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of Germany. With these additional restrictions we believe the punishment of death for deliberate murder, to be better calculated to effect the primary design of penalties, than imprisonment for life even at hard labor. Nearly all the objections to capital punishments apply to the abuse of this penalty, and may, as they certainly ought to be, obviated.
a) It is objected that “capital punishment admits of no gradations. We reply with the restrictions above indicated, it needs none.
The cases for its application would be only those of the highest grade both of guilt and certainty. For all others the law should prescribe gradation.
b) “ It admits of no recall”—As limited by us it can need any. Instances of unjust execution have doubtless occurred; but, if we mistake not, they would all have been obviated by the restrictions recommended.
c) “It lowers the estimate of human life.” This also we think is true only of the abuse of capital punishment, of its undue frequency, and its infliction for minor offences. To fix by law the value of human life at the price of a sheep or horse, as is done in England, where stealing these animals is a capital crime, is certainly unjust and cruel, and calculated to depreciate human existence. But the judicious application of this penalty, its reservation for the punishment of no other than the very highest grade of human crime, and the cautious restrictions under which even here it is applied, show that the government, and the nation regard the deprivation of life as the most tremendous of all human punishments, and life itself as the most valuable of all earthly possessions.
d) Nor can it properly be said, that one murder is punished by another. The life of the criminal, unlike that of his murdered victim, is not destroyed from private or personal malice ; but because he has been convicted of the crime, which in the judgment of the community, as expressed in the law, is the most heinous of which man can be guilty; and his life is taken with a view to the public good, lest he should repeat that dreadful crime, and in order, by inflicting this highest penalty, to deter others from thus violating the rights of obedient citizens. It is worthy of note as a case partly analogous, that the sinner's eternal punishment in hell, also includes in it the inevitable, endless continuance of that alienation from God for which he was condemned; because his just Judge will withdraw all means of grace, and all gracious influence from the condemned sinner.
e) “ It furnishes an undue temptation to exercise the pardoning power.” If capital punishment be restricted as above proposed, no pardoning power ought to be admitted in regard to it. f) It is liable to abuse for
revenge by unprincipled men in times of civil commotion. Such men will wait for no excuse of this kind, nor would any be afforded, if capital penalties were confined to deliberate murders. Such a penal code could furnish no pretext for the execution of Cicero, the Gracchi, Seneca, Sidney, Barnevelt, Louis XVI, Malesherbes, and others, whose death under pretended legal sanction, has been urged as an objection to capital execution. The lawless and shameful mobs and lynching processes, which have of late disgraced our country, which are an outrage on humanity and a reproach to any civilized nation, are more liable to such a charge.
g) “ Jurors are often unwilling to convict a murderer because the penalty is death, and thus the guilty escape punishment entirely.” Such objection would rarely occur on our plan, and in all cases where it does, be those cases few or many, confinement for life would be the result.
h) Finally, it is alleged, that capital punishments frustrate the third design of penalties, the reformation of the criminal. The eternal importance of this design we freely admit, but are unable to perceive, that its neglect is a necessary incident to a judicious system of capital punishment. The custom which prevails in most catholic countries, * of executing the criminal three days after his sentence is announced, is certainly a cruel and unchristian one. Ample time should always be allowed every convict, say from three to six months, to prepare to meet his God. Hence this objection would fall to the ground; unless it be supposed either, that genuine repentance and conversion to God require a longer time; or that the sinner though truly converted is not reconciled to God until by years of good works he has attested it to the omniscient Jehovah, or has merited pardon. To neither of these views does our judgnient assent. On the contrary we suppose the major part of conversions occur in less than three or six months from the time when the sinner sincerely seeks to “work out his salvation with fear and trembling" by surrendering his soul into the hands of a gracious and merciful God. Whether a few months' respite after conviction,
Conversasions Lexicon, vol. 10. p. 11.
with the certainty of approaching death, and the attention of a faithful minister, would not lead to more conversions than a lifetime in confinement, cannot perhaps be certainly decided. Yet in prison as out of it, length of time encourages procrastination. Absolutely solitary confinement often produces sickness, madness, or death; labor and company present diversion; and neither seems to furnish special facilities for turning the soul to God.
