Punishment of Death.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia

  I SELECT for observation this peculiar mode of punishment on account of its peculiar importance.

  And here we are impressed at the outset with the consideration, that of the three great objects which have just been proposed as the proper ends of punishment, the punishment of death regards but one; and that one not the first and the greatest. The only end which is consulted in taking the life of an offender is that of example to other men. His own reformation is put almost out of the question. Now if the principles delivered in the preceding chapter be sound, they present at once an almost insuperable objection to the punishment of death. If reformation be the primary object, and if the punishment of death precludes attention to that object, the punishment of death is wrong.

  To take the life of a fellow-creature is to exert the utmost possible power which man can possess over man, It is to perform an action the most serious and awful which a human being can perform. Respecting such an action then, can any truth be more manifest than that the dictates of Christianity ought especially to be taken into account? If these dictates are rightly urged upon us in the minor concerns of life, can any man doubt whether they ought to influence us in the greatest? Yet what is the fact? Why, that in defending capital punishments these dictates are almost placed out of the question. We hear a great deal about security of property and life, a great deal about the necessity of making examples,—but almost nothing about the moral law. It might be imagined that upon this subject our religion imposed no obligations; for nearly every argument that is urged in favour of capital punishments would be as valid and as appropriate in the mouth of a pagan as in our own. Can this be right? Is it conceivable that in the exercise of the most tremendous agency which is in the power of man, it can be right to exclude all reference to the expressed will of God?

  I acknowledge that this exclusion of the Christian law from the defences of the punishment is to me almost a conclusive argument that the punishment is wrong. Nothing that is right can need such an exclusion; and we should not practise it if it were not for a secret perception, that to apply the pure requisitions of Christianity would not serve the purpose of the advocate. Look for a moment upon the capital offender and upon ourselves. He, a depraved and deep violator of the law of God,—one who is obnoxious to the vengeance of heaven,—one, however, whom Christ came peculiarly to call to repentance and to save.—Ourselves, his brethren,—brethren by the relationship of nature,—brethren in some degree in offences against God,—brethren especially in the trembling hope of a common salvation. How ought beings so situated to act towards one another? Ought we to kill or to amend him? Ought we, so far as is in our power, to cut off his future hope, or, so far as is in our power, to strengthen the foundation of that hope? Is it the reasonable or decent office of one candidate for the mercy of God to hang his fellow-candidate upon a gibbet? I am serious, though men of levity may laugh. If such men reject Christianity, I do not address them. If they admit its truth, let them manfully show that its principles should not thus be applied.

  No one disputes that the reformation of offenders is desirable, though some may not allow it to be the primary object. For the purposes of reformation we have recourse to constant oversight,—to classification of offenders,—to regular labour,—to religious instruction. For whom? For minor criminals. Do not the greater criminals need reformation too? If all these endeavours are necessary to effect the amendment of the less depraved, are they not necessary to effect the amendment of the more? But we stop just where our exertions are most needed; as if the reformation of a bad man was of the less consequence as the intensity of his wickedness became greater. If prison discipline and a penitentiary be needful for sharpers and pickpockets, surely they are necessary for murderers and highwaymen. Yet we reform the one, and hang the other!

  Since then so much is sacrificed to extend the terror of example, we ought to be indisputably certain that the terror of capital punishments is greater than that of all others. We ought not certainly to sacrifice the requisitions of the Christian law, unless we know that a regard to them would be attended with public evil.”¹ Do we know this? Are we indisputably certain that capital punishments are more efficient as examples than any others? We are not. We do not know from experience, and we cannot know without it. In England, the experiment has not been made. The punishment therefore is wrong in us, whatever it might be in a more experienced people. For it is wrong unless it can be shown, to be right. It is not a neutral affair. If it is not indispensably necessary, it is unwarrantable. And since we do not know that it is indispensable, it is, so far as we are concerned, unwarrantable.

