they are text searchable. If you would like to view un-edited, full-colour versions of any of our pamphlets, please email librarian@conwayhall.org.uk.<br /><br /><span><img src="http://www.heritagefund.org.uk/sites/default/files/media/attachments/TNLHLF_Colour_Logo_English_RGB_0_0.jpg" width="238" height="91" alt="TNLHLF_Colour_Logo_English_RGB_0_0.jpg" /></span>
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2018
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Conway Hall Ethical Society
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A general review of the subject of capital punishment
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Tallack, William
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Place of publication: London
Collation: 17 p. ; 24 cm.
Notes: From the library of Dr Moncure Conway. Reprinted from The Social Science Review. Printed by William H. Ward & Co., London. Tentative date of publication from KVK. A general review of the subject of capital punishment, and the laws of capital punishment and the treatment of condemned criminals in Pennsylvania.
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[1866?]
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G5393
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Crime
Capital punishment
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Capital Punishment
Conway Tracts
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Text
&
THE ROYAL COMMISSION
and the
PUNISHMENT OF DEATH.
Eeprinted from "The Sooial Science Review.”
BY
THOMAS BEGGS,
F.S.S.,
Honorary Secretary to the Society for the Abolition of Capital Tunishment.
SOCIETY FOR THE ABOLITION OF CAPITAL PUNISHMENT.
Samuel Gurney, Esq., M.P., Treasurer ;
Thomas Beggs, Esq., Charles Wise, Esq., Eon. Secs.
William Tallack, Secretary.
OFFICE : SOUTHAMPTON STREET, STRAND, LONDON, W.C.
��THE
ROYAL COMMISSION AND
PUNISHMENT OF DEATH.
THE
By Thomas Beggs, F.S.S., Honorary Secretary to the Society for the
Abolition of Capital Punishment.
There is much, doubt whether the Royal Commission appointed
by Her Majesty in the last Session of Parliament, will be able
to report during the present year, and it is impossible to
conjecture what that report may recommend, or the results
to which it may lead. From the known sentiments of several
members of that Commission, it may be inferred that several
alterations in the present law will be suggested. In all
probability it will be the aim of the Report to relieve the
Home Secretary from the discharge of duties which must
have become intolerable to himself, and which in many
instances give so little satisfaction to the public. There may
be an attempt at a classification of the crime of murder into
those of the first and second degree—discriminating those which
have been the consequences of deliberate design from those
which have been the result of sudden impulse, or temptation;
and it is possible that the substitution of private for public
executions may be recommended. It may also report in favour
of a Court of Appeal.
Something will be gained by the
adoption of any or all of such expedients, but they can • only be
looked upon as steps towards the attainment of total abolition.
Much will depend upon the public opinion out of Parliament,
as well as the senti-ments of those who sit within it j and it
is therefore proposed in the present paper to discuss some
of the more important points pressing for consideration.
It
is desirable to inquire, what is the real issue involved, and
to separate from it all that is irrevelant, or that is only
remotely related to it. To this end it may be necessary to
look at some of the principal objections to the punishment
of death, and then to examine how far these objections are
likely to be met by any of the alterations to which reference
has been made.
One of the principal objections to a death penalty is, that
it provides the same punishment for all gradations of crime.
�4
There is no offence against human law which presents so
much difference in the shades of guilt—so far as men are able
to judge of motive and to appreciate the force of circumstances
acting upon the human will. In the case of Annette Myers,
who was condemned for shooting a soldier, who had first
seduced her and then tempted her to a life of prostitution to
supply him with means to gratify his vices, and in that of
Palmer, there is as wide a distinction as can possibly exist
between two offences of the same kind. They were both
cases of murder, and both were punishable by death. In the
case of the poor girl, the prerogative of mercy saved her from
the gallows. It would be easy to find cases within the pre
sent century where that prerogative might have been just as
properly exerted—and probably the unusual and somewhat
romantic character of the crime for which Annette Myers was
condemned, had much to do with exciting that public sym
pathy which preserved her life. An instance is on record of
a working man who perished on the public scaffold at Not
tingham, and whose case furnished as good a plea for a mer
ciful interposition on the part of the crown. The wife of this
man was seduced from his home. He followed her to the
house of her seducer, and begged her to return, promising to
forgive all. She refused; when in a fit of desperation he
took up a table-knife and cut her throat. What is there of
guilt in such a case when compared with that of the Man
nings 1 There can be no defence for a law thus indiscrimina
ting in its awards but that which was given by the ancient
lawgiver, and which justified the death penalty for all of
fences—that the smallest crime merited death, and there could
not be found a heavier punishment for the gravest offence
against the law.
