Bierce: Death Penalty
Ambrose Bierce (June 24, 1842 – c. 1914) → wiki
THE WAR EVERLASTING
I
FOR thousands of years—doubtless for hundreds of thousands—an incessant civil war has been going on in every country that has even a rudimentary civilization, and the prospect of peace is no brighter to-day than it was at the beginning of hostilities. This war, with its dreadful mortality and suffering, loses none of its violence in times of peace; indeed, a condition of national tranquillity appears to be most favorable to its relentless prosecution: when the people are not fighting foreigners they have more time for fighting one another. This never-ending internal strife is between the law-breaking and the law-abiding classes. The latter is the larger force—at least it is the stronger and is constantly victorious, yet never takes the full benefit of its victory. The commander of an army who should so neglect his opportunities would be recalled in disgrace, for it is a rule of warfare to take the utmost possible advantage of success.
There should be no such person as an habitual criminal, and there would be none if criminals were not permitted to breed. There are several ways to prevent them—some, like perpetual imprisonment, too expensive; others impossible of discussion here. The best practical and discussible way is to kill them. And in this is no injustice. The man who will not live at peace with his countrymen has no inherent right to live at all. The community against which he wages private war has as clear a right to deprive him of his life as of his liberty by imprisonment, or his property by fines.
We grade crimes and punishments only for expediency, not because there are degrees of guilt, for it is as easy to obey the law against theft as the law against murder, and the true criminality of an offense against the state lies in its infraction of the law, not in the damage to its victim. The venerable dictum that, whereas
It is a sin to steal a pin,
It is a greater to steal a potater,
is brilliant, but erroneous. Logically there are no degrees of crime; a misdemeanor is as hardy a defiance of the community as a felony. The distinction is an administrative fiction to facilitate punishment. It is thought that rather than condemn a misdemeanant to perpetual restraint in prison or death on the gallows jurors would acquit him; and indubitably they would. The purpose of these feeble remarks is to lead public opinion upward through flowery paths of reason to a higher philosophy and a broader conception of duty.
My notion is that a great saving of life and property could be effected by extermination of habitual criminals. Some crime would remain. Under the stress of want, men would occasionally take the property of others; crazed by sudden rage, they would sometimes slay; and so forth. But crimes of premeditation would disappear and the enormously expensive machinery of justice could be abolished. One small prison might suffice for an entire nation. A few courts of criminal jurisdiction, an insignificant constabulary, would preserve the peace and punishment could be made truly reformatory—it would not need to be deterrent. In short, the dream of the reformer, with his everlastingly futile methods of deterrence by mental and moral education, could be made to come to pass in a generation or two by the forthright and merciful plan of effacing the criminal class.
Of course I do not mean to advocate the death penalty for every premeditated infraction of the law, nor do I know how many convictions should be considered as proving the offender an habitual criminal; but certainly I think that, having exceeded the number allowed him, his right to life should be held to have lapsed and he should be removed from this vale of tears forthwith. The fact that a man who habitually breaks the law may be better than another who habitually obeys it, or the fact that he who is convicted may be less guilty than he who escapes conviction, has nothing to do with the matter. If we can not remove all the irreclaimable the greater is the expediency of removing all that we can catch and convict. The law’s inadequacy and inconsistency are patent, but they constitute the silliest plea for “mercy” that stupidity has ever invented.
II
This is an age of mercy to the merciless. The good Scriptural code, “An eye for an eye, a tooth for a tooth,” has fallen into the sere and yellow leaf: it is a creed outworn. We have replaced it with a regime of “reformation,” a penology of persuasion. In our own country this sign and consequence of moral degeneration, this power and prevalence of the mollycoddle, are especially marked. We no longer kill our assassins; as a rule, the only disadvantages they suffer for killing us are those incident to detention for acquittal, with a little preaching to remind them of their mortality. Wherefore our homicide list is about twice annually that of the battle of Gettysburg.
The American prison of to-day is carefully outfitted with the comforts of home. Those who succeed in breaking into it find themselves distinctly advantaged in point of housing, and are clothed and fed better than they ever were before, or will be elsewhere. Light employment, gentle exercise, cleanliness, and sound sleep reward them, and when expelled their one ambition is to go back. The “reformation” consists in lifting them to a higher plane of criminality: the man who enters as a stupid thief is graduated a competent forger, and comes back (if he can) with an augmented self-respect and an ambition to kill the warden. Some of us old fogies think that a prison was best worth its price to the community when it was a place that a rascal would rather die out of than get into; but we are voces in deserto and in the ramp and roar of the new penology altogether unheard.
These remarks are suggested by something in France. In that half-sister republic the guillotine, though still a lawful dissuader from the error of assassination, is not at the time of writing in actual use. Murderers are still sentenced to it, but always the sentence is commuted to imprisonment during life or good behavior. Coincidently with the decline of the guillotine there is a notable rise in the rate of assassination. Somebody having had the sagacity to suggest the possibility of something more than an accidental relation between the two phenomena, it occurred to a Parisian editor to collect “views” as to the expediency of again bringing knife and neck together in the good old way. He got views of all sorts of kinds, naturally, and knows almost as much about public opinion as he did before. It is interesting to note that the literary class is nearly a unit against the chopping-block, as was to be expected: persons who work with the head naturally set a high value upon it—an over-appraisement in their own case, for their heads are somewhat impaired by their habit of housing their hearts in them. There was an honorable minority: Mistral, the Provençal poet, who pointed out (in verse) that a people too squeamish to endure the shedding of criminal blood has taken a long step in the downward path leading to feebleness.
Wherefore I say: Bravo, Mistral! You have done something to prove that not all poets are persons of criminal instincts.
III
There is a general tendency to attribute the popular distrust of the death penalty to the “softening” effect of civilization. One might accept that view without really agreeing with its expounder; for it is the human heart which the expounder believes to have been softened, whereas there is reason to think that the softening process has involved the human head.
As a matter of fact, gentlemen experiencing an inhospitality to the death penalty (including those on the gallows) should not felicitate themselves; their feeling is due to quite other causes. It is mostly a heritage of unreason from the dark ages when in all Europe laws were made and enforced, with no great scruples of conscience, by conquerors and the descendants of conquerors alien in blood, language and manners. Between these and the masses of the original inhabitants there was no love lost. The peasantry hated their foreign oppressors with a silent antipathy which, like a covered fire, burned with a sullen and more lasting fervor for lack of vent. Hatred of the oppressor embraced hatred of all his works and ways, his laws included, and from hatred of particular laws to hatred of all law the transition was easy, natural and, human nature being what it is, inevitable.
So there is a distinctly traceable connection between wars of conquest and sympathy with crime—between the subjugation of races and their disrespect of law. Here we find the true fountain and origin of anarchism. A country “occupied” implies a people imbruted. It may some time “assimilate” with its conquerors, bringing to the new compound, as in the instance of the Anglo-Saxon combination with the Norman-French, some of the sturdiest virtues of the new national life; but along with these it will surely bring servile vices acquired during the period of inharmony. There is no doubt that much of whatever turbulence and lawlessness distinguish the American people from the more orderly communities across the sea is the work of William the Conqueror and his men-at-arms. The evil that they did lives after them in the congenial conditions supplied by a republic.
