Abolition of (feptol litmsjnrai:A LECTURE,

DELIVERED IN THE

SCHOOL OF AETS, SYDNEY, NEW SOUTH WALES,

On Thursday, May 26, 1864,

FREDERICK LEE

“ 7 he quality of mercy is not strained;It droppeth, as the gentle rain from heaven Upon the place beneath : it is twice bless’d ;It blesseth him that gives, and him that takes : ’Tis mightiest in the mightiest: it becomes The throned monarch better than his crown ; His sceptre shews the force of temporal power, The attribute to awe and majesty,Wherein doth sit the dread and fear of kings— But mercy is above ihis sceptred sway;It is enthroned in the hearts of kings,It is an attribute to God himself;And earthly power doth then shew likest God’s When mercy seasons justice.’*

PRICE, ONE SHILLING.

JSgtmeg :HANSON AND BENNETT, PRINTERS, 104, PITT STREET.

1864.

ABOLITION OP CAPITAL PUNISHMENT.

Ladies and Gentlemen, ,

■ In placing before you my views upon the desir­ability of the Abolition of Capital Punishment, I am per­fectly aware that lam treating upon a subject which has already been discussed by abler pens than mine; nor do I pretend to be the originator of the views to which I am about giving expression, as ideas similar to mine have been promulgated by different minds, who have suggested ideas very similar; aud to avoid any charge of plagiarism, to which I should have to plead guilty, 1 confess myself indebted to many philanthropic and talented writers on the subject. With some degree of diffidence I approach the question, not alone from the vast importance involved, but from the knowledge that, in advocating the views I entertain, I am constrained to be in opposition to the prejudices of many worthy members of society, who, with­out, perhaps, haying given the subject that careful consider­ation, and that philosophical research which this import­ant question so strictly demands, have arrived at a conclu­sion without having examined the premises. Possibly the simple interrogation, “What, not .execute for murder ?” has settled the question; others, perhaps, have based their conclusion in favour of capital punishment because they conceive that the death punishment is enjoined as a Divine command: (Genesis chap ix, verse vi.)

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“ Whoso sheddeth man’s blood, by man shall his blood be shed and did I interpret that passage as a Divine command, I should not be so presumptuous as to place my feeble opinion in opposition to such an ineffable authority. Although in practice, the constant remission of the capital sentence is inconsistent with a command, which if really a command of the great Architect of the Universe we should be bound to carry out regardless of con­sequences. In the original Hebrew, the verse referred to

Now the word W (yeshophek) signifies “ shall beshed,” or “ will r * he shed,” and I do no violence to the grammatical construction in reading the verse re­ferred to, “Whoso sheddeth man’s blood by man will his blood be shed.” Now, my humble opinion is (and I am not singular in that opinion), that that verse does not enjoin a command, viz.: It is not mandatory but permissive. The murderer is declared an outlaw, any one may destroy the homicide, but it is not commanded for any one to do so. Now, I think my proposition may be fairly illustrated by the first fratricide Cain, doubtless a homicide of a most heinous and unnatural nature. In this case we have the voice of the Almighty, (Genesis chap, iv., verse xv ) pro­claiming what seems to me very significant, not alone vengeance against any one who should slay the fratricide, but the Almighty in addition “ set a mark upon Cain, lest any finding him should kill him.” The punishment we know by Cain’s exclamation, “My punishment is greater than 1 can bear,” was deservedly a very severe one, but not death. Now I do think from this first homicide that this is a fair and reasonable deduction, that the death punishment is not a Divine command, otherwise, instead of an inferior punishment having been inflicted on the first murderer, the A Imighty would surely have exacted the extreme penalty.

At the early period of the sacred volume, we must not fail to remember that mankind were almost in a state

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of nature ; <c An eye for an eye,” ci a tooth for a tooth,’ might at that period have been almost a stern necessity ; every man had a right to defend, by force of arms, his person and his possessions—to repel, or even prevent violence, and take a reasonable measure of satisfaction and retaliation. An exemplification of this may be found in the act of Moses slaying the Egyptian, and for which act no censure appears to have been incurred; but a strong proof of the barbarism of the age is apparent in the 19th chapter of Deuteronomy, in which the necessity of shielding the inno lent is manifest, cities of refuge being appointed for the protection of him who accidentally slays another, from the “ avenger of blood,” viz., the nearest relative of the slain, a proof beyond contradiction that retaliation was then an acknowledged principle, which, however necessary it might be in a barbarous age, when might prevailed over right, could not be tolerated in the nineteenth century, nor be upheld by any benevolent or civilised individual.

But even at a later era the small value at which life was estimated may be found in the annals of the Anglo- Saxons, as also in the heroic times of Greece, where the guilt of murder was expiated by a pecuniary fine; at Rome and Athens by exile. But more astounding still, so late as the sixteenth century, we find in Germany traces of pecu­niary composition being granted for murder. Indeed the rightof sanctuaryeven now prevails insomeforeign countries, if the homicide only reach the goal his life is safe. Assum­ing then thatthe death punishment is not a Divine command but merely a permission, or a prediction, of the probable fate of a murderer, whose life would in all probability be sacrificed by the relative to the manes of the victim, it will now be not unbecoming to inquire by what right, by what authority, an erring mortal in meting out death and life as though he were a Deity, dare deprive a fellow creature of that immortal spark which he. alas! can quench but not create. “ But once put out the light, I know not where is that promethean heat that can the light relume.” By what right we transgress, the commandment, “ Thou shalt not kill” and, further, by

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what right we transgress the angelic and beautiful pre­cept “to return good for evil/’ and “not to revenge an injury.” We seem to have mistaken the great end of all penal law, which is not vengeance, but the prevention of crime; and that pain deliberately inflicted without benefit to the sufferer is simply vengeance.

Passing now from the scriptural legality, permit me to enter upon the social expediency, and before so- doing we will take a dispassionate view of an execution. A great crime has been committed, and by the execution of the criminal do we not in effect revenge the crime, and

■ exact retribution for the act by committing another murder ?—and not content with wreaking vengeance upon the culprit whilst living, we add to the sentence (that being the law in the mother country,) “ that the body be buried within the precincts of the gaol,” we thus carry the punishment beyond the grave by dishonoring the sense­less clay. All religious men disavow revenge, and as it is condemned by the moral law of nature, it naturally follows that as a principle in our treatment of criminals it must be deemed reprehensible.

In considering this important subject—a subject more momentous than any topic, be it political or social of the day—by far the most momentous question that can be debated, because it involves the soul, the future state of a fallen erring mortal, and our right to cut a soul off in a state of sin, and deprive a criminal of the possibility of reformation, we will inquire what ought to be the object of punish­ment in general, and how crimes are to be prevented. I submit to you, that the object of all punishment should be—Firstly : To deter others from committing a similar crime Secondly : By a punishment to the criminal him­self, to teach him the injury he has done, both to society and himself, by a departure from the path of rectitude, and disobedience of the laws. Thirdly : To reform the criminal, and endeavour that he should become a good and useful member of society; and this, I think, the most

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important of all. I quite agree with, the sentiment of the late Archbishop Whately, who has said in beautiful and emphatic language, “ If one criminal out of one hundred be reformed, that it is worth the effort.” I believe this idea of reformation to be a truly Divine idea, and one which should pervade all punishments. This admitted, viz., that reformation should be the main object, fhen death punishment on that ground cannot possibly be upheld. Quintilian, an eminent Latin writer, says, “ If the criminal can be amended, as oftentimes he can, it is much better for a commonwealth that a good citizen be made, than that he be taken away while he is evil.”

The reformation of a culprit by hanging him is truly a novel mode of effecting the object, and as a punishment to the wretched culprit, as contra,-distinguished to a per­petual imprisonment, has proved a miserable failure. And as some proof that my views are not chimerical, I have the high authority .of the Prison Discipline Society of London, who, in their eighth report, declare “ that an effectual substitute may be found for the penalty of death, in a well-regulated system of penitentiary discipline— a system which shall inspire dread, not by the intensity of punishment, but by unremitting occupation, seclusion, and restraint. The enforcement of hard labour, strict silence, and a judicious plan of solitary confinement, will be found the most powerful of all moral instruments for the correc­tion of the guilty, and when to these are added the application of religious instruction, the utmost means are exercised which society can employ for the punishment and reformation of human character.” ,

In speaking of the execution of a criminal, how common it is for all of us to remark “ he richly deserved itbut if the deserts of the criminal be the test, if we are to administer punishment according to the deserts of the culprit, there are cases of such atrocity that torture would not be adequate punishment for the offence.