The evil consequences of a law dealing out the same
punishment to offences so variable in their delinquency, are
seen in our daily experience. In some cases a false sympathy
is created for the condemned, and after the judge and jury
have decided upon the case, and the Home Office have con
firmed the decision—the public take it up—put the case under
another trial—go into the evidence, and demand a reversal of
the verdict, or a mitigation of the sentence. No one who is
�5
acquainted "with the conduct of our criminal courts will
hesitate to deprecate a course like this. If appeals from the
decision of a criminal court have to be made, they ought to
be made to a tribunal, capable of sifting evidence, and not
to public opinion, which at all times, but especially in periods
of excitement, is incapable of looking at facts with judicial
eyes. It is only in cases of condemnation to death that
these interferences are made.
In cases where the severest
secondary punishments is inflicted, any interference is exceed
ingly rare. It is the inevitable result of the death penalty
that the public will sometimes think it too severe for the
crime committed, or will be alarmed at the prospect of
executing a man who may possibly be innocent, and therefore
the excitement and the interference.
Although the cases
where men have gone to death with strong protestations of
innocence, whose guilt admitted of no reasonable doubt,
are numerous, still an uneasy feeling will always pervade the
public mind when such declarations are made by men upon
whom the door of earthly hope has closed for ever.
This is not the greatest evil. The worst part of it is in
the sympathy which gathers about the murderer when any
doubt of his guilt affects the public mind, or where there are
mitigating circumstances in the case—a sympathy which seems
to absorb all horror, or even recollection of the crime. In
the case of Annette Myers, whatever the nature of her pro
vocation, however gross the wrong and the insult to which
she had been subjected, she had provided herself with a
pistol, sought out the man, and deliberately shot him. She
had in an instant sent a guilty man to his account without
time for preparation, and this consideration seemed to weigh
heavily upon her in the condemned cell, for there she called
with much bitterness of feeling—“ Oh, what has become of
his soul1?” It would be impossible to censure the feeling of
commiseration which sprang up for this distressed but guilty
girl. But it is not for the welfare of society that we should
allow a sympathy like this to efface all horror of the crime.
In some quarters she was looked upon in the light of a
Roman heroine—as a sort of Lucretia, who had done a
praiseworthy act in avenging her own shame. A reverend
�6
gentleman, in a public meeting, declared—“It requires all my
Christianity to check me from saying that I honour the
woman.” What can be expected from the uneducated and
the vulgar, when men of education and position thus allow
their feelings to overrun their sense of propriety ? Is not this
teaching indirectly that there may be and are circumstances
which justify an act of vengeance even to the taking of
human life? The fault is in the law. Had this unfortunate
girl been condemned to a severe secondary punishment, there
might have been some feeling of compassion, but no sound
mind would have found an apology for the crime. “ The
safety of human life depends,” as Mr. Bright expressed in
the last debate, “upon the public reverence for life,”—and this
reverence cannot be created or preserved by public exhibitions
of death, nor by maintaining a law which by its very severity
creates a sympathy for those who commit murder.
Another case presents in a still stronger light the evil
complained of. On December 31st, 1841, a man of the
name of John Jones, who sometimes 'bore the name of Moore,
a shoemaker, murdered his sweetheart, Mary Hallam, the
daughter of a respectable labourer at Mansfield, in the county
of Nottingham. He was executed on March 23rd, 1842. He
was a man of unsteady habits, and gave way to violent
fits of passion. The girl declined his addresses, and he said
that if he did not have her no one else should. After he
had inflicted the first wound, which was not immediately
fatal, she begged for her life; but seeing him resolved, asked
for time to pray. He said that he would pray for both,
and then completed his purpose. The wounds were inflicted
by a shoemaker’s knife, and her throat was cut barbarously.