What manner of men the Anglo-Saxons became under Norman dominion before the moral renascence is shown in all the chronicles of the time. A Roman historian has described the Saxon of the period as a naked brute, who lay all day by his fireside sluggish and dirty, always eating and drinking. Even after the assimilation was nearly complete—no longer ago than “the spacious times of great Elizabeth,” who, by the way, used to thwack her courtiers on the mazzard when they displeased her—the homogeneous race was a lawless lot. Speaking of their fondness for violent bodily exercise and their inaccessibility to the softer sentiments, Taine says:
This is why man, who for three centuries had been a domestic animal, was still almost a savage beast, and the force of his muscles and the strength of his nerves increased the boldness and energy of his passions. Look at these uncultivated men, men of the people, how suddenly the blood warms and rises to their faces; their fists double, their lips press together and their vigorous bodies rush at once into action. The courtiers of that age were like our men of the people. They had the same taste for the exercise of their limbs, the same indifference to the inclemencies of the weather, the same coarseness of language, the same undisguised sensuality.
Before he grew too fat, Henry VIII was so fond of wrestling that he took a fall out of Francis I on the field of the Cloth of Gold.
“That,” says the historian of English literature, “is how a common soldier or a bricklayer nowadays tries a new comrade. In fact, they regarded gross jests and brutal buffooneries as amusements, as soldiers and bricklayers do now. * * * They thought insults and obscenity a joke. They were foul-mouthed, they listened to Rabelais’ words undiluted, and delighted in conversation that would revolt us. They had no respect for humanity; the rules of proprieties and the habits of good breeding began only in the time of Louis XIV, and by imitation of the French.”
Such were “our sturdy Anglo-Saxon ancestors” from whom we inherit our no good opinion of the law and our selfish indisposition to the penalty of death.
SOME FEATURES OF THE LAW
1
THERE is a difference between religion and the amazing circumstructure which, under the name of theology, the priesthoods have builded round about it, which for centuries they made the world believe was the true temple, and which, after incalculable mischiefs wrought, immeasurable blood spilled in its extension and consolidation, is only now beginning to crumble at the touch of reason. There is the same difference between the laws and the law,—the naked statutes (bad enough, God knows) and the incomputable additions made to them by lawyers. This immense body of superingenious writings it is that we all are responsible to in person and property. In it is unquestionable authority for setting aside any statute that any legislative body ever passed or can pass. In it are dictates of recognized validity for turning topsy-turvy every principle of justice and reversing every decree of reason. There is100 no fallacy so monstrous, no deduction so hideously unrelated to common sense, as not to receive, somewhere in the myriad pages of this awful compilation, a support that any judge in the land would be proud to recognize with a decision if ably persuaded. I do not say that the lawyers are altogether accountable for the existence of this mass of disastrous rubbish, nor for its domination of the laws. They only create and thrust it down our throats; we are guilty of contributory negligence in not biting the spoon.
II
As long as there exists the right of appeal there is a chance of acquittal. Otherwise the right of appeal would be a sham and an insult more intolerable, even, than, to the man convicted of murder, the right to say why he should not receive the sentence which nothing he may say will avert. So long as acquittal may ensue guilt is not established. Why, then, are men sentenced before they are proved guilty? Why are they punished in the middle of proceedings against them? A lawyer can reply to these questions in a thousand ingenious ways; but there is no answer. Let the “legal fraternity” reflect that a lawyer is one whose profession it is to circumvent the law; that it is a part of his business to mislead and befog the court of which he is an officer; that it is considered right and reasonable for him to live by a division of the spoils of crime and misdemeanor; that the utmost atonement he ever makes for acquitting a man whom he knows to be guilty is to convict a man whom he knows to be innocent. The methods of our courts, the traditions of bench and bar, exist and are perpetuated, altered and improved, for the purpose of enabling lawyers as a class to exact the greatest amount of money from the rest of mankind. The laws are mostly made by lawyers, and so made as to encourage and compel litigation. By lawyers they are interpreted and by lawyers enforced for their own profit and advantage. The over-intricate and interminable machinery of precedent, overrulings, writs of error, motions for new trials, appeals, reversals, affirmations and the rest of it, is mostly a transparent and iniquitous system of exaction. What remedy would I propose? None. There is none to propose. The lawyers have us and mean to keep us.
The villainy of making men suffer for crimes of which they may eventually be acquitted is consistent with our entire system of laws—a system so complicated and contradictory that a judge simply does as he pleases, subject only to the custom of giving for his action reasons which at his option may or may not be derived from the statutes. He may sternly affirm that he sits there to interpret the law as he finds it, not to make it accord with his personal notions of right and justice. Or he may declare that it could never have been the legislature’s intention to do wrong, and so, shielded by the useful phrase contra bonos mores, pronounce that illegal which he chooses to consider inexpedient. Or he may be guided by either of any two inconsistent precedents, as the better suits his purpose. Or he may throw aside both statute and precedent, disregard good morals, and justify the judgment that he wishes to deliver by what other lawyers have written in books, and still others, without anybody’s authority, have chosen to accept as a part of the law. I have in mind judges whom I have observed to do all these things in a single term of court, and could mention one who has done most of them in a single decision. The amazing feature of the matter is that all these methods are lawful—made so, not by legislative enactment, but by the judges. Language can not be used with sufficient lucidity and positiveness to bind them.
III
The legal purpose of a preliminary examination is not the discovery of a criminal; it is the ascertaining of the probable guilt or innocence of the person already charged. To permit that person’s counsel to insult and madden the various assisting witnesses in the hope of making them seem to incriminate themselves instead of him by statements that may afterward be used to confuse a jury—that is perversion of law to defeat justice. The character of the practice is seen to better advantage contrasted with the tender consideration enjoyed by the person actually accused and presumably guilty—the presumption of his innocence being as futile a fiction as that a sheep’s tail is a leg when called so. Actually, the prisoner in a criminal trial is the only person supposed to have full knowledge of the facts who is not compelled to testify. And this exemption is given him by way of immunity from the snares and pitfalls with which the paths of all witnesses are wantonly beset. To a visiting Lunarian it would seem strange indeed that in a Terrestrial court of justice it is not deemed desirable for an accused person to incriminate himself, and that it is deemed desirable for a subpœna to be more dreaded than a warrant.
When a child, a wife, a servant, a student—any one under personal authority—is accused or suspected an explanation is demanded, and refusal to testify is held, and rightly held, a confession of guilt. To question the accused—rigorously and sharply to examine him on all matters relating to the offense, and even trap him if he seem to be lying—that is Nature’s method of criminal procedure; why in our public trials do we forego its advantages? It may annoy; a person arrested for crime must expect annoyance. It can not make an innocent man, even a mere witness, incriminate himself, but it can make a rogue do so, and therein lies its value.
This ancient and efficient safeguard to rascality, the right of a witness to refuse to testify when his testimony would tend to convict him of crime, has been strengthened by a recent decision of the United States Supreme Court. That will probably add another century or two to its mischievous existence, and possibly prove the first act in such an extension of it that eventually a witness can not be compelled to testify at all. In fact it is difficult to see how he can be compelled to now if he has the hardihood to exercise his constitutional right without shame and with an intelligent consciousness of its limitless application.