  And with respect to the experience of other nations, who will affirm that crimes have been increased in consequence of the diminished frequency of executions? Who will affirm that the laws and punishments of America are not as effectual as our own? Yet they have abolished capital punishments for all private crimes except murder of the first degree. Where then is our pretension to a justification of our own practice?—It is a satisfaction that so many facts and arguments are before the public which show the inefficacy of the punishment of death in this country: and this is one reason why they are not introduced here. “There are no practical despisers of death like those who touch, and taste, and handle death daily, by daily committing capital offences. They make a jest of death in all its forms: and all its terrors are in their mouths a scorn.”² “Profligate criminals, such as common thieves and highwaymen,” “have always been accustomed to look upon the gibbet as a lot very likely to fall to them. When it does fall to them therefore they consider themselves only as not quite so lucky as some of their companions, and submit to their fortune without any other uneasiness than what may arise from the fear of death; a fear which even by such worthless wretches we frequently see can be so easily and so very completely conquered.” A man some time ago was executed for uttering forged bank-notes, and the body was delivered to his friends. What was the effect of the example upon them? Why, with the corpse lying on a bed before them, they were themselves seized in the act of again uttering forged bank-notes. The testimony upon a subject like this, of a person who has had probably greater and better opportunities of ascertaining the practical efficiency of punishments than any other individual in Europe, is of great importance. “Capital convicts,” says Elizabeth Fry, “pacify their conscience with the dangerous and most fallacious notion that the violent death which awaits them will serve as a full atonement for all their sins.”³ It is their passport to felicity,—the purchase-money of heaven! Of this deplorable notion the effect is doubly bad. First, it makes them comparatively little afraid of death, because they necessarily regard it as so much less an evil: and secondly, it encourages them to go on in the commission of crimes, because they imagine that the number or enormity of them, however great, will not preclude them from admission into heaven. Of both these mischiefs the punishment of death is the immediate source. Substitute another punishment, and they will not think that that is an “atonement for their sins,” and will not receive their present encouragement to continue their crimes. But with respect to example, this unexceptionable authority speaks in decided language. “The terror of example is very generally rendered abortive by the predestinarian notion, vulgarly prevalent among thieves, that ‘if they are to be hanged, they are to be hanged, and nothing can prevent it.’”⁴ It may be said that the same notion might be attached to any other punishment, and that thus that other would become abortive; but there is little reason to expect this, at least in the same degree. The notion is now connected expressly with hanging, and it is not probable that the same notion would ever be transferred with equal power to another penalty.—Where then is the overwhelming evidence of utility, which alone, even in the estimate of expediency, can justify the punishment of death? It cannot be adduced; it does not exist.

  But if capital punishments do little good they do much harm. “The frequent public destruction of life has a fearfully hardening effect upon those whom it is intended to intimidate. While it excites in them the spirit of revenge, it seldom fails to lower their estimate of the life of man, and renders them less afraid of taking it away in their tum by acts of personal violence.”⁵ This is just what a consideration of the principles of the human mind would teach us to expect. To familiarize men with the destruction of life is to teach them not to abhor that destruction. It is the legitimate process of the mind in other things. He who blushes and trembles the first time he utters a lie, learns by repetition to do it with callous indifference. Now you execute a man in order to do good by the spectacle, while the practical consequence it appears is, that bad men turn away from the spectacle more prepared to commit violence than before. It will be said, that this effect is produced only upon those who are already profligate, and that a salutary example is held out to the public. But the answer is at hand,—The public do not usually begin with capital crimes. These are committed after the person has become depraved, that is, after he has arrived at that state in which an execution will harden rather than deter him. We “lower their estimate of the life of man.” It cannot be doubted. It is the inevitable tendency of executions. There is much of justice in an observation of Beccaria’s. “Is it not absurd that the laws which detect and punish homicide should, in order to prevent murder, publicly commit murder themselves?”⁶ By the procedures of a court, we virtually and perhaps literally expatiate upon the sacredness of human life, upon the dreadful guilt of taking it away,—and then forthwith take it away ourselves! It is no subject of wonder that this “lowers the estimate of the life of man.” The next sentence of the writer upon whose testimony I offer these comments is of tremendous import:—“There is much reason to believe that our public executions have had a direct and positive tendency to promote both murder and suicide.” “Why, if a considerable time elapse between the trial and the execution, do we find the severity of the public changed into compassion? For the same reason that a master, if he do not beat his slave in the moment of resentment, often feels a repugnance to the beating him at all.”⁷ This is remarkable. If executions were put off for a twelvemonth, I doubt whether the public would bear them. But why if they were just and right? Respecting “the contempt and indignation with which everyone looks on an executioner,” Beccaria says the reason is, “that in a secret comer of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them that their lives are not lawfully in the power of any one.”⁸ Let him who has the power of influencing the legislature of the country or public opinion (and who has not?) consider the responsibility which this declaration implies, if he lifts his voice for the punishment of death!

