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"Speech
In Favor of Capital Punishment" John Stuart Mill From a speech was given before
Parliament on April 21, 1868 in opposition to a bill banning capital
punishment that had been proposed by fellow MP Mr. Gilpin. . . . It would be a great satisfaction
to me if I were able to support this Motion. It is always a matter of regret
to me to find myself, on a public question, opposed to those who are
called--sometimes in the way of honour, and sometimes in what is intended for
ridicule--the philanthropists. Of all persons who take part in public
affairs, they are those for whom, on the whole, I feel the greatest amount of
respect; for their characteristic is, that they devote their time, their
labour, and much of their money to objects purely public, with a less
admixture of either personal or class selfishness, than any other class of
politicians whatever. On almost all the great questions, scarcely any
politicians are so steadily and almost uniformly to be found on the side of
right; and they seldom err, but by an exaggerated application of some just
and highly important principle. On the very subject that is now occupying us
we all know what signal service they have rendered. It is through their
efforts that our criminal laws--which within my memory hanged people for
stealing in a dwelling house to the value of 40s.-laws by virtue of which
rows of human beings might be seen suspended in front of Newgate by those who
ascended or descended Ludgate Hill--have so greatly relaxed their most
revolting and most impolitic ferocity, that aggravated murder is now
practically the only crime which is punished with death by any of our lawful
tribunals; and we are even now deliberating whether the extreme penalty
should be retained in that solitary case. This vast gain, not only to
humanity, but to the ends of penal justice, we owe to the philanthropists;
and if they are mistaken, as I cannot but think they are, in the present
instance, it is only in not perceiving the right time and place for stopping
in a career hitherto so eminently beneficial. Sir, there is a point at which, I
conceive, that career ought to stop. When there has been brought home to
any one, by conclusive evidence, the greatest crime known to the law; and
when the attendant circumstances suggest no palliation of the guilt, no hope
that the culprit may even yet not be unworthy to live among mankind, nothing
to make it probable that the crime was an exception to his general character
rather than a consequence of it, then I confess it appears to me that to
deprive the criminal of the life of which he has proved himself to be
unworthy--solemnly to blot him out from the fellowship of mankind and from
the catalogue of the living--is the most appropriate as it is certainly the
most impressive, mode in which society can attach to so great a crime the
penal consequences which for the security of life it is indispensable to
annex to it. I defend this penalty, when confined to atrocious cases, on
the very ground on which it is commonly attacked--on that of humanity to the
criminal; as beyond comparison the least cruel mode in which it is
possible adequately to deter from the crime. If, in our horror of
inflicting death, we endeavour to devise some punishment for the living
criminal which shall act on the human mind with a deterrent force at all
comparable to that of death, we are driven to inflictions less severe indeed
in appearance, and therefore less efficacious, but far more cruel in reality.
Few, I think, would venture to propose, as a punishment for aggravated
murder, less than imprisonment with hard labor for life; that is the fate to
which a murderer would be consigned by the mercy which shrinks from putting
him to death. But has it been sufficiently considered what sort of a mercy
this is, and what kind of life it leaves to him? If, indeed, the punishment
is not really inflicted--if it becomes the sham which a few years ago such
punishments were rapidly becoming--then, indeed, its adoption would be almost
tantamount to giving up the attempt to repress murder altogether. But if it
really is what it professes to be, and if it is realized in all its rigour by
the popular imagination, as it very probably would not be, but as it must be
if it is to be efficacious, it will be so shocking that when the memory of
the crime is no longer fresh, there will be almost insuperable difficulty in
executing it. What comparison can there really be, in point of severity,
between consigning a man to the short pang of a rapid death, and immuring him
in a living tomb, there to linger out what may be a long life in the hardest
and most monotonous toil, without any of its alleviations or
rewards--debarred from all pleasant sights and sounds, and cut off from all
earthly hope, except a slight mitigation of bodily restraint, or a small
improvement of diet? Yet even such a lot as this, because
there is no one moment at which the suffering is of terrifying intensity,
and, above all, because it does not contain the element, so imposing to the
imagination, of the unknown, is universally reputed a milder punishment than
death--stands in all codes as a mitigation of the capital penalty, and is
thankfully accepted as such. For it is characteristic of all punishments
which depend on duration for their efficacy--all, therefore, which are not corporal
or pecuniary--that they are more rigorous than they seem; while it is, on the
contrary, one of the strongest recommendations a punishment can have, that it
should seem more rigorous than it is; for its practical power depends
far less on what it is than on what it seems. There is not, I should think,
any human infliction which makes an impression on the imagination so entirely
out of proportion to its real severity as the punishment of death. The
punishment must be mild indeed which does not add more to the sum of human
misery than is necessarily or directly added by the execution of a criminal.