“ Use every man after his desert and Who shall ’scape whipping,'*

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But really as a punishment, the death punishment falls with less severity upon the culprit than upon the unfortunate innocent surviving relatives, upon whom a lasting disgrace is entailed ; at whom the finger of scorn is too often pointed, and whose feelings must be harrowed by the revolting recital.

Hanging, as a punishment to the culprit himself, has proved an eminent failure. What is physical death— once and over, to the living death of the heart—that death which does not kill ? And as a proof of my position, I quote the case of Manns, the escort robber, by no means an isolated case. Previous to ascending the scaffold, Manns bade adieu to his fellow-associate and partner in crime, Bow. Bow having shaken hands with Manns, and expressed his sorrow for his fate, Manns replied in the most cool manner, yet without any bravado, “ Do not feel sorry for me; I never was more happy; I would not change places with you;” viz., he preferred death to the eternal imprisonment which Bow had to undergo. This case is one only of the many instances of culprits who are executed, and who meet their fate with the most supreme indifference.

In support of my idea of the benefit accruing to society in attempts to reform a criminal, I must bring to your notice the case of Bow, to whom I have just referred, one of the escort robbers, who was condemned to death, but who was reprieved. This case illustrates the impolicy of hanging a man, on the ground {of one cut of a many) that it precludes all possibility of reformation. This criminal, in whose preservation from the gallows I rejoice to say I was an humble instrument, has been immured for life, very deservedly, in Darlinghurst Prison, where I have had opportunities of seeing him, and of tendering him good advice; and both from my own observation, and the history of his conduct given me by the officials, I find that he has earned the character of being one of the best behaved prisoners, seems penitent, and sets a good example

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to bis fellow convicts; that on Ms admission he could neither read nor write, both of which he now does, and that remarkably well, and the probabilities are that should he ever obtain a remission of his sentence, that—having already seen the enormity of his crime—he will become an useful member of society. Now had this criminal been executed, could these happy results have ensued ?

In entering upon an inquiry as to how we may hope to repress crime, that must depend principally on the means of obviating or counteracting the causes in which it originates. The cause of any crime is the desire of some actual or imaginary good. A man is induced to steal by the desire of property; to do injury to the person of another by resentment. In ordinary cases the desires which cause criminal acts to be perpetrated are identical with those that lead to other and necessary forms of human activity; and as they are essential to man’s existence, the question naturally arises as to what preventives can be devised to prevent their leading to criminal acts while leaving them free within legitimate bounds. Now, the mode at'present in vogue is in fact retaliation, or more properly speaking, vengeance. Such a mode is quite consistent with the prevailing theory, which denies that criminals are human beings, actuated by precisely the same impulses as the non-criminal class, and consider them simply evil animals to be imprisoned, frightened, or hanged into an endurable attitude towards the reputable classes,

I, on the contrary, believe much more may he gained by kindness, and appeals to conscience, than by any other means.

The committee of the House of Commons, in their report on prison discipline in 1850, express their opinion, ‘ ‘ That the majority of convicted prisoners are open to the same good motives and good impulses which influence other human beings, and recommend a system of encouragement to good conduct, and endeavours to inspire

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feelings of self-respect, self-reliance, and hopefulness for the future.”

And as it appears that crime has gone on increasing in amount in proportion as punishment has been abundantly administered, we may safely draw this con­clusion—that thus far punishment as at present administered has proved an eminent failure ; indeed the more severe the punishments the less likely are they to be inflicted ; so that really if any thing be gained by increase of severity it is, lost by increase of impunity. The famous Dr. Franklin, referring to Montesquieu, •who was himself a judge, and one of the greatest of European jurists, so far from thinking that severe and excessive punishments prevent crime, asserts, “ That the atrocity of the laws prevents their execution; when the penalty is without, bounds, men are frequently obliged to prefer impunity to it.” And we. find that in countries remarkable for lenient penal laws, crime is as effectually prevented as in others where they are very severe. Mr. Sampson, in his excellent work, informs us “ That in Tuscany, where no capital punishment was inflicted, there were but four murders in twenty-five years ; while in Rome, where the death penalty existed, there were twelve times that number, viz., forty-eight murders in a single year.” He also says, “ About five years back, in the State of Michigan, capital punishment was abolished ; since that time there has not been a single conviction for murder. In 1860, a bill for the abolition of capital punishment passed a third reading in the New York Legislature, by a majority of more than two to one.

The Diet of Saxe-Weimar, the most enlightened State in the German Confederation, in 1862, also carried the abolition, by a majority of nineteen votes to ten: and the French Republic, in 1848, also adopted the same law.

I also find that in Belgium, where the propriety of capital punishment, is a much contested point, and the royal clemency is exercised, in all excepting the most

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aggravated cases, that crime is not particularly prolific ; and so much is mercy extended in that country, that during a period of ten years, out of 311 criminals con­demned to death, only twenty-three were executed.

That,eminent man Mr. Bright, in his place in the House of Commons last February, during a debate upon the Townley case, is reported to have said.” “ In no country where capital punishment has been abolished has there been an increase of crime; on the contrary, crimes have on the whole diminished, and the public have gained immensely; and I believe now, that the abolition of capital punishment in this country would not be accom- paniedby an increase of murder, but would tend to make life more sacred, and put an end to the most demoralising and frightful spectacle which it is possible to exhibit to civilised man.”# To prove to you how inoperative severe laws become, in France Richelieu rigidly enforced the capital punish­ment for duelling, although the pupishment was administered most relentlessly, duels never were so numerous nor so desperate.

The chief causes of crime may be attributed to, first and foremost, drunkenness, and other kinds of profligacy. Who that ever was a votary at the shrine of Bacchus was ever enabled to preserve himself from being enslaved by his auxiliary ? The opinion of Mr. Justice Wise, as expressed on the trial of Wilcox, for arson, at the April Criminal Court, is “that all cases of violence in this colony are brought about by drunkennessand that opinion I cordially endorse. Secondly, ignorance, idleness, and bad training.. Thirdly, poverty. ,Fourthly, by the creation of laws, which to the uneducated, are apparently not based on justice, such as the game laws, an infraction of which. is considered, by the public & venial offence, but when infringed collisions take place and a murder, may be the result, , \. To show you the deficiency in industry, as also the ignorance of the criminal class, it appears that out of 6643

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prisoners committed in one year in England, only 667, or ten per cent, had any knowledge of a trade ; and I find by the criminal tables for England and Wales for 1842, only ten per cent, of the criminals were able to read and write well; of the remaining ninety per cent, nearly one half could not read and write; and the remainder could read and write but very imperfectly. To what conclusion does this point ? Why, in my humble opinion, to the reformation of the criminal both within and without the prison walls; most assuredly not by hanging him, but by imparting moral and religious education, by training him to habits of industry and self-reliance, by exciting nobler tastes, by cultivating the germs of moral and spiritual beauty which lie dor­mant in every man, by the practical inculcation of the value and dignity of work, by creating a love for social and refined amusements, such as music, or a love of flowers, all of which tend to ennoble and elevate the mind towards the celestial sphere, and repress the animal passions, and by teaching him a trade, so that he will have the power of gaining an honest livelihood. In fine, by earnest endeavours to prevent crime, in preference to the present mode of punishiny it when perpetrated. In the words of that great legal luminary, bir William Blacks tone, “ preventive justice, is upon every principle of reason, of humanity, and of sound policy, preferable in all respects to punishing justice.”

The same great authority refers in language most favorable to abolition, to the fact of the death punish­ment being abolished by Catherine, second Empress of all the Russias; and that under the Empress Elizabeth it never was inflicted, and with the most happy results.

The true benefactors of their race, are those who seek to spread religious enlightenment and education through the world, for by those blessings only will the gallows be robbed of its prey.

I will how endeavor to discover under what circumstances criminal homicides, which are punishable by death, are perpetated. I find that nine-tenths of them.

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are committed -whilst under the baneful influence of alcoholic drinks; and when hot so stimulated, then the impetus is given from a predisposition by the perusal of details of murder, or suicide, the reading of novels penned expressly to pander to a vitiated taste, such as “Jack J'heppard,” in which the villain is held up to the public as a hero, whilst his hair-breadth escapes, and romantic adventures, create an emulation in that class, from whom our prisons are populated ;—men generally of little or no education, inferior understanding, and of ill-developed minds. Mayhew in his able work, says, “ at a meeting of 150 vagrants in London, numbers avowed they had been induced to resort to an abandoned course of life, from reading the lives of notorious thieves and highwaymen.” And I. cannot find language sufficiently strong to condemn, and I earnestly beg of you all not to encourage by your presence pieces which are frequently produced at the theatres, such as “The Bushrangers in the Weddin Mountains,” “The

oadside Murder,” and plays of that villainous class; their ultimate effect is to represent pleasure in an unnatural alliance with vice, and to relax those sacred obligations by which life ought to be regulated. Such entertainments tend to enlist the sympathies of the audience with the criminal, such plays have a most pernicious tendency, and are a suggestion to crime. Upon the same principle, the being present at an execution has upon a morbid mind a most unhappy effect, by directing special attention to the particular crime for which the culprit has suffered the penalty. In many cases the homicide is committed in consequence of a morbid craving for blood, an overwhelming impulse to take life, frequently combined with a suicidal tendency ; probably an inflam­matory action upon the brain, an irresistible influence, which impels the criminal to commit the crime, totally regardless of the consequences. Now, in dealing with the minds of men who generally commit crime, we must not measure them.by our own standard. An eminent doctor

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to one of the London prisons says, “ Generally speaking, the convicts are of inferior understanding; as a body I consider them to be badly developed people; there are exceptions.”

