Crime & insanity, murder and its punishments and musing on murder

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

BY Rt. Hon. LORD DARLING

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

CRIME & INSANITY MURDER AND ITS PUNISHMENT MUSINGS ON MURDER BY

Rt. Hon. LORD DARLING Foreword by the Rt. Hon. Lord Morris, K.C. Ex-Prime Minister of Newfoundland.

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

LONDON J.A. ALLEN & CO., 16 GRENVILLE STREET, W.C. 1 1925

The Publishers are indebted to Lord Darling for permission to reissue the three articles which his Lordship contributed to the London "Evening News," March 27, April 19 and Sept. 3, 1924.

FOREWORD. LORD DARLING strikes a blow at that mawkish sentimentality which very often fills our gaols with heroes. Cervantes laughed Spain's chivalry away. Chivalry in some departments of life is admirable, but it too often degenerates into insipid, sickly sentiment. By a trenchant pen, knowledge of his subject, with wit and satire, Lord Darling has annihilated the arguments of the Warden of Sing Sing Prison, set forth in a recent treatise entitled "Man's Judgment of Death, being An Analysis of the Operation and Effect of Capital Punishment, Based on Facts, Not on Sentiment." The general proposition which the author of this extraordinary book starts out to prove by the statistics he has collected and collated is that capital punishment does not deter men from murdering. In support of this proposition he points out that from December, 1889, to October, 1923, 458 persons have been sentenced to death in the State of New York. One hundred and twenty-seven of these were born in Italy, and he says that this is specially significant in view of the very low homicide rate in Italy, where capital punishment has been abolished for more than thirty years. The author concludes from this that the death penalty is not effective. It is impossible satisfactorily to answer such an argument without having all the details and facts which these statistics represent. Lord Darling humorously answers it by satire and ridicule, and does so effectively; but the real answer is that the 127 Italians who no doubt left their country for their country's good, were probably men wanted by the police in their own country and had gone to the State of New York to escape justice; or they may have been released from gaol to serve in the war, or for some similar purpose. Of course, there is the further answer that Italians in a great crowded, modern, up-to-date State like New York, especially in the cities where Italians work, would be more likely to be brought into those surroundings where murders are likely to be committed than in the quiet pastoral scenes around their homes on the Tuscan Hills. In all communities the inhabitants are more or less subject to ordinances which, whilst curtailing their liberties for the good of the community, at the same time have fixed penalties for the violation of these ordinances. One of these is the death penalty for taking human life when

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

there is no justification and where at the time the murderer is, in the eye of the law, responsible for his acts. I have never been influenced very much by the argument that capital punishment can be defended merely because it is a deterrent, a preventive of further murders, nor do I think it would be just to take a man's life in order that the community might benefit, by creating an abhorrence for the crime. The community, it is true, does benefit; it is a deterrent to a certain extent, but the real justification of capital punishment for taking life is as a penalty for the offence committed against the individual or, if you like, the member of the community. A citizen has the right to live; it is the great gift of God. It is his for his own enjoyment and that of his family and friends, and the party who deprives him of this without legal excuse or justification must pay the penalty, which is death — the same penalty as he himself has administered. It does not lie in the murderer's mouth or his advocates to complain as to whether the infliction of the death penalty serves its end or purpose. That is not for him to question. Enough that there is an implied contract between him and the man he kills that he shall atone for his crime by the surrender of his life. We are not concerned with the harshness of the penalty; it is, like most penalties, self-imposed and self-inflicted. The penalty only attaches where we commit the offence. An eye for an eye, a tooth for a tooth means nothing more than that, if we take a man's eye or his tooth, the penalty is our eye or our tooth. Capital punishment is only an extension of this principle. In every age the principle of capital punishment has been questioned, but the overwhelming census of mankind has invariably favoured its continuance. Great authorities like Bentham and Romilly have held that capital punishment is the only means of dealing adequately with the crime of murder. MORRIS . London, 1925.

MURDER AND ITS PUNISHMENT.

