It is one of the barbarisms of the olden times still lingering among the benignities of our struggling civilization. It may well be called "a struggling civilization" inasmuch as the better energies of every age are always set to the task of freeing the life of its people from the irrational burdens imposed by the preceding times. A given code of opinions and usages may embody the moral, legal and religious sense of a given age, but when these opinions and practices are brought forward into a purer light and erect their standards in the midst of the more enlightened humanities they are seen as wretchedly incongruous and they shock the sensibilities of the best life. It is providential possibly that there should be this commingling of the rational and the irrational, the brute and the human.
Every age has had its "barbaric" and its "enlightened," its lower and its higher standards and laws and customs, and it seems to be one of the divine methods for increasing strength that the higher should ever battle with the lower. Life that is too easy is not compact and firmly knit in its sinews. It is opposition, it is the warfare between the old and the new to which the world is indebted for its very life. Some of the Indians of this country accounted for the strength of their chiefs by believing that the soul of every enemy slain passed into the body of the slayer, and hence if a warrior had killed an hundred men the victor had the strength of an hundred men. It was a rude way of expressing a persistent philosophy. Resistance is one of the life processes. If birth were not difficult it would be impossible. The resisting barriers of nature must hold the immature life till the hour of safe deliverance arrives. Mr. Beecher was once asked if he did not think there was a vast amount of chaff in the Bible, and he is reported to have answered: "Of course there is. But the character and value of chaff are determined by the time of the year." Quite essential to the immature grain, it is useless to the matured result. The shell resists and protects the chick till the chick is strong enough to resist the shell and needs no more protection. Resistance and life are critically balanced against each other in nature, always making their exchanges at the appointed hour and so nature always befits itself and justifies itself. But in our human economies and methods the ancient barriers are frequently allowed to remain far beyond their time, and the withered genius of conservatism is permitted an existence vastly overreaching its legitimate date. The living energies are often burdened and sometimes blighted by the ancient tyrannies, and the inheritance of the larger life is denied its rightful heirs.
I think this is true in the instance of the present and longer continuance of this barbarity of the death penalty for crime. It may have had a moral value in a rude condition, but it stalks forward out of its ancient darkness into the light of this age and appears as one of the crowning horrors of the time. That it does not hold its place as securely as it once did is evident, but it is yet too strongly intrenched in the legal and religious (!) sense of the public to inspire any eager hope of its speedy abandonment. "Society must be protected" is the reasonable demand made by our legislators and the officers intrusted with the administration of the laws, but they have not sufficient faith in the philosophy of clemency to trust the fortunes of society to milder and more humane ways. They are afraid that the ends of justice will not be attained if the death penalty is abolished. The motives of our law-makers are not to be questioned, but I am morally certain that their fears spring from false estimates of the moral elements involved.
There is another class of men who advocate the retention of the death penalty on the basis of the Bible. They claim that the Bible sanctions and indeed ordains Capital Punishment, and therefore it should be retained. The Bible is claimed to be the word of God in all things and the only authority. So did men in the days of the Anti-Slavery agitation in America advocate the retention of slavery by the authority of the Bible. Clergymen stood in their pulpits and hurled the divine anathemas at the abolitionists, and they built up a breast-work of Bibles around the institution; but in these times they have found different uses for their Bibles and different meanings in them, and not a few of even the conservative clergy are attempting to identify the once "infidel" Lincoln with the churches. The meaning of the Bible changes with the intelligence and the humanity of every age, and there is scarce a barbarism of history that has not had the Bible quoted in its defense by somebody at some time.
In regard to this subject in hand, some observing man in the ancient times seeing that violence naturally begets violence, said that "whosoever sheddeth man's blood, by man shall his blood be shed;" and gradually, or it may be immediately, the fertile genius of the theologians, claiming to know the Divine mind, erected this observation into a divine command, and today it is one of the holy proof-texts for the law and practice of human execution. But the Bible proves too much in these lists of the death penalty. Under the Jewish code of laws there were thirty-three crimes punishable by death. This same Bible sanctioned and prescribed the death penalty for them. Do these biblical defenders of the death penalty wish to go to this limit, and would they have the Bible code enacted in our civil statutes? But why not? If the Bible sanctions the death penalty for thirty-two crimes aside from murder, why should our death-dealing Bible-worshippers select the one crime of murder for the hangman and reject all the others? If the Bible is the word of God, designed as a code of procedure for all time, why not abide by it and bring back the horrors of its ancient sanctions? No one would venture upon such an experiment, and yet the freedom with the Bible that will reject thirty-two crimes from the clutch of the hangman or the axe of the axeman may reject the thirty-third crime from the same murderous hand. The Bible is simply useless in this contention. It is loaded so heavily with this barbaric spirit that it bursts in the hands of those who use it, and it is more dangerous to those who stand behind it than to those at whom it is aimed.
Another class of men in this grim apostleship of death is composed of those who harbor a spirit of revenge, and out of whose hearts sprung the law of "an eye for an eye" and "a tooth for a tooth." They are men who seem to think of law as an instrument of destruction for the unfortunate classes instead of being an agency for their preservation, their discipline and their ultimate restoration. It is this feeling of revenge, no doubt, that has shaped a considerable part of our legislation as it bears upon the criminal class. Men of this type of advocacy are men who, according to the theory of evolution, have brought with them certain elements of the lower animalism, the tiger element which is inflamed by the sight or smell of blood, and the more blood that is shed shall be to them the signal for the shedding of more blood still. It is wholly irrational and partakes of the brute nature. Many of our legislators need to be reproduced or reincarnated on a higher level. They need to think and discuss and vote in the higher regions of the moral sensibilities. There is not a single ray of intelligence or reason whereby the region where they make their laws, is illuminated.