  But further: the execution of one offender excites in others “the spirit of revenge.” This is extremely natural. Many a soldier, I dare say, has felt impelled to revenge the death of his comrades; and the member of a gang of thieves, who has fewer restraints of principle, is likely to feel it too. Bot upon whom is his revenge inflicted? Upon the legislature, or the jury, or the witnesses? No, but upon the public,—upon the first person whose life is in their power and which they are prompted to take away. You execute a man then in order to save the lives of others; and the effect is that you add new inducements to take the lives of others away.

  Of a system which is thus unsound,—unsound because it rejects some of the plainest dictates of the moral law,—and unsound because so many of its effects are bad, I should be ready to conclude, with no other evidence, that it was utterly inexpedient and impolitic,—that as it was bad in morals it was bad in policy. And such appears to be the fact. “ It is incontrovertibly proved that punishments of “a milder and less injurious nature are calculated to produce, for every good purpose, a far more powerful effect.”⁹

  Finally. “The best of substitutes for capital punishment will be found in that judicious management of criminals in prison which it is the object of the present tract to recommend;”¹⁰—which management is Christian management,—a system in which reformation is made the first object, but in which it is found that in order to effect reformation, severity to hardened offenders is needful. Thus then we arrive at the goal:—we began with urging the system that Christianity dictates as right; we conclude by discovering that as it is the right system, so it is practically the best.

  But an argument in favour of capital punishments has been raised from the Christian Scriptures themselves. “If I be an offender, or have committed any thing worthy of death, I refuse not to die.”¹¹ This is the language of an innocent person who was persecuted by malicious enemies. It was an assertion of innocence; an assertion that he had done nothing worthy of death. This case had no reference to the question of the lawfulness of capital punishment, but to the question of the lawfulness of inflicting it upon him. Nor can it be supposed that it was the design of the speaker to convey any sanction of the punishment itself, because the design would have been wholly foreign to the occasion. The argument of Grotius goes perhaps too far for his own purpose. “If I be an offender, or have done any thing worthy of death, I refuse not to die.” He refused not to die, then, if he were an offender, if he had done one of the “many and grievous things” which the Jews charged upon him. But will it be contended that he meant to sanction the destruction of every person who was thus “an offender?” His enemies were endeavouring to take his life; and he, in earnest asseveration of his innocence says, If you can fix your charges upon me, take it.

