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THE beneficial mitigation of the severity of our Penal Code, begun by the late Sir Samuel Romilly, and partly, though to a very small extent, effected during his life, was sure ultimately to occasion a public inquiry, as to the necessity for retaining the punishment of death for any offence. That inquiry has not arrived too speedily;* a demand for it having been accelerated by a flexible exercise, for several years, of the prerogative of pardon, whereby the law has been rendered in its operation very uncertain, and far more frequently non-capital than capital.

In the debate on capital punishment in the House of Commons, on the 3rd of May last, on Mr. Ewart's motion, which resulted in the issuing of the above Commission, it is remarkable that arguments in favor of continuing the capital penalty founded on theology or natural justice, were almost entirely abandoned, one speaker only having alluded to what he considered to be the expressed will of the Almighty. It may therefore, it is believed, now be regarded as generally admitted (at least, by all persons familiar with those facts necessary to be known in order to arrive at a true solution of the question), that necessity can alone justify the State in visiting a citizen with death; consequently, that death inflicted for sentimental reasons only-for example, for the sake of vengeance, or from a sense of justice-is a proceeding utterly indefensible, and as irrational as is beheading the corpse of a traitor, or as an attempt to wash out blood by blood. It is believed, therefore, that it would be agreeable, if not to the whole nation, at least to a large and increasing number of the most respectable and best informed portion of it, if our laws could, consistently with the public welfare, be

*The expediency of a Royal Commission to inquire into the operation of capital punishment was suggested in 1860. See Law Amendment Society's papers, 17th Dec., 1860.

rendered entirely non-capital. That innocent persons have occasionally been condemned and executed is a fact, alas! indisputable, and very recently some remarkable examples of the miscarriage of juries, in cases not capital, have reminded the public, that the possibility of the like fatal and irremediable error must exist, so long as the capital penalty is retained.

One of the first, and perhaps the first, of the inquiries brought under the consideration of the Commissioners, will therefore be-whether there is from any and what cause a reluctance in juries to convict on trials for capital offences; and whether any distinction is made by juries when the victim of murder is an infant; and if, contrary to our anticipations,* it should be found that there is no such reluctance, and that human life is equally protected at all ages from malicious attempts to destroy it,-advocates for the abolition of capital punishment will no longer be able to avail themselves of the reluctance of juries to convict, as one of their favourite arguments; but on the other hand, should such reluctance be found to exist, and should it appear that human life is not equally protected from murder at all ages, and that from these causes guilt is likely to escape, and occasionally escapes, conviction, it appears difficult to continue for any beneficial purpose the capital penalty. Whether it should be continued depends, however, upon many other considerations besides those last referred to. At present as regards malicious homicides the law is, and has been for several years, theoretically capital, but in the great majority of convictions practically noncapital, and hence it may be predicated that the Commissioners will recommend either the abandonment of the death penalty, or surround the sentence of death with such new circumstances, as will, if possible, render the infliction of it satisfactory to the public.

* From 1858 to 1862 convictions for murder were 322 out of 1,000; for all other offences 755 out of 1,000.-Communicated by H. T. Humphreys, Secretary to the Anti-Capital Punishment Association.


The causes that produced the Commission may be stated to be, first, the increased regard for human life arising from many years of domestic tranquillity and the consequent progress of the nation in humanity and civilisation; secondly, the belief that the death punishment is either not a deterrent, or if a deterrent, is attended with circumstances that render its infliction productive of more evil than good, or that it is, as a deterrent, not greater than, or so great as, hopeless penal imprisonment or hopeless penal servitude for life would be; thirdly, the co-existence with the two former causes of an irresponsible power in the Crown to stay the executioner's hand, after the convict has been sentenced to die. The word irresponsible" is used because the power has been exercised on allegations brought ex parte to the notice of the Crown, without any public investigation, and in the absence of any agent to protect the public welfare. The first of the foregoing causes, operating on the last, has now for some years occasioned frequent and extraordinary public manifestations for mercy where the slightest doubt of guilt has appeared to exist, and in cases even where the Court has been satisfied with the verdict. It has also caused the law to be administered, not on an uniform principle, but on a principle vibrating in its movements according as it is operated upon by the public, or a portion of the public. Hence, one murderer has been executed, whilst another, for an offence precisely equal in degree, has escaped. In some cases an inquiry after verdict and sentence of death is made, in others not, although justice requires that if further inquiry be allowed in any case, it should be made in all, since all verdicts are fallible. Now a penal law ought not to be varied in its operation, for to the extent to which it is relaxable, it ceases to be penal; and yet having regard to public opinion, the death penalty can at present be carried out in a comparatively few cases only. Thus the deterrent effect of the law, if such deterrent effect exist, is so uncertain as to be reduced to a minimum. second of the three before mentioned causes that occa


sioned the Commission, has greatly augmented the power of the first; and has also raised a question entirely independent of considerations arising from religion or humanity-in short a question of police; for the abolitionists of capital punishment, without availing themselves of the arguments in their favour founded on Christian theology or civilisation, allege that, having regard to the causes of murders, the death penalty is not only not deterrent, but that from its demoralising operation it tends to foment those vicious passions that give birth to the crime.

For the purpose of ascertaining whether the capital penalty is or is not at all, or to any, and if any to what extent, deterrent, the psychology of murderers will, it is presumed, be investigated, so that the report may be satisfactory to men of science who have made psychological facts their special study. Upon this branch of inquiry it is believed that much information, with which the public is only partially acquainted, may be adduced by the examination of physicians of experience and learning, and others. There seems, indeed, to be little doubt that the psychological causes of murder may be ascertained with exactitude, and that those murders that have been brought to the notice of the public are types of all undiscovered murders; and if by referring to trials for murder for a series of years, the motives which occasion the crime seem to be such as to defy repression by the death penalty, the Commissioners will hardly fail to point out its inutility from that cause alone. Under this head of inquiry it may possibly be ascertained, that when any passions are sufficiently excited, no self-control from reasoning about consequences exists, and that the murderous intent or passion is that on which the death penalty has, if any, the most feeble operation. Moreover, on examining the origin of murders, the Commissioners will probably discover that one and all arise from cupidity, and that cupidity has its varieties capable of classification, and is a more powerful emotion than the fear of death. The following statement shows how easily murders and the causes of them may be classed.

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16th May, 1854.

Lewellin Garratt Talmage Harvey, aged 30, murdered Mary Richards, aged 21, having dragged her into a coppice and violated her person, and stunned her with blows of which she died.


24th December, 1828.

1st-Burke and Hare, who at Glasgow had suffocated several persons to sell their bodies for anatomical purposes.

19th July, 1849.

2nd-Rebecca Smith, a pious and devout Sabbatarian, the mother of eleven children, ten of whom she poisoned, and was executed for poisoning the last, a month old. The reason she alleged was to save her children from want.

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