« PreviousContinue »
Thus it appears that in the second and third classes, in which no change of punishment took place, the committals rise, in the one case from 46,833 to 51,701, and in the other from 1,705 to 2,247-showing a considerable general increase of crime; in the case of the third class an increase unrepressed by 330 executions within the nine years. It is in the first class alone (that in which the mitigation took place) that a diminution is observable, the number sinking from 4,622 to 4,292, a decrease of 330. Nor did even this number exhibit by any means the true whole decrease; it being well known that while some of these offences were punished with death, the parties injured would very often abstain from any initial proceedings against the persons committing them, from the unwillingness to bring the stain of blood on their consciences, so that the number of committals must fall considerably short of the actual number of the offences perpetrated; while after the mitigation no such unwillingness would exist, and the number of committals would approach considerably nearer to that of the offences perpetrated.
The Gallows cannot stand long against such facts. It is vain to oppose to them any uncandid evasions of their force, such as that they do not justify an inference to the crime of murder, as being different in nature, and higher in degree, than any of these minor ones. But, on the contrary, we are entitled to urge, the argument from these upward to the case of murder is all the stronger, a clear à fortiori; for if it is thus shown that the risk of death is so little effectual to restrain from the comparatively minor motives impelling to the one, as to render them actually more frequent than after the institution of different penalties, (notwithstanding a general increase of other crimes), how can it be supposed more efficacious to stay the sweep of the powerful inducements or violent passions which impel to the other? When it has succeeded so well in the one, clear and strong reasons must be shown why the benign wisdom of the change should not be extended also to the other; at least as an experiment easily to be abandoned, if the hope and expectation so well and fairly founded should, contrary to all apparent probability, be disappointed in practice. 2. But our evidences are not con
fined to these classes of crimes. We have proof enough in relation to murder also. It would be enough for our argument, if we could show a single country which has been able to dispense with Capital Punishment for even a small number of consecutive years.
In Russia Capital Punishment has been abolished for upwards of a century, as a part of the ordinary penal lawexcept for political offences for which it is very rarely inflicted, to get rid of dangerous subjects. Whatever personal barbarities may have been committed by bad sovereigns, does not affect this question, as a general national one, any more than do their individual delinquencies of character or life. Exile to Siberia is the substitutealess formidable doom than the perpetual incarceration we propose. The Count de Ségur on his return from his embassy in that country, in 1791, declared in the Moniteur, that Russia, under the operation of this law, was one of the countries in which the least number of murders was committed, adding that Catharine herself had several times said to him: "We must punish crime without imitating it; the punishment of death is rarely any thing but a useless barbarity." The Russian representatives in this country with whom we have conversed, have borne a similar testimony as to the comparative infrequency of murders, in view of the vast multitudes and rude character of the population; and stated that all the intelligent public opinion there is perfectly settled on this subject, no one thinking of returning to the Death Punishment. While the present Emperor has given sufficient evidence of the general satisfaction with the law elsewhere, by extending it over to the province of Finland (before under the Swedish laws), on its incorporation with the empire in the early part of his reign. It is made a just subject of reproach by Russians, against those countries which are wont to look down with contempt on their inferiority in the arts of civilisation, that they should have so long set an example so long left unimitated, of the safety and success of this wise and good reform. Mr. Cheever hazards the assertion that "travellers tell us," that the code of Catharine has long since fallen into disuse. So far as this
feature of it is concerned, the reverse is the fact. The following is from the "Travels in Kamschatka and Siberia, &c., by Peter Dobell, Councillor of the Court of His Imperial Majesty, the Emperor of Russia," London, 1830:
"There is every reason to conclude, from the examples which have been furnished by those countries which have adopted this system, that the idea of confinement and hard labor is a more powerful preventive of the commission of crimes than the fear of death. Solitary confinement, hard labor, and bread and water for several years, present more horrors to the imagination, than scaffolds, ropes, axes, fetters, and all the sanguinary insignia of justice. Blush! ye countries of a longer civilisation, that Russia should teach you the celestial principle of reforming depraved morals, not by the sanguinary execution of inexorable justice, but by the mild and divine precepts of heavenly mercy!"