The case in which the Supreme Court made the decision was one in which a witness refused to say whether he had received from a defendant railway company a rate on grain shipments lower than the rate open to all shippers. The trial was in the United States District Court for the Northern District of Illinois, and Judge Gresham chucked the scoundrel into jail. He naturally applied to the Supreme Court for relief, and that high tribunal gave joy to every known or secret malefactor in the country by deciding—according to law, no doubt—that witnesses in a criminal case can not be compelled to testify to anything that “might tend to criminate them in any way, or subject them to possible prosecution.” The italics are my own and indicate about as clearly as extended comment could the boundless immunity that the decision confirms or confers. It is to be hoped that some public-spirited gentleman called to the stand in some celebrated case may point the country’s attention to the state of the law by refusing to tell his name, age or occupation, or answer any question whatever. And it would be a fitting finale to the farce if he would threaten the too curious attorney with an action for damages for compelling a disclosure of character.
IV
Most lawyers have made so profound a study of human nature as to think that if they have shown a man to be of loose life with regard to women they have shown him to be one that would tell needless lies to a jury—a conviction unsupported by the familiar facts of life and character. Different men have different vices, and addiction to one kind of “upsetting sin” does not imply addiction to an unrelated kind. Doubtless a rake is a liar in so far as is needful to concealment, but it does not follow that he will commit perjury to save a horsethief from the penitentiary or send a good man to the gallows. As to lying, generally, he is not conspicuously worse than the mere lover, male or female; for lovers have been liars from the beginning of time. They deceive when it is necessary and when it is not. Schopenhauer would say that it is because of a sense of guilt—they contemplate the commission of a crime and, like other criminals, cover their tracks. I am not prepared to say if that is the true explanation, but to the fact to be explained I am ready to testify with lifted arms. Yet no cross-examining attorney tries to break the credibility of a witness by showing that he is in love.
An habitual liar, if disinterested, makes about as good a witness as anybody. There is really no such thing as “the lust of lying:” falsehoods are told for advantage—commonly a shadowy and illusory advantage, but one distinctly enough had in mind. Discerning no opportunity to promote his interest, tickle his vanity or feed a grudge, the habitual liar will tell the truth. If lawyers would study human nature with half the assiduity that they give to resolution of hairs into their longitudinal elements they would be better fitted for service of the devil than they have now the usefulness to be.
V
I affirm the right and expediency of cross-examining attorneys in court, with a view to testing their credibility. An attorney’s relation to the trial is closer and more important than that of a witness. He has more to say and more opportunities to deceive the jury, not only by naked lying, but by both suppressio veri and suggestio falsi. Why is it not important to ascertain his credibility; and if an inquiry into his private life and public reputation will assist, as himself avers, why should he not be put upon the grill and compelled to sweat out the desired incrimination? I should think it might give good results, for example, to compel him to answer a few questions touching his professional career. Somewhat like this:
“Did you ever defend a client, knowing him to be guilty?”
“What, precisely, was your motive in doing so?”
“But in addition to your love of fair play had you not also the hope and assurance of a fee?”
“In defending a client known to you to be guilty did you declare your belief in his innocence?”
“Yes, I understand, but necessary as it may have been (in that it helped to defeat justice and earn your fee) was not your declaration a lie?”
“Do you believe it right to lie for the purpose of circumventing justice?—yes or no?”
“Do you believe it right to lie for personal gain—yes or no?”
“Then why did you do both?”
“A man who lies to beat the laws and fill his purse is—what?”
“In defending a murderer did you ever misrepresent the character, acts, motives and intentions of the man that he murdered—never mind the purpose and effect of such misrepresentation—yes or no?”
“That is what we call slander of the dead, is it not?”
“What is the most accurate name you can think of for one who slanders the dead to defeat justice and promote his own fortune?”
“Yes, I know—such practices are allowed by the ‘ethics’ of your profession, but can you point to any evidence that they are allowed by Jesus Christ?”
“If in former trials you have obstructed justice by slander of the dead, by falsely affirming the innocence of the guilty, by cheating in argument, by deceiving the court whom you are sworn to serve and assist, and have done all this for personal gain, do you expect, and is it reasonable for you to expect, the jury in this case to believe you?”
“One moment more, please. Did you ever accept an annual or other fee conditioned on your not taking any action against a certain corporation?”
“While in receipt of such refrainer—I beg your pardon, retainer—did you ever prosecute a blackmailer?”
It will be seen that in testing the credibility of a lawyer it is needless to go into his private life and his character as a man and a citizen: his professional practices are an ample field in which to search for offenses against man and God.
The moral sense of the laymen is dimly conscious of something wrong in the ethics of the “noble profession;” the lawyers affirming, rightly enough, a public necessity for them and their mercenary services, permit their thrift to construe it vaguely as personal justification. But nobody has blown away from the matter its brumous encompassment and let in the light upon it. It is very simple.
Is it honorable for a lawyer to try to clear a man that he knows deserves conviction? That is not the entire question by much. Is it honorable to pretend to believe what you do not believe? Is it honorable to lie? I submit that these questions are not answered affirmatively by showing the disadvantage to the public and to civilization of a lawyer refusing to serve a known offender. The popular interest, like any other good cause, can be and commonly is, served by foul means when served at all. Justice itself may be promoted by acts essentially unjust. In serving a sordid ambition a powerful scoundrel may by acts in themselves wicked augment the prosperity of a whole nation. I have not the right to deceive and lie in order to advantage my fellow men, any more than I have the right to steal or murder to advantage them; nor have my fellow men the power to grant me that indulgence.
The question of a lawyer’s right to clear a known criminal (with the several questions involved) is not answered affirmatively by showing that the law forbids him to decline a case for reasons personal to himself—not even if we admit the statute’s moral authority. Preservation of conscience and character is a civic duty, as well as a personal; one’s fellowmen have a distinct interest in it. That, I admit, is an argument rather in the manner of an attorney; clearly enough the effect of this statute is to compel an attorney to cheat and lie for any rascal that wants him to. In that sense it may be regarded as a law softening the rigor of all laws; it does not mitigate punishments, but mitigates the chance of incurring them. The infamy of it lies in forbidding an attorney to be a gentleman. Like all laws it falls something short of its intent: many attorneys, even some who defend the law, are as honorable as is consistent with the practice of deceit to serve crime.
It will not do to say that an attorney in defending a client is not compelled to cheat and lie. What kind of defense could be made by any one who did not profess belief in the innocence of his client?—did not affirm it in the most serious and impressive way?—did not lie? How would it profit the defense to be conducted by one who would not meet the prosecution’s grave asseverations of belief in the prisoner’s guilt by equally grave assurances of faith in his innocence? And in point of fact, when was counsel for the defense ever known to forego the advantage of that solemn falsehood? If I am asked what would become of accused persons if they had to prove their innocence to the lawyers before making a defense in court, I reply that it is not for the public interest that a rogue have the same freedom of defense as an honest man; it should be a good deal harder for him. His troubles should begin, not when he seeks acquittal, but when he seeks counsel. It would be better for the community if he could not obtain the services of a reputable attorney, or any attorney at all. A defense that can not be made without his attorney’s knowledge of his guilt should be impossible to him.
VI
As to the general question of a judge’s right to inflict arbitrary punishment for words that he may be pleased to hold disrespectful to himself or another judge, I do not myself believe that any such right exists; the practice seems to be merely a survival—a heritage from the dark days of irresponsible power, when the scope of judicial authority had no other bounds than fear of the king’s gout or indigestion. If in these modern days the same right is to exist it may be necessary to revive the old checks upon it by restoring the throne. In freeing us from the monarchical chain, the coalition of European Powers commonly known in American history as the valor of our forefathers stripped us starker than they knew.