After this he kept on his knees some time and prayed to
God to have mercy on two unfortunate lovers. He made
no attempt to escape, and confessed the crime. After his
confinement he behaved in the most decorous manner. He
won upon the good opinion of the gaol chaplain, and he
was visited by the Bishop of Lincoln. It does not appear
that he expressed any contrition for the crime, but seemed
to pass away with triumphant certainty that he was going
to rejoin his victim in heaven, He was visited by some
�pious and benevolent ladies of Nottingham, some of whom
declared that he was a child of God if ever there was one,
meaning, it is presumed, that his state of religious feeling
after condemnation had wiped away all transgressions. The
same lady sent him a white camelia to wear at his execu
tion.
Of course great crowds gathered at the execution,
multitudes coming in from surrounding towns and villages;
Mansfield, Newark and Derby supplying a large per centage
of the strangers present at the scene.
The crowds came thronging in from six o’clock in the morning.
It would be well for those who contend for the deterrent
influence of death punishment to mingle with such crowds.
The expression was almost universally, one of sympathy with
the man about to suffer. The painful part of it appeared to be
this—that the offence seemed to be entirely lost to the minds
of those who were conversing about his fate. A horrible crime
had been committed. A poor girl had been barbarously
murdered; the supplications for her life, as well as those she
made for a few minutes’ time, that she might prepare for
death by prayer, were disregarded. Her bereaved family were
left with stricken hearts to mourn the loss of a daughter by
a violent and sudden death; and yet all this seemed to have
passed away from the minds of those who had come to see the
murderer die. He was looked upon by many as the victim of a
misplaced and unrewarded affection, and the sufferings of his
victim were wholly disregarded. One man was heard to say
to a companion, who seemed to be his son, I wish you and
me were as ready to die -as he is.” Similar extravagances were
committed, so far as the treatment of the criminal was con*
cerned, by benevolent visitors, in the case of Cook, who
murdered Mr. Paas, and afterwards attempted to destroy the
body by burning it.
By the way, the wretched man Jones was fondled, caressed,
and flattered by a number of indiscreet persons, injury would
be done to himself. Such treatment to a man whose hands
were reeking with a foul murder, were calculated to nourish
that vulgar, but profound egotism, which was the most marked
feature in his character, and little calculated to awaken that
humility which is essential to true peniterce. An intense
�8
egotism is the characteristic of all great criminals. In the
case of a man who has consummated an irregular and criminal
career, by the commission of a murder, it must be highly
injudicious to inflate the mind by false hopes, either temporal
or eternal. The result of such attentions as were paid to
this man, were calculated to produce a display of ostentatious
penitence, or to create a self confidence ill-suited to his position.
The highest aspiration of the guilty, ought to be that taught
in the prayer of the publican, 11 God be merciful to me a
sinner.”
On the public mind outside, the effects were
equally deplorable. To some, by the extraordinary attentions
paid to him, he was raised into a hero or a saint, and made
almost an object of envy among his own class.
There is another "case of more recent date, that of Joseph
Castle, who was executed in 1860, for the murder of his wife.
His own confession made it clear that the crime was deliberate.
After his condemnation he was petted much in the same way.
His conduct was brutal and sensual throughout—and in his
last moments he manifested no concern for the poor woman
he had murdered, nor in fact any true penitence. He was
eager for his meals, and anxious to secure all the indrdgences
the prison rules allowed, and the gaol authorities were lavish
in their attentions. It is the doom of death which surrounds
these men with all this factitious interest. What they say
and do becomes an object of inquiry, and their daily state of
health is looked for more greedily than is a royal bulletin.
The man whose hours are fixed, becomes an object of pity to
the gaol officials. It is the duty of the chaplain to awaken
him to a sense of his condition, and prepare him for the world
he has to enter. If there are circumstances in his case of an
exceptional or extraordinary kind—he becomes an object of
interest to a number of pious and kind people outside. The
lesson taught to the multitude loses its impressiveness and its
power, and that solemn awe which ought to be present at the
punishment of a great criminal, is overwhelmed by other
feelings. Change the doom of death to that of penal servitude,
or any other equivalent, and he becomes at once an ordinary
criminal. As soon as the respites for Hall, Townley, and
Butler left the Home Office, the interest in them ceased. No one
�9would dare to assert that Victor Townley, doomed to penal
servitude for life, receives more than his deserts,—and more
than the law ought properly to inflict in any case, where a
man invades the life of another. In the case of Roupell, he
perpetrated a crime as flagrant and as heinous as any forgery
ever committed. This punishment to a man of education and
position, and who had once occupied a seat in the British
Parliament, was perhaps more severe than even death. He
passed away to commence his life-long punishment, without
any of that maudlin sympathy being drawn out, which in all
probability would have followed if the statute book had still
retained the death penalty for the crime of forgery. It is
therefore necessary to devise a punishment that will meet the
national sense of justice—and divest atrocious criminals of
the terrible interest with which their position as death doomed
men is invested, and which will prevent those interpositions
with the administration of the law which are so often made,
to the injury of public morality, and the lowering of the
dignity of the judicature in the eyes of the people.