  Grotius adduces, as an additional evidence of the sanction of the punishment by Christianity, this passage,—“Servants, be subject to your masters with all fear, &c. What glory is it if when ye be buffeted for your faults ye shall take it patiently? but if when ye do well and suffer for it ye take it patiently, this is acceptable with God.”¹² Some arguments disprove the doctrine which they are advanced to support, and this surely is one of them. It surely cannot be true that Christianity sanctions capital punishments, if this is the best evidence of the sanction that can be found.¹³

  Some persons again suppose that there is a sort of moral obligation to take the life of a murderer:— “Whoso sheddeth man’s blood, by man shall his blood be shed.” This supposition is an example of that want of advertence to the supremacy of the Christian morality, which in the first essay we had occasion to notice. Our law is the Christian law; and if Christianity by its precepts or spirit prohibits the punishment of death, it cannot be made right to Christians by referring to a commandment which was given to Noah. There is, in truth, some inconsistency in the reasonings of those who urge the passage. The fourth, fifth, and sixth verses of Genesis ix. each contains a law delivered to Noah. Of these three laws we habitually disregard two; how then can we with reason insist on the authority of the third?¹⁴

  After all, if the command were in full force, it would not justify our laws; for they abed the blood of many who have not shed blood themselves.

  And this conducts us to the observation that the grounds upon which the United States of America still affix death to murder of the first degree do not appear very clear. For if other punishments are found effectual in deterring from crimes of all degrees of enormity up to the last, how is it shown that they would not be effectual in the last also? There is nothing in the constitution of the human mind to indicate that a murderer is influenced by passions which require that the counteracting power should be totally different from that which is employed to restrain every other crime. The difference too in the personal guilt of the perpetrators of some other crimes and of murder is sometimes extremely small. At any rate it is not so great as to imply a necessity for a punishment totally dissimilar. The truth appears to be, that men entertain a sort of indistinct notion that murder is a crime which requires a peculiar punishment, which notion is often founded, not upon any process of investigation by which the propriety of this peculiar punishment is discovered, but upon some vague ideas respecting the nature of the crime itself. But the dictate of philosophy is, to employ that punishment which will be most efficacious. Efficacy is the test of its propriety; and in estimating this efficacy the character of the crime is a foreign consideration. Again: the dictate of Christianity is, to employ that punishment which while it deters the spectator reforms the man. Now neither philosophy nor Christianity appears to be consulted in punishing murder with death because it is murder. And it is worthy of especial remembrance, that the purpose for which Grotius defends the punishment of death is, that he may be able to defend the practice of war:—a bad foundation, if this be its best!

  It is one objection to capital punishment that it is absolutely irrevocable. If an innocent man suffers it is impossible to recall the sentence of the law. Not that this consideration alone is a sufficient argument against it, but it is one argument among the many. In a certain sense indeed all personal punishments are irrevocable. The man who by a mistaken verdict has been confined twelve months in a prison cannot be repossessed of the time. But if irrevocable punishments cannot be dispensed with, they should not be made needlessly common, and especially those should be regarded with jealousy which admit of no removal or relaxation in the event of subsequently discovered innocence, or subsequent reformation. It is not sufficiently considered that a jury or a court of justice never know that a prisoner is guilty. A witness may know it who saw him commit the act, but others cannot know it who depend upon testimony, for testimony may be mistaken or false. All verdicts are founded upon probabilities,—probabilities which, though they sometimes approach to certainty, never attain to it. Surely it is a serious thing for one man to destroy another upon grounds short of absolute certainty of his guilt. There is a sort of indecency attached to it,—an assumption of a degree of authority which ought to be exercised only by him whose knowledge is infallibly true. It is unhappily certain that some have been put to death for actions which they never committed. At one assizes we believe not less than six persons were hanged, of whom it was afterward discovered that they were entirely innocent. A deplorable instance is given by Dr. Smollett:—“Rape and murder were perpetrated upon an unfortunate woman in the neighbourhood of London, and an innocent man suffered death for this complicated outrage, while the real criminals assisted at his execution, heard him appeal to Heaven for his innocence, and in the character of friends embraced him while he stood on the brink of eternity.”¹⁵ Others equally innocent, but whose innocence has never been made known, have doubtless shared the same fate. There are tremendous considerations, and ought to make men solemnly pause before, upon grounds necessarily uncertain, they take away that life which God has given, and which they cannot restore.