THERE is just now much talk and questioning concerning crimes and the state of mind of those who commit them; and many dispute as to the proper object and true effect of punishment, and more particularly of the sentence of death. It is worth while, therefore, to examine somewhat more closely than is done by the multitude into the history and justification of the existing law regarding these matters.

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

"Revenge," writes Lord Bacon, "is a kinde of Wilde Justice, which the more man's nature runs to the more ought Law to weed it out." It is to be noticed that from the doing of Justice he by no means excludes the satisfaction of vengeance; and further he writes: "The most tolerable sort of Revenge is for those wrongs which there is no Law to remedy." Chastisement, no doubt, is best when it effects a change for the better in the sentiments and conduct of offenders; but, having regard to human nature, punishment would appear to be imperfect if it do not satisfy the instinct for retribution which is general in those who have suffered wrong. THE PAINLESS EXIT . Proposals are now before Parliament to abolish the penalty of death in cases of murder, but it may well be doubted whether the British public would be satisfied if they felt assured that by some process as yet undisclosed an atrocious poisoner had been painlessly and without degradation inducted to the Kingdom of the Just. This may, perhaps, be contrary to a complete Christian charity — though, even among the Fathers, authority to the contrary may be found — but among primitive, and also among highly-civilised peoples, there was no question on the subject. The Manes required satisfaction which piety and friendship were bounden to afford. "To his sad soul a grateful offering go — 'Tis Pallas, Pallas, deals the deadly blow," said Æneas — in Latin, if not in the Trojan tongue — when he slew Turnus, whom, but for the slaughter of his friend, he had forgiven. THE CERTAINTY OF RETRIBUTION. But this view of what is just and expedient cannot be set aside as that of mere soldiers or savages. For Mr. Justice Stephen, a learned and philosophic lawyer and Jurist, writes thus: "In cases which outrage the moral feelings of the community to a great degree, the feeling of indignation and desire for revenge which is excited in the minds of decent people is, I think, deserving of legitimate satisfaction. "If a man commits a brutal murder, or if he does his best to do so and fails only by accident, I think he should be destroyed, partly in order to gratify the indignation which such crimes produce, and partly in order to make the world wholesomer than it would otherwise be by ridding it of people as much misplaced in civilised society as wolves or tigers would be in a populous country. If William Palmer had not been hanged in 1856 he would probably have been alive at this day (1883) and likely to live for many years to come. What is the use of keeping such a wretch alive at the public expense for, say, half a century? The learned Judge would, moreover, have punished with death those convicted of certain heinous crimes other than murder. He wrote: "If society would make up its mind to the destruction of really bad offenders they might, in a very few years, be made as rare as wolves,

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

and that probably at a smaller sacrifice of life than is caused by many a shipwreck or colliery explosion; but for this purpose a change of public sentiment would be necessary, of which there are at present no signs." Formerly, no doubt, the law of England, as of most other countries, punished all crime with excessive, and often brutal, severity — and this was chiefly due to rarity of arrest as compared with what we see to-day. Indeed certainty of retribution for ordinary crimes is, in my opinion, more useful than mere severity of punishment. Yet in days not very remote from our own a feeling that things were not far wrong followed the command convincingly bawled on the transpontine stage, "Take the villain to the Eastern turret and boil him in oil." INTO THE GREAT UNKNOWN. It is interesting to observe that in 1530 (by 22 Henry VIII, chapter 9, to be exact) poisoning was made punishable by boiling to death; but this Statute was repealed by I Edward VI, chapter 12. Roasting had, of course, long been reserved as more dignified, and so strictly appropriate to the case of those whose opinions on especially difficult problems were considered too broad or too narrow. So has beheading ever been held more genteel than hanging. This, however, is somewhat of a digression — for I had intended to discuss for a while the question whether the punishment of death is more deterrent than imprisonment. This consideration has been forced upon us by persons most of whom I prefer to presume are by no means meditating murder. Now there is one incontrovertible difference between death and all other forms of punishment. It is, so far as this world is concerned, final and irrevocable. It is also cheap, but this we may pass by, for we live in an age of lavish expenditure. For my own part I cannot agree with those who hold that what they call a "final" sentence of penal servitude for life is as likely as the high probability of hanging to turn a man aside from murder. There is no finality but death — even if that be final. Most of us believe it is not so, and no one can be absolutely certain that it is. Chi lo sa? It is incapable of proof. But of imprisonment, be it in Wormwood Scrubbs or Portland, the worst is easily ascertained. These abodes may not be those of the blest, but they hold no unknown terrors. But who, meditating murder in a land where it is punishable with death, can fail to have some such thoughts as these: "To die — to sleep — To sleep! Perchance to dream; aye, there's the rub; For in that sleep of death what dreams may come, When we have shuffled off this mortal coil, Must give us pause." Yes — must give us pause. And who shall say how that hesitation shall end?

