But when I submit that a criminal judge is an excellent witness against Capital Punishment, but a bad witness in its favour, I do so on more broad and general grounds than apply to this error in fact and deduction (so I presume to consider it) on the part of the distinguished judge in question. And they are grounds which do not apply offensively to judges, as a class; than whom there are no authorities in England so deserving of general respect and confidence, or so possessed of it; but which apply alike to all men in their several degrees and pursuits.
It is certain that men contract a general liking for those things which they have studied at great cost of time and intellect, and their proficiency in which has led to their becoming distinguished and successful. It is certain that out of this feeling arises, not only that passive blindness to their defects of which the example given by my Lord Tenterden was quoted in the last letter, but an active disposition to advocate and defend them. If it were otherwise; if it were not for this spirit of interest and partisanship; no single pursuit could have that attraction for its votaries which most pursuits in course of time establish. Thus legal authorities are usually jealous of innovations on legal principles. Thus it is described of the lawyer in the Introductory Discourse to the Description of Utopia, that he said of a proposal against Capital Punishment, "′this could never be so established in England but that it must needs bring the weal-public into great jeopardy and hazard′, and as he was thus saying, he shaked his head, and made a wry mouth, and so he held his peace". Thus the Recorder of London, in 1811, objected to "the capital part being taken off" from the offence of picking pockets. Thus the Lord Chancellor, in 1813, objected to the removal of the penalty of death from the offence of stealing to the amount of five shillings from a shop. Thus, Lord Ellenborough, in 1820, anticipated the worst effects from there being no punishment of death for stealing five shillings worth of wet linen from a bleaching ground. Thus the Solicitor General, in 1830, advocated the punishment of death for forgery, and "the satisfaction of thinking" in the teeth of mountains of evidence from bankers and other injured parties (one thousand bankers alone!) "that he was deterring persons from the commission of crime, by the severity of the law". Thus, Mr. Justice Coleridge delivered his charge at Hertford in 1845. Thus there were in the criminal code of England, in 1790, one hundred and sixty crimes punishable with death. Thus the lawyer has said, again and again, in his generation, that any change in such a state of things "must needs bring the weal-public into jeopardy and hazard". And thus he has, all through the dismal history, "shaked his head, and made a wry mouth, and held his peace". Except—a glorious exception!—when such lawyers as Bacon, More, Blackstone, Romilly, and—let us ever gratefully remember—in later times Mr. Basil Montagu, have striven, each in his day, within the utmost limits of the endurance of the mistaken feeling of the people or the legislature of the time, to champion and maintain the truth.
There is another and a stronger reason still, why a criminal judge is a bad witness in favour of the punishment of Death. He is a chief actor in the terrible drama of a trial, where the life or death of a fellow creature is at issue. No one who has seen such a trial can fail to know, or can ever forget, its intense interest. I care not how painful this interest is to the good, wise judge upon the bench.
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