Mr. Cheever commits himself sadly, and his friend, the Rev. Mr. Baird, in his remarks on the causes of the abolition of the Death Punishment (except for political offences) in Russia. He
"The infliction of death as a legal penalty was taken away, Dr. Baird believes, not from the opinion that it did not prevent crime, or was not the most effectual penalty, but because by irresponsible noblemen and corrupt courts, there being no trial by jury, the power was so shockingly abused, it was taken away from the legal penalties, and reserved as a power of the throne only. This change it is believed was made because it would not do for the nobles to have the power of life and death over their serfs, with the power of swaying the judges at their pleasure, where there is no trial by jury, and the administration of justice in consequence fearfully corrupt."
society the death of a citizen is neither useful nor necessary, I shall have pleaded the cause of humanity with success. The twenty years' reign of the Empress Elizabeth gave the fathers of the people a more excellent pattern than that of all the pomps of war, victory and devastation, held forth by the most gloricus conquerors."
Now the fact is, that it was first removed about a century ago by a resolution of the Empress Elizabeth, a woman unprincipled enough but softhearted, and the change confirmed by the great Catharine, on the philosophic principles on the subject taught by Beccaria, for the reasons fully set forth under her own authority. "Experience demonstrates," is the language of her Grand Instructions for forming a new code of laws for the Russian Empire,' article 240, "that the frequent repetition of Capital Punishments never yet made men better. If therefore I can show that in the ordinary state of
Mr. Cheever speaks of the Capital Punishment as though it were simply removed in Russia from the legal tribunals to the hands of the Emperor. This is utterly at variance with the fact. Even the punishment of the knout (which is but a very severe whipping), is now never inflicted with out a judicial sentence, nor to the excesses practised often in former times. Death is never inflicted at all for any civil crimes-and with the extremest rarity for treason. Mr. Cheever indulges in a very small piece of fustian, when he exclaims, in reference to the general inferiority of institutions of Russia: "I say it is a slander upon our admirable institutions, and a contempt of our common sense, to point would certainly seem that our "coman American to such an example." It mon sense" would be indeed even below
contempt" if it would refuse to learn a lesson of practical wisdom from an inferior-and if it would cling to such an "admirable institution" as the Gallows, even when the far less enlightened and civilized population of Russia are able not only to dispense with it, but to bid us blush for the more brutal and cruel practice which now even among us shrinks from the public eye, to skulk within the dark shadows of our prison walls.
3. We come now to the case of Belgium. The present sovereign, Leopold, on his accession to his throne in 1830, made a practical abolition of the Death Punishment by adopting a uniform system of commutation of all capital sentences. In a work published by Mr. Ducpétiaux, Inspector General of Prisons in that country in 1835, "Statistique de la Peine de Mort en Belgique," it was stated that this course had been attended with most satisfactory success. Not having that work at hand at present, we cannot do more than thus refer to it. As Mr. Cheever has introduced, with considerable ostentation of its importance, a Report on the Administration of Criminal
Justice in Belgium within the years 1831-2-3-4, by M. Ernst, the Minister of Justice, made in 1835, we will confine what we would say on this head to the examination of that document. He puts forth the figures which he derived from it, as if they were conclusive against Leopold's experiment. We deny the conclusion, and declare them rather conclusive in its favor, as showing at least no increase of murders justly chargeable to the mitigation.
It should be borne in mind that during the period in question the country was in a very unfavorable state for such an experiment. The antecedent period, before the revolution and separation from Holland, had been one of tranquillity and peace, under the well ordered and disciplined administration of one of the ablest sovereigns of Europe. The succeeding period was one when the surface of society was yet heaving with the waves of the political storm through which it had just passed. A state of war existed during a portion of it, with the adjoining power of Holland, with all the demoralizing influences of the presence of military excitement and movement in a country; with all its sanguinary tone of sentiment, and with all that consequent disturbance of the tranquil pursuits and prosperity of industry which is usually found to be fruitful in crime, especially crimes against the person and those of a more violent character. No one familiar with the study of criminal statistics would expect, under any circumstances, any other effect of the country's passage through such a period, than a large increase of all these classes of offences. If within such a period the Death Punishment should be abolished without a large increase of murder, it alone justifies a strong inference in favor of the change. Now notwithstanding all the parade made of figures relating to the general progress of other crime, the only material points which Mr. Cheever adduces are contained in the following facts: First, that the average annual number of persons accused of murder during the five years before the change was 36, and during the four succeeding years 42, an increase of 6; and Second, that while the number of sentences to death in the year 1829 were only 11, and in 1830 only 4, in 1831,when they began to be commuted, they were 9, (of which, by the way,