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

For my part I believe — though proof is impossible — that many an intending homicide would consummate his crime — "But that the dread of something after death — The undiscovered country from whose bourne No traveller returns — puzzles the will." The knowledge that the law pushes the malefactor without delay over and beyond that bourne cannot but have an effect upon the mind different from the fear of a prison whose gate may some day be opened' Further, a prison may well appear very tolerable to those who would not fear a course of lectures, such as many willingly support at the Royal Institution and elsewhere. It may be said that to deter from wickedness is not all, but that the reformation of offenders is desirable, and by all means to be sought. And in this I agree so far as concerns those crimes which men may adopt as a profession — such as burglary and theft. But murderers are not to be classed with these, and the most indulgent reformers of the criminal law agree in admitting that to deter others should properly be an end in the awarding of penalties. Thus, Beccaria writes: "A punishment, to be just, should have only that degree of severity which is sufficient to deter others. Now there is no man who upon the least reflection would put in competition the total and perpetual loss of his liberty with the greatest advantages he could possibly obtain in consequence of a crime. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined as much as the punishment of death — I say it has more." POLICY THAT MULTIPLIED MURDERS When Beccaria so positively committed himself he had no actual experience, and naturally he could cite no statistics to support his opinion. Holding Beccaria to be right — or else acting from mere pusillanimity, or self-indulgence — M. Grèvy, when President of France, commuted every sentence of death, with the result that murders multiplied beyond measure, and it was made most difficult to revert to the former salutary practice. Philosophy and experience alike point to a conclusion not in accord with that of the Marquis Beccaria. Few of those who, like myself, have long had to administer our law would, I think, agree with his statement. I will content myself simply with citing Montesquieu, who writes thus: "A la Chine les voleurs cruels vent coupés en morceaux, les autres non. Cette difference fait que l'on y vole; mais qu'on n'y assassine pas. En Moscovie, où la peine des voleurs et des assassins vent les mêmes, on assassine toujours. Les morts y dit on ne racontent rien." A CANDLE TO THE DEVIL. Guarded as it is by recourse to the Court of Criminal Appeal, and by the further protection against error — except in the sense of undue leniency — by reconsideration by the Home

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

Secretary, I am convinced that death is a justifiable and expedient punishment for the crime of wilful murder. Regarding the prerogative of mercy — which is paramount over all sentences at law — I would quote these words from "L'Esprit Des Lois" as being apposite and true: "C'est un grand ressort des gouvernements modérés que les lettres de grace. Ce pouvoir que le Prince a de pardonner, execute avec sagesse, peut avoir d'admirables effets." Should, however, those prevail who would altogether abolish judgment of death, we might well temper regret with the reflection that thenceforth there would be an end to those absurd contentions that the accused person was insane when he committed murder. Insanity, like alibi, is as good a defence to a charge of picking a pocket as to one of cold-blooded poisoning or shooting, yet in practice it does not pay so to contend, and the "Alienist" is only retained when the game is well worth the candle — that candle which the timid will burn to the Devil. What I have to say concerning the plea of insanity I will reserve for a further article.

CRIME AND INSANITY.