Suppose an attorney should find his client’s interests imperiled by a prejudiced or corrupt judge—what is he to do? Denied the right to make representations to that effect, supporting them with evidence where evidence is possible and by inference where it is not, what means of protection shall he venture to adopt? If it be urged in objection that judges are never prejudiced nor corrupt I confess that I shall have no answer: the proposition will deprive me of breath.
If contempt is not a crime it should not be punished; if a crime it should be punished as other crimes are punished—by indictment or information, trial by jury if a jury is demanded, with all the safeguards that secure an accused person against judicial blunders and judicial bias. The necessity for these safeguards is even greater in cases of contempt than in others—particularly if the prosecuting witness is to sit in judgment on his own grievance. That should, of course, not be permitted: the trial should take place before another judge.
The public ear is served with rather more than just enough of nonsense about “attacks upon the dignity of the Bench,” “bringing the judiciary into disrepute” and the rueful rest of it. I crave leave to remind the solicitudinarians sounding these loud alarums on their several larynges that by persons of understanding a man is respected, not for the office that he holds, but for what he is, and that one public functionary will stand as high in their esteem as another if as high in character. The dignity of a wise and righteous judge needs not the artificial safeguarding which is a heritage of the old days when if dissent found a tongue the public executioner cut it out. The Bench will be sufficiently respected when it is no longer a place where dullards dream and rogues rob—when its personnel is no longer chosen in the back-rooms of tipple-shops, forced upon yawning conventions and confirmed by the votes of men who know neither what the candidates are nor what they should be. With the gang that we have, and under our system must continue to have, respect is out of the question. The judges are entitled to just as much of its forms and observances as is needful to maintenance of order in their courts and fortification of their lawful power—no more. As to their silence under criticism, that is as they please. Nobody but themselves is holding their tongues.
VII
A law under which the unsuccessful respondent in a divorce proceeding may be forbidden to marry again during the life of the successful complainant, the latter being subject to no such disability, is unrighteous. If the disability is intended as a punishment it is exceptional among legal punishments in that it is inflicted without conviction, trial or arraignment, the divorce proceedings being quite another and different matter. It is exceptional in that the period of its continuance, and therefore the degree of its severity, are indeterminate; they are dependent on no limiting statute, and on neither the will of the power inflicting nor the conduct of the person suffering. To sentence a person to a punishment that is to be mild or severe according to chance or—which is even worse—circumstances which but one person, and that person not officially connected with administration of justice, can partly control, is a perversion of the main principles that are supposed to underlie the laws.
It can be nothing to the woman—possibly herself remarried—whether the man remarries or not; that is, can affect only her feelings, and only such of them as are least creditable to her. Yet her self-interest is enlisted against him to do him incessant disservice. By merely caring for her health she increases the sharpness of his punishment—for punishment it is if he feels it such; every hour that she wrests from death is added to his “term.” The expediency of preventing a man from marrying, without having the power to prevent him from making his marriage desirable in the interest of the public and vital to that of some woman, is not discussable here. If a man is ever justified in poisoning a woman who was once his wife it is when, by way of making him miserable, the state has given him a direct and distinct interest in her death.
VIII
With a view, possibly, to promoting respect for law by making the statutes so to conform to public sentiment that none will fall into dis-esteem and disuse, it has been proposed that there be recognition of sex in the penal code, by making a difference in the punishment of men and of women for the same crimes and misdemeanors. The argument is that if women were “provided” with milder punishment juries would sometimes convict them, whereas they now commonly get off altogether.
The plan is not so new as might be thought. Many of the nations of antiquity of whose laws we have knowledge, and nearly all the European nations until within a comparatively recent time, punished women differently from men for the same offenses. As recently as the period of the Early Puritan in New England women were punished for some offenses which men might commit without fear if not without reproach. The ducking-stool, for example, was an appliance for softening the female temper only. In England women used to be burned at the stake for crimes for which men were hanged, roasting being popularly regarded as the milder punishment. In point of fact, it was not punishment at all, the victim being carefully strangled before the fire touched her. Burning was simply a method of disposing of the body so expeditiously as to give no occasion and opportunity for the unseemly social rites commonly performed about the scaffold of the erring male by a jocular populace. As lately as 1763 a woman named Margaret Biddingfield was burned in Suffolk, England, as an accomplice in the crime of “petty treason.” She had assisted in the murder of one of the king’s subjects (her husband), the actual killing being done by a man; and he was hanged, as no doubt he deserved to be. For “coining,” too (which, also, was “treason”) men were hanged and women burned. This distinction between the sexes was maintained until the year of grace 1790, after which female offenders ceased to have “a stake in the country,” and like Hood’s martial hero, “enlisted in the line.”
In still earlier days, before the advantages of fire were understood, our good grandmothers who sinned were admonished by water—they were drowned; but in the reign of Henry III a woman was hanged—without strangulation, apparently, for after a whole day of it she was cut down and pardoned. Sorceresses and unfaithful wives were smothered in mud, as also were unfaithful wives among the ancient Burgundians. The punishment of unfaithful husbands is not of record; we only know that there were no austerely virtuous editors to direct the finger of scorn to their dark misdeeds and personal unworth.
Among the Anglo-Saxons, women who had the bad luck to be detected in theft were drowned, while men meeting with the same mischance died a dry death by hanging. By the early Danish laws female thieves were buried alive, whether or not from motives of humanity is not now known. This seems to have been the fashion in France also, for in 1331 a woman named Duplas was scourged and buried alive at Abbeville, and in 1460 Perotte Mauger, a receiver of stolen goods, was inhumed by order of the Provost of Paris in front of the public gibbet. In Germany in the good old days certain kinds of female criminals were “impaled,” a punishment too grotesquely horrible for description, but likely enough considered by the simple German of the period conspicuously merciful.
It is, in short, only recently that the civilized nations have placed the sexes on an equality in the matter of the death penalty for crime, and the new system is not yet by any means universal. That it is a better system than the old, or would be if enforced, is a natural presumption from human progress, out of which it is evolved. But coincidently with its evolution has developed also a sentiment adverse to punishment of women at all. This sentiment appears to be of independent growth; in no way a reaction against that which caused the change. To mitigate the severity of the death penalty for women to some pleasant form of euthanasia, such as drowning in rose-water, or in their case to abolish the death penalty altogether and make their capital punishment consist in a brief internment in a jail with a softened name, would probably do no good, for whatever form it might take, it would be, so far as woman is concerned, the “extreme penalty” and crowning disgrace, and jurors would be as reluctant to inflict it as they now are to inflict death.
IX
Testators should not, from the snug security of the grave, be permitted to utter a perpetual threat of disinheritance, or any other uncomfortable fate, to deter a living citizen, even one of their own legatees, from applying to the courts of his country for redress of any wrong from which he may consider himself as suffering. The courts of law ought to be open to any one conceiving himself a victim of injustice, and it should be unlawful to abridge the right of complaint by making its exercise more hazardous than it naturally is. Doubtless the contesting of wills is a nuisance, generally speaking, the contestant devoid of moral worth and the verdict unrighteous; but as long as some testators really are daft, or subject to interested suasion, or wantonly sinful, all should be denied the power to stifle dissent by fining the luckless dissenter. The dead have too much to say in this world, at the best, and it is tyranny for them to stand at the door of the temple of justice to drive away the suitors that themselves have made.