I fear that our legislators have quite lost sight of the degrees of intellectual capacity—laws have been enacted by men possessed of the highest degree of moral and intellectual capacity who do not reflect that all men are not constituted alike, and who erroneously imagine that a punishment which would deterthemselves from committing a crime, and who really require no deterring influence whatsoever, would have the same effect upon all other individuals. Those men who habitually commit crime do not enjoy controlling powers in an ade­quate degree to enable them successfully to resist the temptation presented by their passions, and by the influence of external circumstances; indeed certain intuitive principles appertain to each individual, which in many cases give a bias or premature development to certain faculties.

Now the impulse to commit a crime necessarily leads me to the question as to the “moral sanity” of the criminal. The gravity of this point has not escaped my attention, nor has it ceased to cause me great anxiety; because it touches on the question of moral responsibility; but the gravity of the subject must not deter me from eliciting the truth, and as we consider lunatics irrespon­sible, I am only asking an extension of the principle; but happily, even if the criminal be deemed irresponsible, the result will be, not that he escapes punishment, but that instead of having death inflicted on him he would be subject to perpetual imprisonment; and in advocating the lesser punishment, no amount of subsequent good conduct should be sufficient to warrant the liberation of a prisoner who has been guilty of murder; the sacred rights of society demand his perpetual incarceration.

I make use of the term “ moral insanity” because Beck, in his work on Medical Jurisprudence, says, “At

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that stage physicians have not been able to detect in the persons affected, any delusion or hallucination ; the power of self-government is lost, or greatly impaired.”

The immortal Spurzheim speaks u of the existence of some of the natural propensities in such violence, that it is impossible not to yield to them.”

_ Dr. Elliotsoa suggests “ the idea of such irresistible violence as leads to crimnal acts.”

Esquirol says, “ There are madmen in whom it is difficult to discover any trace of hallucination.” We are told that the results of this species of madness “ displays itself in an irresistible propensity to commit murder,” (homicidal mania.)

Lord Hale makes the remark, “ That all crime seems to be the result of partial madness,” and I see no reason to doubt the justness of his lordship’s conclusions.

Dr. Borbes Winslowe, a great modern authority, in speaking of criminals who have committed crimes of great atrocity, says, a May not all these monstrous depar­tures from ordinary and healthy modes of thought, impulse, and action, constitute evidence 1 not only of depravity and vice in their ordinary signification, but of undetected, unperceived, unrecognised, mental disease, in all probability arising from cerebral irritation or physical ill-health. ■ . ,

I must observe we cannot fail being impressed with the striking resemblance between crime and insanity; in many cases a murder committed by a madman, or by a man reputed sane, the difference is inappreciable. In the words of Beck “ what can be more alike than the anger of the sane, and insane, what a similitude between the maniac and the habitually passionate, between the melan­cholic, and him who habitually broods over his malignant and revengeful conceptions.”

Without doubt passion often overpowers the reason, and a great crime whilst under the influence of passion is committed. _ Philosophically considered, the effects of violent passion is a species of temporary insanity, but the

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sacred rights of civil society demand that they should be treated as crimes, and should we not sufficiently uphold those rights, by the punishment of perpetual imprison­ment? Does the strangling of the criminal tend to uphold those rights in any greater degree ?

Dr. Crawford in speaking of a criminal (one out of many cases) whose whole life had been devoted to crime, and who had suffered every punishment short of death and all without effect, as a last resource, this criminal was sent to a lunatic asjlum. Dr. Crawford adds, “he was not insane, in the usual acceptation of the term but that he considered him most properly treated when he was handed over to a lunatic asylum because although his brain was not diseased the extreme deficiency in the moral organs, rendered him morally blind, just as the want of eyes would render a man incanable of seeing.

A s I have before observed, lunatics being held irres­ponsible, suppose the principle were extended a little farther, the effect would be, the chance of being considered insane, being universally regarded with horror, and the idea of a mad-house, conveying a something terrible to the imagination of all men. If it were felt that a breach of the laws might be deemed a proof of insanity, the tempta­tion would at once be withdrawn from that large class of criminals who commit crime for the sake of acquiring notoriety or vague admiration of the public, and who frequently select public characters. for their attacks, in order to gain notoriety, such criminals, if treated as lunatics, would indeed have little to boast of, and the stimulus to their criminal acts would at once be with­drawn.

In considering the death punishment, it will be useful to inquire if the criminal (prior to the perpetration of the crime punishable with death) reflect upon the punishment to which he is making himself amenable. Difficult as the solution of this problem necessarily is, I believe the true reply would be, that in the majority of cases the culprit does not reflect at all; if this be so, then the

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deterrent power necessarily is a failure. And my reason for arriving at tlie conclusion is this, that if a burglary, or other crime not punishable by death be about being perpetrated, every possible disguise, every scheme, fre­quently very ingenious ones, are brought to bear on the plot; an ingenuity worthy of a better cause, so as to escape detection ; and in these cases, personal liberty is only at stake. '

But what do we find vs hen a homicide is committed ? Why, with few exceptions, the perpetrator has laid wo plot at all; he has in no way provided for his not being detected. The recklessness of the murderer is the peculiar characteristic of the crime—generally after having com­mitted the crime, he either commits, or attempts to commit, suicide, or delivers himself up to justice.

The reply of Townley, the murderer of Miss Goodwin, to the question of the Lunacy Commissioners, is peculiarly interesting; the criminal said, “ That without forethought of any kind, I killed Miss Goodwin, under the influence of sudden impulse.” Be further said, and this bears on the deterrent power, u I expected to be hanged because I killed her, and am not such a fool as not to know that the law hangs for murder.” The advocates of capital punishment insist that the dread of death is the strongest feeling exi sting in the human breast; if so, that might be a good reason for continuing the punishment; but I think that the common absence of disguise in committing a murder points to the opposite conclusion. Indeed if we admit the fact that the homicidal is most frequently accompanied by the suicidal tendency, what becomes of the fear of death if the person who commits the murder desires to destroy himself, and the death punishment in such cases instead of being of any efficacy, only gratifies the morbid desire of the culprit. ’_ In Great Britain, for five years ending in 1835 inclusive, there were thirty-one murders recorded; of these ten surrendered themselves to justice, expressing a perfect readiness, and in some cases eager desire, to meet their fate. In three cases the murder was followed by

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the immediate suicide of the culprit. In two cases, the culprit attempted suicide previous to the perpetration of his crime; and in five, their general conduct shewed the absence of any wish to avoid their fate ; making a total of twenty-one cases out of thirty-one, in which a desire for self-destruction was more or less clearly manifested.

A few more recent cases, perpetrated in the mother country in the years 1862 and 1868, may be worthy of notice, as shewing the inefficacy of the death punish­ment.

Catherine Wilson, (a modern Borgia), who was exe­cuted for the poisoning of Mrs. Soames. This culprit maintained a stern reserve to the last, and died with a lie on her lips, asserting her innocence, although there could he no doubt of her guilt.

Gilbert, the murderer of Miss Hall, was quite in­different to his fate, and at his execution appeared to take no notice of the proceedings.

A woman named Cole murdered her child, and then committed suicide ; the only motive which could be assigned was, that she had expressed a fear “ that the child should come to want.”

Joseph Mockford poisoned his two'children, and then committed suicide. . .

Mrs. Yyse poisoned her two children, and then at­tempted to commit suicide. This case is known as the Ludgate-hill Tragedy.

Taylor and his wife (the Manchester Tragedy), assassinated Mr. Mellor in the most open manner, also poisoned his three children; after the commission of these crimes, the culprits made no attempt to escape, nor any denial of the deed.

Robert Burton, a youth only eighteen years of age, murdered an inoffensive boy, and then gave himself up to justice, averring “ that he wished to be hanged.” On his trial he pleaded guilty, but at the suggestion of the presiding judge, Wightman, withdrew his plea. The prisoner again repeated his wish to be hanged. After sentence of death was passed upon him, he coolly thanked

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the judge ; and since his conviction has shewn no repen­tance, but expresses the same desire to be hanged.

