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ART. XII.-On Punishment.
E hardly know any thing more painful to the English ear than the accusation so frequently made by foreigners of the unnecessary severity of our penal code. Why, it is constantly asked, is a system of punishment persevered in, which shocks the humanity of every one who either sees or hears of its infliction; and which, by the confession of all who are most qualified to decide upon the subject, has totally failed in effecting the prevention of crime? The answer, however, generally given to this question is, That it is inexpedient to lessen the severe penalties of the law, until some secondary punishments are discovered which experience has proved capable of producing the same salutary effect. This answer appears to us futile and unsatisfactory;futile, because it presupposes the very question at issue-that the penalty of death is really operative in the prevention of crime;— and unsatisfactory, because, though no steps have been taken by those whose duty it is to watch over the administration of the law, as it regards the protection of the persons and property of the public, this culpable negligence is put forth as a reason why a system should be continued which secures neither the one nor the other. In the mean time, the justice of the country is interrupted; the feelings of the people are arrayed in opposition to the law; and, from the impossibility of executing its enactments, a degree of impunity is given, the direct tendency of which is to augment the number, and increase the turpitude, of offences.Thus it appears by Parliamentary documents, that in the last seven years, 85,487 persons have been committed to prison in Great Britain, of whom 56,310 were convicted; of this number, 7,683 received sentence of death; (being somewhat more than one-eighth,) and of these 693 were executed-or one in 11. In order to show the rapid increase of crime, and how little in the way of prevention has been effected by severe laws, it is necessary to observe, that in the first year (1815) of the series, 553 persons were sentenced to death, out of whom 57 were executed; and, in the last year (1821), 1,134 were condemned, of whom 114 suffered death. We entreat the attention of our readers to the important fact, of the doubling of crimes under the operation of the law; and we would ask the defenders of the system, By what criterion is the policy of a practice to be tried, except by that of its efficacy?
Now, it may be said in reply, that if there had been no inflic tion of the penalty of death, crimes would have increased in a greater proportion, and that the augmentation of offences is to be ascribed to other causes, than to the over-severity, and consequent non-execution,
non-execution, by words of the law. It would, indeed, be idle to ascribe all the augmentation in the number of offences to the severity of the penal code, as we are well aware of the effects of a long war, in impoverishing and demoralizing a nation: yet, it is curious to remark, that in the few cases where the punishment of death has been altered to one of a milder character, the offence has been rather on the decline. The crime of stealing goods from bleachinggrounds was formerly punished with death-the law has recently been changed, and the commission of the offence has diminished two-thirds; and though on that of larceny from the person, there is an increase, yet it is not in a greater proportion than other crimes. Indeed, an increase of convictions might reasonably have been expected; and that probability formed part of the argument of Sir Samuel Romilly, the enlightened author of the measure"Repeal these statutes (said he)-lessen the severity of laws, which deter judges, and juries, and prosecutors, from the execution of their duties, which give impunity and encouragement to criminals, and you will be rewarded by a greater facility in their detection; the feelings of the public will be in favour of, and not adverse to, the law; prosecutors will be found to seek for justice at your tribunals, who heretofore shrunk back with horror from shedding the blood of a fellow-creature for the value of a handkerchief or a pocket-book.". We are prepared, indeed, to contend, that the whole system of punishment has been radically defective in this country. The infliction of the penalty of death has lost, if it, indeed, ever possessed, any salutary example; and all the other penalties of the law, have been so constructed, as to become by-words for inefficacy and worthlessness.
Our first proposition is, that the chance of incurring capital punishment deters few from the commission of any offence whatsoever; and even where such punishment has been carried into effect with the greatest severity, the crime which it was intended to prevent has grown under its infliction. In this part of the argument we remove from our consideration all the difficulties of conviction arising from the scruples of conscience on the part of prosecutors, judges, and juries, all the sad effects of these exhibitions of slaughter on the public heart;. but we limit our reasonings to the mere dry question, Is, or is not, crime prevented? In 1815, 119 persons were capitally convicted of burglary, in 1821, 294; of horse-stealing in 1815, 65, in 1821, 129; of housebreaking in the day time, and of larceny in 1815, 53, in 1821, 167; of murder in 1815, 15, in 1821, 28; of robbery of the person on the highway, &c. in 1815, 43, in 1821, 160. These are the worst offences that are perpetrated; and yet in defiance of a liberal, though not excessive execution of the utmost severity of the law, in the short
period of seven years, the ratio of crime has nearly in all cases doubled, and in some quadrupled.There is yet another offence upon which we wish to offer a few remarks. We refer to the crime of forgery: for many years the penalty of death for this of fence was almost unsparingly inflicted; yet the crime increased to such an extent, that it became impossible to execute all who were convicted; and though the number of executions equalled that for the most atrocious and sanguinary offences, still the crime went on augmenting, and the law became tempered in its practice from this cause alone, that it was not possible, in the state of public manners and feelings, to carry its severities into effect. The execu tions for this crime were, however, for some time, in the proportion of one in two; yet such was the increase of offenders, that the Bank was compelled to admit the greater number to plead guilty to the minor offence, of having forged notes in their possession, the pu nishment of which is not capital, but fourteen years' transportation. In order to show that the greatest rigour was exercised, we subjoin the following table, calculated from Parliamentary documents, the returns from which they are constructed not being in existence prior to 1805. From 1805 to 1818, there were capitally convicted of→→→ Burglary ..1874 Executed, 199 or 1 in 9
Forgery and uttering
Shooting stabbing, and admi
nistering poison, with intent
9 or 1 in 10 207 or 1 in 24
29 or 1 in 2:
property Yet, notwithstanding the severity of these executions, and the little compunction shown to shedding human blood, in cases of forgery, the crime continued to augment, as the following statement will demonstrate. During the last seven years, there were convicted of forgery, and uttering of forged instruments—
In 1815.. 21, of whom were executed 11
For having forged notes in possession, there were convicted,In 1815, 50-1816, 80-1817, 100-1818, 155-1819, 164– 1820, 272-1821, 180.
