Capital Punishment

Capital Punishment. By this term is now meant the infliction of the penalty of death for crime under the sentence of some properly constituted authority, as distinguished from killing the offender as a matter of self-defence or private vengeance, or under the order of some self-constituted or irregular tribunal unknown to the law, such as that of the Vigilantes of California, or of lynch law (q.v.). In the early stages of society a man-slayer was killed by the “avenger of blood” on behalf of the family of the man killed, and not as representing the authority of the state (Pollock and Maitland, Hist. Eng. Law, ii. 447.) This mode of dealing with homicide survives in the vendetta of Corsica and of the Mainotes in Greece, and in certain of the southern states of North America. The obligation or inclination to take vengeance depends on the fact of homicide, and not on the circumstances in which it was committed, i.e. it is a part of the lex talionis. The mischief of this system was alleviated under the Levitical law by the creation of cities of refuge, and in Greece and Italy, both in Pagan and Christian times, by the recognition of the right of sanctuary in temples and churches. A second mode of dealing with homicide was that known to early Teutonic and early Celtic law, where the relatives of the deceased, instead of the life of the slayer, received the wer of the deceased, i.e. a payment in proportion to the rank of the slain, and the king received the blood-wite for the loss of his man. But even under this system certain crimes were in Anglo-Saxon law bot-less, i.e. no compensation could be paid, and the offender must suffer the penalty of death. In the laws of Khammurabi, king of Babylon (2285-2242 b.c.), the death penalty is imposed for many offences. The modes for executing it specially named are burning, drowning and impalement (Oldest Code of Laws, by C.H.W. Johns, 1903). Under the Roman law, “capital” punishment also included punishments which deprived the offender of the status of Roman citizen (capitis deminutio, capitis amissio), e.g. condemnation to servitude in the mines or to deportation to an island (Dig. 48. 19).

United Kingdom.—The modes of capital punishment in England under the Saxon and Danish kings were various: hanging, beheading, burning, drowning, stoning, and precipitation from rocks. The principle on which this British and foreign laws and methods. variety depended was that where an offence was such as to entitle the king to outlaw the offender, he forfeited all, life and limb, lands and goods, and that the king might take his life and choose the mode of death. William the Conqueror would not allow judgment of death to be executed by hanging and substituted mutilation; but his successors varied somewhat in their policy as to capital punishment, and by the 13th century the penalty of death became by usage (without legislation) the usual punishment for high and petty treason and for all felonies (except mayhem and petty larceny, i.e. theft of property worth less than 1s.); see Stephen, Hist. Cr. Law, vol. i. 458; Pollock and Maitland, Hist. Eng. Law, vol. ii. 459. It therefore included all the more serious forms of crime against person or property, such as murder, manslaughter, arson, highway robbery, burglary (or hamesucken) and larceny; and when statutory felonies were created they were also punishable by death unless the statute otherwise provided. The death penalty was also extended to heretics under the writ de heretico comburendo, which was lawfully issuable under statute from 1382 (5 Ric. II. stat. 5) until 1677 (29 Chas. II. c. 9). For this purpose the legislature had adopted the civil law of the Roman Empire, which was not a part of the English common law (Stephen, Hist. Cr. Law, vol. ii. 438-469).

The methods of execution by crucifixion (as under the Roman law), or breaking on the wheel (as under the Roman Dutch law and the Holy Roman Empire), were never recognized by the common law, and would fall within the term “cruel and unusual punishments” in the English Bill of Rights, and in the United States would seem to be unconstitutional (see Wilkinson v. Utah, 1889, 136 U.S. 436, 446).

