The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter XII

Section I


1. The most remarkable feature in the punishment of death, and that which it possesses in the greatest perfection, is the taking from the offender the power of doing further injury. Whatever is apprehended, either from the force or cunning of the criminal, at once vanishes away. Society is in a prompt and complete manner delivered from all alarm.

2. It is analogous to the offense in the case of murder; but there its analogy terminates.

3. It is popular in respect of that same crime, and in that alone.

4. It is exemplary in a hither degree perhaps than any other species of punishment, and in countries in which it is sparingly employed, an execution makes a deep and lasting impression.

It was the opinion of Beccaria that the impression made by any particular punishment was in proportion to its duration, and not to its intensity. ``Our sensibility'' (he observes) ``is more readily and permanently affected by slight but reiterated attacks than by a violent but transient affection. For this reason the putting an offender to death forms a less effectual check to the commission of crimes than the spectacle of a man kept in a state of confinement, and employed in hard labour, to make some reparation by his exertions for the injury he has inflicted on society.'' [1]

Notwithstanding such respectable authority, I am apt to think the contrary is the case. This opinion is founded principally on two observations. 1. Death in general is regarded by most men as the greatest of all evils, and they are willing to submit to any other suffering whatever in order to avoid it. 2. Death, considered as a punishment, is almost universally reckoned too severe, and men plead, as a measure of mercy, for the substitution of any other punishment in lieu of it. In respect to duration, the suffering is next to nothing. It must therefore, I think, be some confused and exaggerated notion of the intensity of the pain of death, especially of a violent death, that renders the idea of it so formidable. It is not without reason, however, that with respect to the higher class of offenders, M. Beccaria considers a punishment of the laborious kind, moderate we must suppose in its degree, will make a stronger impression than the most excruciating kind of death that can be devised. But for the generality of men, among those who are attached to life by the ties of reputation, affection, enjoyment, hope, capital punishment appears to be more exemplary than any other.

5. Though the apparent suffering in the punishment of death is at the highest pitch, the real suffering is perhaps less than in the larger portion of afflictive punishment. In addition to their duration, they leave after them a train of evils which injure the constitution of the patient, and render the remainder of his life a complication of sufferings In the punishment of death the suffering is momentary: it is a negation of all sensation.

When the last moment only is considered, penal death is often more gentle than natural death, and, so far from being an evil, presents a balance of good. The suffering endured must be sought for in some anterior period. The suffering consists in apprehension. This apprehension commences from the moment the delinquent has committed the crime; it is redoubled when he is apprehended. It increases at every stage of the process which renders his condemnation more certain, and is at its height in the interval between sentence and execution.

The more solid argument in favour of the punishment of death, results from the combined force of the above considerations. On the one hand, it is to men in general of all punishment of the greatest apparent magnitude, the most impressive and the most exemplary; and on the other hand, to the wretched class of beings that furnish the most atrocious criminals, it is less rigorous than it appears to be. It puts a speedy termination to an uneasy, unhappy, dishonoured existence, stript of all true worth:---Heu! Heu! quam male est extra legem viventibus.[2]

[RP, Book II, Chapter XII] [RP, Book II, Chapter XII, §2]