LAWYERS and doctors alike agree that crimes may be committed by those who are rightly called "insane." Some few persons do indeed vehemently proceed to contend that no sane man can ever give way to a criminal act — and this because, in the long run, crime does not pay. But this argument may well involve the proposition that no sane person will gamble, or bet on a result not already known to himself; and truly of this kind of wise men I have sent to gaol some, although those who have wagered and most often lost have so far avoided the asylum. It would appear, then, that — just as il y a fagots et fagots — there are sane criminals and mad ones, and also many honest madmen. Indeed, it may well be that most madmen are indifferent honest, as most sane men are. So crime and madness, together and separately, present many difficult problems. THE CRIMINAL AS A SICK MAN. For myself, I have no sympathy with those who take all crime for a disease made manifest, and who so would pardon all rogues. I will, however, help them to an argument, of which, I fancy, they are none of them aware. Although they will look in vain for this in their books of medical jurisprudence they will find it, should they be sufficiently industrious, in the "Réflexions Diverses" of M. le Duc de la Rochefoucauld. Yet, since nothing obtained without labour is worth the having, I will not more exactly indicate the place. Within the last two or three years certain cases have come before our criminal courts which have led to much public discussion concerning crimes and the responsibility of those who commit them; and so the Lord Chancellor did, in July, 1922, constitute a committee, under the presidency of Lord Justice Atkin, "to consider and report upon what changes, if any, are desirable in the existing law, practice and procedure relating to criminal trials in which the plea of insanity as a defence is raised," etc., etc. Much evidence was given by and on behalf of

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

doctors of medicine and others especially interested in the diagnosis and treatment of insanity, and the inquiry resulted in a report which appears to me admirable for its fullness of information and its fairness of statement and argument. But one of its recommendations must necessarily provoke further discussion. It is necessary to remember always that our law only excuses a criminal act should it be proved to be the consequence of a disease of the mind. Now, two schools of thought were represented by the medical men who appeared before the committee — i.e., the Council of the British Medical Association, and the Medico-Psychological Association. In the end the Committee practically, and essentially, adopt the views of the British Medical Association. The differences between the views of these two associations are fundamental. A NEW DEFINITION. In the report of the Medico-Psychological Association it is stated that: "Unsoundness of mind is no longer regarded as in essence a disorder of the intellectual or cognitive faculties. The modern view is that it is something much more profoundly related to the whole organism — a morbid change in the emotional and instinctive activities with or without intellectual derangement." Now this definition was accepted by the witnesses for the British Medical Association and also by Lord Justice Atkin's Committee. Then from this point the two medical associations diverge. It is stated by the committee that the Medico-Psychological Association "give no clue to what they regard as the test of criminal responsibility.... The substance of their evidence was that insanity and irresponsibility were coextensive." Now this meant that the accused if insane as defined is to be held "immune from punishment for any act he might commit in violation of the criminal law." But the British Medical Association, on the other hand, expressly admit that "an act may be a crime although the mind of the person who does it is affected by disease, or defective power, if such disease or defect does not, in fact, prevent him — (a) From knowing and appreciating the nature and quality of his act or the circumstances in which it is done; or (b) From knowing and appreciating that his act is wrong; or (c) From controlling his own conduct, unless the absence of the power of control is the direct and immediate consequence of his own default." AN "UNCONTROLLABLE" IMPULSE. Further, the British Medical Association go on to declare that "no act is a crime if the person who does it is, at the time it is done, prevented, either by defective mental power, or by any disease affecting the mind — (a) From either knowing or appreciating the nature and quality of his act, or the circumstances in which it is done; or (b) From either knowing or appreciating that the act is wrong; or