  Of the merely philosophical speculations respecting the rectitude of capital punishments, whether affirmative or negative, I would say little; for they in truth deserve little. One advantage indeed attends a brief review,—that the reader wilt perceive how little the speculations of philosophers will aid us in the investigation of a Christian question.

  The philosopher however would prove what the Christian cannot; and Mably accordingly says, “In the state of nature I have a right to take the life of him who lifts his arm against mine. This right, upon entering into society, I surrender to the magistrate.” If we conceded the truth of the first position (which we do not), the conclusion from it is an idle sophism; for it is obviously preposterous to say, that because I have a right to take the life of a man who will kill me if I do not kill him, the state, which is in no such danger, has a right to do the same. That danger which constitutes the alleged right in the individual, does not exist in the case of the state. The foundation of the right is gone, and where can be the right itself? Having, however, been thus told that the state has a right to kill, we are next informed by Filangieri that the criminal has no right to live. He says, “If I have a right to kill another man, he has lost his right to life.”¹⁶ Rousseau goes a little further. He tells us, that in consequence of the “social contract” which we make with the sovereign on entering into society, “Life is a conditional grant of the state:”¹⁷ so that we hold our lives, it seems, only as “tenants at will,” and must give them up whenever their owner, the state, requires them. The reader has probably hitherto thought that he retained his head by some other tenure.

  The right of taking an offender’s life being thus proved, Mably shows us how its exercise becomes expedient. “A murderer,” says he, “in taking away his enemy’s life, believes it does him the greatest possible evil. Death, then, in the murderer’s estimation, is the greatest of evils. By the fear of death, therefore, the excesses of hatred and revenge must be restrained.” If language wilder than this can be held, Rousseau, I think, holds it. He says “The preservation of both sides (the criminal and the state) is incompatible; one of the two must perish.” How it happens that a nation “must perish” if a convict is not hanged, the reader, I suppose, will not know. Even philosophy, however, concedes as much. “Absolute necessity alone,” says Pastoret, “can justify the punishment of death;” and Rousseau himself acknowledges that “we have no right to put to death, even for the sake of example, any but those who cannot be permitted to live without danger.” Beccaria limits the right to one specific case,—and in doing this he appears to sacrifice his own principle (deduced from that splendid fiction, the “social contract”), which is, that “the punishment of death is not authorized by any right:—no such right exists.”

  For myself, I perceive little value in such speculations to whatever conclusions they lead, for there are shorter and surer roads to truth ; but it is satisfactory to find that even upon the principles of such philosophers, the right to put criminals to death is not easily made out.

  The argument then respecting the punishment of death is both distinct and short.

  It rejects, by its very nature, a regard to the first and greatest object of punishment.

  It does not attain either of the other objects so well as they may be attained by other means.

  It is attended with numerous evils peculiarly its own.

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^{1 We ought not for any reason to do this,—but I speak in the present paragraph of the pretensions of expediency.
2 Irving’s Orations.
3 Observations on the Visiting, &c. of Female Prisoners, p. 73.
4 Ib.
5 Ib.
6 Essay on Capital Punishments, ch. 28.
7 Godwin: Inq. Pol. Just. v.ii. p.796.
8 Beccaria: Essay on Capital Punishments, chap. 28.
9 Observations on the Visiting, &C. of Female Prisoners, p. 75.
10 Ib. p. 76.
11 Acts xxv. 11: see Grotius: Rights of War and Peace.
12 1 Pet. ii. 18, 20.
13 “Wickliffe,” says Priestley, “seems to have thought it wrong to take away the life of man on any account.”
14 Indeed it would almost appear from Genesis ix. 5, that even accidental homicide was thus to be punished with death; and if so, it is wholly disregarded in our present practice.
15 Hist. Eng. v. iii. p. 318.
16 Montagu on Punishment of Death.
17 Contr. Soc. ii.5, Montagu.}

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