We have thus reviewed the several objections to capital punishments, and found that though important, they apply only to the abuse of this penalty, and may, as they certainly ought, all to be obviated by suitable restrictions. We are thus prepared for the unencumbered inquiry, which of the two proposed penalties, with the limitations suggested, is best calculated to accomplish the primary design of their institution. That capital punishment merits the preference, we are constrained to believe, for the following reasons.
a) The love of life is confessedly the strongest principle of the human soul. It is engraven on the very constitution of the mind and is found to pervade all ranks, to influence all nations. Skin for skin, and all that a man hath will he give for his life. Even when stretched upon the bed of hopeless disease, and writhing in agonies almost insupportable, how generally do men still cling to life, and place under requisition, the utmost skill of science to purchase a few more days or hours ! On the contrary, death is generally regarded as the deadliest foe to man. All animals rational and irrational, shrink with horror from his approach and struggle to escape his grasp. Amongst men the influence of religion in thousands of cases, subdues this natural horror, by divesting death of his most fearful terrors. A fool-hardy and habitual disregard of their eternal interests, or in other instances, an ardent desire of human applause, often induces men of determined minds in a great measure to suppress, or at least conceal this natural dread of death ; but the acknowledged magnitude of the requisite effort, is seen in the admiration with which these men are regarded by the thoughtless multitude. The universal homage paid to human bravery, is a universal testimony to the great difficulty of overcoming the fear of death, even so far as to expose ourselves to the probability of incurring it; and if, in some extremely rare cases, a few individuals are needed to march
to what is considered absolutely certain death, the men who voluntarily assume this post are regarded as prodigies of bravery. So high is the general estimate of life, so strong the natural fear of
death. And yet the man who deliberately incurs the penalty of death by the murder of his fellow, has an influence stronger still to resist, has a death connected with infamy, instead of honor, to endure. Now what is there in the prospect of imprisonment for life comparable to this? The feigned indifference of some criminals at the time of public execution, is no evidence that the fear of death does not habitually exert a greater influence on them than the dread of any other penalty. Their desperation in selfdefence when about to be arrested, their frequent and hazardous attempts to escape, are better indications of their real feelings. When once brought to execution, they know their case to be hopeless, and being generally possessed of that constitutional hardihood of mind, which is the basis of military courage, they sometimes succeed in the entire suppression of their feelings.
b) That the dread of death is to the great mass of men the strongest of all restrictions from crime, would seem evident from the fact, that it is virtually a dread not of the simple act of dying, but on the one hand of losing all the enjoyments of continued life, and on the other of incurring the awful retributions of the eternal world, those penalties which God himself has selected to deter men from sin. Hence as God, who is possessed of infinite knowledge and wisdom, selected them, they must of all others be the most efficacious, and that punishment in this world which most immediately involves these divine penalties must be the most powerful. Few even among the most abandoned on earth do in reality disbelieve the retributions of eternity, and the frequency of murders is prevented not merely by striking terror into the murderer in the moment of his excitement and passion, but perhaps still more by diffusing over the whole community a deep conviction of the inviolability of life and the terrible punishment consequent on murder; and certainly on the community at large this conviction cannot be produced so successfully by any other penalty as by that which immediately involves the dread retributions of eternity. From these remarks it follows that the influence of capital punishment on the community by no means requires the publicity of execution. It depends far more on the certainty of conviction upon trial, and the absence of all possibility of reprieve, than upon an occasional opportunity for the populace to witness the dying struggles of the criminal on the gallows, where the principal indication of his sufferings, the expression of his distorted countenance, is concealed beneath his drawn cap.
c) The truth of this position is still further confirmed by the common consent of all men of all nations and all generations, with comparatively very few exceptions, who have all regarded death as the greatest punishment, and therefore assigned it as the penalty for murder, and many other important crimes.
d) The experimental legislation of Pennsylvania happens to furnish a powerful fact in attestation of the truth of our position. In 1794, the punishment of highway robbery, which had previously been death, was changed into confinement in the State penitentiary, and the consequence was a sensible diminution of the murders. During the fourteen years preceding 1794, when highway robbery and murder were alike punished by death, the murders averaged one per year; but after that date, when murder alone was punishable with death, during the first four years not a single murder occurred, and from 1794 till 1834 the entire number of murders, notwithstanding the great increase of population, has averaged not quite one per year. The reason is obvious. Under the former law criininals knew, that they would be hanged for robbery, and that if they also murdered their victim, their punishment would not be augmented whilst their prospect of escaping detection might be increased.*
e) The truth of our position is finally established by the experience of these several governments, which doubtless from the best of motives, abolished capital punishment, and after a trial of a few years were all induced to abandon their experiment, The principal cases are those of the empress Catherine of Russia, and the Grand Duke, Leopold of Tuscany. These cases are adduced by professor Upham, as arguments in favor of the abolition of capital punishments
. The disputed issue of the experiments was doubtless not known to that excellent writer ; but, from the following testimony, it would seem there is no doubt of its unsatisfactory result. In the “Conversations-Lexicon,” a recent work of undoubted authority, and almost universal circulation in Europe, the same which is the basis of the Encyclopaedia Americana of Dr. Lieber, it is expressly asserted: “ That even in those countries where the governments from a mistaken feeling of humanity, abolished capital punishments, they were compelled again to introduce them; because, according to the prevailing views of men, death is regarded as the greatest evil, to avoid which men will willingly submit to the
See Report of Prison Discipline Society for 1835, p. 43. Vol. X. No. 27.