THE GALLOWS AND THE LASH.

I. THE GALLOWS.

CAPITAL PUNISHMENT EITHER RIGHT OR WRONG.

A SHORT time ago I brought a motion before a committee meeting of a little society with which I am connected, praying Her Majesty's Government to abolish Capital Punishment. Somewhat to my surprise I did not find a single supporter. One member, at least, was actively in favor of death as a punishment for murder, and the rest dismissed the matter by agreeing that it was a question which they had not studied sufficiently to be able to express an opinion.

As there may be many who have not "sufficiently studied" this important subject, the Criminal Law and Prison Reform Department of the Humanitarian League has requested me to prepare this pamphlet. In embarking my confiding readers upon what the old Quarterly Reviewer called "the perils of that vast speculation whether death might not be left out of the penal code altogether," I do not intend to make any attempt to convince by appealing to the emotions, but what I hope to do is, to induce them to convince themselves by a calm and dispassionate study of the facts I shall bring before them.

Sixty or seventy years ago-nay, thirty or forty years ago-England was much agitated upon this subject. In those times there were large and influential societies work

ing actively for the abolition of the death punishment. Now that there are only a few offences for which death is the penalty-in practice, only one, the offence of murderpeople are indifferent; the question is dismissed from their minds; or, if by any chance it is forced upon their consideration, they say that, as it affects so few persons, it is of little or no importance. That, however, is not my view of the matter, nor, I think, should it be the feeling of any thoughtful person. It is either right, or wrong, that a murderer should pay the penalty of his crime with his life; and if it is wrong, it is not merely the murderer who suffers-it is the whole nation which suffers, in a lowered standard of morality; by our apathy we become a party to the wrongdoing, and no amount of laziness and indifference can relieve us from the responsibility. We may ignore our duties, but we cannot get rid of them.

EARLY PUNISHMENTS.

Nowadays it is difficult for us to realise the wholesale way in which our forefathers awarded death, as the fitting punishment for offences of the most trivial description— especially if they were offences against property. Like the Queen in "Alice in Wonderland it was "off with his head" for the most trifling act. In the early history of this country, imprisonment was not known as a punishment; prisons were used merely as places of detention until, or during, punishment, not as the punishment itself; and there was no such complicated prison system as there is to-day. Penalties consisted mostly of fines, or of some form of corporal punishment; ordeals, mutilation, flogging and death.

Death was largely resorted to under the Saxon and the

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Danish Kings. In Ethelred's time it was a recognised penalty for a second conviction, but in theory, at least, Cnut was doubtful as to its efficacy, for he said " not be destroyed for little God's handiwork," and commanded mutilations to hands, feet, eyes, ears, nose and lips, and scalping to be substituted for death in certain cases, "so that punishment be inflicted, and also the soul preserved." In spite of this edict, however, William the Conqueror found capital punishment so common when he took possession of the English throne, that he determined to abolish it altogether. He, in his turn, commanded mutilation as a substitute for execution, but upon very different grounds from his predecessor. He did not trouble about the preservation of the "soul" but desired that the body of the criminal might remain alive as a testimony to his infamy.

But, notwithstanding that William I abolished the death penalty, there is yet reason to believe that it was sometimes employed, although it was not recognised by the law, either then, or in the reign of Henry II, a hundred years later. In the reign of Henry's successor, Richard Lionheart, the Great Crusader, there is a recorded case of a woman burned for murder, and there is abundant evidence that under Henry III and Edward I, death was the common punishment for felony. This remained the law-subject to "benefit of clergy"-as to treason and alı felonies (save petty larceny and mayhem) down to the year 1826.

BENEFIT OF CLERGY.

"Benefit of clergy" played a curious and most important part in the history of punishment in England. It was undoubtedly the means of saving many lives and in

that respect had a redeeming quality; but, for all that, it was an essentially unjust privilege. It arose in this way: The clergy, at an early period, made a very convenient claim to be free from the jurisdiction of lay courts, and subject only to the ecclesiastical. The clerk apprehended as a criminal was therefore delivered to his ecclesiastical superiors and tried by the bishop, or his deputy, and a jury of twelve clerks. First, he made oath of innocence; then he called twelve compurgators who swore they believed he spoke the truth; and then witnesses were heard on his behalf only. The accused was thereupon acquitted; or if convicted, degraded and required to do penance. At worst a very mild substitute for death. Later on Henry VI enacted that the accused must be convicted before he claimed his "clergy."

At the outset this privilege was confined to those who wore clerical dress and the tonsure, but under Edward III it became so extended as to include every male person who could read, except bigamists-not a bigamist as we

'How inequitable this distinction between clerk and layman was may be realised from the following case found-with many similar records amongst the early archives of the City of London: In 1345 (Ed. III.) Thomas Harmere of Sussex and Thomas de Blurtone of Roberdsbrigge were tried before the Mayor for highway robbery. "The said Thomas and Thomas, being asked as to that felony how they will acquit themselves, the aforesaid Thomas Harmere says that he is a clerk, etc. [and therefore claims benefit of clergy, as being able to read]; wherefore he is sent back to the prison of our Lord the King at Neugate, until, etc. [until the fact is certified by the Ordinary, and he claims his release]. And the said Thomas de Blurtone says that he is in no way guilty thereof. The jury appears by John de Waltham and eleven others, who say upon their oath that the said Thomas is guilty thereof. Therefore he is to be hanged." Charged jointly for the same offence, the layman is hanged, the clerk released.

understand the word to-day, but a man who had twice married, or had married a widow. Save professed nuns, all women were excluded from "benefit of clergy."

In 1487 Henry VII made some effort to restrict the privilege, by enacting that a man convicted of a clergyable felony should be branded on the thumb, and this enactment shows us how light the ecclesiastical penalties must previously have been.

As the law stood, until 1487, any man who could read might steal, or commit a murder, almost with impunity, and for long afterwards all he had to fear was a T or an M branded on his thumb. Elizabeth in 1576 abolished purgation and enacted a term of imprisonment, not to exceed one year, for the convicted clerk. James in 1622 allowed "clergy" to women for larceny of goods under 10s. in value, and William and Mary (1692) put women altogether on the same footing with men in this respect. Anne, in 1705, extended the privilege of "clergy" by abolishing the necessity for reading. George I (1717) made an alternative of seven years transportation for branding, and George III, in 1779, abolished branding, thus leaving the penalty as seven years' transportation without alternative. This was the statute law, but at common law there were many capital offences which were not clergyable, e.g., high treason, highway robbery and arson; then later, murdering his lord, murdering in churches, robbing churches, theft from the person above the value of 1s., rape, abduction without intent to marry, stealing clothes from racks, or stealing from the king's stores. It is curious to note, in this connection, that according to the doctrine and practice of our legislators, the greater the facility for the erime the greater must be the punishment.

George IV, in 1827, abolished "clergy" altogether, and