Obedience to the commands of the dead should be conditional upon their good behavior, and it is not good behavior to set up a censure of action at law among the living. If our courts are not competent to say what actions are proper to be brought and what are unfit to be entertained let us improve them until they are competent, or abolish them altogether and resort to the mild and humane arbitrament of the dice; but while courts have the civility to exist they should refuse to surrender any part of their duties and responsibilities to such exceedingly private persons as those under six feet of earth, or sealed up in habitations of hewn stone. Persons no longer affectable by human events should be denied a voice in determining the character and trend of them. Respect for the wishes of the dead is a tender and beautiful sentiment, certainly. Unfortunately, it can not be ascertained that they have any wishes. What commonly go by that name are wishes once entertained by living persons who are now dead, and who in dying renounced them, along with everything else. Like those who entertained them, the wishes are no longer in existence. “The wishes of the dead” are not wishes, and are not of the dead. Why they should have anything more than a sentimental influence upon those still in the flesh, and be a factor to be reckoned with in the practical affairs of the supergraminous world, is a question to which the merely human understanding can find no answer, and it must be referred to the lawyers. When “from the tombs a doleful sound” is vented, and “thine ear” is invited to “attend the cry,” an intelligent forethought will suggest that you inquire if it is anything about property. If so pass on—that is no sacred spot.
X
Much of the testimony in French courts, civil and martial, appears to consist of personal impressions and opinions of the witnesses. All very improper and mischievous, no doubt, if—if what? Why, obviously, if the judges and jurors are unfit to sit in judgment. By designating them to sit, the designating power assumes their fitness—assumes that they know enough to take such things for what they are worth, to make the necessary allowances; if needful, to disregard a witness’s opinion altogether. I do not know that they are fit. I do not know that they do make the needful allowances. It is by no means clear to me that any judge or juror, French, American or Patagonian, is competent to ascertain the truth when lying witnesses are trying to conceal it under the direction of skilled and conscienceless attorneys licensed to deceive. But his competence is a basic assumption of the law vesting him with the duty of deciding. Having chosen him for that duty, the French law very logically lets him alone to decide for himself what is evidence and what is not. It does not trust him a little, but altogether. It puts him under conditions familiar to him—makes him accessible to just such influences as he is accustomed to when making conscious and unconscious decisions in his personal affairs.
There may be a distinct gain to justice in permitting a witness to say whatever he wants to say. If he is telling the truth he will not contradict himself; if he is lying, the more rope he is given the more surely he will entangle himself.
In giving hearsay evidence, for example, he may suggest a new and important witness of whom the counsel for the other side would not otherwise have heard, and who can then be brought into court. By some unguarded and apparently irrelevant statement he may open an entirely new line of inquiry, or throw upon the case a flood of light. Everyone knows what revelations are sometimes evoked by apparently the most insignificant remarks. Why should justice be denied a chance to profit that way?
There is a still greater advantage in “the French method.” By giving a witness free rein in expression of his personal opinions and feelings we should be able to calculate his frame of mind, his good or ill will to the prosecution or defense and, therefore, to a certain extent his credibility. In our courts he is able by a little solemn perjury to conceal all this, even from himself, and pose as an impartial witness, when in truth, with regard to the accused he is full of rancor or reeking with compassion.
In theory our system is perfect. The accused is prosecuted by a public officer, who having no interest in his conviction, will serve the state without mischievous zeal and perform his disagreeable task with fairness and consideration. He is permitted to entrust his defense to another officer, whose duty it is to make a rigidly truthful and candid presentment of his case in order to assist the court to a just decision. The jurors, if there are jurors, are neither friendly nor hostile, are open-minded, intelligent and conscientious. As to the witnesses, are they not sworn to tell the truth, the whole truth (in so far as they are permitted) and nothing but the truth? What could be finer and better than all this?—what could more certainly assure justice?
How close the resemblance is between this ideal picture and what actually occurs all know, or should know. The judge is frequently an ignoramus incapable of logical thought and with little sense of the dread and awful nature of his responsibility. The prosecuting attorney thinks it due to his reputation to “make a record” and tries to convict by hook or crook, even when he is himself persuaded of the defendant’s innocence. Counsel for the defense is equally unscrupulous for acquittal, and, both having industriously coached their witnesses, they contend against each other in deceiving the court by every art of which they are masters. Witnesses on both sides perjure themselves freely and with almost perfect impunity if detected. At the close of it all the poor weary jurors, hopelessly bewildered and dumbly resentful of their duping, render a random or compromise verdict, or one which best expresses their secret animosity to the lawyer they like least, or their faith in the newspapers which they have diligently and disobediently read every night. Commenting upon Rabelais’ old judge who, when impeached for an outrageous decision, pleaded his defective eyesight which made him miscount the spots on the dice, the most distinguished lawyer of my acquaintance seriously assured me that if all the cases with which he had been connected had been decided with the dice substantial justice would have been done more frequently than it was done. If that is true, or nearly true, and I believe it, the American’s right to sneer at the Frenchman’s “judicial methods” is an open question.
XI
It is urged that the corrupt practices in our courts of law be uncovered to public view, whenever that is possible, by that impeccable censor, the press. Exposure of rascality is good—better, apparently for rascals than for anybody else, for it usually suggests something rascally which they had overlooked, and so familiarizes the public with crime that crime no longer begets loathing. If the newspapers of the country are really concerned about corrupter practices than their own and willing to bring our courts up to the English standard there is something better than exposure—which fatigues. Let the newspapers set about creating a public opinion favorable to non-elective judges, well paid, powerful to command respect and holding office for life or good behavior. That is the only way to get good men and great lawyers on the Bench. As matters are, we stand and cry for what the English have, and rail at the way they get it. Our boss-made, press-ridden and mob-fearing judges give us as good a quality of justice as we merit. A better quality awaits us whenever the will to have is attended by the sense to take.
CRIME AND ITS CORRECTIVES
I
SOCIOLOGISTS have long been debating the theory that the impulse to commit crime is a disease, and the ayes appear to have it—the disease. It is gratifying and profitable to have the point settled: we now know where we are and can take our course accordingly. It has for a number of years been known to all but a few old physicians—survivals from an exhausted régime—that all disease is caused by bacilli, which worm themselves into the organs that secrete health and enjoin the performance. The medical conservatives attempt to whittle away the value and significance of this theory by affirming its inadequacy to account for such disorders as broken heads, sunstroke, superfluous toes, home-sickness, burns and strangulation on the gallows; but against the testimony of so eminent bacteriologists as Drs. Koch and Pasteur their carping is as that of the idle angler. The bacillus is not to be denied; he has brought his bedding and is here to stay until evicted. Doubtless we may confidently expect his eventual eviction by a fresher and more ingenious disturber of the physiological peace, but the bacillus is now chief among ten thousand evils and it is futile to attempt to “read him out of the party.”
It follows that in order to deal intelligently with the criminal impulse in our afflicted fellow-citizens we must discover the bacillus of crime. To that end I think that the bodies of hanged assassins and such persons of low degree as have been gathered to their fathers by the cares of public office or consumed by the rust of inactivity in prison should be handed over to the microscopists for examination. The bore, too, offers a fine field for research, and might justly enough be examined alive. Whether there is one general—or as the ancient and honorable orders prefer to say, “grand”—bacillus, producing a general (or grand) criminal impulse covering a multitude of sins, or an infinite number of well-defined and several bacilli, each inciting to a particular crime, is a question to the determination of which the most distinguished microscopist might be proud to devote the powers of his eye. If the latter is the case it will somewhat complicate the treatment, for clearly the patient afflicted with chronic robbery will require medicines different from those that might be efficacious in a gentleman suffering from sporadic theft or a desire to represent his district in the Assembly. But it is permitted to us to hope that all crimes, like all arts, are essentially one; that murder, arson and conservitude are but different symptoms of the same physical disorder, at the back of which is a microbe vincible to a single medicament, albeit this awaits discovery.