A man named Gair attacked a woman in her sleep, nearly severed her head from her body, and then com­mitted suicide.

Brooks, who was executed for the murder of a policeman, at Acton, although he confessed to having been implicated in the murder, but that his hand did not fire the fatal shot, refused to name his accomplice.

George Voss, a youth only nineteen years of age, was executed for the murder of a woman named Docherty. He acknowledged his guilt, but appeared quite indifferent to his fate, eating a hearty breakfast, and smoking a pipe within an hour of his execution.

Alexander Milne murdered James Patterson, avowed the act, and gave himself up to justice.

Hunt, who poisoned his wife and two children in a cab, after the deed, committed suicide.

William Wright, the account of whose execution arrived by the January mail, murdered his paramour, Maria Green. Both the murderer and his victim were under the influence of drink. After having committed the deed the culprit, who, up to the commission of the crime, bore the character of being a quiet, inoffensive man, remained alongside the body, making no attempt to escape ; on being apprehended he said, “ take me away, it is all right, I did it.” On his trial he pleaded guilty. Extraordinary exertions were made by the inhabitants of London that his life should be spared, but without avail. And I will take this oppor­tunity of remarking, that as in this case where many thousands of respectable people, comprising amongst them medical men, magistrates, barristers, and members of Parliament, expressed their decided opinion against the death punishment, that, generally speaking, their united opinions commonly tend towards the right direction,

. I do not go the length of believing in “ Vox Populi Vox Dei,” or “the voice of the people being the voice of

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God; ” but the calm deliberate expression of a particular opinion of a large mass of reputable individuals may generally be depended upon. And I am happy to record that other countries are moving in the good cause. In Portugal the ministry have proposed the abolition of capital punishment, and to their honor, have made it a ministerial measure.

Townley, the murderer of Miss Goodwin, (known as the Wigwell Grange murder,) after having cut his victim’s throat, assisted her home, and made no attempt to escape; his conduct evinced the idea that he had performed a

' meritorious act. The Rev. C. R. Gordon, who ministered to him in the condemned cell, says that Townley expresses a delight that his life is to be taken ; he justifies murder without giving a reason; and in his calm moments, when asked how he came to commit the murder, he replies, “ All was dark before my eyes ; I don’t know anything about it.” He received sentence of death without emotion, but did not suffer the extreme penalty, his sentence having been commuted to penal servitude for life.

Of these fourteen murderers jive added to their crime by committing suicide after perpetrating the deed. Eight either surrendered themselves to justice, or evinced by their conduct and not attempting to escape, an entire indifference to their fate, one of whom confessed to having committed the deed expressly that hi might be hanged; and one, after condemnation, although confessing his guilt, refused to further the ends of justice by naming his accomplice ; and it is worthy of remark that not one of these murders was committed for the usual cause of crime, viz., for the sake of lucre.

Now, it will be evident that the death punishment was contemplated prior to the commission of the homicides, and in effect the confession and surrender of the culprits was in fact an indirect suicide.

Dr. James Johnson remarks, “ there are cases on record where the monomanic lacks courage to commit suicide, or cannot make up his mind as to the means of accomplishing it, under which circumstances he has com­

CAPITAL PUNISHMENT. 21

mitted a capital crime, with the view of being capitally punished.”

The case of Burton, (which I have just narrated) who murdered the hoy for the avowed object of being hanged is a case exactly in point.

But in proof that the dread of death is not so power­ful as is generally supposed, what do we find in the lowest and uneducated class,—the class who commit nearly all the crime—and this prompts me to ask all your influence in favour of educating and not hanging, why we find an extraordinary recklessness where their own lives are concerned, astounding risks are incurred for an almost nominal advantage, or to save trouble.

To uphold the death punishment on the ground that the fear of death deters the criminal from committing the crime, we ought to be able to shew that the preservation of life is a feeling that predominates in the classes who are most prone to crime, but I submit to you that the reverse is the case. To induce the lower classes to use precautions for the preservation of their lives is most difficult.

The miner, in the coal mine, refuses or neglects the use of the safety lamp, although ■ he knows the probable fatal results of his neglect. In 1862 no less than 1163 lives were sacrificed in Great Britain in collieries by accidents; a portion of this lamentable waste of human life was attributable in many cases to the want of due precaution taken by the miners. The grinder of steel goods at the Sheffield manufactories refuses, more often than neglects, to use the chimney by which the minute particles of steel, so fatal to human life, become innocuous. In fact, the lower we descend in the scale of civilisation and virtue, the more feebly does the value of life operate upon mankind.

The lower grade do not habitually restrain their passions, which—owing to the non-cultivation of the higher sentiments, unduly preponderate—and immediate gratification, without reference to the consequences, is the result.

ABOLITION OF22

With the educated and benevolent man the reverse is the case; men with minds of a high standard dread death if occasioned by a disobedience of laws, human or divine; but on the other hand, when not so occasioned, are prepared to meet it with firmness and resignation. The fear of death, as I have shown, having been proved insufficient, is it not probable that were the criminal to know that he would not be put to death, but that a terrible and hopeless imprisonment for life would be the conse­quence of his shedding blood, everything tending to gratify his suicidal desire being removed thereby, if might be that the dread of the punishment being not evanescent, as the death punishment is, would have the effect of causing him to curb his animal passions, and to stop just at the point of gratification.

In advocating that the murderer should be subjected to a perpetual imprisonment, a portion of which should be solitary, I consider that no subsequent repentance or reformation, should warrant the prisoner in being released; because he who has once shed blood should never again have the opportunity of committing a similar crime. Nor should he be allowed on any account to have the chance of perpetuating the homicidal mania which most murderers possess by transmitting it to posterity.

The French law partially adopts the imprisonment I am now advocating, viz., in cases of murder, giving a power, or rather a discretion to the jury to return a verdict of “ guilty of murder with extenuating circum­stances,” and of which they frequently avail themselves. When that rider is attached to the verdict, the death penalty is never enforced; and I am not aware that any thing bad has resulted from this law; nor that murders are more numerous, or of greater atrocity, in France than in England.

One case out of a many, will suffice as an example, that the sanguinary Draconian code is not followed in France, as it is in Great Britain or under British law.

On December 27, 1868, a farmer named Blachon, aged 63, was tried at the court of Assizes of the Loire,

CAPITAL PUNISHMENT. 23

for an attempt to murder M. Desfarges, Juge de Paix at St. Rambert. Blachon’s enmity was excited against the judge, owing to an adverse decision having been pronounced by the judge against him. The prisoner laid in wait, and shot the judge in the back as he was returning from church. The wound did not prove mortal. The prisoner was found guilty, and sentenced to ten years imprisonment. Now the oily distinguishing feature between this case and that of Manns, the escort robber, who was executed, is this, that Blachon’s was a case of much greater atrocity; Manns’ complicity was only proved by his being present during the attack on the escort; whether murder was intended at all, or whether the firing was for the purpose of intimida­tion only, is a matter of doubt; indeed between the two crimes an attempted assassination and a highway robbery, the distinguishing characteristics are too marked to require comment. Yet on one side of the channel death is the penalty, and on the other side, imprisonment.

That an incarceration for life without hope of release would not be a more severe punishment to the criminal than hanging, I think no one would be so hardy as to deny. Why, in such an imprisonment there is a gibbet for every hour : no hope, reminding me of the Hell of Dante, over whose dread portals that sublimest of geniuses in­scribes in his immortal poem, “ Here Hope never enters.” No escape, a terrible doom which comprehends the for ever, to wake day after day a hopeless captive; and to prove that perpetual imprisonment is a severer punish­ment than death, we need only examine what a criminal has to undergo in prison—deprived of liberty, obliged to submit to strict discipline, debarred from the indulgence in spirituous liquors, compelled to labor, and at . the close of each day’s work locked np like a wild beast in his den for twelve weary hours in a dark cell, a prey to his gloomy thoughts, not permitted to indulge in obscene language, cut off from all his vicious associates, and all his most, deeply cherished gratifications disallowed. Now all this to a

24 ABOLITION OF

man who has run riot in every vice, who has lived by fraud and violence, whose associates have been the most degraded of both sexes, and who has spent his nights in debauchery—to such a man is one of the severest punish­ments conceivable, as great a punishment as it would be to a respectable member of society—for instance a clergy­man—to be doomed to associate with thieves and drunkards, to be compelled to listen to blasphemy, obscene language, and every emanation of a brutal mind without any power of complaint or remonstrance. The pain felt in this instance would not exceed that felt upon being on a sudden forced to abandon the gratification of vices long cherished, and the indulgence of every selfish feeling ; yet in the latter case, the pain inflicted would be the reverse of revenge ; it would tend to reform, to regenerate the culprit.