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

(c) From controlling his own conduct, unless the absence of the power of control is the direct and immediate consequence of his own default." Now par. (c) would introduce a change in procedure at trials, and demands grave consideration. We have now reached, I think, the point around which such future contests as there may be will take place. Lord Justice Atkin's committee have come to the conclusion that "there are cases of mental disorder where the impulse to do a criminal act recurs with increasing force until it is in fact uncontrollable," and they recommend a declaration amounting to an alteration or extension of the law in these terms: "The suggested rule, however, postulates mental disease; and we think that it should be made clear that the law does recognise irresponsibility on the ground of insanity where the act was committed under an impulse which the prisoner was, by mental disease, in substance deprived of any power to resist." They proceed to point out that "the question to be determined should be, not whether the accused could control his conduct generally, but could control it in reference to the particular act or acts charged." Some of our judges in recent years, where cogent evidence has been given as to the mental condition and the conduct of the accused, have admitted some extension of the McNaughton rules in the same sense as the recommendation of the Committee. And these judges have directed juries that an uncontrollable impulse, due to and directly arising out of mental disease, may so operate as to relieve the accused from criminal responsibility. The existing rules are plain, and judges have found little difficulty in showing to juries how they apply to the facts proved in evidence and to the opinions given by medical witnesses. If enacted, the new rule must be expressed in clear and simple language. It already obtains in some parts of the King's dominions, and it would, I think, allay the regrettable differences which have too long existed between physicians and jurists. THE RICH SHOPLIFTER. Lord Justice Atkin's committee do indeed express the opinion — following one of Mr. Justice Stephen as given in one of his books, but not acted on after he became a judge — that the formula they suggest is already within the existing law. They state, however, that "there seem to be definite decisions of the Court of Appeal the other way." In a well-known case not long since decided a learned judge seems to have so directed the jury as to raise this question; but the Court of Criminal Appeal had not the opportunity of deciding this point, for the jury found that the man was not insane when he committed the act, and against that finding he did not in terms appeal. But gifts have often dangers in themselves, and so it must never be forgotten when this matter is discussed that the suggested new defence cannot be limited to murder, but is as good an answer

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

to any other criminal charge. At present the explanation offered by a solicitor to a police magistrate is that his rich client, discovered with her muff full of lace and chocolate — the lawful property of Mr. Selfridge or The Stores — has lost in war a dearly-loved cousin, or in Bond Street a favourite dog, and, momentarily, her memory; but this excuse is wearing out by lapse of time, just as in the United States the brave pensioners who served under General Washington are now at last perhaps extinct. We must remember that a judge or magistrate must be guided by the evidence before him and not by mere deference to the contention based upon it by the advocates. So, should the defence of "irresistible impulse" be allowed by the law of England, many impulsive sinners may regret in an asylum the days of prison or a fine. Some of those who may hope to profit by scientific suggestions of their own weakness of mind may be grateful to me for reminding them of the fable of the Bear and the Mouse. There it is recorded that the bear, having constituted himself the friend and protector of the mouse, and observing that a fly had settled on the morsel of cheese which the mouse was ecstatically nibbling, struck a blow fatal to fly and mouse alike. Let no one suppose that I think ill of a remedy which would restrain in Broadmoor genteel shoplifters or pickpockets insane enough to be caught in flagrante delicto. I am content to say Fiat justitia, even if this happen by accident; more especially as certain scientific men feel assured that the Universe itself had the same happy origin. To me it seems that — since the question has been raised by so competent a committee — it is not fair to leave the matter long in doubt and suspense, for this will gravely embarrass the judges. Parliament should decide, and before this happens the whole question of irresistible impulse will probably be debated. JEKYLL AND HYDE IN REAL LIFE. Philosophers have not confined this doctrine of necessitated conduct to the insane alone. The physicians may have done so; but the metaphysicians have questioned whether any man ever may do as he would. Divines have inevitably been drawn into the whirlpool, and Scotland, especially, has revelled in disputes regarding free will and predestination. What may be called the Automatic School have lately reinforced the old well-worn arguments with a theory that man has two minds, the conscious and the sub-conscious; and witnesses are not hard to find who will explain to any jury that it was the sub-conscious one alone which was active when their protégé committed crime. May not one say of such unfortunates that they Do harm by stealth, And blush to find it crime. But if automata may do wrong unconsciously we may well suppose that so they may do right, and then none should deserve, or receive, either punishment or reward. What a prospect then opens before us of a world not disfigured by prisons nor adorned with Orders, but plain, primæval, simplex munditiis.