The severity of barbarian and feudal laws was mitigated, so far as common-law offences were concerned, by the influence of the Church as the inheritor of Christian traditions and Roman jurisprudence. The Roman law under the empire did not allow the execution of citizens except under the Lex Porcia. But the right of the emperors to legislate per rescriptum principis enabled them to disregard the ordinary law when so disposed. The 83rd novel of Justinian provided that criminal causes against clerics should be tried by the judges, and that the convicted cleric should be degraded by his bishop before his condemnation by the secular power, and other novels gave the bishops considerable influence, if not authority, over the lay judiciary. In western Europe the right given by imperial legislation in the Eastern Empire was utilized by the Papacy to claim privilege of clergy, i.e. that clerks must be remitted to the bishop for canonical punishment, and not subjected to civil condemnation at all. The history of benefit of clergy is given in Pollock and Maitland, Hist. English Law, vol. i. pp. 424-440, and Stephen, Hist. Cr. Law, vol. iii. 459, 463. By degrees the privilege was extended not only to persons who could prove ordination or show a genuine tonsure, but all persons who had sufficient learning to be able to read the neck-verse (Ps. li. v. 1). Before the Reformation the ecclesiastical courts had ceased to take any effective action with respect to clerks accused of offences against the king’s laws; and by the time of Henry VII. burning on the hand under the order of the king’s judges was substituted for the old process of compurgation in use in the spiritual courts.

The effect of the claim of benefit of clergy is said to have been to increase the number of convictions, though it mitigated the punishment; and it became, in fact, a means of showing mercy to certain classes of individuals convicted of crime as a kind of privilege to the educated, i.e. to all clerks whether secular or religious (25 Edw. III. stat. 3); and it was allowed only in case of a first conviction, except in the case of clerks who could produce their letters of orders or a certificate of ordination. To prevent a second claim it was the practice to brand murderers with the letter M, and other felons with the Tyburn T, and Ben Jonson was in 1598 so marked for manslaughter.

The reign of Henry VIII. was marked by extreme severity in the execution of criminals—as during this time 72,000 persons are said to have been hanged. After the formation of English settlements in America the severity of the law was mitigated by the practice of reprieving persons sentenced to death on condition of their consenting to be transported to the American colonies, and to enter into bond service there. The practice seems to have been borrowed from Spain, and to have been begun in 1597 (39 Eliz. c. 4). It was applied by Cromwell after his campaign in Ireland, and was in full force immediately after the Restoration, and is recognized in the Habeas Corpus Act 1677, and was used for the Cameronians during Claverhouse’s campaign in south-west Scotland. In the 18th century the courts were empowered to sentence felons to transportation (see Deportation) instead of to execution, and this state of the law continued until 1857 (6 Law Quarterly Review, p. 388). This power to sentence to transportation at first applied only to felonies with benefit of clergy; but in 1705, on the abolition of the necessity of proving capacity to read, all criminals alike became entitled to the benefit previously reserved to clerks. Benefit of clergy was finally abolished in 1827 as to all persons not having privilege of peerage, and in 1841 as to peers and peeresses. Its beneficial effect had now been exhausted, since no clergyable offences remained capital crimes.

At the end of the 18th century the criminal law of all Europe was ferocious and indiscriminate in its administration of capital punishment for almost all forms of grave crime; and yet owing to poverty, social conditions, and the inefficiency of the police, such forms of crime were far more numerous than they now are. The policy and righteousness of the English law were questioned as early as 1766 by Goldsmith through the mouth of the vicar of Wakefield: “Nor can I avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature. In cases of murder their right is obvious, as it is the duty of us all from the law of self-defence to cut off that man who has shown a disregard for the life of another. Against such all nature rises in arms; but it is not so against him who steals my property.” He adds later: “When by indiscriminate penal laws the nation beholds the same punishment affixed to dissimilar degrees of guilt, the people are led to lose all sense of distinction in the crime, and this distinction is the bulwark of all morality.”

The opinion expressed by Goldsmith was strongly supported by Bentham, Romilly, Basil Montaguand Mackintosh in England, and resulted in considerable mitigation of the severity of the law. In 1800 over 200 and in 1819 about 180 crimes were capital. As the result of the labour of these eminent men and their disciples, and of Sir Robert Peel, there are now only four crimes (other than offences against military law or naval discipline) capitally punishable in England—high treason, murder, piracy with violence, and destruction of public arsenals and dockyards (The Dockyards, &c., Protection Act 1772). An attempt to abolish the death penalty for this last offence was made in 1837, but failed, and has not since been renewed. In the case of the last two offences sentence of death need not be pronounced, but may be recorded (4 Geo. IV. c. 48). Since 1838 it has in practice been executed only for murder; the method being by hanging.