I feel the impossibility of justifying the death punishment on the ground that it cuts off all hope of a true and lengthened repentance, and excludes all reformation of the criminal, and in this sentiment that highly distinguished scholar, Gilbert Wakefield, who is a consistent advocate for the Abolition of Capital Punish­ment concurs. The repentance between the sentence and execution is too often a barren void. The criminal can scarcely realise his position; a mental paralysis ; the thought always present of standing on the brink of the great gulf, an undying worm gnawing without cessation at the heart and brain, or perhaps with reckless hardihood standing at bay, as a savage at the stake, or the converse displaying the extreme of abject cowardice; the phantom of the gibbet haunts the miserable wretch day and night, to the exclusion of better thoughts.

No more fearful state of mind can be conceived than that which is displayed by some culprits at. the last moment; a savage indifference, alternated with remorse and despair; or sullen apathy of the soul, hard as adamant. An equally strong reason against the death punishment is this: that by statistics of crime, we find that the homicidal and suicidal mania go hand in hand together,

C APT AIL PUNISHMENT. 25

from which I derive this, that in some cases (as in Burton’s murder of the hoy,) the punishment of death

' has been the cause of murders having been committed by criminals, who, possessing the suicidal tendency, have committed murders in order that they might meet death at the hands of the common hangman. These men, although they possess a strong desire to commit suicide, do not possess the animal courage sufficient to commit it on their owo persons.

The following cases are on record :Hadfield, who shot at George III., gave as a reason,

il he wished to die.”Joseph Henri, who attempted to kill Louis Phillip,

upon being sentenced to hard labour for life, said, “ That is not what I expected; I implore to be put to death as a favour and an act of grace.”

Tseheek, who in 1844 attacked the king of Prussia, evinced the same disposition.

The recent case of Burton, who committed the murder for the express purpose of being hanged.

In addition to these cases, the repeated attempts upon the life of Queen Victoria must be familiar to you all. One of these ruffians who attacked the Queen de­clared “ he was tired of his life;” but the most remarkable feature in these attacks upon the Queen, and which proves my proposition to demonstration is this, that it was thought advisable to repeal the law, it being then a capital offence, and make an assault upon the Queen punishable by imprisonment and whipping. I he effect of this alteration in the law was very significant, the crime entirely ceased, the criminals’ desire for death was no longer gratified

I now propound this question :—Can executions be upheld on the ground of being an example ? To which I reply emphatically that they have upon the spectators a, most pernicious effect, and in this opinion Lord Brougham, Lord Campbell, and other law lords concur. The terrible scenes enacted at the foot of the gallows have been graphically described by Dickens; the spectacle

26 ABOLITION OF

awakens more pity for the sufferer than respect for the law. It is notorious that at the foot of the gallows the pickpocket pursues his nefarious occupation, obscene language is heard on all sides, and an assemblage of all the most depraved characters of both sexes are congre­gated, whose eyes are eagerly fixed upon a miserable wretch with a rope round his neck, devouring his every look and gesture, and brutally commenting upon them ; eager as a Roman in a gladiatorial amphitheatre for the fatal denouement. Nor is it uncommon in London for the sum of three guineas to be given for a good seat to view the spectacle, and organised and placarded pleasure trains run on the railways to bring people from the surrounding districts to witness the execution.

It is on record that at the execution of Bishop and "Williams, who suffered for an almost new species of murder, styled from its author “ Burking,” that when the drop fell the mob gave several tremendous cheers, a sad commentary upon the efficacy of the punishment as an example.

A similar scene occurred on the 12th January last, upon the execution in London of Samuel Wright, who murdered his paramour. The moment he was seen by the crowd there were loud cries of “ shame,” “ bravo,” ‘‘God bless you my lad,” “judicial murder,” accompanied with great yelling and hooting, and whilst the fatal pie- parations were being made at least a dozen preachers were exhorting the mob, hymns were sung, but alas ! to little surpose, the sacred tunes being drowned by the discordant refrain of many comic ditties; at times there were tipsy shoutings and brawlings, and some three hours before the execution the brutal occupants of the benches, tables, and floors of the public houses locked in drunken slumber, were turned into the street, so as to make room for more profitable customers. Again the preachers shouted, the mob sang and laughed, and, most terrible to relate on such a sad occasion, there was no lack of rough practical joking, and when some drunken ruffians began kissing all the women near them, shrieks and roars of merriment

CAPITAL PUNISHMENT. 27

arose. And to crown the brutality, ragged garments, caps, hats, and occasionally old boots were thrown at the heads of the preachers.

And at the execution of the five pirates at Newgate last February, if it be possible, scenes of greater depravity were displayed; and organised bands of robbers assaulted and plundered every person whose appearance indicated the possession of portable property.

Such scenes as these to take place upon such tragical and mournful occasions, is abhorrent to every well con­stituted mind, and speaks volumes as to the inefficacy of an execution as an example, and the baneful effects on the spectators of such revolting exhibitions.

But any thing that tends to bring crime prominently before the public is a suggestion to crime ; it tends to bring into play the imitative faculty so inherent in the preasts of all, but more especially in those whose animal passions are not properly regulated. Happy would it be for the rising generation if it were possible that the details of all atrocious crimes and suicides were never published by the press.

Now, what effect had this execution of Bishop and Williams as an example or as a preventative ? Why, the worst imaginable. The result was, that this peculiar mode of murder for the purpose of obtaining subjects for dissection (until then almost unknown, so novel as to be characterised by a distinguishing name, viz., “ Burking,” because so common) the publication of the crime was in fact a suggestion to the criminal; the fatal propensity of imitation was excited so many murders of a similar character occured that the Legislature had to introduce an act, styled the “ Anatomy Act,” to legalise the giving dead bodies to the surgeons, indeed, any crime to which the public attention is particularly directed, has a terrible fascination for morbid minds, and a pernicious effect by administering to the passion for diseased excitement.. The imitative character of criminals to which I have just adverted is illustrated in a most ghastly manner by the horrible fashion of committing suicide in public.

28 ABOLITION OF

Three cases out of many will suffice, two of the suicides being committed on consecutive days.

On June 5th, 1862, a gentleman dressed in black, deliberately kneeled down in Fenchurch-street in the middle of the day, placed his head on the roadway in front of a loaded waggon, which, passing over his head, caused instant death.

On the following day, June 6th, in the Barnet-road, in broad daylight, a respectable-looking man, as an omnibus was approaching, and before any one could interfere, deliberately removed his neckerchief and cut his throat in sight of the passengers.

‘ On January 2nd, 1864, on the London and Hamp­stead Junction Railway, Robert Young, of Kentish Town, deliberately placed his head on the rails in front of an advancing train, which passed over him ; he was taken up frightfully mangled, and died the same evening.

Similar imitation was displayed in attempted suicides from the Monument in London,—a person having pre­cipitated himself from the top of the Monument. The attempts by other parties to destroy themselves in the same manner became so frequent as to compel the authorities to close the structure to the public. The remarks of Hill upon this subject, are very pertinent. “ It is notorious as a general rule that any act to which the public attention is powerfully attracted, whether it be a murder, a suicide, or other deed of an exciting kind, is likely to be followed by similar acts. In truth, there are always many people whose reason has so slender a control over their feelings, that no sooner is an idea connected with their strong predispositions forcibly presented to their mind, then the feeling becomes un­conquerable, and it takes its course regardless of con­sequences.”

But an excellent commentary upon the example which the witnessing an execution produces is this : that to uphold it on that ground—if it really be so good an example as is pretended—it would be the duty of all good

men to attend an execution, accompanied with their dearest relatives.

What would be thought of him who took his wife or child to witness the revolting spectacle ? I need not answer the question. Why, again is the hangman viewed as a reptile, whose touch would contaminate ? Why is he an outcast of society, shunned on all sides, even by the lowest and most wretched. Whereas to uphold the prin­ciple, his office ought to be deemed most honorable, he being the minister only of a worthy action.

But, I think, a conclusive answer to my question— Can executions be upheld on the ground of being an example-—may be found in the Act of the Legislature of this colony, passed in 1853, causing all executions to be private, abrogating public executions, and I find that the same law prevails now in Prussia, Saxony, Wur- temburg, and the United States ; a tacit admission that executions in public are injurious to the public morals, and a failure as an example. To my mind the doing the legal strangling in secret seems terribly repulsive and un-English. Is the punishment more efficacious because secret? The secrecy certainly does away altogether with the example of which is so much vaunted, as thousands of people who do not peruse the details in a newspaper do not even know what punishment the culprit has received, or rather are ignorant if punishment at all has followed the crime.