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

Although I have striven to be impartial I must conclude by saying that, for myself, I think man has his choice, except disease of the mind deprive him of it. I have found in no text book, legal or medical, words so good as these which Milton attributes to the Creator of all men — "I made him just end right, Sufficient to have stood, though free to fall. Freely they stood who stood, and fell who fell. Not free, what proof could they have giv'n sincere Of true allegiance, constant faith or love, Where only what they needs must do appear'd, Not what they would? What praise could they receive?"

MUSINGS ON MURDER.

LEST I should too much enjoy, or should waste in rural indifference to the inhabitants of cities and gaols, this Long Vacation, a publisher has sent me gratuitously a new book; although I have not yet read the half of those I already possess. This one is by the Warden of Sing Sing Prison, New York. He calls his treatise "Man's Judgment of Death," and describes it as "An Analysis of the Operation and Effect of Capital Punishment Based on Facts, Not on Sentiment." This manifesto, advocating the abolition death as a punishment for crime, I have studied appropriately surrounded by the condemned and the dying, for I have read it in an autumnal garden. Why now, I have asked myself — but this merely a priori — why should I grieve if a brutal homicide must after conviction live only "ce que vivent les roses, l'espace d'un matin?" And to this the good Warden has for reply merely this — to me inconclusive: That capital punishment is not shown by the statistics he has collected and collated to deter men from murdering. THE WISDOM OF THE EAST — AND WEST. It is sad, indeed, that so industrious a student and so ardent a propagandist — one who appears to have expected for his doctrine a ready acceptance — should after all have had the mortification of receiving from "a prominent Westerner" a letter containing such a passage as this: "I am quite firm in my belief that when a person deliberately commits a murder in the first degree he should forfeit his life — a just and righteous punishment for an inexcusable crime." Is wisdom, I ask myself, to be decided by the degrees of longitude, that we should despise the opinion of this poor Westerner."

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

Now, should one be obliged to concede this point — though I would not easily do it — I would yet insist that this Occidental — as he may appear to a dweller in Sing Sing, New York — is, at least relatively, an Easterner himself, and therefore a wise man. Since, if one should set forth from This manifesto, advocating the abolition of Rhode Island and travel by way of Dover, Rotterdam, Cracow, and the Aleutian Islands towards the rising sun, he will surely arrive at Punta Arena and Salt Lake City itself. So that, truly, the opinion of a dweller there is as good as an other's, though he be not a Levantine in the Sing Sing sense of the word. But other obstructives stand in the way of our Warden, who have no all of them the excuse that they dwell where the sun sets for him, though for others it rises. There are "the lawyers" of whom he is constrained to remark: "As a class they are loath to try anything new, anything that has not the sanction of long usage." Dull fellows, these obfuscators, it would seem; and how different from certain doctors — one of whom, according to Molière, long ago feared not to declare it untrue that the heart is on the left side and the lungs on the right, since, said he, "Nous avons changé tout cela." "A TOLERANT PHILOSOPHY." A true and loving statistician can do much with statistics, and yet it may happen that such as the despised Westerner may do not less well without them — though he must by no means set up to be a "penologist." Our Warden has, indeed, done his best throughout America to obtain accurate and necessary particulars "regarding the number of homicides, of indictments, of judicial proceedings, convictions, acquittals, and sentences." He is, however, compelled to admit that "the results have been very incomplete; at best a little information from a few States that may be counted on one's fingers. "Still, says he, "much accurate statistical information has been obtained" — enough it would seem, to enable him to write that "the reflective man" — not the dweller in Western twilight, we must take it — "is bound to conclude that the death penalty has no apparent effect as a deterrent. This bears out the assertion so often made that the murderer committing his crime in the heat of passion gives no thought to the future penalty." And if he does not, since he does just as much harm, may one be permitted to ask does that fact demand that he shall in no wise be hanged, but that at most he shall be imprisoned, or preached to, or set to grow cucumbers or cabbages in the governor's garden? Let us, however, pass for the moment from the question of deterrents — since they are not the sole justification for punishment — and observe that the above reasoning is applied solely to crimes committed "in the heat of passion." At such a moment, since little consideration is given to his action and its consequences, a man is hardly likely to be deterred by anything short of physical force. But this leaves untouched the case of all the most heinous and abominable homicides. Whoever kills by poison, whoever kills for gain, whoever kills to gratify long-cherished hatred, whoever, in short, is guilty of prepared, premeditated crime — is untouched by this tolerant philosophy. What, though, if it do appear that in a State where men are hanged for murder there are as many murderers as in a State where a milder punishment is given? It is an inference far short of proof that no more murders were meditated than were actually committed — and where statistics are anything short of perfect, why should the cautious lawyer be blamed if he is content to let the

