Bentham thus answers the question: 'It appears
to me that the contemplation of perpetual imprisonment,
accompanied with hard labour and occasional solitary
confinement, would produce a deeper impression on the minds
of persons in whom it is more eminently desirable that that
impression should be produced than even death itself. . . .
All that renders death less formidable to them renders
laborious restraint proportionably more irksome.' There is
doubtless a certain measure of truth in these remarks. But
Bentham is here speaking of the degraded class; and is it
likely that such would reflect seriously upon what they never
see and only know by hearsay? Think how feeble are their
powers of imagination and reflection, how little they would
be impressed by such additional seventies as 'occasional
solitary confinement,' the occurrence and the effects of
which would be known to no one outside the jail.
As to the 'majority,' the higher classes, the fact that men
are often imprisoned for offences - political and others -
which they are proud to suffer for, would always attenuate
the ignominy attached to 'imprisonment.' And were this the
only penalty for all crimes, for first-class misdemeanants
and for the most atrocious of criminals alike, the
distinction would not be very finely drawn by the interested;
at the most, the severest treatment as an alternative to
capital punishment would always savour of extenuating
circumstances.
There remain two other points of view from which the question
has to be considered: one is what may be called the
Vindictive, the other, directly opposed to it, the
Sentimental argument. The first may be dismissed with a word
or two. In civilised countries torture is for ever
abrogated; and with it, let us hope, the idea of judicial
vengeance.
The LEX TALIONIS - the Levitic law - 'Eye for eye, tooth for
tooth,' is befitting only for savages. Unfortunately the
Christian religion still promulgates and passionately clings
to the belief in Hell as a place or state of everlasting
torment - that is to say, of eternal torture inflicted for no
ultimate end save that of implacable vengeance. Of all the
miserable superstitions ever hatched by the brain of man
this, as indicative of its barbarous origin, is the most
degrading. As an ordinance ascribed to a Being worshipped as
just and beneficent, it is blasphemous.
The Sentimental argument, like all arguments based upon
feeling rather than reason, though not without merit, is
fraught with mischief which far outweighs it. There are
always a number of people in the world who refer to their
feelings as the highest human tribunal. When the reasoning
faculty is not very strong, the process of ratiocination
irksome, and the issue perhaps unacceptable, this course
affords a convenient solution to many a complicated problem.
It commends itself, moreover, to those who adopt it, by the
sense of chivalry which it involves. There is something
generous and noble, albeit quixotic, in siding with the weak,
even if they be in the wrong. There is something charitable
in the judgment, 'Oh! poor creature, think of his adverse
circumstances, his ignorance, his temptation. Let us be
merciful and forgiving.' In practice, however, this often
leads astray. Thus in most cases, even where premeditated
murder is proved to the hilt, the sympathy of the
sentimentalist is invariably with the murderer, to the
complete oblivion of the victim's family.
Bentham, speaking of the humanity plea, thus words its
argument: 'Attend not to the sophistries of reason, which
often deceive, but be governed by your hearts, which will
always lead you right. I reject without hesitation the
punishment you propose: it violates natural feelings, it
harrows up the susceptible mind, it is tyrannical and cruel.'
Such is the language of your sentimental orators.
'But abolish any one penal law merely because it is repugnant
to the feelings of a humane heart, and, if consistent, you
abolish the whole penal code. There is not one of its
provisions that does not, in a more or less painful degree,
wound the sensibility.'
As this writer elsewhere observes: 'It is only a virtue when
justice has done its work, &c. Before this, to forgive
injuries is to invite their perpetration - is to be, not the
friend, but the enemy of society. What could wickedness
desire more than an arrangement by which offences should be
always followed by pardon?'
Sentiment is the ULTIMA RATIO FEMINARUM, and of men whose
natures are of the epicene gender. It is a luxury we must
forego in the face of the stern duties which evil compels us
to encounter.
There is only one other argument against capital punishment
that is worth considering.
The objection so strenuously pleaded by Dickens in his
letters to the 'Times' - viz. the brutalising effects upon
the degraded crowds which witnessed public executions - is no
longer apposite. But it may still be urged with no little
force that the extreme severity of the sentence induces all
concerned in the conviction of the accused to shirk the
responsibility. Informers, prosecutors, witnesses, judges,
and jurymen are, as a rule, liable to reluctance as to the
performance of their respective parts in the melancholy
drama.' The consequence is that 'the benefit of the doubt,'
while salving the consciences of these servants of the law,
not unfrequently turns a real criminal loose upon society;
whereas, had any other penalty than death been feasible, the
same person would have been found guilty.
Much might be said on either side, but on the whole it would
seem wisest to leave things - in this country - as they are;
and, for one, I am inclined to the belief that,
Mercy murders, pardoning those that kill.
CHAPTER XIX
WE were nearly six weeks in the Havana, being detained by
Lord Durham's illness.