That executions are barbarous and cruel, and in some cases cause actual torture to the culprit, is another reason for their condemnation. The harrowing details of the protracted death of Manns, the escort robber, must be fresh in your memory, how he was, after being half strangled, carried again up to the fatal tree, his sufferings having been prolonged for more than a quarter of an hour; and this is by no means an isolated case, for a similar scene occurred at Chester a few months since, upon the execution of Alice Heritt, for matricide ; on the bolt being drawn the drop would not fall, a second attempt was made but with the same result, all this time the doomed woman

CAPITAL PUNISHMENT. 29

ao ABOLITION OP

exclaiming “ make haste,” and each time the bolt was withdrawn she gave an agonizing shriek; the third time the drop was loosened, but horrible to relate her sufferings were prolonged and aggravated by the incomplete adjust­ment of the rope •

In perusing such details as these, we might almost imagine we were listening to the romantic tales by Cooper,, of barbarities committed by North American Indians instead of atrocities perpetrated under the sanction of law, by a civilised nation in the nineteenth century.

Another very strong reason why the death punish­ment should be a thing of the past, presents itself very forcibly to my mind, and must be equally strong upon the minds of all of you, and that is the possibility of an innocent man being executed—such cases are on record— and may with the best intentioned juries again occur, and with your permission I will read you three letters which I have received from that venerable and benevolent clergyman, the Rev, Arch Priest 1 herry, on this point.

Dear Sir, ‘I have been this morning favored by the receipt of your letfer of the 11th

instant, requesting information regarding persons who having been formerly tried, found teui*tv by a verdict of a jury and sentenced to death by a judge of the Supreme Court were afterwards either t ardoned, or bad their sentence mitigated in consequence of the a adental discover of evidence that the parties were perfectly innocent, or that the charges were not sufficiently proved ; and in reply beg to say, that several oases of the above description have come under my observation in this colony during tbe last forty-four years, but as I have not time at present to refer to documents lean only briefly allude "to some of them without giving names or dates, which, however may be ascertained by a reference to the records of the Supreme Court or to the columns of the Government Gazette, under the government ot his Excellency Governor Macquarie. 1 believe in 1820. I applied to the principal police magistrate, D'Arcy Wentworth, Esq. in behalf of three men (Protestants) vho were in the Sydney gaol under sentence of death and who, as I then believed, as I do now, were perfectly guil-iess of the charge brought against them This gentleman told me in reply, that tbe Governor would not hear the case if brought before him- In a sh rt time not many weeks, this magistrate told me that the real perpetrators of the robbery for which the three innocent men were executed, were discovered, and that as they could not be tried were quietly sent to Port Macquarie, then a penal settlement.

Shortly after I discovered that another man, also a Protestant, who had been sentenced to death, was innocent and that he was to be hanged on the morning of that discovery. I went immediately to Government House to see the Governor, who being unwe 1 refused to see me. I then applied to the Colonial Secretary, Major Goulburn, who said he should see him, and having seen him obtained pardon for the poor young man, whilst proceeding to the scaftldd with the rope about hia neck. The mail of our local post office is about to be closed.

Balmain 13th April 1864.

FREDEPTriir I-rcra TCenFaithfully ycurs

J.J. THERE?, A.P.

CAPITAL PUNISHMENT. 31Balmain, 22»d April, 1864,

My Bear Sir, ' . ■In ccmpilance with the request conveyed to me in your letter of the 20lh

Instant and with the hope of assisting yon in year exceedingly praiseworthy efforts to have the punishment of death abolished. I shall furnish you with a. few cases vshieh may contribute, when well managed by you, at least to your par rial success. At the old gaol in George-streefc I bad to attend the execution of a Oath-lie prisoner, whom I believed to be innocent of the crime for which he was tried and found guilty. I could not obtain his pardon, the law was to take its course. After an interval of (30) thirty years, this identical man came from a distance of 200 miles with a letter from the Rev. Father Magennis, now of Appin, then of Ya-<s, stating that the bearer had declared to him that he could not die m peace till he should have an opportunity of personal!y thanking me for having saved his life When the drop of the scaffold fell the rope whs broken, and the moment he reached the ground and whilst Ling on it he instantaneously said with a loud voice in my presence that he was an innocent man. The Sheriff at my request, delayed the, execution till he and 1 should have made a communication to the Governor on the subject, who was providentially at home at the time. The results were a respite, investigation, a mitigation of sentence, and pardon. I mu^t now attend to other duties.

J. J. THERRY.Frederick Lee Es'Q,.,

269 George Street Sydney.

Balmain, 17th May, 1864.My Dear Sir . . .

Having when looking for other papers, met with the enclosed, which is alluded 4o in the last letter I had the honor to address to you, and knowing that you take very great interest in the matter with which it is connected, I beg leave to Bend it you.

Most sincerely yoursJOHN JOSEPH THERRY.

Frederick Lee, Eq.

Yass, 17th April, 18 56.Very Rey and Dear Father Therry,

This is to certify that the bearer of this note is William Curtayne,. who had been attended by you at the scaffold in Svdney many years past-. The rope however, having broken, and your charitable interference w-th the then Governor of the Colony incline him to have the pleasure of seeing you before he leaves this world.

Believe me, my dear Father Therry,Affectionately yours

• - R. magemnis.,Very Rev. J. Therry.

In all other punishments if a great wrong be com­mitted it may be amended, but if a sad mistake be made nothing can compensate for the disgraceful death, and the anguish and torture of the dearest relatives. The terrible remorse of the jury who pronounced , the fatal word u guilty,”and some consideration is due to the prosecutor, upon whose testimony—possibly most honest, perhaps mistaken identity—an innocent man has suffered. Can. you conceive the indescribable remorse and regret can you picture to yourselves the suffering, a greater torture, that by his mistake a fellow creature has earned, an

ignominious death ? Should a doubt only arise after the sentence is executed, the revulsion must be terrible.

The efficacy of the punishment of death may e tested by a recent case in this colony : I allude to Manns the escort robber, whose life I used every possible exertion to have spared without avail, although backed with a petition for mercy signed by 16,000 persons, which , as one of the deputation, presented to the Governor ; .the answer, the stereotyped reply, “ an example must be made,” as if there were no other punishment but deat capable of producing an example. And what was the effect of the so-called example ? The best test is, did it repress the crime ? No, it had a contrary effect, tor by a parliamentary paper I find that in the space o wo short months after that, no less than thir y- ree highway robberies of a similar character were perpetrated. Again, a reason in favour of abolish­ing the death punishment consists in this, that a testimony capable of being used for the punishment, and consequent prevention of crime dies with the crimma y the infliction of death. It incites the principle of honor amongst thieves,” a criminal who is about being hange , will die as it is termed in slang, but terrible language,“ game;” whatever confession he ma,y make, he genera y will not inculpate his partners in crime. Intact, ora culprit after sentence of death to confess anything w 1(^ shall inathe criminal’s language bring his associates into trouble, “is a very rare case.” Now.let us suppose e culprit instead fof being hanged being in seclusion in prison for life ; after the lapse of a short period the moral and religious feelings being cultivated, and the baser passions being suppressed, the nobler sentiments wi assert their supremacy. In the solitude of a prison e mind becomes pre-disposed to receive moral, impressions, as with the muscles so with the human mind wi ou action there can be no vigour. The heart once opened softens by use, gradually and unconsciously—the inter­change of thought with the chaplain, ordinarily possessing an upright and ingenuous mind, has sown the good seed.

32 ABOLITION OB

CAPITAL PUNISHMENT. 33

The culprit, for the first time, looks into himself, takes a retrospective and fearful review of his past guilty career, remorse and repentance succeed. He, for the first time, sees his crime as a crime, and as a small proof of his sincerity furthers the ends of justice by giving such information as would be most beneficial to society. And is my proposition so monstrous that a murderer should receive the severest punishment short of death ? If it be so, I am proud in saying that I err in illustrious company, for Lord Brougham, that unwearied advocate of progress, who is a strong supporter of the Abolition of Capital Punishment, has said, “ It is doubtless a great evil for a man to be murdered, but that in reason is no argument for inflicting death upon the murderer ” Another great objection to the capital punishment is, that it causes the administration of the law to be uncertain, and the more certainty in the punishment, the less temptation to commit the crime. And in proof of my assertion, a larger propor­tion of murderers escape punishment than any other class of criminals. English statistics prove this fact. From 1846 to 1853 inclusive, of 586 persons committed for murder, only 134 were convicted, and of those only 73 were executed. But during the same period, 4792 persons were committed for housebreaking, of these 3962 were convicted, and only 828 acquitted. When it was a capital offence to steal any amount to the value of five shillings, the capital sentence was constantly evaded by juries com­mitting a pious fraud, and finding the property (although worth a hundred times as much) of less value than was required by the statute, notwithstanding this evasion the cruel sentence was too often carried into execution. In 1785 no less than 97 persons were executed for this offence, and to the disgrace of the age be it related, twenty human beings suffered at one time under this bloody statute, for this paltry offence against property.