These interferences with the law have the tendency to
embarrass both judge and jury, and to throw a difficulty in
the way of the Home Secretary, In fact the Home Office
has become a court of appeal. Without being constitutionly
judicial in its character, it is called upon to exert judicial
functions. The recent cases are pregnant with much instruc
tion. The Home Secretary has been in one case, that of
Hall, compelled to yield to an expression of opinion outside
in the correctness of which he could not acquiesce. It is
known that under the pressure of great excitement the mur
dered woman was traduced to the affliction of her surviving
relatives, in order to establish the plea urged on behalf of
the convicted man. In the case of Jessie Maclachan again,
an old decrepit man whose years and physical infirmities would
seem to preclude the possibility of his having committed the
crime, of which she was accused, was brought under a cloud
of suspicion, in order to make out a case in her behalf.
All doubt of her guilt was removed by her confession after
the respite had been granted.'
These are some of the gravest objections to the punish-
�10
ment of death. The escape of the guilty is favoured. But
besides this there is an amount of feeling created in relation
to atrocious criminals, where the popular voice would approve
the sentence, which leads to inflame the passions and dete
riorate the morals of the multitude. It is not only that
scenes of cruelty and death are demoralizing in themsp,1 yes,
but the discussions and descriptions given in the public press
are calculated to do mischief. The town of Nottingham will
supply another example.
On May 18th, 1844, a man of
the name of William Saville murdered his wife and three
children under particularly atrocious circumstances. He was an
idle and dissipated man, known among his vicious companions
as “ liar Saville,” and one of his former employers stated that
his fellow-workmen often said that he ought on account of
his fierce character to be called savage. In consequence of his
bad conduct and neglect, his wife and three children had to
go to the workhouse. Saville then formed an attachment to‘ a
servant girl of the name of Tait, residing at Badford, a
village three miles from Nottingham. It is supposed that
he wished to get his wife and children out of the way, in
order that he might marry this woman. Be that as it may,
he went one day to the workhouse and took out his wife
and children for a walk, the three children being respectively
of the ages of seven, five, and four. He took them to a retired
place in Colwick wood, and there murdered them by cutting
their throats with a razor. He placed the razor in his wife’s
hand to favour the idea of suicide, but it was found to be his
own razor, which she was not likely to have had in her
possession, but he was seen leaving the wood over a stile,
by a milk-boy, who identified him after his apprehension.
This crime created great excitement. There was no doubt of
his guilt, no palliation for so horrible a crime The public
indignation was most intense, and the crowd assembled to
witness the execution was greater than ever known at any
previous one. At the execution a horrible scene took place.
Almost immediately after the drop fell, some commotion took
place in the crowd, and a number of people were thrown
down the steps leading from the street in which executions
take place to oue of much lower elevation. The result was
�11
that some sixteen or seventeen persons were killed, and fifty
or sixty more or less maimed for life. By some it was
supposed that the panic was created by a body of pickpockets
from Derby, who had done it to avail themselves of the
confusion to follow more easily their vocation.
This was never proved ; but if it was the case, it shows
another instance of crime being committed at the foot of
the gallows—of which there are so many on record. This is
not the fact however, to which the case points. A gentleman
who took much interest in the humbler classes, embraced the
opportunity of mingling among them on this occasion, for
purposes of observation.
A letter of his is preserved, and
the following quotation may suffice. “ I wish our legislators
who insist upon maintaining capital punishment, could have
been present this morning. It has made me sick with horror
and shame. I do not refer to the horrible disaster which has
ended in the destruction of so much life, for that I did not
hear of until two hours after the execution—but to what
took place among the crowds coming in at an early hour in
the morning to witness the execution. The crime was bad
enough—but the people seemed turned into savages. Indians
round the stake to which one of their prisoners is pinioned
could not exult with more wild ferocity in the tortures they
inflicted, than these people did in imagination over what they
would do to torture such a wretch if he was given up to
them.