The change in the severity of the law is best illustrated by the following statistics:—

Years.	Death Sentences.		Sentences Executed.
	For all Crimes.	For Murder.	For all Crimes.	For Murder.
1831	1601	14	52	12
1833 *	931	9	33	6
1838 *	116	25	6	5
1862 *	29	28	15	15
* Each of these years followed upon legislation mitigating severity of punishment.

During the twelve years from 1893 to 1904, 788 persons were committed for trial for murder, being an average of 65. The highest number was in 1893 (82) and the lowest in 1900 (51). Of those tried in 1904, 28 (26 males and 2 females) were convicted of murder, 16 (all males) were executed; 9 males and 2 females had their sentences commuted to penal servitude for life.

In Scotland capital punishment can be imposed only for treason, murder and offences against 10 Geo. IV. c. 38, i.e., wilful shooting, stabbing, strangling or throwing corrosives with intent to murder, maim, disfigure, disable, or do grievous bodily harm, in all cases where if death had ensued the offence would have been murder. Prior to 1887 rape, robbery, wilful fire-raising and incest, and many other crimes, were also capital offences; but in practice the pains of law were restricted at the instance of the prosecution. The method is by hanging.

In Ireland capital punishment may be inflicted for the same offences as in England, except offences under the Dockyards Protection Act 1772, and it is carried out in the same manner.

Offences under Military Law.—Thus far only crimes against the ordinary law of the land have been dealt with. But both the Naval Discipline Act of 1866 and the Army Act empower courts-martial to pass sentence for a number of offences against military and naval laws. Such sentences are rarely if ever passed where an ordinary court is within reach, or except in time of war. The offences extend from traitorous communication with the enemy and cowardice on the field to falling asleep while acting as a sentinel on active service. It is for the authority confirming a sentence of death by court-martial to direct the mode of execution, which both in the British and United States armies is usually by shooting or hanging. During the Indian Mutiny some mutineers were executed by being blown from the mouth of cannon. As to the history of military punishments see Clode, Military and Martial Law.

British Colonies and Possessions.—Under the Indian Penal Code sentence of death may be passed for waging war against the king (s. 121) and for murder (s. 302). If the murder is committed by a man under sentence of transportation for life the death penalty must be imposed (s. 303). In other cases it is alternative. This code has been in substance adopted in Ceylon, in Straits Settlements and Hong-Kong, and in the Sudan. In most of the British colonies and possessions the death penalty may be imposed only in the case of high treason, wilful murder and piracy with violence. But in New South Wales and Victoria sentence of death may be passed for rape and criminal abuse of girls under ten. In Queensland the law was the same until the passing of the Criminal Code of 1899.

Under the Canadian Criminal Code of 1892 the death sentence may be imposed for treason (s. 657), murder (s. 231), rape (s. 267), piracy with violence (s. 127), and upon subjects of a friendly power who levy war on the king in Canada (s. 68). But the judge is bound by statute to report on all death sentences, and the date of execution is fixed so as to give time for considering the report. The sentence is executed by hanging. In South Africa the criminal law is based on the Roman-Dutch law, under which capital punishment is liable for treason (crimen perduellionis or laesae majestatis), murder and rape (van Lecuwen, c. 36). In the Cape Colony rape is still capital (R. v. Nonosi, 1885; 1 Buchanan, 1898). In Natal rape may be punished by hanging (act no. 22, 1898). Though the Roman-Dutch modes of executing the sentence by decapitation or breaking on the wheel have not been formally abolished, in practice the sentence in the Cape Colony is executed by hanging. In the Transvaal hanging is now the sole mode of executing capital punishment (Criminal Procedure Code, 1903, s. 244). The Roman-Dutch law as to crime and punishments has been superseded in Ceylon and British Guiana by ordinance.

