No. LVII.
It is scarcely credible, for what peccadilloes, life was forfeited, by the laws of England, within the memory of men, now living. One hundred and sixty offences, which may be committed by man, have been declared, by different acts of parliament, to be felony, without benefit of clergy; that is, punishable with death. It is truly wonderful, that, in the eighteenth century, it should have been a capital offence, in England, to break down the mound of a fish pond—to cut down a cherry tree in an orchard—or to be seen, for one month, in the company of those, who called themselves Egyptians.
We constantly refer to the laws of Draco, the Archon of Athens, as a code of unequalled cruelty; under whose operation, crimes of the highest order, and the most trifling offences, were punished, with equal severity. Draco punished murder with death, and he punished idleness with death. The laws of England punished murder with death, and they punished theft, over the value of twelve pence, with death. What is the necessity of going back to the time of Draco, 624 years before Christ, for examples of inhuman, and absurdly inconsistent legislation?
The Marquis of Beccaria, in his treatise, De Delitti e Delle Pene, seems to have awakened legislators from a trance, in 1764, by propounding the simple inquiry—Ought not punishments to be proportioned to crimes, and how shall that proportion be established? A matter, so apparently simple, seems not to have been thought of before.
Sir Samuel Romilly, Sir James Mackintosh, and Sir Robert Peel are entitled to great praise, for their efforts to soften and humanize the criminal code of Great Britain.
The distinction, between grand and petty larceny, was not abolished, until 1827, when, by the act 7th and 8th Geo. IV. chap. 29, theft was made punishable by transportation, or imprisonment and whipping. By this statute, robbery from the person, burglary, stealing in a dwelling-house to the value of £5, stealing cattle, and sheep-stealing are made punishable with death. So that the punishment was, even then, the same, for murdering a man, and stealing a sheep, or £5 from a dwelling-house. Death, by this statute, was also the punishment for arson, for setting fire to coal mines, and ships; and for riotously demolishing buildings or machinery.
In the following year, 1828, by the act 9th Geo. IV. ch. 31, death is made the punishment, for murder, maliciously shooting, cutting and maiming, administering poison, attempting to drown, suffocate, &c., and for rape and sodomy. By this act, more than fifty statutes, relative to offences against the person, are repealed.
The act 11th Geo. IV. and 1st Will. IV. ch. 66, passed in 1830, abolishes capital punishment, in all cases of forgery, excepting forgery of the royal seals, exchequer bills, bank notes, wills, bills of exchange, promissory notes, or money orders, transfers of stock, and powers of attorney. Death remained the penalty for all these forgeries, in 1830, and, for all other forgeries, transportation and imprisonment.
Two years after, in 1832, another step was taken. By 2d Will. IV. ch. 34, capital punishment was abolished, and transportation and imprisonment substituted, for all offences, relative to the coin. This was a prodigious stride.
This gave us a great hope, that misguided murderers might finally be suffered to live in security, at least, from the halter: for no object had been of greater moment with the British nation, than the coin of the realm, and the death penalty had often been exacted from those, who had dared to clip or counterfeit that sacred representative of majesty. The principle is well established, that men, who fly from one extreme, in contraria currunt. We trusted, therefore, that extremely lenient legislation would supervene, upon its very opposite.
We had great confidence in a system of “indefatigable teasing,” as Butler calls it. In the same year, 1832, by 2d and 3d Will. IV. ch. 62, capital punishment was abolished, in cases of stealing from a dwelling-house to the value of £5, and sheep-stealing; and by the same act, ch. 123, capital punishment was abolished, in all cases of forgery, excepting in the cases of wills, and powers of attorney for stock.
In 1833, by 3d and 4th Will. IV. ch. 44, capital punishment was abolished in case of dwelling-house robbery; repealing so much of the larceny act of 1827.