I heard one group of women relating to each other
what they would do to punish him, and the devices were
certainly ingenious, but made me shudder,—the prevailing
opinion was that hanging was much too good for him.”
It will be said that much of all this feeling was the
effect of the crime and not the punishment, and there is no
doubt much truth in that. Ko doubt, whatever, had been the
nature of the punishment the popular indignation would have
been fierce and loud, especially among women, at the murder
of a neglected wife, and innocent children ; but by those who
have studied the habits, feelings and opinions of the humbler
classes, it will be at once acceded that it is most impolitic
to gather them in large crowds under such circumstances. By
communion with each other these natural feelings of indigna
�12
tion and rude desires for vengeance get stimulated. In truth,
the passions are inflamed from which acts of violence arise.
The hour of death concentrates in that brief space of time all
passion and indignation which under other circumstances would
gradually consume itself away. In the case of the execution
of the pirates—and in that of Muller—it may be fairly doubted
whether the riot and demoralization which have been so vividly
described, are the worst results of such exhibitions; probably
the savage vengeance which is brought to its culminating point
at the time of an execution, but which is in some cases left
unsatisfied, leaves behind it more dangerous elements. The spec
tators are gathered from the vicious and depraved of all
classes—the uneducated—the rough and the brutal—those with
morbid tastes and inclinations. A spectacle of death, and a
lesson of vengeance can only render more inveterate their own
evil desires. Those only who know nothing of the crowds
who hasten to such spectacles can say a single word in
favour of the example of the gallows. By some imperfectly
understood law of sympathy large assemblages of people are
affected by almost simultaneous emotions of grief, anger, and
fierce passion. It is therefore unwise to gather them in crowds—
where they may be excited to strong sympathy for a murderer,
or to gloat over his punishment.
Private executions may at first sight appear to remove some
of these objections. The evils would not seem to be much alle
viated—so long as a large portion of the press have an interest
in finding aliment for the lovers of sensation, so long will the
morbid appetites of the people be fed by reports of the daily
conduct of the criminal. The accounts of the executions, with
their ghastly accompaniments would find their way out, and the
apparent mystery by which they were attempted to be con
cealed, and would add to the interest in the minds of the
people.
Whether death punishments are deterrent or otherwise does
not admit of positive demonstration, but it is worthy of grave
consideration whether men led to the commission of a great
crime ever think of the consequences at all; or if they do,
whether they do not flatter themselves with the notion that
they had laid their plans with such care and circumspection
as to escape detection or conviction. It is no novelty in the
�13
an rials of criminal jurisprudence to find cases like that of the
man Wane who was lately executed at Chelmsford for murder.
He said—“ I had the thoughts on me for months that I must
do it, and I struggled with them over and over again, but it
was no use, they were too much for me.”
There is one part of this subject which must not be passed
without remark. An objection has been raised that death
punishments operate as a deterrent upon the criminal classes,
and that chaplains and governors of prisons state that it is
only the fear of death which in many instances prevents the
warders and attendants being murdered. Now, it so happens
that it is not the criminal classes that produce the
murderers. What we understand by the criminal classes are
those who systematically follow a course of crime and fraud.
Very few murderers are from such classes—Palmer, Bush, the
Mannings, Townley, Hall, Wright, Mullens, and many others,
were not criminals in that sense, and only became so by the
committal of the offence for which they suffered. Those who
lead a life of crime content themselves with depredations upon
property. This notion of a deterrent upon the criminal classes
is most probably derived from the strange and savage threats
in which practised thieves will indulge. They often say to an
officer who has captured them, that if it was not for the law
they would kill him.
Too much importance must not be
attached to utterances like these, which after all mean little
more than a mere angry defiance. The criminal classes—those
trained in crime—have their own way of calculating chances ;
they throw their all into a lottery, which presents blanks and
prizes.
They are usually men of some degree of physical
daring, but of no moral courage.
It is a part of their daily
occupation to brave the dangers of detection; but they are too
much accustomed to measure consequences, to incur unnecessary
risk. If there were anything in the argument, it would appear
much more likely that they would endeavour to destroy the
officer who first detected them than the one who was ap
pointed to detain them in prison.