Austria-Hungary.—In Austria capital punishment was in 1787 for a time abolished, but was reintroduced in 1795 for high treason, and in 1803 for certain other crimes. Under the penal code still in force in 1906 it might be inflicted for the offences in the table given below, but not on offenders who were under twenty when they committed the offence. The annexed table indicates that the full sentence was sparingly executed. Under a Penal Code drafted in 1906, however, only two offences were made capital, viz. high treason against the person of the emperor and the graver cases of murder. The sentence is executed by hanging.

Crimes Punishable by Death.	1853 to 1873.		1875 to 1900.		1901 to 1903.
	Condemned.	Executed.	Condemned.	Executed.	Condemned.	Executed.
High treason	4	0	1	0	0	0
Murder s. 136	880	102	2085	81	180	9
Killing by robbers, s. 141	12	3	35	1	3	0
Public violence, ss. 85, 87	· ·	· ·	1	0	0	0
Incendiarism, s. 167	5	0	0	0	0	0
Criminal use of explosives	· ·	· ·	· ·	· ·	· ·	· ·
(explosives law, s. 4)

Belgium.—Under the Belgian Penal Code of 1867 the death penalty is retained for certain forms of high treason, and for assassination and parricide by poisoning. It may not be pronounced on a person under eighteen. The sentence is executed publicly by the guillotine. No execution seems to have taken place since 1863.

Denmark.—Sentence of death may be imposed for most forms of high treason, aggravated cases of murder, rape and piracy. It is executed publicly by the axe. Offenders under eighteen are not liable.

Finland.—In Finland the death penalty is alleged not to have been inflicted since 1824. It may be imposed for the assassination of the grand duke or grand duchess or the head of a friendly state, and wilful murder of other persons.

France.—Under the ancien régime in France, 115 crimes had become capital in 1789. The mode of execution varied, but in some cases it was effected by breaking on the wheel or burning, and was coupled with mutilation. Under the Penal Code of 1810, as amended in or after 1832, even so late as 1871, thirty offences were capital, one being perjury against a prisoner resulting in his condemnation to death (art. 361). At present it may be imposed for wounding a public official with intent to murder (art. 233), assassination, parricide, poisoning, killing to commit a crime or escape from justice (arts. 302, 304). But juries freely exercise the power of acquitting in capital cases, or of defeating the capital sentence by finding extenuating circumstances in more than seven-eighths of the cases, which compels the court to reduce the punishment by one or more degrees, i.e. below the penalty of death. And in recent times the prerogative of mercy has been continually exercised by the president, even in gross cases where public opinion demanded the extreme penalty. The sentence is executed in public by the guillotine.

Germany.—In many of the states of Germany capital punishment had been abolished (Brunswick, Coburg, Nassau, Oldenburg in 1849; Saxe-Meiningen, Saxe-Weimar, 1862; Baden, 1863; Saxony, 1868). But it has been restored by the Imperial Criminal Code of 1872, in the case of attempts on the life of the emperor, or of the sovereign of any federal state in which the offender happens to be (s. 80), and for deliberate homicide (s. 211)—as opposed to intentional homicide without deliberation—and for certain treasonable acts committed when a state of siege has been proclaimed. The sentence is executed by beheading (s. 13).

Holland.—In Holland there have been no executions since 1860. Capital punishment (by hanging) was abolished in 1870, and was not reintroduced in the Penal Code of 1886.

Italy.—Capital punishment was abolished in Tuscany as far back as 1786, and from Italy has come the chief opposition to the death penalty, originated by Beccaria, and supported by many eminent jurists. Under the Penal Code of 1888 the death penalty was abrogated for all crimes, even for regicide. The cases of homicide in Italy are very numerous compared with those in England, amounting in 1905 to 105 per million as compared with 27 per million in the United Kingdom.

Japan.—The penalty of death is executed by hanging within a prison. It may be imposed for executing or contriving acts of violence against the mikado or certain of his family, and for seditious violence with the object of seizing the territory or subverting the government or laws of Japan, or conspiring with foreign powers to commence hostilities against Japan. It is inflicted for certain forms of homicide, substantially wilful murder in the first degree.