Our good friends in England next thought it expedient to divest the process of hanging, of all its postmortuary terrors. I have heard of condemned persons, who expressed a greater horror, at the thought of being dissected, than of being hanged. It was deemed proper, therefore, to relieve the unfortunates, on this tender point. Accordingly, in 1834, by 4th Will. IV. ch. 26, dissecting murderers, and hanging them, in chains, were abolished.
It had been the law of England, that all persons returning, sua sponte, after transportation, should be hanged. But experience has shown how deep is the affection, which convicts bear to their former haunts, their native land. It is a perfect nostalgia. This law was therefore repealed, in 1834, by 4th and 5th Will. IV. ch. 67.
In 1835, by 5th and 6th Will. IV. ch. 33, sundry felonies, never before deemed bailable offences, were made so, notwithstanding the parties confessed themselves guilty.
Sacrilege and letter-stealing had long been capital offences in England. In the same year, they were no longer punished with death.
We had great hopes from Victoria. In 1837, 1 Vic. ch. 23, she began, by abolishing the pillory entirely;—and ch. 84, capital punishment is abolished, in all cases of forgery;—ch. 85, capital punishment is inflicted, for administering poison, or doing bodily injury with intent to mutilate; but other acts, with intent to murder, or maim, or disfigure, are punished with different degrees of transportation and imprisonment.—Ch. 86 takes away capital punishment, in burglary, unless accompanied with violence.—Ch. 87 takes away capital punishment, in case of robbery, unless attended with cutting or wounding. Ch. 88 leaves the punishment of death, transportation or imprisonment, to the discretion of the court, in case of piracy, where murder is attempted. Ch. 89 varies the laws of arson, making arson a capital offence, in regard to a dwelling-house, any person being therein.—Ch. 91 abolishes capital punishment in cases of riotous assemblies, seducing from allegiance, and certain offences against the revenue laws.
It is rather surprising, that there is such a general prejudice throughout the world, in favor of putting murderers to death. The Bible is an awful stumbling block, in this respect. We are also reminded that Solon, when he abolished the code of Draco, retained the punishment of death, in the case of murder. I have never thought much of Solon, since I became acquainted with this weak point in his character.
A writer in the Edinburgh Review, vol. 86, p. 217, speaking of death as the punishment for murder, observes—“The intense desire which now actuates a portion of the community, to get rid of capital punishment even for murder, may be taken as an indication of this excessive sensibility. The propriety of that punishment in the given case, would certainly appear to be distinctly sanctioned by that book, to which its opponents professedly appeal—by reason—and by the all but universal practice of nations. It is the only certain guarantee which society can have for the security of its members.” Here we have it again—“that book”—the Bible. It cannot be denied that the Bible, or Solon, or Sir Matthew Hale, or somebody else, is everlastingly in the way of this and other modern, philanthropic movements. What was Solon, in comparison with David Crockett—we are sure we are right, and why should we not go ahead?
For my own part, I have never been able to perceive the wisdom of attempting to conceal any of our prospective movements. Indeed, our future course must be sufficiently apparent, at a glance. When we have agitated, until capital punishment is abolished, and we have had a commemorative celebration, with emblematical banners, and an hundred guns on the Common, nothing will be further from our thoughts, than a dissolution, sine die. One of our chief arguments in favor of abolishing capital punishment, is the greater hardship of a life-long imprisonment. Availing of this argument, we shall be able to show, that we have placed these unfortunates, in a worse condition than before. A petition will be presented to the Governor and Council, from five thousand unhappy murderers, ravishers, house-burners, burglars and highway robbers—such we think will be the number, in a few years—representing their miserable condition, and respectfully requesting to be hanged, under the influence of ether or otherwise, as to the Governor and Council may seem fit. We shall then agitate anew, and endeavor, through public meetings and the press, to exhibit the barbarity of refusing their humble request.
This, we well enough know, will not be granted; and the only escape from the dilemma, will be to suffer them, to go at large, upon their parole of honor. It will not, of course, be expected, that this parole will be received from any, who cannot produce a certificate, under the hand of the warden, that they have committed no murder, rape, arson, burglary, or highway robbery, during the period of their confinement in the State Prison.