An hospital is a word of no inviting sound—and physic, no doubt, is sufficiently nauseous to be not inaptly compared to flogging, or any other punitive discipline: but nauseous drugs are not the only means of cure; good nursing, vigilant attendance, sometimes generous diet, have a large share in the curative process. And in the hospital of the mind, the lenitive and fostering measures have a still larger share in the work of a moral restoration. Were this principle of cure, of perfect restoration, to be adopted as the first principle of penal legislation, it would come to this, that a poor man would have no better way of recommending himself to the fatherly care of the state than by the commission of a crime, and that none, in the lower classes of society, would be so well trained and disciplined for advancing their fortunes in the world, as those who commenced their career by violating the laws of their country.
Imprisonment, with its various accompaniments and modifications, is the great reformatory punishment. Indeed, with the exception of death—confined almost entirely to the case of murder—it is the only punishment bestowed on serious offences. Imprisonment of some kind, either at home or in the colonies, is the penal safeguard of society; and we must be cautious that we do not so far diminish its terrors, that it should cease to hold out any threat to a needy malefactor. But before we allude to the discipline of the prison, we must take a glance at this great exception of death, which it is the object of many of our zealous reformers entirely to erase from the penal code.
That this extreme punishment should be reserved for the extreme crime of murder, seems generally admitted; and the practice, if not the letter, of our law has conformed to this opinion. It would be useless, therefore, to argue on the propriety of inflicting this penalty on other and less enormous offences. The question is narrowed to this—shall death continue to be the punishment of the murderer?
Those who contend for the entire abolition of this punishment, are in the habit of enlarging much on the inadequate effect produced upon the multitude who witness the spectacle of an execution. This is their favourite and most frequent theme. They seem to overlook the much more powerful effect produced on the imagination of that far greater multitude who never behold, or are likely to behold, an execution. It is curious to observe how pertinaciously a certain class of reasoners will dwell on the picture which a crowd presents at a public execution;—much like a crowd, we may be sure, at any other public spectacle. Whatever the object which gathers together a mob of the lowest class, they will soon begin to relieve the tedium of expectation by coarse jests, drunkenness, and brawling. Yet these descriptive logicians are never weary of painting to us the grotesque and disgusting scenes which the mass of spectators exhibit on these occasions, as if this were quite decisive of the question. That ragged children, who have never thought of death at all, play their usual pranks at the foot of the gallows—that pickpockets ply their trade in this as in every other gaping crowd—what has all this to do with the impression produced on the mind of every man and woman throughout the kingdom, by the knowledge that if he, through sudden passion, or the instigations of cupidity, take the life of a fellow-creature, he shall be—not a spectator at such an exhibition—but that solitary crawling wretch who, after having spent his days and nights in agony and fear, is thrust forward, bound and pinioned, to be hanged up there like a dog before the scoffing or yelling multitude?
We willingly concede that a public execution is not an edifying spectacle. The coarse minds who can endure, and who court it, are the last to whom such a spectacle should be presented. And, although the punishment might lose some portion of its terrors, we should prefer that the execution should take place in a more private manner; in the court-yard, for instance, of the prison, and before a selected number of witnesses, partly consisting of official persons, as the sheriffs and magistrates, and partly of a certain number of persons who might be taken from the several jury lists—the option being given to them either to accept or decline this melancholy office. This would be a sufficient publicity to ensure an impartial administration of the laws. The only doubt that remains is, whether it would be sufficient to prevent the spread of false rumours, and absurd suspicions, amongst the people. It is a prevailing tendency with the mob, whenever any one at all above their own condition is executed, to believe that he has been favoured and allowed to escape. Even in the face of the most public execution, such rumours are circulated. We understand that Mr Tawell is confidently reported to be living at this moment in America. Such suspicions, however ridiculous and absurd, must be cautiously guarded against.
After all, the mode of execution is but of secondary importance; arrange it how you will, it is a lamentable business. Like all other punishments, and still more than all other punishments, the actual infliction of it is an evil to society. When the law passes from the threat to the execution, it is a social disaster. The main point is, that we present to the imagination of every man a great threat—that of almost immediate extermination—if he lift his hand against his neighbour's life.
That which renders the punishment of death peculiarly appropriate, in our estimation, in the crime of murder, is not by any means its retaliative character; the sentiment, that "blood must have blood," is one which we have no desire to foster; and if some less grievous penalty would have the same effect in deterring from the crime, we should, of course, willingly adopt it. Our ground of approval is this, that it presents to the mind an antagonist idea most fit to encounter the temptation to the crime. As this temptation must generally be great, and often sudden, that antagonist idea should be something capable of seizing upon the apprehension at once—of exercising at once all its restraining efficacy. Imprisonment for length of years—the mind must calculate and sum up the long list of pains and penalties included in this threat, before its full import is perceived. But death! And then the after-death! For what makes the punishment of death so singularly applicable to the case of murder is this, that it awakens whatever may exist of religious terror in the mind of him who contemplates the crime. On the one hand, he is about to commit a deed on which there are not two opinions; it is not a crime made such by the laws; it is not even a robbery, for which he may frame excuses out of his destitution, and the harsh distinctions of society; it is murder, which heaven and earth, rich and poor, equally denounce. On the other hand, his guilt will bring him almost immediately before the tribunal of God, as well as the judgment-seat of man. No long interval weakens the impression, no long space holds out the vague prospect of repentance and amendment, and compensatory acts of goodness; but if he will lift the knife, if he will mingle the poison, there is the earthly executioner at hand to transfer him to the still more dreadful sentence of the after-world! The same opinion which condemns the crime of murder here on earth, as the most atrocious that can be committed, follows him to that other tribunal; and all that his imagination has been accustomed to depict of the horrors of internal and eternal punishment, rushes at once upon him.