« Capistrano, Giovanni di Capital Punishment Capito, Wolfgang Fabricius »

Capital Punishment


I. The Historical Development of Capital Punishment.

In Primitive Society (§ 1).

In Roman Law (§ 2).

Attitude of the Church (§ 3).

II. Place of Religious Ideas in the Question.

III. Capital Punishment in Modern Times.

I. The Historical Development of Capital Punishment.

1. In Primitive Society.

It must be borne in mind that the killing of a person guilty of grievous crime does not, in primitive society, belong to the class of deliberate ordinances enacted by the community. It is rather a form of the impulse of revenge, which the primitive institutions of all the older civilized nations first tolerate, and then regulate and uphold or limit (see Blood-Revenge). In primitive conditions revenge has a twofold operation. It is directed in some cases against offenses which affect the individual or the family (such as theft, adultery, and the murder of a freeman); in these cases the injured family proceeds against the offender or his family, and the community takes part only in the interests of public peace, by establishing a penalty on payment of which the offender is to be safe from revenge. Quite a different form of procedure is that against crimes which offend the consciousness of the whole community (sacrilege, unnatural vices, treason in war, etc.). Here the vengeance of the community is provoked, and it acts first by formal delivery of the offender to the will of the members or outlawry, then later by actual execution, in connection with which sacred ceremonies analogous to those of sacrifice are often found. As organized government grows stronger, it takes an official interest in crimes which were originally in the private sphere, withdraws them from individual vengeance, and subjects them to capital punishment. Religion has its influence here; the interference of government in such cases is usually, brought about by the conception that the crime, apart from the injury to the immediate victims, defiles the community and must be punished in order to retain peace with the deity. This can be clearly shown in the Greek law of the post-Homeric age, less clearly but still probably in ancient Roman law; and the same course was followed in Hebrew history. In the primitive law (cf. Ex. xxi. 12 sqq.) the murderer is exposed to the pursuit of the avenger of blood, and the elders of the community cooperate only to the extent of driving the fugitive from an asylum and delivering him to the avenger. In the case of the other crimes mentioned in Ex. xxi. the punishment of death is either private vengeance, or at most a sort of tribal vengeance or lynch law. As late as the period of Deut. xix. the blood-vengeance is mentioned; but by the side of it appears the idea that the whole community is affected with blood-guiltiness by a deliberate murder, and must be purified by the death of the offender. The same law began, when priestly influence increasingly dominated all departments of life, to be applied to other offenders (blasphemers, traitors, adulterers, etc.). The formal abandonment to the avenger was replaced by stoning, in which all the men of the community took part.

2. In Roman Law.

In so far as the religious influence remained a permanent factor in the penal code, the Jewish State stands alone among the Mediterranean communities. In the others, especially the Greek and Roman, punishment became exclusively a matter of secular enactment. In the Roman the principle is continuously applied from the fifth century that the death penalty (whether by decapitation, burning, or throwing down a precipice) is due to all grave crimes (including murder, arson, perjury, treason, etc.); but in practise this was mitigated by the frequent substitution of the "interdiction of fire and water," i.e., banishment from the community, especially after the introduction of the provocatio ad populum, an appeal to the whole body of the people against the decision of consuls and other magistrates empowered to pronounce sentence of outlawry. In the last two centuries of the republic capital punishment was seldom applied, to members of the upper classes at least. But it was never abolished, and when the reorganization of the Roman system took place under imperial legislation it was again more frequently employed, even against Roman citizens. Thus at the beginning of the Christian era it was an accepted institution throughout the Roman Empire, though with variations in usage due to local law. The teaching of Christ made no substantial alteration in these conditions. Of his own recorded sayings, the only one directly bearing on the subject is Matt. xxvi. 52, which (like Gen. ix. 5) refers rather to the eternal working out of the divine justice in the abstract. But Paul speaks expressly in Rom. xiii. 1 sqq. of the legal death-penalty—although here it is merely designated as reconcilable with the divine law, not required or imposed as a duty upon the State. Accordingly Christian teaching made no change in the Roman law, and, when the Christians became dominant, after having been for two centuries frequent victims to its provisions, they still allowed it to take free course. In fact, it was applied with increasing frequency even to Roman citizens of the higher classes, and from the time of Constantine to a large number of minor offenses.