In the fascinating theory of the unity of crime we may not unreasonably hope to find another evidence of the brotherhood of man, another spiritual bond tending to draw the several classes of society more closely together.
II
By advocating painless removal of incurable idiots and lunatics, incorrigible criminals and irreclaimable drunkards from this vale of tears Dr. W. Duncan McKim provoked many a respectable but otherwise blameless person to convulsions of great complexity and power. Yet Dr. McKim seemed only to anticipate the trend of public opinion and forecast its crystalization into law. It is rapidly becoming a question, not of what we ought to do with these unfortunates, but what we shall be compelled to do. Study of the statistics of the matter shows that in all civilized countries mental and moral diseases are increasing, proportionately to population, at a rate which in the course of a few generations will make it impossible for the healthy to care for the afflicted. To do so will require the entire revenue that it is possible to raise by taxation—will absorb all the profits of all the industries and professions and make deeper and deeper inroads upon the capital from which they are derived. When it comes to that there can be but one result. High and humanizing sentiments are angel visitants, whom we entertain with pride and pleasure, but when the entertainment becomes too costly to be borne we “speed the parting guest” forthwith. And it may happen that in inviting to his vacant place a less exacting successor—in replacing sentiment with reason—we shall, in this instance, learn to our joy that we do but entertain another angel. For nothing is so heavenly as Reason, nothing so sweet and compassionate as her voice—
Not harsh and crabbed, as dull fools suppose, But musical as is Apollo’s lute.
Is it cruel, is it heartless, is it barbarous to use something of the same care in breeding men and women as in breeding horses and dogs? Here is a determining question: Knowing yourself doomed to hopeless idiocy, lunacy, crime or drunkenness, would you, or would you not, welcome a painless death? Let us assume that you would. Upon what ground, then, would you deny to another a boon that you would desire for yourself?
III
The good American is, as a rule, pretty hard upon roguery, but he atones for his austerity by an amiable toleration of rogues. His only requirement is that he must personally know the rogues. We all “denounce” thieves loudly enough if we have not the honor of their acquaintance. If we have, why, that is different—unless they have the actual odor of the slum or the prison about them. We may know them guilty, but we meet them, shake hands with them, drink with them and, if they happen to be wealthy, or otherwise great, invite them to our houses, and deem it an honor to frequent theirs. We do not “approve their methods”—let that be understood; and thereby they are sufficiently punished. The notion that a knave cares a pin what is thought of his ways by one who is civil and friendly to himself appears to have been invented by a humorist. On the vaudeville stage of Mars it would probably have made his fortune.
I know men standing high in journalism who to-day will “expose” and bitterly “denounce” a certain rascality and to-morrow will be hobnobbing with the rascals whom they have named. I know legislators of renown who habitually raise their voices against the dishonest schemes of some “trust magnate,” and are habitually seen in familiar conversation with him. Indubitably these be hypocrites all. Between the head and the heart of a man of this objectionable kind is a wall of adamant, and neither knows what the other is doing.
If social recognition were denied to rogues they would be fewer by many. Some would only the more diligently cover their tracks along the devious paths of unrighteousness, but others would do so much violence to their consciences as to renounce the disadvantages of rascality for those of an honest life. An unworthy person dreads nothing so much as the withholding of an honest hand, the slow, inevitable stroke of an ignoring eye.
We have rich rogues because we have “respectable” persons who are not ashamed to take them by the hand, to be seen with them, to say that they know them. In such it is treachery to censure them; to cry out when robbed by them is to turn state’s evidence.
One may smile upon a rascal (most of us do so many times a day) if one does not know him to be a rascal, and has not said he is; but knowing him to be, or having said he is, to smile upon him is to be a hypocrite—just a plain hypocrite or a sycophantic hypocrite, according to the station in life of the rascal smiled upon. There are more plain hypocrites than sycophantic ones, for there are more rascals of no consequence than rich and distinguished ones, though they get fewer smiles each. The American people will be plundered as long as the American character is what it is; as long as it is tolerant of successful knaves; as long as American ingenuity draws an imaginary distinction between a man’s public character and his private—his commercial and his personal. In brief, the American people will be plundered as long as they deserve to be plundered. No human law can stop it, none ought to stop it, for that would abrogate a higher and more salutary law: “As ye sow ye shall reap.”
In a sermon by the Rev. Dr. Parkhurst is the passage following:
“The story of all our Lord’s dealings with sinners leaves upon the mind the invariable impression, if only the story be read sympathetically and earnestly, that He always felt kindly towards the transgressor, but could have no tenderness of regard toward the transgression. There is no safe and successful dealing with sin of any kind save as that distinction is appreciated and made a continual factor in our feelings and efforts.”
If Dr. Parkhurst will read his New Testament more understandingly he will observe that Christ’s kindly feeling to transgressors was not to be counted on by sinners of every kind, and it was not always in evidence; for example, when he flogged the moneychangers out of the temple. Nor is Dr. Parkhurst himself any too amiably disposed toward the children of darkness. It was not by mild words and gentle means that he hurled the mighty from their seats and exalted them of low degree. Such revolutions as he set afoot are not made with spiritual rosewater; there must be the contagion of a noble indignation fueled with harder wood than abstractions. The people can not be mustered and incited to action by the spectacle of a man fighting something that does not fight back. It was men that Dr. Parkhurst was trouncing—not their crimes—not Crime. He may fancy himself “dowered with the hate of hate, the scorn of scorn,” but in reality he does not hate hate but hates the hateful, and scorns, not scorn but the scornworthy.
It is singular with what tenacity this amusing though mischievous superstition keeps its hold upon the human mind—this grave, bona fide personification of abstractions and the funny delusion that it is possible to hate or love them. Sin is not a thing; there is no existing object corresponding to any of the mere counter-words that are properly named abstract nouns. One can no more hate sin or love virtue than one can hate a vacuum (which Nature—itself imaginary—was once by the scientists of the period solemnly held to do) or love one of the three dimensions. We may think that while loving a sinner we hate the sin, but that is not so; if anything is hated it is other sinners of the same kind, who are not quite so close to us.
The French have a saying to the effect that to know all is to pardon all; and doubtless with an omniscient insight into the causes of character we should find the field of moral responsibility pretty thickly strewn with extenuating circumstances very suitable indeed for consideration by a god who has had a hand in besetting “with pitfall and with gin” the road we are to “wander in.” But I submit that universal forgiveness would hardly do as a working principle. Even those who are most apt and facile with the incident of the woman taken in adultery commonly cherish a secret respect for the doctrine of eternal damnation; and some of them are known to pin their faith to the penal code of their state. Moreover, there is some reason to believe that the sinning woman, being “taken,” was penitent—they usually are when found out.
“But,” says Citizen Goodheart, who thinks with difficulty, “shall I throw over my friend when he is ‘in trouble’?” Yes, when convinced that he deserves to be in trouble; throw him all the harder and the further because he is your friend. In addition to his particular offense against society he has disgraced you. If there are to be lenity and charity let them go to the criminal who has foreborne to involve you in his shame. It were a pretty state of affairs if an undetected scamp, fearing exposure, could make you a co-defendant by so easy a precaution as securing your acquaintance and regard. Don’t throw the first stone, of course, but when convinced that your friend is a proper target, heave away with a right hearty good-will, and let the stone be of serviceable weight and delivered with a good aim.