As my hon. Friend the Member for Northampton (Mr. Gilpin) has himself
remarked, the most that human laws can do to anyone in the matter of death is
to hasten it; the man would have died at any rate; not so very much later,
and on the average, I fear, with a considerably greater amount of bodily
suffering. Society is asked, then, to denude itself of an instrument of
punishment which, in the grave cases to which alone it is suitable, effects
its purposes at a less cost of human suffering than any other; which, while
it inspires more terror, is less cruel in actual fact than any punishment
that we should think of substituting for it. My hon. Friend says that it does not
inspire terror, and that experience proves it to be a failure. But the
influence of a punishment is not to be estimated by its effect on hardened
criminals. Those whose habitual way of life keeps them, so to speak, at all
times within sight of the gallows, do grow to care less about it; as, to
compare good things with bad, an old soldier is not much affected by the
chance of dying in battle. I can afford to admit all that is often said about
the indifference of professional criminals to the gallows. Though of that
indifference one-third is probably bravado and another third confidence that
they shall have the luck to escape, it is quite probable that the remaining
third is real. But the efficacy of a punishment which acts principally
through the imagination, is chiefly to be measured by the impression it makes
on those who are still innocent; by the horror with which it surrounds the
first promptings of guilt; the restraining influence it exercises over the
beginning of the thought which, if indulged, would become a temptation; the
check which it exerts over the graded declension towards the state--never
suddenly attained--in which crime no longer revolts, and punishment no longer
terrifies. As for what is called the failure of
death punishment, who is able to judge of that? We partly know who those are
whom it has not deterred; but who is there who knows whom it has deterred, or
how many human beings it has saved who would have lived to be murderers if
that awful association had not been thrown round the idea of murder from
their earliest infancy? Let us not forget that the most imposing fact loses
its power over the imagination if it is made too cheap. When a punishment fit
only for the most atrocious crimes is lavished on small offences until human feeling
recoils from it, then, indeed, it ceases to intimidate, because it ceases to
be believed in. The failure of capital punishment in cases of theft is easily
accounted for; the thief did not believe that it would be inflicted. He had
learnt by experience that jurors would perjure themselves rather than find
him guilty; that Judges would seize any excuse for not sentencing him to
death, or for recommending him to mercy; and that if neither jurors nor
Judges were merciful, there were still hopes from an authority above both.
When things had come to this pass it was high time to give up the vain
attempt. When it is impossible to inflict a punishment, or when its
infliction becomes a public scandal, the idle threat cannot too soon
disappear from the statute book. And in the case of the host of offences
which were formerly capital, I heartily rejoice that it did become
impracticable to execute the law. If the same state of public feeling
comes to exist in the case of murder; if the time comes when jurors refuse to
find a murderer guilty; when Judges will not sentence him to death, or will
recommend him to mercy; or when, if juries and Judges do not flinch from
their duty, Home Secretaries, under pressure of deputations and memorials,
shrink from theirs, and the threat becomes, as it became in the other cases,
a mere brutum fulmen; then, indeed, it may become necessary to do in
this case what has been done in those--to abrogate the penalty. That time may
come--my hon. Friend thinks that it has nearly come. I hardly know whether he
lamented it or boasted of it; but he and his Friends are entitled to the
boast; for if it comes it will be their doing, and they will have gained what
I cannot but call a fatal victory, for they will have achieved it by bringing
about, if they will forgive me for saying so, an enervation, an effeminacy,
in the general mind of the country. For what else than effeminacy is it to be
so much more shocked by taking a man's life than by depriving him of all that
makes life desirable or valuable? Is death, then, the greatest of all earthly
ills? Usque adeone mori miserum est? Is it, indeed, so dreadful a
thing to die? Has it not been from of old one chief part of a manly education
to make us despise death--teaching us to account it, if an evil at all, by no
means high in the list of evils; at all events, as an inevitable one, and to
hold, as it were, our lives in our hands, ready to be given or risked at any
moment, for a sufficiently worthy object? I am sure that my hon. Friends know
all this as well, and have as much of all these feelings as any of the rest
of us; possibly more. But I cannot think that this is likely to be the effect
of their teaching on the general mind. I cannot think that the cultivating of
a peculiar sensitiveness of conscience on this one point, over and above what
results from the general cultivation of the moral sentiments, is permanently
consistent with assigning in our own minds to the fact of death no more than
the degree of relative importance which belongs to it among the other
incidents of our humanity. The men of old cared too little about
death, and gave their own lives or took those of others with equal
recklessness. Our danger is of the opposite kind, lest we should be so much
shocked by death, in general and in the abstract, as to care too much about
it in individual cases, both those of other people and our own, which call
for its being risked. And I am not putting things at the worst, for it is
proved by the experience of other countries that horror of the executioner by
no means necessarily implies horror of the assassin. The stronghold, as we
all know, of hired assassination in the 18th century was Much has been said of the sanctity of
human life, and the absurdity of supposing that we can teach respect for life
by ourselves destroying it. But I am surprised at the employment of this
argument, for it is one which might be brought against any punishment
whatever. It is not human life only, not human life as such, that ought to be
