PUBLIC RECORD OFFICE
C.O.8
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3PUBLIC RECORD OFFICE, LONDON
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was that the feeling of the public was against capital punishment in such cases, and that the law by awarding it did in effect promote the total impunity of the offences by deterring prosecutions, and by inducing witnesses, juries, and sometimes Judges, to violate their duty and conspire în producing a false verdict of acquittal, insomuch that in these cases practised offenders would prefer to be tried on a capital charge as a sure means of getting off. On these Acts, however, there followed in 1839 and 1840 a great increase of crime; not less than 38 per cent, on the crimes from which the punishment of death had been removed, along with 25 per cent. on other offences; due possibly, this last, to a general loosening of the sense of restraint consequent on so large and sudden a relaxation of penal law. These results notwithstanding, the exemptions from capital punishment were carried further and further by subsequent Acts, until the only crimes now continuing to be punishable by death are high treason and murder. I do not know what may have been the tenor of the Statistical Returns bearing upon the successive remissions posterior to those of 1837; but the course of the Legislature in removing the punishment virtually from all crimes but one (for high treason is hardly a practical question at present) seems to have led to something nearly amounting to an adminis- trative neutralization of the law in regard even to that one; and in the year 1866-67 the murders found by Coroners' inquest were 255 ;
Rationale of the punishment of
death,
15
the murderers arraigned were 135; and the executions for murder were 10.
It would be important to trace the conse- quences, so far as they can be traced through the maze of circumstance, of the remissions since 1837; and also to ascertain in like manner the results of similar changes of law in other countries. Two or three years ago 1 was informed (and it was by an advocate for total abolition of the punishment of death) that a return from one of the Swiss Cantons where the abolition of capital punishment had lately taken place, showed the number of murders to have been at once dpubled. The value of such a fact, however, depends upon the scale. We should not learn much from the fact that in a small community one murder had been committed in one year and two in the next.
it
But without assuming any actual state of facts, may be well for the purposes of exposition to take a hypothetical case; and supposing that the punishment of death will prevent, let us say, one
of every two murders that would otherwise be committed, endeavour to ascertain what would be the bearing of such a result upon the application
of our own popular or legal maxims and rules, and of some of Bentham's principles.
We have to bear in mind, in the first place, that death is the one thing which a man is sure to suffer, whether he is punished with it or not. In the next place, that a man is sure to suffer it, whether or not he is murdered. What is in question, therefore, is not so much death, as the
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