In the latter case, from
the discipline of our prisons, it would' be all but impossible
for a criminal to murder his gaoler and escape. But in
the other case, the chances are somewhat in his favour. Sup
�14
pose a man. to be detected by a policeman or other person in
the act of burglary or robbery from the person. There is the
temptation to destroy the only witness of his offence from the
fact that it is more difficult to convict a man for the crimp, of
murder than for any other offence. The chances of escape are
as three to one. Mr. Francart, an avocat at Mons, in a
speech made at Liege, makes use of a fact corroborative of
the experience of practical men in this country.
He is
speaking of the impunity which is afforded to the murderer
from the difficulty of securing convictions.
This speech was
made at Liege, 29th November, 1863 :—
il Let another result of these researches be mentioned; in
eight hundred and twenty-six cases of assassination, murder,
poisoning, &c., there have been twenty-three executions,
that is to say, about one execution for thirty-six crimes.
2Economiste Beige, made this remarkable comparison. In the
decennial period from 1835 to 1844, it was estimated that
about thirty-five thousand colliers worked in the interior of
the mines; there were two thousand and thirty-five victims,
of whom one thousand one hundred and seventy-five were
killed. The risk of death was then one in thirty for the
collier; it was only one in thirty-six for the assassin.
“ That signifies, adds ‘ VEconomiste ’ with much reason, that
it is more dangerous with us to expose one’s-self to the
fire-damp than to the guillotine.”
“I should admit with ease, as may be imagined, the efficacy
of the punishment of death, if the author of every crime
against which it is in force, might consider it as almost certain
that he would be discovered* arrested, condemned and executed.
But when I see that he may hope for such chances, first of
escaping from all pursuit of justice, then of being acquitted,
often for want of sufficient proofs, and lastly, of not being
executed, I say, that the criminal has every reason to regard
the menace of death only as it appears to the collier who
descends into the mine, and, in general, to every one liable to
a certain extent to lose his life in consequence of the profession
that he exercises; it is nothing more than a remote danger,
the ordinary risk of a trade more or less dangerous.”
The argument of Mr. Francart would of course only apply
�15
to cases where the murderers had entered into calculations of
their chances of escape. It could not apply to cases like that
of Jones, which has been cited in this article, or that of Hall
of Birmingham. It could not apply to cases where the murder
was committed under sudden impulse or provocation.
But surely the people who urge this objection of danger
to warders and gaolers—overlook what is done at Broadmoor
Asylum. In that establishment there are above four hundred
and fifty inmates, about four hundred men, and from fifty to
sixty women. They are nearly all persons who have committed
murder, but who have been respited during Her Majesty’s
pleasure, on the ground of insanity. There is this large number
of criminal lunatics, and if they are really such, a most
dangerous class. Many of them no doubt will have strong
desires to escape, and as it is the character of the class to
be artful and cunning beyond that of sane men, they will
be adroit in their attempts to do so. It is only necessary to
adopt the same system of precaution and restraints in relation
to the murderer, whether pronounced sane or insane. From
the known capabilities of the human mind, it may safely be
inferred, ceturis paribus that what a man has done once, he
will be liable to do again. It would therefore follow, that the
protection of society demands that the man or woman who
has committed murder, should be prevented from repeating the
offence. If the arrangements carried out at Broadmoor be fully
considered, they supply in great part an answer to the inquiry
so often raised, what is the. substitute you would recommend,
if you abolish Capital Punishment?
In the last number of Meliora, a publication which has
obtained a reputation for its advanced opinions on most social sub
jects, this objection—for it really assumes that shape—appears in
a report of the last Social Science Congress. It is stated “that
it is doubtful whether one of the real questions at issue has
attracted the full share of attention it deserves.” And again
that “there would seem to be less difficulty in obtaining the
abolition of Capital Punishment, than in providing a substitute.”
This is an instance of common place reasoning, and the writer
has obviously not considered the propositions he lays down.
It ought to be known by the writers in Meliora, who have
�16
as yet, an unpopular but correct principle to advocate, that
it is usual for objectors and opponents to ride off upon issues
which are only remotely connected with—or which are totally
irrevalent to the main, issue. It is often honestly done—and
not intended for that purpose, but whatever be the motive,
it succeeds in creating a diversion, and delays the acceptance
of the truth embodied in the major proposition, or great
principle enunciated.