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

murderer pay a penalty reserved for those who have themselves inflicted it on another, and that with no justice or excuse whatsoever? THE PETALS OF A DYING ROSE. Our Warden's reflection may be useful to us in other directions than the reform or reversal of the criminal law. Bad reading has he for the women who would lower the age at which they exercise the suffrage, for does he not tell us that "during the past thirty-four years nearly sixty per cent of all the murderers received in Sing Sing under sentence of death were under the age of mature thinking, which scientists place at thirty?" Oh, my dear young spinsters of twenty-eight or twenty-nine long, long summers, here is news for you all. Scientists, indeed. Who are they, and where have they been studying? Cannot we think rightly without false teeth and spectacles? The lawyers, already complained of as being behind the times, have, I remember, a saying which goes to show that in this matter, at least, they are in advance of Sing Sing and its "scientists," for they have this pleasing maxim — "malitia supplet ætatem." And I myself — and you, too, I make no doubt — have known young persons by no means deficient in roguery. How interesting it would be to have scientific information as to when precisely "mature thinking" may begin — and at what age it ordinarily ends! Mr. Pitt was Chancellor of the Exchequer at twenty-four, and Pericles, Marcus Aurelius, Napoleon Buonaparte, and Joan of Arc, all gave proof of remarkable talents before they were thirty. Perchance these eminent persons would, however, have contrived to make England bankrupt, and Rome a Soviet Republic, to lose battles instead of gaining them, had they done nothing until thirty years were gone by, and they were certified as at last of an age to "think maturely." Oh, my dear Warden, "Si jeunesse savati; si vieillesse pouvait." Tell us what may be the golden age, the time for wellplanned, artistic, punishable murder. How interesting were it to be able to classify as early, middle, late, even decadent — just as we may the portraits of Titian, the landscapes of Turner — the criminal masterpieces of the Borgias, of Brinvilliers, of Nero, of our own Palmer and Wainwright, and other successful practitioners of murder as a fine art; to compare and contrast these with the grosser methods of Rush, Peace and Voisin, and of that enthusiastic, if clumsy, homicide, of whom we read that "She whipped three female prentices to death, And hid them in the coal hole." As, unfortunately, I have not the means necessary to so alluring a study, I return for a moment to the patient Warden's painful statistics, and begin again where he says: "From December, 1889, up to October, 1923, 458 persons have been sentenced to death in this (New York) State. One hundred and twenty-seven of these were born in Italy. This is especially significant in view of the very low homicide rate in Italy, where capital punishment has been abolished for more than thirty years." The petals of a dying rose (Dorothy Perkins) fall upon the page as I read this, and I look up to wonder at such devotion to death. Then I ask myself for being in my garden, and not in Sing Sing, I cannot inquire of the Warden — what may be the true meaning of this cryptic message. Can it really be that these immigrants — at home so averse from bloodshed — do in America