I care nothing for principles—they are lumber and rubbish. What concerns our happiness and welfare, as affectable by our fellowmen, is conduct. “Principles, not men,” is a rogue’s cry; rascality’s counsel to stupidity, the noise of the duper duping on his dupe. He shouts it most loudly and with the keenest sense of its advantage who most desires inattention to his own conduct, or to that forecast of it, his character. As to sin, that has an abundance of expounders and is already universally known to be wicked. What more can be said against it, and why go on repeating that? The thing is a trifle wordworn, whereas the sinner cometh up as a flower every day, fresh, ingenuous and inviting. Sin is not at all dangerous to society; what does all the mischief is the sinner. Crime has no arms to thrust into the public treasury and the private; no hands with which to cut a throat; no tongue to wreck a reputation withal. I would no more attack it than I would attack an isosceles triangle, or Hume’s “phantasm floating in a void.” My chosen enemy must be something that has a skin for my switch, a head for my cudgel—something that can smart and ache. I have no quarrel with abstractions; so far as I know they are all good citizens.
THE DEATH PENALTY
1
“DOWN with the gallows!” is a cry not unfamiliar in America. There is always a movement afoot to make odious the just principle of “a life for a life”—to represent it as “a relic of barbarism,” “a usurpation of the divine authority,” and the rest of it. The law making murder punishable by death is as purely a measure of self-defense as is the display of a pistol to one diligently endeavoring to kill without provocation. It is in precisely the same sense an admonition, a warning to abstain from crime. Society says by that law: “If you kill one of us you die,” just as by display of the pistol the individual whose life is attacked says: “Desist or be shot.” To be effective the warning in either case must be more than an idle threat. Even the most unearthly reasoner among the anti-hanging unfortunates would hardly expect to frighten away an assassin who knew the pistol to be unloaded. Of course these queer illogicians can not be made to understand that their position commits them to absolute non-resistance to any kind of aggression; and that is fortunate for the rest of us, for if as Christians they frankly and consistently took that ground we should be under the miserable necessity of respecting them.
We have good reason to hold that the horrible prevalence of murder in this country is due to the fact that we do not execute our laws—that the death penalty is threatened but not inflicted—that the pistol is not loaded. In civilized countries where there is enough respect for the laws to administer them, there is enough to obey them. While man still has as much of the ancestral brute as his skin can hold without cracking we shall have thieves and demagogues and anarchists and assassins and persons with a private system of lexicography who define murder as disease and hanging as murder, but in all this welter of crime and stupidity are areas where human life is comparatively secure against the human hand. It is at least a significant coincidence that in these the death penalty for murder is fairly well enforced by judges who do not derive any part of their authority from those for whose restraint and punishment they hold it. Against the life of one guiltless person the lives of ten thousand murderers count for nothing; their hanging is a public good, without reference to the crimes that disclose their deserts. If we could discover them by other signs than their bloody deeds they should be hanged anyhow. Unfortunately we must have a death as evidence. The scientist who will tell us how to recognize the potential assassin, and persuade us to kill him, will be the greatest benefactor of his century.
What would these enemies of the gibbet have?—these lineal descendants of the drunken mobs that hooted the hangman at Tyburn Tree; this progeny of criminals, which has so defiled with the mud of its animosity the noble office of public executioner that even “in this enlightened age” he shirks his high duty, entrusting it to a hidden or unnamed subordinate? If murder is unjust of what importance is it whether its punishment by death be just or not?—nobody needs to incur it. Men are not drafted for the death penalty; they volunteer. “Then it is not deterrent,” mutters the gentleman whose rude forefather hooted the hangman. Well, as to that, the law which is to accomplish more than a part of its purpose must be awaited with great patience. Every murder proves that hanging is not altogether deterrent; every hanging, that it is somewhat deterrent—it deters the person hanged. A man’s first murder is his crime, his second is ours.
The socialists, it seems, believe with Alphonse Karr, in the expediency of abolishing the death penalty; but apparently they do not hold, with him, that the assassins should begin. They want the state to begin, believing that the magnanimous example will effect a change of heart in those about to murder. This, I take it, is the meaning of their assertion that death penalties have not the deterring influence that imprisonment for life carries. In this they obviously err: death deters at least the person who suffers it—he commits no more murder; whereas the assassin who is imprisoned for life and immune from further punishment may with impunity kill his keeper or whomsoever he may be able to get at. Even as matters now are, incessant vigilance is required to prevent convicts in prison from murdering their attendants and one another. How would it be if the “life-termer” were assured against any additional inconvenience for braining a guard occasionally, or strangling a chaplain now and then? A penitentiary may be described as a place of punishment and reward; and under the system proposed, the difference in desirableness between a sentence and an appointment would be virtually effaced. To overcome this objection a life sentence would have to mean solitary confinement, and that means insanity. Is that what these gentlemen propose to substitute for death?
The death penalty, say these amiables and futilitarians, creates blood-thirstiness in the unthinking masses and defeats its own ends—is itself a cause of murder, not a check. These gentlemen are themselves of “the unthinking masses”—they do not know how to think. Let them try to trace and lucidly expound the chain of motives lying between the knowledge that a murderer has been hanged and the wish to commit a murder. How, precisely, does the one beget the other? By what unearthly process of reasoning does a man turning away from the gallows persuade himself that it is expedient to incur the danger of hanging? Let us have pointed out to us the several steps in that remarkable mental progress. Obviously, the thing is absurd; one might as reasonably say that contemplation of a pitted face will make a man wish to go and catch smallpox, or the spectacle of an amputated limb on the scrap-heap of a hospital tempt him to cut off his arm or renounce his leg.
“An eye for an eye and a tooth for a tooth,” say the opponents of the death penalty, “is not justice; it is revenge and unworthy of a Christian civilization.” It is exact justice: nobody can think of anything more accurately just than such punishments would be, whatever the motive in awarding them. Unfortunately such a system is not practicable, but he who denies its justice must deny also the justice of a bushel of corn for a bushel of corn, a dollar for a dollar, service for service. We can not undertake by such clumsy means as laws and courts to do to the criminal exactly what he has done to his victim, but to demand a life for a life is simple, practicable, expedient and (therefore) right.
“Taking the life of a murderer does not restore the life he took, therefore it is a most illogical punishment. Two wrongs do not make a right.”
Here’s richness! Hanging an assassin is illogical because it does not restore the life of his victim; incarceration is logical; therefore, incarceration does—quod erat demonstrandum.
Two wrongs certainly do not make a right, but the veritable thing in dispute is whether taking the life of a life-taker is a wrong. So naked and unashamed an example of petitio principii would disgrace a debater in a pinafore. And these wonder-mongers have the effrontery to babble of “logic”! Why, if one of them were to meet a syllogism in a lonely road he would run away in a hundred and fifty directions as hard as ever he could hook it. One is almost ashamed to dispute with such intellectual cloutlings.
Whatever an individual may rightly do to protect himself society may rightly do to protect him, for he is a part of itself. If he may rightly take life in defending himself society may rightly take life in defending him. If society may rightly take life in defending him it may rightly threaten to take it. Having rightly and mercifully threatened to take it, it not only rightly may take it, but expediently must.