Thus the men who came forward to advocate the anti
slavery cause, on the broad, plain and intelligible ground
that it was a crime against God to make a commercial
article of a man-—like a horse or a pig—were met very often
by the plea that it would be dangerous to liberate all the
slaves; or by thequestion—What do you propose to do with
all those slaves unused and unfit for freedom, if you carry out your
doctrines of abolition ? It was of course a matter of sound
policy, and wise statesmanship, to consider well what should
be done to put the slaves, which the infernal system of
slavery had degraded, in the pathway of civilization and im
provement. It is a question which prudent men would not
neglect, but it did not affect the main issue.
The first
principle was to decide whether it was right or wrong for
man to hold property in man. All questions of policy,
expediency and precaution, were subordinate to the settlement
of that question ; and in fact it was absolutely necessary in
that, as it is in all other cases, to settle the principle
before the questions of policy could be entered upon. First
establish whether the slave - is properly held in bondage, and
then it will be much easier to decide what is the duty to
him when his chains are struck off. It is the misfortune
of all movements that the details are mixed up with prin
ciples, and men are accustomed to reason from the tail to the
head of a series of propositions rather than in the logical way.
Another instance may be named. A number of economists,
among whom is Mr. Cobden, have protested against the
increase of our armaments on the ground that such increase
was unnecessary and mischievous.
There was a principle
enunciated, and the answer would have been to show that
the increase was necessary. In how many instances was the
�17
to a,in question. evaded, and in how few was it ever met 1
But it was attempted to show the danger of disbanding the
whole army and navy, throwing upon society a large body
of men who had been trained to the use of arms, and who
by that training had been rendered unfit for any other
pursuit.
Not to multiply illustrations—abundance of which are at
hand—the Alliance movement, of which Meliora is one of
the organs, is a case strictly in point. The Alliance advocates
a Permissive Bill which seeks to give power to every
municipality, on the petition of two-thirds of the rate-payers,
to pass a local law, to prohibit the sale of intoxicating drinks,
on the ground that such traffic is productive of crime, poverty,
and a host of social evils. The question is a simple one
enough, and before a single step is taken—it is necessary to
ascertain whether this allegement against the traffic be well
founded, and then whether such power ought to be plaeed in
the hands of the people. It is simply absurd to discuss details
until this principle be settled. But what are the advocates
of the Permissive Bill called upon to do ? They are drawn
away upon a number of minor issues, and at York, one of their
ablest advocates, occupied nearly all the time allotted to him,
as one of the speakers, at a public meeting, in chasing through
a number of fantastic mazes the fallacies uttered in the House
of Commons in a recent debate—it would seem just as reason
able for the advocates of Prohibition, to be expected to show
what is to be done with all the interests engaged in the liquor
traffic, before an assent is given to their first principle—as to
ask what is the substitute for the gallows.
The main issue, so far as capital punishment is concerned,
rests therefore upon the expediency of retaining or abolishing
it. It would argue a great poverty of resources in a Christian
and civilized state to confess that we do not know what to
do with men if we do not hang them. We execute on the
average some dozen murderers in a year. Would there be any
great difficulty in sending them to Broadmoor for a limited
time to admit of proper scientific examination. If they were
pronounced of sound mind, put them to labour which would
be remunerative to the society whose laws they have violated—
�18
treat the sane murderer as Victor Townley has been treated.
If he be insane, let him be treated as Macnaughten is. In
either case he is under restraint; and surely the devices of our
prisons and asylums, which have had expended upon them
so much money, skill and labour, can protect society from the
return of the murderer, just as effectually as by hanging him
and interring the body in the precincts of the prison. Under
the present system it is a question whether some of the most
dangerous murderers do not escape from death and also from
restraint, o'wing to the growing repugnance to capital punish
ment.
It is not incumbent upon those .who seek the abolition of
the death penalty to find or suggest the substitute.
They
object to the penalty as not answering its purpose, and they
have proved their case. It is quite a supplemental matter to
design the substitute. It is a stale objection. In all debates
in Parliament, whenever a capital penalty was sought to be
abolished, the argument was used. There is no difference ex
cept in the form which the argument assumes. When Mr.
