Page:The Green Bag (1889–1914), Volume 02.pdf/72

Rh It is passing remarkable that light upon the ill-understood subject should have reached the hard heart and slow intelligence of civilized England from the Russias of nearly two centuries ago. What the Empresses Catherine and Elizabeth had each come to reason out clearly for herself against the bad precept and worse practice of the rest of Europe, was by processes of mind rather deductive than inductive. It was the result of empiricism in the premises; but the empiricism was lofty, pure-motived, and truly philanthropical,—of a species no longer to be looked for from the half-barbarous and retrogressive realm of the White Czar, which at present is the habitat of the crudest and most stubborn autocracy on the face of the European continent, after having been once in a fair way of placing itself on the very apex of civilization.

The core of the question with reference to capital punishment essentially rests in the trite truism announced at the very beginning of this short disquisition. As much was half suspected by gossip Blackstone; but his mind, trained to the law (a narrow business), was not formed either to look into or to analyze clearly any consideration involving profound psychological phenomena and the very metaphysics of moral ethics, as the last are related to, and spring from, physiological conditions. Such had no musty black-letter authority, nor, indeed, any owlish hoary-oracular pandect-dicta behind them of the sort useful to lawyers; and Blackstone, even as a commentator, remained simple Blackstone the lawyer, devoting his great literary talents to the task of co-ordinating as best he could the chaotic results of multifarious English case-law into general and sometimes absurd propositions. Wherefore, at the outset, let it be clearly understood that while the law and the lawyer may be quoted herein, this excursion into things pertinent to the subject in hand will in no wise be limited by the peculiar if ancient orthodoxy of the desiccated and incorrigible two. From them and their idols, little, indeed, can be hoped for or expected just now.

The object of capital punishment was, primarily, to furnish a horrible example that would deter repetition of the crime punished.

Whether the act defined to be a crime was in essence vicious, or in fact harmful, did not fundamentally concern the law. It does not concern the law much yet; which circumstance wears about it a grim and ghastly gallows-humor to the philosopher. Thus it came about that Christ was crucified in full views of the Jewish populace; and that the crowd round about the place of execution was not only noisy, but as motley as it was immense.

In Old London, whenever sentence of death by hanging was pronounced (for there were many other death-penalties beside, some most blood-curdlingly dreadful), the place of execution was an open field, Tyburn, where disorderly masses assembled in tens of thousands on hangman's day. Macaulay declares that at the execution of Jonathan Wild the spectators numbered no less than two hundred thousand. It was a fête occasion. Labor was suspended as much as on any holiday. Upon the gallows, then more particularly known as the Tyburn tree (a thing of many limbs), the corpses of malefactors were generally kept dangling in a row, exposed for months to the pitiless play of the elements, swaying hither and thither, while daws flocked in great black clouds to peck at every exposed morsel of carrion (men the wretched things had ceased to be, mainly dying "without benefit of clergy"). The garments of the dangling objects, torn to faded shreds, flapped and snapped spectra-diabolically with every gust, while the air around was rank with the penetrating stench of putrefaction. The sight was gruesome, kept thus obtrusive to every eye and disgusting to every nostril, until each poor corpse literally blew to pieces,—solely to terrorize all persons and warn them, in dumb language of the pungentest kind, that the primordial