Thus it is evident, that capital punishment has entirely failed in affording protection to the public against the crime of forgery: and as transportation has long ceased to be considered any punishment at all, the crime of forgery has advanced in an increased ratio; and the only check given to it has been, not through the medium of punishment, but by the removal of the temptation to commit the crime, viz. by withdrawing, on the part of the Bank, the one-pound notes from circulation. The more, then, this great question is examined into, whether it be discussed upon general principles, or by the history of every particular offence, the more fully do we consider our proposition made out-that capital pu nishments are not the means by which crimes are to be prevented. The same demand may still be made-Why do not crimes diminish? Why does this terrible penalty not deter persons from the commission of them?-The answer is, It does not deter, be cause it has no more effect on the thief than the chance of being killed in battle has upon the soldier in preventing his enlistment: both equally shut their eyes to the consequences of their actionsboth are tempted by present advantage to overlook evil contingencies. Mr. Harmer, an evidence of the highest value, declared to the Committee on Criminal Law, that, according to his experience, and he had been counsel to upwards of 2000 felons, the penalty of death had no terror to common thieves, who are, indeed, accustomed to regard a violent death as the natural end of their career, and, in speaking of it, to use the common adage that "players at bowls must expect rubbers." In nine cases out of ten, until the warrant of execution comes down, the convicts pass their time in amusements, and appear careless of their probable fate: when it at last arrives, the few feverish hours between its arrival and the time of execution are soon passed away, and the greater number of these wretched persons quit life with indifference, or, if they show any interest, it is for those who survive them, and for the credit of gallantry, or "dying game," as it is termed, on the scaffold. Those, who have had the pain of witnessing these scenes, will agree with us in the opinion that, except in a few cases of strong popular antipathy, the feelings of the public are against the law, and with the sufferers. The criminal is cheered and encouraged to 'meet his fate with unconcern, and, as he has lived hardened, to die unrepenting round the scaffold are assembled friends to encourage and console, the idle to gaze, and the wicked to plunder. "How could you be so hardened?" said Mr. Cotton, the Ordinary of Newgate, to a little boy who, having been discharged from prison that very morning, was caught in the act of picking a pocket close to the scaffold, on which two of his former companions were then hanging; "could not the sight of their deaths check your dis
position to thieve?" "Lord, Sir," replied the child, "it was just the moment; for when all eyes were looking at the men hanging, all pockets were unguarded." We have, ourselves, been spectators of these conflicts between human pride and suffering, and of that indifference on the part of those whose day of execution was fixed, and who, having no hope of life, were yet not prepared to die. The most remarkable that we at present remember, was the execution of two persons, a few years back, for murderous assaults, and robberies at West End fair. One of these persons was a regularly confirmed thief, who acknowledged that he deserved his fate-that he knew he should meet it-that, after all, it was soon over,—and that he had forfeited his life an hundred times-"once a thief (he said) it was almost impossible to reform; without character, who would employ me? without food, or money to purchase it, how could I live? I found friends, associates, and the means of existence in crime, and, all I can say is, in the lottery of life I have drawn a blank." The other was a Gipsy boy of sixteen or seventeen years of age, who could neither read nor write-ignorant of every thing; he had never heard of a prayer-he knew not what was meant by religion, nor could he be made to comprehend the meaning of the word: when told he was to die the next day, he cried, and asked for his mother. It is just to those who administered the law to add, that this boy was left for execution on account of an act of ferocity and cruelty which he personally perpetrated in the scuffle;-yet never surely was a poor creature so little prepared for so speedy a termination of his career—a boy in size, and intellect,-but matured in the commission of acts of violence and outrage. When he appeared on the scaffold, cries of "Shame, shame! look at the child!" &c. &c. were heard on all sides; and we will venture to affirm, a greater violence to public feeling has not been offered for some years. We wish to ask now-Who benefited by these executions? We grant, the crimes committed were atrocious-but have these punishments prevented their recurrence? Every year the number of street robberies, attended with acts of cruelty, have increased: true it is, these two hunian beings have ceased to exist, but has society benefited by their deaths?-have those executions been exemplary? We re-affirm without hesitation, that though the feelings of the public are decidedly against the perpetrators of acts of cruelty, yet the appearance of the child on the scaffold softened every heart,-the sympathy of the multitude was excited in his favour; and, in the place of horror at the offence, and a disposition to approve of the infliction of the severe penalties of the law, the law itself was condemned, and its administration reviled and execrated. These scenes are of common occurrence; hardly one person has lately been executed for forgery without ex