I have a problem-solving habit I jokingly call “running it past my 1812 brain.” Some years ago I spent the better part of two years reading the London Times, cover to cover, including the classified ads, for the years 1812-1822. This archive, on which I took extensive notes, included the complete texts of debates in both houses of Parliament, transcripts of Old Bailey criminal trials, transcripts of Chancery court cases (civil), a blow-by-blow account of the War of 1812, the last three years of the Napoleonic wars, the diplomatic aftermath, and the social consequences of the early Industrial Revolution. This curious exercise, presumably unique, provides me with a rich store of knowledge from which to draw, and I often refer to it for a different perspective on some problem, either in my personal life or the world at large, which persistently defies efforts at resolution using the tools of the twenty-first century.
For narrative purposes I am framing this process as Robert Banks Jenkinson (1770-1828), Second Earl of Liverpool, speaking to a 2013 social issue. The arguments presented represent an attempt to employ the known attitudes of an early-19th-century conservative to insert a fresh perspective into a debate. There is a much quoted saying by the philosopher George Santayana that those who are ignorant of history are condemned to repeat it. In the same book, The Life of Reason, Santayana also remarked, “Memory itself is an internal rumour; and when to this hearsay within the mind we add the falsified echoes that reach us from others, we have but a shifting and unseizable basis to build upon. The picture we frame of the past changes continually and grows every day less similar to the original experience which it purports to describe.” A virtue of the transcripts of Parliamentary debates I read, as a narrative of the events and attitudes of 1812-1822, is their unfiltered and unedited similarity to the original.
At present there is an ongoing debate about whether to entirely abolish the death penalty in Oregon. It has been abolished and reinstated twice in my lifetime. At present we are under a moratorium from Governor Kitzhaber and are not conducting executions.There were 37 people on death row in 2011 awaiting the outcome of appeals. Two men have been executed since 1978, both for multiple murders. As Lord Liverpool had extensive experience with death penalty debates and also served for most of his long career as an advisor to the King or Prince Regent on whether to commute individual sentences, it seemed his opinion was worth considering.
Here, then, is Lord Liverpool.
I understand that the only crime susceptible to the death penalty in Oregon is murder with malice aforethought. There was considerable debate in my day about whether it was appropriate to execute men for less heinous crimes, for example, forgery and burglary, but not murder. In my capacity as advisor to the King I almost always recommended leniency, but I was cautious about repealing statutes. There were two reasons for this. First, the heinousness of a crime lies in the degree of damage to society and to individuals, something that can only be assessed on a case-by-case basis. My colleague Lord Castlereagh cited a case of a forged seaman’s will that would have left a grieving widow and orphans destitute, a deliberately malicious act far worse in intent and consequences than many murders. Second, reducing the penalty for one crime either forces reducing the penalty for acts of lesser severity, or treats lesser offenders unjustly.
My informant tells me that in the absence of the death penalty the maximum sentence for murder would be life imprisonment, with the possibility of parole, in most cases, after fifteen years. Evidently there are many people serving sentences as long or longer for nonviolent property crimes or selling illegal drugs, either because each offense was treated as a separate crime and the sentences do not run concurrently, or because they are repeat offenders. It appears to me that, with respect to meting out penalties in proportion to the seriousness of the offense, and using the courts to further the aims of a just and orderly society, the criminal justice system of Oregon is at least as much in need of a systematic overhaul as England’s was in 1812.
I am also informed that in Oregon and other states condemned murderers may sit on death row for years while their cases are being appealed, and that as much as a decade may elapse between the time a man is indicted for a capital offense and the day he is actually executed. Some states initiate an appeal against the condemned man’s will. I find this hard to believe. One of the main justifications for installing Prince George as Regent in 1810 was having someone empowered to review capital sentences, as there were, at that time, several hundred people (of whom only fourteen were actually executed) on death row, some of whom had waited as long as ten months to learn their fates. To a man, Spencer Perceval’s cabinet considered this cruel treatment. It does not seem any less cruel in the modern American context.
I confess I do not understand the concept of automatic appeal, save, perhaps, as make-work for attorneys. If a man is guilty and wishes to pay the penalty the state imposes for his crimes, is it not arrogant and disrespectful for the courts and the governor to gainsay him? In 1807 I had the difficult task of advising George III on whether to commute the capital sentence of a man whose conviction for murder, rather than manslaughter, rested on his own confession of having plotted a killing, when the facts suggested he had struck the victim in a fit of rage, without clear lethal intent. The man believed he deserved to die, and a jury of twelve men chose to believe his confession. To have gone against either would have been to usurp another man’s conscience and put myself above the law.
Image #1: “Lord Liverpool” Wikipedia Images. In the public domain.
Image #2: “The Death Penalty” by Truthout.org. Creative Commons Flickr. Some rights reserved.
Recent Martha Sherwood Articles:
- The Year of the Jackpot
- The Novel of My Mother’s Past – And Mine
- Has America Lost the Cold War?
- The Grief of Downsizing
- Immunological Paralysis: A Reason for Concern?