Norway.—Under Norwegian law, up to 1905, sentence of death might be passed for murder with premeditation, but the court might as an alternative decree penal servitude for life. Sentence of death had also to be passed in cases where a person under sentence of penal servitude for life committed murder or culpable homicide, or caused bodily injuries in circumstances warranting a sentence of penal servitude for life, or committed robbery or the graver forms of wilful fire-raising. The sentence was carried out by decapitation (see Beheading); but there had been no execution since 1876. The new Norwegian Code, which came into force on the 6th of January 1905, abolished capital punishment.

Portugal.—There has been considerable objection in Portugal to capital punishment, and it was abolished in 1867.

Rumania.—Capital punishment was abolished in 1864.

Russia.—In 1750, under the empress Elizabeth, capital punishment was abolished; but it was restored later and was freely inflicted, the sentence being executed by shooting, beheading or hanging. According to a Home Office Return in England in 1907 the death penalty is abolished, except in cases where the lives of the emperor, empress or heir to the throne are concerned.

Spain.—Under the Spanish Penal Code of 1870 the following crimes are capital:—inducing a foreign power to declare war against Spain, killing the sovereign, parricide and assassination. The method employed is execution in public by the garrote. But the death sentence is rarely imposed, the customary penalty for murder being penal servitude in chains for life, while a parricide is imprisoned in chains “in perpetuity until death.”

Sweden.—The severity of the law in Sweden was greatly mitigated so far back as 1777. Under the Penal Code of 1864 the penalty of death may be imposed for certain forms of treason, including attempts on the life of the sovereign or on the independence of Sweden, and for premeditated homicide (assassinat), and in certain cases for offences committed by persons under sentence of imprisonment for life. In 1901 a bill to abolish capital punishment was rejected by both houses of the Swedish parliament.

Switzerland.—Capital punishment was abolished in Switzerland in 1874 by Federal legislation; but in 1879, in consequence of a plebiscite, each canton was empowered to restore the death penalty for offences in its territory. The Federal government was unwilling to take this course, but was impelled to it by the fact that, between 1874 and 1879, cases of premeditated murder had considerably increased. Seven of the cantons out of twenty-two have exercised the power given to restore capital punishment. But there do not seem to have been any cases in which the death penalty has been inflicted; and on the assassination of the empress of Austria at Geneva in 1898 it was found that the laws of the canton did not permit the execution of the assassin. The canton of Zug imposes the lowest minimum penalty known, i.e. three years’ imprisonment for wilful homicide, the maximum being imprisonment for life.

United States of America.—Under the Federal laws sentence of death may be passed for treason against the United States and for piracy and for murder within the Federal jurisdiction. But for the most part the punishment of crime is regulated by the laws of the constituent states of the Union.

The death penalty was abolished in Michigan in 1846 except for treason, and wholly in Wisconsin in 1853. In Maine it was abolished in 1876, re-enacted in 1883, and again abolished in 1887. In Rhode Island it was abolished in 1852, but restored in 1882, only in case of murder committed by a person under sentence of imprisonment for life (Laws, 1896, c. 277, s. 2). In all the other states the death penalty may still be inflicted: in Alabama, Delaware, Georgia, Maryland, and West Virginia, for treason, murder, arson and rape; in Alaska, Arizona, Kansas, New Jersey, Mississippi, Montana, New York, North Dakota, Oregon, and South Dakota, for treason and murder; in Colorado, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Utah and Wyoming, for murder only; in Kentucky and Virginia, for treason, murder and rape; in Vermont, for treason, murder and arson; in Indiana, for treason, murder, and for arson if death result; in California, for treason, murder and train-wrecking; in North Carolina, for murder, rape, arson and burglary; in Florida, Missouri, South Carolina, Tennessee and Texas, for murder and rape; in Arkansas and Louisiana, for treason, murder, rape, and administering poison or use of dangerous weapons with intent to murder. Louisiana is cited by Girardin (le droit de punir) as a state in which the death penalty was abolished in 1830. Under the influence of the eminent jurist, E. Livingston, who framed the state codes, the legislature certainly passed a resolution against capital punishment. But since as early as 1846 it has been there lawful, subject to a power given to the jury, to bring in a verdict of guilty, “but no capital punishment,” which had the effect of imposing a sentence of hard labour for life. In certain states the jury has, under local legislation, the right to award the sentence. The constitutionality of such legislation has been doubted, but has been recognized by the courts of Illinois and Iowa. Sentence of death is executed by hanging, except in seven of the states, where it is carried out by “electrocution” (q.v.).