Thomas Fowell Buxton moved, May 23, 1821, for mitigating
the severity of punishment in certain cases of forgery, he was
met by the Solicitor-General, who pleaded for the retention of
the punishment of death on the ground of—(1) its necessity;
(2) that no efficient substitute had been provided. In the very
second sentence of Mr. Buxton’s speech, he thus refers to it.
“The Solicitor-General has stated that no efficient substitute
for capital punishment has as yet been discovered, and there
fore as yet the House is not in a condition to discuss that
species of penalty.” This was in 1821.
The death penalty has however been repealed in cases of
forgery, burglary, arson, and a host of other offences, with a
decided advantage, and a substitute has been found; and so it
will be in cases of murder, whenever public opinion is prepared
to abolish the office of the hangman. No one wishes to re
turn to the errors of a past and sanguinary jurisprudence,
Improved manners and milder laws have kept marching on
together, acting and reacting upon each other, and whatever
may be the report of the present Commission, the Abolition
of Death Punishment must ultimately be carried out in all
�19
civilized communities.
Jurists in all parts of Europe have
lost reliance upon punishment of any kind as a deterrent
from crime in any large degree, and this is the best guarantee
of progress in the amelioration of criminal codes. Wherever
fjiey are more severe than the temper of the people, they
lose their efficacy altogether, and promote the perpetration of
crimes they are intended to repress.
The following statement, made by Professor Thonissen, of the
University of Louvain, is worthy of attention.
“ In Belgium, as we shall see further on, all those condemned
to death received a commutation of the punishment from 1830
to 1833 ; and yet capital crimes were more rare there than
under the regime of the Low Countries, where the judicial
power constantly displayed an unusual severity.
“ After the revolution of September, during three years, from
1830 to 1833, the punishment of death was in reality repealed,
and, according to official documents which must inspire entire
confidence, the following results are arrived at:—
“ In 1830, the number of capital condemnations was two;
in 1831, nine; in 1832, fourteen, comprising four condemnations
by outlaw; in 1833, seven, comprising two condemnations by
outlaw.
“The adversaries of the punishment of death lay hold of
these results as a peremptory demonstration of the excellence
of their doctrine. Under the government of the Low Countries,
where out of one hundred and fifty condemnations, there had
been seventy-four executions, the number of capital decrees
reached, on an average, nearly fourteen per year for seven
provinces; while, under the regime issuing from the barricades
of September, in the absence of all executions, the number of
condemnations, for the nine provinces of the kingdom, had only
reached, on an average, the number of eleven.”
Printed by William H. Wabb & Co., 17, Featherstone Buildings, Holborn, W.C,
�
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Victorian Blogging
Description
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A collection of digitised nineteenth-century pamphlets from Conway Hall Library & Archives. This includes the Conway Tracts, Moncure Conway's personal pamphlet library; the Morris Tracts, donated to the library by Miss Morris in 1904; the National Secular Society's pamphlet library and others. The Conway Tracts were bound with additional ephemera, such as lecture programmes and handwritten notes.<br /><br />Please note that these digitised pamphlets have been edited to maximise the accuracy of the OCR, ensuring they are text searchable. If you would like to view un-edited, full-colour versions of any of our pamphlets, please email librarian@conwayhall.org.uk.<br /><br /><span><img src="http://www.heritagefund.org.uk/sites/default/files/media/attachments/TNLHLF_Colour_Logo_English_RGB_0_0.jpg" width="238" height="91" alt="TNLHLF_Colour_Logo_English_RGB_0_0.jpg" /></span>
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Conway Hall Library & Archives
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2018
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Conway Hall Ethical Society
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Dublin Core
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Title
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The Royal Commission and the punishment of death
Creator
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Beggs, Thomas
Description
An account of the resource
Place of Publication: London
Collation: 19 p. ; 24 cm.
Notes: Reprinted from The Social Science Review. Printed by William H. Warr & Co., London. Date of publication from KVK.
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Society for the Abolition of Capital Punishment
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[1866]
Identifier
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G5392
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<p class="western"><img src="http://i.creativecommons.org/p/mark/1.0/88x31.png" alt="Public Domain Mark" /><br />This work (The Royal Commission and the punishment of death), identified by <a href="www.conwayhall.org.uk">Humanist Library and Archives</a>, is free of known copyright restrictions.</p>
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application/pdf
Type
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Text
Language
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English
Subject
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Crime
Capital punishment
Capital Punishment
Conway Tracts
Death Penalty