only 3 were for murder), and in 1834 were 28-laying particular stress on the figure of the last named year. Now it was certainly much more ingenious than ingenuous, that all the numbers of capital sentences for these respective years were not given, instead of thus picking out two or three, in a manner calculated to give the idea that there had been a progressive decrease one way and rapid progressive increase the other, measured from the turning point of the change. These numbers were, for the five years of the former period, 13, 17, 22, 11, 4; for the four years of the latter, 9, 9, 7, 28. With the exception of the last year (the sudden and large rise of which should have excited suspicion of some peculiar cause, different from that of the penalty, because that had been in operation in 1832 and '33 as well as '34), the number is considerably lower than the average of the former period. The total for the three years of 1826-7-8 is 52; that for the three years of 1831-2-3 is 25. Even including the number 28, the annual average is about the same. But we find the explanation of that number for 1834, in an article by an eminent advocate of this reform, M. Lucas, the Inspector General of Prisons in France, published in the Revue Etrangère de Législation et d' Economie Politique, for March, 1835. He there quotes a remark of M. Devaux, in the Belgian Chamber of Deputies, who, speaking of the figure of 24 capital sentences pronounced in 1834 (which M. Ernst raises to 28 by adding four military condemnations), called attention to the fact that in such a country as Belgium "a single crime may change the number of these sentences, if, for instance, the act is committed by an entire band, as had been the case. We remember the circumstance mentioned at the time in the newspapers, of a banditti being broken up, including both men and women, which had long baffled the public justice; and accordingly, in the tables for 1834, we find that among the sentences to death there were for murder 10, robbery 15; and that the former resulted from 31 accusations involving 51 per sons accused, and the latter from 154 accusations involving 270 persons accused. Thus, to include the figure of this year, and to make it the basis of the inference drawn from it by Mr. Cheever, is much as if, in the regular
annual estimate of a family's expenses for living, made with a view to judge of the economy of a system, there were included a sudden and extraordinary loss which at one blow should sweep away the aggregate income of several years.
With respect to the annual average of persons accused of murder, stated as having risen from 36 to 42, the in crease (even if it were not modified by a just regard to the fact last referred to, as swelling the number of persons), is by no means large enough to warrant any inference from it adverse to the conclusions flowing from the whole tenor of our statistical evidence. Taking into account the unfavorable state of the country for such an experiment, as above mentioned, it exhibits no increase of murders chargeable to the change in the mode of punishment; and this is all we have to show. It should be observed that these include the manslaughters with murders.
ther with 3082 other offences, make up the number above given), without adding the remark by the Minister himself, which follows in the next paragraph:
However, we must be careful not to exaggerate these results; accurate calculations cannot be based on facts whose criminality might have disappeared or have been modified, if they had been subjected to a judicial investigation; nor can we, moreover, draw from them any inference regarding the increase of crime, in the entire absence of any information respecting the undetected offences in the antecedent period to that under consideration." The one, in the absence of any suggestion to the contrary, is fairly to be presumed to balance the other; as under all gov ernments and all systems of punishment the number of such must always bear a large proportion to those upon which detection brings down punishment.
We have thus made it sufficiently clear, even from the report of a Minister of Justice who went into his office an avowed opponent of this reform, that the Belgian experience, as exhibited by it, has been decidedly favorable to it, by showing at least that it may be adopted without danger-without any of those consequences of the increase of crime threatened by the argument of our opponents. Nor should the idea be forgotten that a great part of the moral benefit claimed as incident to the proposed change in the mode of punishment, is lost in Belgium, from these facts that it is the mere act of the mercy of the Executive, and not by the solemn recognition of the great principle of the sanctity of life by the law itself; and also that the crime of murder is thus merely placed on a level with a number of other offences punishable with the same penalty, of labor on the public works for life; whereas we propose to leave a broad and dark line of distinction, by making the imprisonment far more rigorous in its solitude and hopeless perpetuity (the pardoning power being removed) than for other crimes, to no other of which ought to attach a punishment absolutely for the whole life of the criminal.
4. Respecting the case of Tuscany, Mr. Cheever makes no attempt to meet it, though he at the close makes a great pretension of having done so. We draw the following account of it from the Report of the New York Legisla ture on this subject in 1841.