With the mitigation of the law as to punishment, agitation against the theory of capital punishment has lost much of its force. But many European and American writers, and some English writers and associations, advocate the The question of abolition. total abolition of the death punishment. The ultimate argument of the opponents of capital punishment is that society has no right to take the life of any one of its members on any ground. But they also object to capital punishment: (1) on religious grounds, because it may deprive the sinner of his full time for repentance; (2) on medical grounds, because homicide is usually if not always evidence of mental disease or irresponsibility; (3) on utilitarian grounds, because capital punishment is not really deterrent, and is actually inflicted in so few instances that criminals discount the risks of undergoing it; (4) on legal grounds, i.e. that the sentence being irrevocable and the evidence often circumstantial only, there is great risk of gross injustice in executing a person convicted of murder; (5) on moral grounds, that the punishment does not fit the case nor effect the reformation of the offender. It is to be noted that the English Children Act 1908 expressly forbids the pronouncing or recording the sentence of death against any person under the age of sixteen (s. 103).

The punishment is probably retained, partly from ingrained habit, partly from a sense of its appropriateness for certain crimes, but also that the ultima ratio may be available in cases of sufficient gravity to the commonweal. The apparent discrepancy between the number of trials and convictions for murder is not in England any evidence of hostility on the part of juries to capital punishment, which has on the whole lessened rather than increased since the middle of the 19th century. It is rarely if ever necessary in England, though common in America, to question the jurors as to their views on capital punishment. The reasons for the comparatively small number of convictions for murder seem to be: (1) that court and jury in a capital case lean in favorem vitae, and if the offence falls short of the full gravity of murder, conviction for manslaughter only results; (2) that in the absence of a statutory classification of the degrees of murder, the prerogative of mercy is exercised in cases falling short of the highest degree of gravity recognized by lawyers and by public opinion; (3) that where the conviction rests on circumstantial evidence the sentence is not executed unless the circumstantial evidence is conclusive; (4) that charges of infanticide against the mothers of illegitimate children are treated mercifully by judge and jury, and usually terminate in acquittal, or in a conviction of concealment of birth; (5) that many persons tried as murderers are obviously insane; (6) that coroners’ juries are somewhat recklessly free in returning inquisitions of murder without any evidence which would warrant the conviction of the person accused.

The medical doctrine, and that of Lombroso with respect to criminal atavism and irresponsibility, have probably tended to incline the public mind in favour of capital punishment, and Sir James Stephen and other eminent jurists have even been thereby tempted to advocate the execution of habitual criminals. It certainly seems strange that the community should feel bound carefully to preserve and tend a class of dangerous lunatics, and to give them, as Charles Kingsley says, “the finest air in England and the right to kill two gaolers a week.”

The whole question of capital punishment in the United Kingdom was considered by a royal commission appointed in 1864, which reported in 1866 (Parl. Pap., 1866, 10,438). The commission took the opinions of all the judges of the supreme courts in the United Kingdom and of many other eminent persons, and collected the laws of other countries so far as this was ascertainable. The commissioners differed on the question of the expediency of abolishing or retaining capital punishment, and did not report thereon. But they recommended: (1) that it should be restricted throughout the United Kingdom to high treason and murder; (2) alteration of the law of homicide so as to classify homicides according to their gravity, and to confine capital punishment to murder in the first degree; (3) modification of the law as to child murder so as to punish certain cases of infanticide as misdemeanours; (4) authorizing judges to direct sentence of death to be recorded; (5) the abolition—since carried out—of public executions.

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