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

become so provoked, so intolerant of those about them, that they shoot, stab, bomb, or give poison with this lamentable profusion? Were it so, would not other foreigners besides End themselves similarly affected? Yet — since it would appear that they do not so suffer — one is driven — and, I take it, intended — to determine and agree that these strange Italians left their native land intent on tasting the joys of painless extinction in the electric chair of Sing Sing — delicious, delirious sensations, unattainable where "Etruria's streams high over-arched embower." Still — in spite of tables of statistics — a doubt will linger as to whether it be true that "Roma o la morte" does indeed mean "Since I cannot be hanged in Rome I will be electrocuted in New York." Is it not too extravagant to suppose these Italians so tired of life on the banks of the Tiber, or perhaps of the Rubicon, where capita1 punishment is abolished, that we must recognise in them the wretches of whom Dante tells: "Questi non hanno speranza di morte. E la lor cieca vita é tanta bassa, che invidiosi son d'ogni altra sorte?" Is this, my Warden, too fanciful, think you? Perhaps you may hold, with me, that it is more likely that the Italians dread that death in life, ergastolo, at home more than the offchance of being punished at all in America, for I notice that you have quoted with approval Professor Bye, who, after giving detailed figures, writes concerning the United States: "That means that only one man in eighty who commits a homicide suffers death for it." And again, in his essay on "Capital Punishment in the United States," the Professor pronounces thus: "The death penalty today is a mere remnant, a left-over from the days when the repressive theory of criminology held sway. It is too rarely used to prove a very efficacious deterrent, yet its occasional use renders it a ridiculous and purposeless outrage." As the Pilgrim Fathers sought a distant land where they were free to worship in their own fashion, and to forbid to others a similar liberty, may not these Italians — obviously men most capable of "mature thinking" — have fled from the comparative certainty of Latin judicial procedure to that land where the homicide is scientifically and tenderly treated, that haven of which we read further "Yet we have a homicide rate to-day — and always have had — to which in comparison with other nations we cannot point with pride." SUPPORTING HIS VICTIM'S DEPENDANTS. This instance of American modesty is charming in itself; but what subject of King George — especially if a lawyer — can fail to thank the honest Warden for continuing with such a passage as this: "My own opinion, which is borne out by statistics, is that the comparatively small number of homicides in Canada and England, and in France, is due to the certainty and celerity of justice as administered in those countries, rather than to the form or severity of the punishment"? And now, ye laggard lawyers, sursum corda! Hear this pronouncement from Sing Sing: "It is axiomatic that we should not abandon execution of murderers unless we are satisfied that society can be protected at least as well, if not indeed better, by some other method." Excellent! I would close the book here — but a gentle breeze shakes the flowers above my head, and the dying rose leaves fall on the page — as they did on the table of Heliogabalus ages before the Romans had discovered the amenities of Sing Sing. I pause to sweep them from the print they adorn and obscure for a moment, and there discover "the other method" invented by the good Warden. Here it is. The convict is to labour, and that altruistically. "A substantial percentage of the earnings of the prisoner shall be applied to the support of his dependents and to the support of the

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CRIME & INSANITY, MURDER AND ITS PUNISHMENT AND MUSINGS ON MURDER

dependents of the person killed, to be apportioned in the discretion of the Superintendent of Prisons." "THIS BEATIFIC VISION." Capital! Capital! Capital punishment reached at last. But again a doubt obtrudes. Literally, "Surgit amari aliquid, quod in ipsis floribus angat," and Dorothy Perkins hangs over me with her antidote in vain. Would this system work, and could it pay, or must what business men call the "overhead charges" eat up all possible profit, so that the superintendent would be puzzled how to dispose of a deficit among the widows and orphans? Be this as it may, it is in itself a lovely dream, this of the Warden, and I doubt now whether he be really so free from sentiment as he would by his title-page persuade us. Truly Rabelais, or Rousseau, or it may be Sir Thomas More, might have had this beatific vision. The industrious assassin working overtime, and insisting on super trade-union rate of wages, because, penitent, he is toiling for his enemy's family, is indeed a moving, a melting spectacle. Pity is it that Hogarth is not here to give us a series of moral prints of the Villain turned Virtuous; to show his early, clumsy efforts to make lollipops for the orphans he has made already; to portray him, released and radiant, espousing the widow enriched by his more than Jacobean length of service; to exhibit him at last driving past the portals of Sing Sing a motor-car, of his own making, filled with the orphans, their mother, and other children jointly his and hers. More had I written, but the rose leaves and a tributary tear or two have blotted it. (End.)

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