The same desire to evade the capital penalty occurs constantly in our criminal trials in this colony. I remember a recent case :—An aged man, named Scott, who was tried at the Sydney Criminal Court, and who

34 ABOLITION OB

had hitherto borne an excellent character, was indicted for firing a pistol at a man, and wounding him in a drunken brawl. The crime was committed under great provocation There were two counts, one a capital count, and the other not capital. Now had the first count only subjected the prisoner to, say not exceeding fourteen years, transportation, instead of death, and the second count as it did to three years imprisonment, the jury would have found the prisoner guilty on the first count, instead of on the second; and the probability (I may say certainty) is, that had there been no escape from a capital conviction, the jury would have acquitted the prisoner. But a case which occurred on the 7th April last at the Criminal Court at Maitland, is a demonstrable proof of the aversion juries evince to the capital punishment.

John Sievers was indicted for wounding, with intent to murder, John Tuck. There were two counts in the indictment, the first capital, the second not capital. The jury asked the presiding Judge, Wise, “if they found the prisoner guilty on the first count, (viz., the capital count) with a strong recommendation to mercy, would his Honor exert his influence to see the recommendation carried out?” To which his Honor replied, “whatever might be the result of their verdict it was their duty to return a verdict according to their conscience.” Upon receiving this ambiguous reply, the foreman immediately, without any further consideration, performed his duty by return­ing a verdict of guilty on the second count, and the prisoner was sentenced to fifteen years hard labor on the roads. The supporters of the death penalty will charge this jury with a sympathy for crime, but the proof that. no Such sympathy existed is apparent by the verdict being “ Guilty.” Sympathy would have resulted in an acquittal. The dictum of the judges that juries have nothing to do with the sentence, but are bound to return a verdict regardless of consequences, is in theory true, but in practice generally disregarded by all intelligent jurymen ; they in fact do consider the effect of their verdict, and all the laws and all the judges in the universe

CAPITAL PUNISHMENT. 35

would not prevent it. The opinion of Sir Samuel Romilly is worthy of notice: “That the extreme severity of penal laws was not in practice effectual lor the prevention of crime ; hut on the contrary by increasing the difficulty of convicting offenders, affords them impunity, and in most cases renders their punishment extremely uncertain ” Sir T. F. Buxton and Sir James Macintosh (who with Sir Samuel Romilly used every exertion in Parlia­ment to diminish the number of death punishments) also concurred in that opinion.

It is no less remarkable than true, that the abolition of the death punishment for minor crimes has always resulted in the diminution of those crimes; and this seems to me to be an irresistible argument in favor of the abolition of the capital punishment for murder. The remarks of Mr, Justice Blackstone are very pertinent: after having lamented the existence of 160 crimes punish­able with death, that learned judge adds, “ so dreadful a list instead of diminishing, increases the number of offenders,”

If the extreme penalty be insufficient to deter men from committing crimes to which they are impelled by comparatively slight motives, how can it be expected to prove efficacious in deterring a criminal from committing a homicide to which crime over-whelming impulses prompt him ? In minor cases the milder punishment has been found to be more efficaciouswhy should it not prove as efficacious in the major ? The abolition of this revolting punishment would make the punishment of the criminal more certain and lessen crime :—criminals would not then be able to reckon, as they now do, on the unwillingness of witnesses to give evidence, and on juries to convict for a capital offence, which would consign the culprit to the gallows. Juries would find a verdict of guilty incases where they now frequently acquit j they would be relieved from the grave responsibility which at present rests upon their verdict should any unhappy mistake be made. All the eclat and romance of crime, so reproductive of similar results—t.m desire to know every movement of the

36 ABOLITION OF

criminal in tlie condemned cell—the sympathy for the criminal, the crime being forgotten in the magnitude of the punishment—and all the false sentiments so appre­ciated by the mob and the criminal’s associates in crime, would fall to the ground, and the criminal would appear in his true colors, divested of all false sympathy, he would be seen in his naked deformity.

One argument I have heard advanced in favor of capital punishment is, “ that the expense of keeping the culprit in prison during his natural life would be an improper burden on the public.” That such a miserable argument should be advanced, touching the life of an erring fellow creature, makes me blush for humanity. Let me beseech those parties who advance such opinions to reflect and remember that they themselves are not infallible. It may be well here to adduce an incident, mentioned in Dr. Johnson’s life of Boerhaave, one of the most illustrious of European physicians, “When (says Dr. Johnson) Boerhaave heard of a criminal condemned to die, he used to think who can tell whether this man is not better than I; or if am better, it is not to be ascribed to myself, but to the goodness of God.”

Can any of us sincerely say, that under certain cir- ; cumstances were we placed in a particular position, and under a particular temptation, that we should be proof against the commission of crime —that we possess no pas­sions, no heedless impulse which might lead to sorrow, shame, and despair ! How many cases have there not been of men of frivolous character, devoid of ambition, or of any great stimulus to evil-—Qen whose minds are, f may say without impropriety, in a state of equilibrium for good or evil, who from want of thought or facility of temper, from an inability to pronounce that simple mono­syllable. “ No !”—the rubicon once passed have been gradually led from one step to another, until they have been imperceptibly plunged into the veriest depth of human depravity.

“ The first step passed, compels us on to more ;And guilt proves fate, which was but choice before,”

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In my humble opinion, and I think you will agree with me, that no pecuniary consideration should weigh one grain against the important interests at stake—-the reformation of an immortal soul. But the pecuniary argument, if there be any strength in it, will apply with equal force to a criminal convicted for any offence not capital; for instance, a forger, who receives a sentence of seven years imprisonment; and to make the supporters of this argument consistent they ought to be prepared to execute every criminal who is found guilty of committing a crime—the gallows would he the grand and cheap Panacea.

Another point has been urged against the Abolition of Capital Punishment, and which at first sight I candidly confess appeared to me to have some force ; it is this, that in the perpetration of a highway robbery, with the knowledge that the punishment would be imprison­ment whether the criminal did or did not murder his victim, that in order to destroy testimony he would commit the murder, but the difference of the term of imprisonment—in one case for a specified term, with the hope of being released even before the expiration of the sentence dependant upon good behaviour, and in. the other case perpetual imprisonment, without the possibility of a hope of being released—would, I think, do away with this objection.

That many criminals have been executed who ought properly to have been consigned to a lunatic asylum is another reason, and a very strong one, in favor of the abolition of the death punishment. To hang a man who is not responsible for his conduct is as ridiculous as it is cruel. The vagaries of courts of law on this subject are worthy of notice; the motive seems to be the point upon which the belief in the sanity or the insanity rests ; if no motive can be traced, the prisoner stands a chance of being considered insane, and escaping the death punishment. .

Some years since the lamented Dr. Cuthill, of this city, was assassinated by a monomaniac, and on the

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criminars trial the jury were told by the judge the following fallacy—not less a fallacy because it is strictly correct in law—•“ A lthough the mind of the prisoner were diseased, if he knew the nature of the act he had com­mitted he would be criminally responsible for the act;” and a similar charge was made to the jury by the learned Judge Baron Martin, on the recent trial in England of Townley for the murder of Miss Goodwin, and in both cases the juries pronounced a verdict of guilty, and sentence of death followed.

But this theory, “ as to the knowledge of the nature of the act,” is opposed to all medical science. The majority of madmen do perfectly well know the nature of their acts. One of the evidences of lunacy is, not that the mad­man does not know the nature or consequence of his acts, but that he does acts which sane men would not do. The sane man not alone can appreciate the cause and effect, but in addition has the power of restraining himself. When the madman puts a pistol to his head, does he not well know the effect of pulling the trigger—the poisonous draught to his mouth—the razor to his throat, that they will destroy life — whatever course he pursues for the purpose of self-destruction, is it not with a distinct view of adapting the means to the end ? Cases are reported in medical works of patients so well knowing the nature of their acts, that they deliberately ask, prior to the paroxysm, as a favor to be restrained; others who have an irresistible desire to commit suicide (a very common form of madness) have also consulted their medical adviser, and begged him to take steps to prevent their consummating the crime; others again have an uncontrollable desire to kill some of their dearest relatives, but are so conscious of their loss of the power of self-restraint that they call upon their relatives to fly.