II
The law of a life for a life does not altogether prevent murder. No law can altogether prevent any form of crime, nor is it desirable that it should. Doubtless God could so have created us that our sense of right and justice could have existed without contemplation of injustice and wrong; as doubtless he could so have created us that we could have felt compassion without a knowledge of suffering; but he did not. Constituted as we are, we can know good only by contrast with evil. Our sense of sin is what our virtues feed upon; in the thin air of universal morality the altar-fires of honor and the beacons of conscience could not be kept alight. A community without crime would be a community without warm and elevated sentiments—without the sense of justice, without generosity, without courage, without mercy, without magnanimity—a community of small, smug souls, uninteresting to God and uncoveted by the Devil. We can have, and do have, too much of crime, no doubt; what the wholesome proportion is none can say. Just now we are running a good deal to murder, but he who can gravely attribute that phenomenon, or any part of it, to infliction of the death penalty, instead of to virtual immunity from any penalty at all, is justly entitled to the innocent satisfaction that comes of being a simpleton.
III
The New Woman is against the death penalty, naturally, for she is hot and hardy in the conviction that whatever is is wrong. She has visited this world in order to straighten things about a bit, and is in distress lest the number of things be insufficient to her need. The matter is important variously; not least so in its relation to the new heaven and the new earth that are to be the outcome of woman suffrage. There can be no doubt that the vast majority of women have sentimental objections to the death penalty that quite outweigh such practical considerations in its favor as they can be persuaded to comprehend. Aided by the minority of men afflicted by the same mental malady, they will indubitably effect its abolition in the first lustrum of their political “equality.” The New Woman will scarcely feel the seat of power warm beneath her before giving to the assassin’s “unhand me, villain!” the authority of law. So we shall make again the old experiment, discredited by a thousand failures, of preventing crime by tenderness to caught criminals. And the criminal uncaught will treat us to a quantity and quality of crime notably augmented by the Christian spirit of the new régime.
IV
As to painless executions, the simple and practical way to make them both just and expedient is the adoption by murderers of a system of painless assassinations. Until this is done there seems to be no call to renounce the wholesome discomfort of the style of executions endeared to us by memories and associations of the tenderest character. There is, I fancy, a shaping notion in the observant mind that the penologists and their allies have gone about as far as they can safely be permitted to go in the direction of a softer suasion of the criminal nature toward good behavior. The modern prison has become a rather more comfortable habitation than the dangerous classes are accustomed to at home. Modern prison life has in their eyes something of the charm and glamor of an ideal existence, like that in the Happy Valley from which Rasselas had the folly to escape. Whatever advantages to the public may be secured by abating the rigors of imprisonment and inconveniences incident to execution, there is this objection: it makes them less deterrent. Let the penologers and philanthropers have their way and even hanging might be made so pleasant and withal so interesting a social distinction that it would deter nobody but the person hanged. Adopt the euthanasian method of electricity, asphyxia by smothering in rose-leaves, or slow poisoning with rich food, and the death penalty may come to be regarded as the object of a noble ambition to the bon vivant, and the rising young suicide may go and kill somebody else instead of himself, in order to receive from the public executioner a happier dispatch than his own ’prentice hand can assure him.
But the advocates of agreeable pains and penalties tell us that in the darker ages, when cruel and degrading punishment was the rule, and was freely inflicted for every light infraction of the law, crime was more common than it is now; and in this they appear to be right. But one and all, they overlook a fact equally obvious and vastly significant: that the intellectual, moral and social condition of the masses was very low. Crime was more common because ignorance was more common, poverty was more common, sins of authority, and therefore hatred of authority, were more common. The world of even a century ago was a different world from the world of to-day, and a vastly more uncomfortable one. The popular adage to the contrary notwithstanding, human nature was not by a long cut the same then that it is now. In the very ancient time of that early English king, George III, when women were burned at the stake in public for various offenses and men were hanged for “coining” and children for theft, and in the still remoter period, (circa 1530) when poisoners were boiled in several waters, divers sorts of criminals were disemboweled and some are thought to have undergone the peine forte et dure of cold-pressing (an infliction which the pen of Hugo has since made popular—in literature),—in these wicked old days crime flourished, not because of the law’s severity, but in spite of it. It is possible that our lawmaking ancestors understood the situation as it then was a trifle better than we can understand it on the hither side of this gulf of years, and that they were not the reasonless barbarians that we think them to have been. And if they were, what must have been the unreason and barbarity of the criminal element with which they had to deal?
I am far from thinking that severity of punishment can have the same restraining effect as probability of some punishment being inflicted; but if mildness of penalty is to be superadded to difficulty of conviction, and both are to be mounted upon laxity in detection, the pile will be complete indeed. There is a peculiar fitness, perhaps, in the fact that all these pleas for comfortable punishment should be urged at a time when there appears to be a general disposition to inflict no punishment at all. There are, however, still a few old-fashioned persons who hold it obvious that one who is ambitious to break the laws of his country will not with so light a heart and so airy an indifference incur the peril of a harsh penalty as he will the chance of one more nearly resembling that which he would himself select.
V
After lying for more than a century dead I was revived, dowered with a new body, and restored to society. The first thing of interest that I observed was an enormous building, covering a square mile of ground. It was surrounded on all sides by a high, strong wall of hewn stone upon which armed sentinels paced to and fro. In one face of the wall was a single gate of massive iron, strongly guarded. While admiring the cyclopean architecture of the “reverend pile” I was accosted by a man in uniform, evidently the warden, with a cheerful salutation.
“Colonel,” I said, “pray tell me what is this building.”
“This,” said he, “is the new state penitentiary. It is one of twelve, all alike.”
“You surprise me,” I replied. “Surely the criminal element must have increased enormously.”
“Yes, indeed,” he assented; “under the Reform régime, which began in your day, crime became so powerful, bold and fierce that arrests were no longer possible and the prisons then in existence were soon overcrowded. The state was compelled to erect others of greater capacity.”
“But, Colonel,” I protested, “if the criminals were too bold and powerful to be taken into custody, of what use are the prisons? And how are they crowded?”
He fixed upon me a look that I could not fail to interpret as expressing a doubt of my sanity. “What!” he said, “is it possible that the modern penology is unknown to you? Do you suppose we practise the antiquated and ineffective method of shutting up the rascals? Sir, the growth of the criminal element has, as I said, compelled the erection of more and larger prisons. We have enough to hold comfortably all the honest men and women of the state. Within these protecting walls they carry on all the necessary vocations of life excepting commerce. That is necessarily in the hands of the rogues, as before.”
“Venerated representative of Reform,” I exclaimed, wringing his hand with effusion, “you are Knowledge, you are History, you are the Higher Education! We must talk further. Come, let us enter this benign edifice; you shall show me your dominion and instruct me in the rules. You shall propose me as an inmate.”
I walked rapidly to the gate. When challenged by the sentinel, I turned to summon my instructor. He was nowhere visible. I turned again to look at the prison. Nothing was there: desolate and forbidding, as about the broken statue of Ozymandias,
The lone and level sands stretched far away.
— A. Bierce: The War Everlasting. I: The Collected Works, vol XI. 1911, s. 318-326.
— A. Bierce: Some Features of the Law. I: The Collected Works. vol XII, 1911, s. 99-129
— A. Bierce: Crime and It's Correctives. I: The Collected Works, vol XI, s. 187-198
— A. Bierce: The Death Penalty. I: The Collected Works, vol XII. 1911, s 210-224.