Thus, Lord Ellenborough, in 1820, anticipated the worst effects from there being no punishment of death for stealing five shillings worth of wet linen from a bleaching ground. Thus the Solicitor General, in 1830, advocated the punishment of death for forgery, and "the satisfaction of thinking" in the teeth of mountains of evidence from bankers and other injured parties (one thousand bankers alone!)
"that he was deterring persons from the commission of crime, by the severity of the law". Thus, Mr. Justice Coleridge delivered his charge at Hertford in 1845. Thus there were in the criminal code of England, in 1790, one hundred and sixty crimes punishable with death. Thus the lawyer has said, again and again, in his generation, that any change in such a state of things "must needs bring the weal-public into jeopardy and hazard". And thus he has, all through the dismal history, "shaked his head, and made a wry mouth, and held his peace". Except--a glorious exception!--when such lawyers as Bacon, More, Blackstone, Romilly, and--let us ever gratefully remember--in later times Mr. Basil Montagu, have striven, each in his day, within the utmost limits of the endurance of the mistaken feeling of the people or the legislature of the time, to champion and maintain the truth.
There is another and a stronger reason still, why a criminal judge is a bad witness in favour of the punishment of Death. He is a chief actor in the terrible drama of a trial, where the life or death of a fellow creature is at issue. No one who has seen such a trial can fail to know, or can ever forget, its intense interest. I
care not how painful this interest is to the good, wise judge upon the bench. I admit its painful nature, and the judge's goodness and wisdom to the fullest extent--but I submit that his prominent share in the excitement of such a trial, and the dread mystery involved, has a tendency to bewilder and confuse the judge upon the general subject of that penalty. I know the solemn pause before the verdict, the bush and stifling of the fever in the court, the solitary figure brought back to the bar, and standing there, observed of all the outstretched heads and gleaming eyes, to be next minute stricken dead as one may say, among them. I know the thrill that goes round when the black cap is put on, and how there will be shrieks among the women, and a taking out of some one in a swoon;
and, when the judge's faltering voice delivers sentence, how awfully the prisoner and he confront each other; two mere men, destined one day, however far removed from one another at this time, to stand alike as suppliants at the bar of God. I know all this, I can imagine what the office of the judge costs in this execution of it;
but I say that in these strong sensations he is lost, and is unable to abstract the penalty as a preventive or example, from an experience of it, and from associations surrounding it, which are and can be, only his, and his alone.
Not to contend that there is no amount of wig or ermine that can change the nature of the man inside; not to say that the nature of a judge may be, like the dyer's hand, subdued to what it works in, and may become too used to this punishment of death to consider it quite dispassionately; not to say that it may possibly be inconsistent to have, deciding as calm authorities in favour of death, judges who have been constantly sentencing to death;--I contend that for the reasons I have stated alone, a judge, and especially a criminal judge, is a bad witness for the punishment but an excellent witness against it, inasmuch as in the latter case his conviction of its inutility has been so strong and paramount as utterly to beat down and conquer these adverse incidents. I have no scruple in stating this position, because, for anything I know, the majority of excellent judges now on the bench may have overcome them, and may be opposed to the punishment of Death under any circumstances.
I mentioned that I would devote a portion of this letter to a few prominent illustrations of each head of objection to the punishment of Death. Those on record are so very numerous that selection is extremely difficult; but in reference to the possibility of mistake, and the impossibility of reparation, one case is as good (I should rather say as bad) as a hundred; and if there were none but Eliza Fenning's, that would be sufficient. Nay, if there were none at all, it would be enough to sustain this objection, that men of finite and limited judgment do inflict, on testimony which admits of doubt, an infinite and irreparable punishment. But there are on record numerous instances of mistake; many of them very generally known and immediately recognisable in the following summary, which I
copy from the New York Report already referred to.