The researches of such men as O' Sullivan and Spear and Rantoul and Victor Hugo fail to discover a single instance where the executions of men have checked the tendencies to crime. These researches reveal precisely the reverse of this, and show as plainly that public executions have been the occasions of multiplied crimes. Prison cells out of which men have been led to execution in the morning have been filled at night by men who had committed crimes in the very shadows of the gallows during the fatal day. Public executions instead of restraining crime have stimulated it, or at least public executions have broken down the public regard for the value and inviolability of life, upon which considerations a large part of the safety of life must forever depend.
The argument has been relied upon for years in behalf of this barbarous custom, that a public hanging must exert a salutary restraint, but the abolishing of these public scandals is a virtual surrender of the argument itself. If the old argument of restraint is good, then all the people ought to be urged to witness every execution, but the simple and significant fact is that the better classes of the people shrink from such scenes while the most reckless and lawless people will gather with the greatest eagerness to witness them when permitted. Here is a circumstance that ought to invite our lawmakers to pause and consider. A legal custom that invites the enthusiasm of the worst elements in a community and revolts and horrifies the best element is a custom that ought to be abolished.
When the State is seen to hold life cheap the people will do so too. If the State in its judicial calm can take life, men in their frenzy will take it all the more readily. Judicial murder in the lists of a high civilization will yet be seen, I believe, to be more culpable and less pardonable than murder by the infuriated or crazed individual. A man, under an uncontrollable frenzy of anger takes a life and certainly should be punished; but what shall we say of a state which in its wisest and least excited moods, in its calmest deliberation, proceeds to take the life of a man whose average line of intention may be much farther removed from the murderous borders than the habitual moods of many others who may never have met with the momentary temptation to violence?
It ought to be a principle in criminal administration that no government should place one of its subjects beyond its power to benefit him if the changed spirit and mood should permit a benefit. Who can doubt that multitudes of men, the moment after committing a murder, would have given the world if they could, to recall the life destroyed and the act that destroyed it? Vast numbers of men have committed crimes who have not been criminal in their common daily moods. By the force of extraordinary influence, acting perhaps but the fatal once in a whole lifetime, they have failed. The statement needs no argument. It is manifestly true. And is it an enlightened policy, is it humane, is it just that a life so failing of its manhood for the moment shall be destroyed by the combined power of a great and enlightened state? It is barbaric to the last limit of its destruction.
The infliction of the death penalty clashes with the humanities of our times. It is an incongruous presence. To add to its incongruity we associate religion and religious ceremonies with the gallows and the chair. The "Spiritual advisers" pray and read Scripture with the doomed man — secure his repentance, pronounce him "saved," "a child of grace," prepared to take his seat in paradise and then the signal is given and the "Christian" is sent to heaven with a black cap over his face! This business of hanging Christians is a gruesome one. Either the rope or the Chaplain ought to be abolished. The Chaplain at the gallows is an anomaly. If a man has become a Christian and is prepared for the society of heaven we ought to tolerate him on earth, especially if we have the privilege of keeping him within prison restraints, as in general we ought, no doubt.
The poorest use we can make of a man is to hang him. What have we done? Have we benefitted the man? So far as we know, not at all. And are we permitted to deal with men with no thought of doing them good? Who gave us that barbaric liberty? Shall a state assume that it may deal with its subjects with no purpose to benefit them? The thought is criminal itself. The murderous class are generally of the ignorant class, of those generally who are physically organized on a low basis. Shall the state execute those whom it has failed to educate? Shall it kill, or restrain? Civilization can have but one answer to this question.
For the crime of murder I would have life imprisonment, except in rare instances, and these modifications should be strongly guarded by judicious pardon boards. I would punish crime without imitating it, and its object should be to establish the people in conditions in which punishment would be unnecessary. Penalties instead of being so many forms of destruction should be so many forms of help. I would seek to abate the unwholesome sympathy of the people, and especially of emotional women, in behalf of the criminal class. I would advise our young women not to be lavish with their bouquets for the criminals. At least this class of men should not be made exceptional favorites. I would advise our States not to make the prison grounds the most beautiful places within their borders as Michigan has done at Ionia. Men should know that crime means solitude and desolation. California at San Quentin has been wise, in placing her criminals on one of the loneliest islands of the sea. No burglar, ravisher or murderer should find that his crimes lead him to a paradise of beauty. Soft sentiments are not fit companions for hardened criminals, but a rugged justice and a severe mercy are the befitting attendants of crime. Men should realize that in the commission of great crimes, they have left the realms of flowers and soft sentimentalism and have arrived in the country of the burning sands and the desolate rigors of a barren existence, and they should learn that flowers do not grow in that country.
The State however should erect no impossible barriers across the way of their return. Let them come back to the regions of the enlightened and human sentiments if they will. By years of unquestioned evidence let them prove their return to the compassionate regions of the human life, where their own spirit shall but increase the volume of the benignities. Then and not till then shall they be wisely crowned, nor even then as heroes, but as returned prodigals. Then may the rings be placed upon their withered fingers, and the sandals on their bleeding feet, and the robes upon their emaciated bodies. Then may the music begin, and the dancing. Not in the far country shall they lie down on beds of roses or wear the robes of an undiscriminating love. They have courted and should wed the genius of the Desolate and should abide in her torture chambers and learn wisdom, and return to find the waiting compassions they once forsook.
There is a barbaric treatment of crime that leads to destruction. This treatment has too long prevailed; there is an enlightened treatment of crime that should lead back to life through its rigorous but merciful severities. I believe it is time for this policy to be inaugurated, time for the retirement of the ancient barbarism and the introduction of a philosophy of criminal procedure that shall take its place with the general civilization we have reached.