Another fact is to be borne in mind, that the whole report, and the figures so largely paraded by Mr. Cheever, exhibit the general penal administration of the country within this second period, as in a very bad way; with either a remarkable deterioration of the people, (not in comparison with the former period, but from the first to the last year of the latter), or a general want of vigilance and energy pervading the whole public justice, or both, to which, and not to the commutation of the small number of capital sentences, it is evident that M. Ernst refers when he says that the action of the criminal justice is deficient in the energy it ought to possess." This is apparent from the number of 3267, for the four years, as that of undetected offences; and also by the increase from 1831 to 1834 of the police offences and judgments, far beyond the ratio of the increase of population. But, as showing the general pervading state of things, independently of the Death Punishment or those crimes connected with it, these facts manifestly go only to strengthen the argument of our side of the question.
Another remark upon the judicious discrimination made, in the use of this document, between what should be adduced and what withheld. A parade is made of the number of undetected offences within this period, (namely, 6 of poison, 60 of infanticide, and 119 of murder or manslaughter, which, toge
In Tuscany the abolition of capital punishment has received perhaps the fairest and most satisfactory experiment anywhere made. The Grand Duke Leopold ascended the throne in 1765, and immediately, under the influence of the enlightened councils of Beccaria, instituted a general reform of the penal code of the country, abolishing the torture and the punishment of deaththe latter provisionally and experimentally. An idea of the success which attended the wise humanity of this experiment may be best had from the solemn edict issued by him twenty-one years after, in 1786; in which after referring to his former provisional acts, and expressing his satisfaction at the happy results which had attended the experiment which they made, -as having, "instead of increasing the number of crimes, considerably diminished that of the smaller ones, and rendered those of an atrocious nature very rare,"-he proceeded to decree its total and perpetual abolition.
If other testimony should be desired by any to the success of this experiment, it can be abundantly furnished. "It (the punishment of death) was abolished, during a period of twenty five years in Tuscany, by the Grand Duke Leopold," says the report of M. Berenger to the French Chamber of Deputies, in 1830, "and the mildness of the penal legislation had so improved the character of the people there, that there was a time when the prisons of the Grand Duchy were found entirely empty. Behold enough to prove sufficiently that the abolition of the punishment of death is capable of producing the most salutary effects."- Try the efficacy of milder punishments," says Mr. Livingston to the Legislature of Louisiana; they have succeeded -your own statutes, all those of every State in the Union prove that they have succeeded, in other offences; try the experiment on this also. Be consistent; restore capital punishment in other crimes, or abolish it in this. Do not fear that the murderers from all quarters of the earth, seduced by the mildness of your penal code, will choose this as the theatre of their exploits. On this point we have most persuasive example. In Tuscany, as we have seen, neither murder nor any other crime was punished with death, for more than twenty years, during which
time we have not only the official declaration of the sovereign, that all crimes had diminished, and those of an atrocious nature had become extremely rare;' but the authority of the venerable Franklin, for these conclusive facts
that in Tuscany, where murder was not punished by death, only five had been committed in twenty years; while in Rome, where that punishment is inflicted with great pomp and parade, sixty murders were committed in the short space of three months, in the city and vicinity. It is remarkable (he adds to this account) that the manners, principles, and religion of the inhabitants of Tuscany and those of Rome are exactly the same. The abolition of death alone, as a punishment for murder, produced this difference in the moral character of the two nations.' From this it would appear rather that the murderers of Tuscany were invited by the severer punishments into the neighboring territories of Rome, than that those of Rome were attracted into Tuscany by their abolition. We have nothing to fear then, from this measure; and if any ill effects should follow the experiment, it is but too easy to return to the system of extermination." And again: "In Tuscany during twenty years the punishment of death was altogether abolished by the Grand Duke Leopold. Bonaparte afterwards had it restored. On comparing three successive periods of twenty years each-in the first period capital punishment existing-in the second period abolished -and in the third again restored, as above mentioned, it is found that fewer crimes and fewer murders were perpetrated in the middle twenty years, while no executions took place, than in either the preceding or succeeding twenty years, while the scaffold was in use.
"It is difficult for me," says the Marquis de Pastoret, Vice-President of the French Chamber of Peers, in a letter to the Count de Sellon, of Geneva, in about 1828, in reply to a request for some official documents respecting this experiment in Tuscany, "to give you official documents, as you call them, of the happy effects produced in Tuscany by the abolition of the punishment of death. It was a fact so fully recog nized when I wrote (1789), when Leopold was still on the throne, that I could not think of seeking the means of proving what no one thought of disputing.