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a dead-letter law as regards the following offences, viz., sodomy, burglary with violence, robbery with wounds, and arson of inhabited houses, there was on the whole both a decrease of crime and an increase in the proportion of convictions. Those who advocate its entire abolition have therefore a primâ facie argument in their favour. It may, indeed, be legitimately contended that the onus probandi is thrown on those who uphold the continuation of the death penalty, and that the moment the question presents itself, it is fairly open to grave doubts, whether a lawful penalty analogous in its results to * The following table, communicated by H. T. HUMPHREYS, Secretary to the Anti-Capital Punishment Association, establishes this statement.
that of the crime it punishes, can have any operation in discouraging the crime.
The just indignation which a murder excites in the survivors of the crime, cannot be regarded as existing for any other object than to urge the survivors to prevent a repetition of the offence, for which a jail is as serviceable as the executioner, except so far as the example of death may operate. If then executions are unjustifiable simply as measures of justice, and unnecessary to prevent a second offence by the same individual, they can be maintained only for financial reasons or because they are terrific; but surely the possibility of a wrong verdict justifies the State in providing a criminal convicted capitally with food and clothing, for if he be innocent and executed he is removed beyond the power of human compensation. Is then capital punishment in murder cases deterrent? With reference to which it may be observed, that although, for example, rebellions may be suppressed, and war, and anarchy terminated, by a wholesale resort to it-(especially if the death be frightful and public, as, for example, blowing men from guns, crucifixions, and the like)-that however the law of terror may operate upon large masses of mankind, concerting and bound together for a common object, yet as regards crimes by individuals-by persons who isolate themselves from their fellow men, for the purpose of secretly committing crime-it is open to serious doubt whether the punishment of death does operate as a preventative. It has not been necessary to re-enact the death penalty for arson, cattlestealing, forgery or burglary, or indeed for any crime great or small; and there are examples showing that, as regards murder, the death penalty has had no operation even in the vicinity of the gallows. In three successive years there were three murders in Derbyshire in two of which the murderers were brought to the scaffold at Derby, and the third was that by Townley.
In conclusion it may be observed that the Report cannot satisfactorily steer a middle course, and therefore the Commissioners
must find it expedient or not expedient to retain the death penalty. If it be retained, its operation must be rendered certain and impartial, either by abolishing the prerogative of mercy, or affixing some condition to the exercise of it which will insure responsibility. It is not probable that the Crown will be advised to abandon, or even to qualify its power of mercy, and yet as long as it exists it will rest with the Crown whether the life of a convicted criminal shall be spared or not, and hence public agitation for reprieves will again and again occur, and none of the existing evils arising from the importunity of the public to save human life can be terminated. This appears to be one of the strongest arguments to prove the inexpediency of the death penalty being retained. If executions were allowed only in cases in which the jury found a verdict of guilty, and life were to be spared only when, with the verdict, circumstances extenuating the crime were found, that would be qualifying the prerogative of pardon; and there has been more than one instance in which it has been found expedient to commute the death sentence, notwithstanding an unqualified verdict of guilty, atisfactory both to the jury and the judge; and such cases will, of course, occur again. Nor would this objection be entirely removed were a second trial allowed by way of appeal, and a second verdict of guilty were found. The possibility of error would still exist, though the probability of error would be greatly diminished. At present there is no criminal appeal, nor is the subject of criminal appeals referred to the Commissioners, who must therefore proceed as if there could be no second trial for murder. Neither are they at liberty to enter into the question whether it is or not expedient to qualify in any way the prerogative of mercy. If, on the other hand, the Commissioners should report that it is inexpedient, to retain the capital penalty all these difficulties would be removed. Connected with the abolition of capital punishment is that of a secondary punishment, as to which great difficulties have hitherto existed. None, however, have been found when a criminal has been
reprieved, and therefore these difficulties are clearly not insuperable. Irremissible but not unpardonable life punishment would answer for the purpose of deterring others, better than death; and that punishment should be penal in a greater degree than for any other crime, but should not be accompanied by any species of torture. There would be no difficulty in defining the servitude to which murderers should be subjected, so as to mark the enormity of the offence; but one unalterable condition should be that no ticket-of-leave system should apply to them.
Much power of good and evil is vested in the Commissioners. The future social welfare of the community is largely concerned in the conclusion they may come to. The death penalty if retained, however seldom it may be inflicted, will be a fact operating on the morals and manners of the people, far and wide, on other matters of conduct affecting domestic society, besides attempts on human life the abolition of it. will have an influence equally extensive. Whether of the twain is the better adapted for the security of human life, and for the progress of civilisation, the Commissioners have to decide.*
* Since the above was written Her Majesty has been pleased to direct letters patent to be passed under the Great Seal, appointing the Most Noble Duke of Richmond, the Right Hon. Lord Stanley, M.P., the Right Hon. Stephen Lushington, D.C.L., Judge of Her Majesty's High Court of Admiralty; the Right Hon. Sir John Taylor Coleridge, Knight; the Right Hon. Thomas O'Hagan, Attorney-General for Ireland; James Moncrieff, Esq., M.P., Advocate for Scotland; Horatio Waddington, Esq., John Bright, Esq., M.P., William Ewart, Esq., M.P., Gathorne Hardy, Esq., M.P., George Warde Hunt, Esq., M.P., and Charles Neate, Esq., M.P., to be Her Majesty's Commissioners to inquire into the provisions and operation of the laws now in force in the United Kingdom under and by virtue of which the punishment of death may be inflicted upon persons convicted of certain crimes, and also into the manner in which capital sentences are carried into execution.
ART. III.-CONTRIBUTORY NEGLIGENCE.
A LAW LAY.
Tuff v. Warman. 5 C. B., N.S. 573.
INGENUOUS Student, who, with curious eye,
Hear, on that well-thumb'd text, a homely sermon.
The text, though cumbered much with clause on clause,
The rule of Law, and reason of the thing.
Both are in fault: else, 'tis a simple story,
Could shun that first misconduct's consequence.