sacred to us, but human feelings. The human capacity of suffering is what we
should cause to be respected, not the mere capacity of existing. And we may
imagine somebody asking how we can teach people not to inflict suffering by
ourselves inflicting it? But to this I should answer--all of us would
answer--that to deter by suffering from inflicting suffering is not only possible,
but the very purpose of penal justice. Does fining a criminal show want of
respect for property, or imprisoning him, for personal freedom? Just as
unreasonable is it to think that to take the life of a man who has taken that
of another is to show want of regard for human life. We show, on the
contrary, most emphatically our regard for it, by the adoption of a rule that
he who violates that right in another forfeits it for himself, and that while
no other crime that he can commit deprives him of his right to live, this
shall. There is one argument against capital
punishment, even in extreme cases, which I cannot deny to have weight--on
which my hon. Friend justly laid great stress, and which never can be
entirely got rid of. It is this--that if by an error of justice an innocent
person is put to death, the mistake can never be corrected; all compensation,
all reparation for the wrong is impossible. This would be indeed a serious
objection if these miserable mistakes--among the most tragical occurrences in
the whole round of human affairs--could not be made extremely rare. The
argument is invincible where the mode of criminal procedure is dangerous to
the innocent, or where the Courts of Justice are not trusted. And this
probably is the reason why the objection to an irreparable punishment began
(as I believe it did) earlier, and is more intense and more widely diffused,
in some parts of the Continent of Europe than it is here. There are on the
Continent great and enlightened countries, in which the criminal procedure is
not so favorable to innocence, does not afford the same security against
erroneous conviction, as it does among us; countries where the Courts of
Justice seem to think they fail in their duty unless they find somebody
guilty; and in their really laudable desire to hunt guilt from its hiding
places, expose themselves to a serious danger of condemning the innocent. If our own procedure and Courts of
Justice afforded ground for similar apprehension, I should be the first to
join in withdrawing the power of inflicting irreparable punishment from such
tribunals. But we all know that the defects of our procedure are the very
opposite. Our rules of evidence are even too favorable to the prisoner; and
juries and Judges carry out the maxim, "It is better that ten guilty
should escape than that one innocent person should suffer," not only to
the letter, but beyond the letter. Judges are most anxious to point out, and
juries to allow for, the barest possibility of the prisoner's innocence. No human
judgment is infallible; such sad cases as my hon. Friend cited will sometimes
occur; but in so grave a case as that of murder, the accused, in our system,
has always the benefit of the merest shadow of a doubt. And this suggests another consideration very
germane to the question. The very fact that death punishment is more shocking
than any other to the imagination, necessarily renders the Courts of Justice
more scrupulous in requiring the fullest evidence of guilt. Even that which
is the greatest objection to capital punishment, the impossibility of
correcting an error once committed, must make, and does make, juries and
Judges more careful in forming their opinion, and more jealous in their
scrutiny of the evidence. If the substitution of penal servitude for death in
cases of murder should cause any declaration in this conscientious
scrupulosity, there would be a great evil to set against the real, but I hope
rare, advantage of being able to make reparation to a condemned person who
was afterwards discovered to be innocent. In order that the possibility of
correction may be kept open wherever the chance of this sad contingency is
more than infinitesimal, it is quite right that the Judge should recommend to
the Crown a commutation of the sentence, not solely when the proof of guilt
is open to the smallest suspicion, but whenever there remains anything
unexplained and mysterious in the case, raising a desire for more light, or
making it likely that further information may at some future time be
obtained. I would also suggest that whenever the sentence is commuted the
grounds of the commutation should, in some authentic form, be made known to
the public. Thus much I willingly concede to my hon. Friend; but on the
question of total abolition I am inclined to hope that the feeling of the
country is not with him, and that the limitation of death punishment to the
cases referred to in the Bill of last year will be generally considered
sufficient. The mania which existed a short time
ago for paring down all our punishments seems to have reached its limits, and
not before it was time. We were in danger of being left without any effectual
punishment, except for small of offences. What was formerly our chief
secondary punishment--transportation--before it was abolished, had become
almost a reward. Penal servitude, the substitute for it, was becoming, to the
classes who were principally subject to it, almost nominal, so comfortable
did we make our prisons, and so easy had it become to get quickly out of
them. Flogging--a most objectionable punishment in ordinary cases, but a
particularly appropriate one for crimes of brutality, especially crimes
against women--we would not hear of, except, to be sure, in the case of
garrotters, for whose peculiar benefit we reestablished it in a hurry,
immediately after a Member of Parliament had been garroted. With this
exception, offences, even of an atrocious kind, against the person, as my
hon. and learned Friend the Member for Oxford (Mr.Neate) well remarked, not
only were, but still are, visited with penalties so ludicrously inadequate,
as to be almost an encouragement to the crime. I think, Sir, that in the case of
most offences, except those against property, there is more need of
strengthening our punishments than of weakening them; and that severer
sentences, with an apportionment of them to the different kinds of offences
which shall approve itself better than at present to the moral sentiments of
the community, are the kind of reform of which our penal system now stands in
need. I shall therefore vote against the
Amendment. |