Dr. Chown, upon the trial of Oxford for an attack upon Queen Victoria, gave the following evidence: “I have patients often come to consult mo who are impelled to commit suicide without any motive for so

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doing; they tell me they are happy and comfortable in other respects, but that they have a strong desire to commit suicide.” Does not this show that it is quite consistent for a person to be insane, and yet to have a perfect knowledge of what he is about, and a clear perception of the effect of his acts ? .

To sum up in accordance with all the great medical authorities on the subject—insanity more frequently shews itself in the absence of self-command than in a want of the apprehension of consequences. That, indeed, it is not at all inconsistent with madness for the madman to possess a full knowledge of right and wrong, a perfect perception of the relations of sequences, but with this fatal accompaniment, a total inability to abstain from doing that which is wicked, fatal, or absurd. Indeed, with the present nicelegal distinction, upholding the responsibility of the criminal although insane, if he know the nature of his acts, a man may be held to be sane according to law who in fact, is really mad. And to prove to you that this is no crude opinion of my own, I need only refer you to the report of the Lunacy Commis- ’ sioners, who by the direction of Sir George Grey, ' examined into the state of mind of Townley, the mur­derer of Miss Goodwin, whilst that criminal was under sentence of death in the condemned cell. Those Com­missioners report—“ We do not consider this criminal to be of sound mind; at the same time, according to the law of the land, he was responsible for his actions ” How, to punish an irresponsible man with death is simply cruel; the most humane course would be, to place him in an asylum, beyond the possibility of committing any further crime against society; any other course is truly impolitic and unjust. (Sir William Ellis, no mean authority, says, “ We frequently pass erroneous judg­ments, sometimes wrongly acquitting, sometimes sentencing a culprit to death for the commission of a crime of which, had we known the precise state of his brain, we should have declared him guiltless by reason of insanity,” And another eminent physician, on the same

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subject, says, “ It has brought to the scaffold many deplorable victims who merited compassion rather than punishment.” I would wish to press on your attention, that ignorance and crime go hand in hand ; indeed, on reference to history, the direst sufferings of the human race have beenmarked by that period when mankind were in the state of the most benighted ignorance, and that tbe diffusion of knowledge tends more than all the penal laws man can devise towards the suppression of crime.

The statistical returns of commitments for England and Wales for 1861 show the total commitments to amount to 129,288, of whom only 5569 could read and ■write well, and only 309 of those had received a superior education; so that 77 per cent., or more than three-fourths were uneducated; but these results, lamentable as they are, afford hope for the future. As in 1842, the same tables (which I have already quoted,) show that 90 per cent, were uneducated ; so'that between 1842 and 1861 education has slowly advanced; no doubt attributable to the greater attention paid by the Government to the dissemination of knowledge, by establishing schools and by the publication of cheap literature, but there is still enormous room for improvement.

The degree of instruction of persons apprehended by the Sydney police in the year 1863, was as follows Out of 2481 males, 109 only, or about 4f per cent.; and out of 2413 females, 47 only, or about 2 per cent., could read and write; 1956 males, or about 80 per cent., 1598 females, or about 661 per cent, could read only, and many of these imperfectly ; 416 males, or nearly 17 per cent., 768 females, or nearly 32 per cent., could neither read nor write shewing how sadly deficient the educational element prevails amongst the criminal class.

On the 6th April of this present year the following was the state of Darlinghurst Gaol—there were 440 prisoners confined in that establishment, of whom upon their reception 14, or about 3^ per cent, only had received a superior education, 252, or about 9 per cent., could read only, and 134, or nearly one-third, could neither read nor write. . .. „

I am indebted to tbe kindness of Mr. Sheriff Uhr for the above valuable statistic, and I think it only due to that gentleman to state, and to his honor be it recorded, that he was the first sheriff in this colony who disallowed prisoners as schoolmasters in prisons, substituting free men in their place, thereby upholding the true principle, the necessity of inculcating moral sentiments, combined with education, into the breasts of the criminals; and a fair share of praise is due to the worthy governor of the gaol, Mr. Reid, by whose co-operation the prisoners are kept in such a good state of discipline, so few punish­ments are administered for breaches of the regulations, that this prison will bear a favorable comparison with the best conducted prisons in the mother country.

I will trespass upon your patience with one more statistic. In the year 1834 the first grant for public education was made by the House of Commons, the beneficial effects were remarkable, as can be seen by the following statistics of the United Kingdom:— In 1884, the year of the first grant for education, 480 persons were sentenced to death; in 1838, 116 persons only were sentenced to death; in 1834, 894 persons were sentenced to transportation for life; in 1838, 266 persons only were sentenced to transportation for life ; in 1834, 2400 persons were sentenced to trans­portation for seven years; in 1838, 1900 persons only were sentenced to a similar punishment. Taking into consideration that the population steadily increased during these five years, the decrease is enormous, and shows to demonstration the great benefits produced by education, and further proves that ignorance fosters crime. Can any of you doubt this proposition, after perceiving the amazingly small number of criminals in England and Wales who have received a superior education—309 out ofl29,000 individuals? I would,how­ever, beg to observe that after all these statistics of the degree of instruction are very fallacious as bearing upon the prevention of crime, because the simply being able to read and write—unless the instruction has been

E ' ■

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accompanied with a moral training—has a doubtful ten­dency, or may even in some cases be productive of bad results. The power of reading without such training may, for instance, create a taste for perusing immoral works, of works of the Jack Sheppard or Eugene Sue style; aud many other evils might arise, unless the education be combined with the inculcation of moral self restraint and self-denial.

In the few remarks I have had the honor of addressing to you this evening, I have as much as possible scrupulously abstained from appealing to your passions. The principles I advocate all tend to cultivate the attributes of mercy; and as I conscientiously believe my views to be correct, I must nGt be swayed by any prejudice, by disingenuous taunts of having a sympathy with crime, nor mis-directed public opinion, nor be pre­vented nor ashamed of pleading the cause of - mercy and compassion, and protesting against the taking retribution and vengeance. bfor can I be surprised at being charged with a sympathy for crime,—-which I take this opportunity most emphatically to disclaim, amelioration of punishment, and reformation of the criminal, being my avowed prin­ciples—when I find that mistaken notions of the existence of such sympathy is credited by the highest judicial dignitary in this colony, his Honor the Chief Justice, in his charge to the jury at the last April Sydney Criminal Court, on the trial of Hill and Jones for an attempt to murder one Hussey, is reported to have said—“ He deprecated in very strong terms the disgraceful sympathy manifested by some members of the community for parties ■ who were guilty of such outrages., He was happy how­ever to think, that there was no such sympathy in the jury box; he had never seen any thing of the kind, and he was desirous that that fact should be generally known, because he was under the impression that many who were guilty of such crimes as these were inclined to speculate upon some supposed chance of having a favorable jury.” How, with the most profound respect for what emanates

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from the learned judge, Nothing can be morfe illogical than stich statements. Hid-Honor first charges home members of the community with this sympathy, •Which if it really existed, I should he the last to palliate; hut in the same breath his Honor says, “that there was ho such sympathy in the jury box, and that he had never found it amongst jurymen.” Now, as we are told every day in courts of justice, under the plea of “not guilty’’, that the prisoner puts himself upon the country, which country the jury represent, I do not see how a more fair representation of the respectable portion of the com­munity can be obtained, than that which the jury box exhibits. The conclusion fairly deduceable from his Honor’s eharge is this, that the sympathy he refers to is not at all participated in by the reputable portion of the community, but that which we all know to be natural to exist, and ever will exist, between the criminal and his brother associate in crime. , But I am happy to be able to admit that there is an increasing disinclination on the part of juries to convict capitally for offences against property. In this sentiment Sir William Jones, one of the most distinguished and; accomplished of the sons of men, who died in 1794 in Bengal, where he held the office of judge, concurs, who says, “ The punishment of death inflicted on crimes against property goes beyond the law of nature.”

The advocates of the death penalty really appear to regard compassion as unjust, the gallows as a sort of homoeopathic remedy for murder, on the principle that like cures like, and that where there is any exercise of humanity, as a miscarriage of justice, indeed with them clemency is weakness, and retribution the summurn bomm. —May the blessing of Heaven be showered upon those who seek to spread religious enlightenment and education, combined with the inculcation of temperate habits, amongst the ignorant and vicious; such a moral educa­tion will, under the blessing of Providence, thin the prison wards and rob the gallows of its victims.

Should you perceive truth in any of the views which

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44 ABOLITION OF CAPITAL PUNISHMENT.

I have so feebly expressed—views which it would require a Cicero or a Brougham to clothe in appropriate language, I respectfully and earnestly entreat you to diffuse them as much as lies in your power, because it is only by the exertions of the many that prejudices can be overcome and truth prevail.