3. Attitude of the Church.

Although the Church was more firmly and fully organized when it came into contact with the institutions of the new Germanic kingdoms, and assumed the right of extensive interference with their penal 406legislation on principles resembling those of the Jewish theocracy, its influence in the question of capital punishment was not decisive. Germanic law at first, like all primitive systems, made private vengeance and the mitigation of it by surrender of property on the part of the offender the principal factor in the punishment of crime. The Church undertook to regulate this to the extent of minimizing private vendettas, both by providing and supporting means of reconciliation between the contending parties and by strengthening orderly official justice. But in spite of the "horror of bloodshed" consistently emphasized by the Church, which from the tenth century on created an impressive mechanism against private vendettas in the Truce of God, it was obliged to give a general support to the gradual upbuilding of the secular system of corporal, including capital, punishment in the kingdoms of western Europe. When the death-penalty had been finally established as a regular part of settled secular law, the Church in theory took the position of a simple spectator of its exercise. It forbade the clergy to take any part in its administration, laid down the principle Ecclesia non sitit sanguinem ("The Church does not thirst for blood"), and admonished ecclesiastical authorities to provide asylums and in other ways to work for mercy to the offender in the hope of his improvement. This position was somewhat modified when the war against heresy began. Even in the eleventh century the State threatened heretics with death in isolated cases in France and Germany; and by the middle of the twelfth century the growth of heresy led to a formal alliance between Church and State, by which Frederick Barbarossa in 1184, and then other sovereigns of southern Europe, pledged the pope the support of the secular arm for the suppression of heresy. The penalties were at first outlawry, infamy, and confiscation of goods; but in 1224 Frederick II. approved of death by fire as the penalty in Lombardy; and this penalty, soon applied throughout Italy, was not only sanctioned but directly called for by Gregory IX. It was not long before the new principle was extended to Germany, France, England, and Spain, and the death-penalty, while theoretically administered by secular officials, was actually the consequence of an ecclesiastical condemnation.

The teaching of the Reformers brought about no essential alteration in the general attitude toward capital punishment; it might seem that the Reformation strengthened the institution, but really this attitude is rather the result of contemporary conditions. The death-penalty had been more frequently employed in all European states since the fifteenth century as a result of violent proletarian risings and the increase of the dangerous unemployed and vagabond population, and the period from 1530 to 1630 is that in which the number of executions reached its high-water mark. When a reaction came about, it was directed primarily against an excessive use of this penalty, and then toward the establishment of penitentiaries (London 1580, Amsterdam 1596, Hamburg 1622, etc.), which brought about a decrease in the number of executions. The movement for the abolition of capital punishment did not proceed from a religious source. While Locke, Voltaire, Montesquieu, and Thomasius had all recognized it as a necessary part of the social system, and Rousseau in the Contrat social had left it theoretically free play, it was Cesare Beccaria in 1764 who, as a deduction from Rousseau's general ideas, proclaimed its irreconcilability with abstract justice. In modern times no agreement has been reached on the basis of religious convictions.

II. Place of Religious Ideas in the Question.

The historical outline given above shows clearly that the sanction and province of capital punishment in secular law can not be brought directly under religious control. The old philosophical doctrine of the "Christian State" is now no longer recognized. On modern principles, the State's justification for existence lies in its necessity to the unhampered development of human activity; and on this rests its power of punishing, and in particular its right to apply the death-penalty. The essential characteristics of a just and proper punishment will thus have to be determined by a course of empirical historical research.

In the older development of the penal code of all nations, corporal punishment is found concurrently with penalties affecting the property of the offender; but the corporal is finally preferred because it is capable of application alike to all, while money fines have a varying effect according to the wealth of the offender. By degrees the permission of compounding for corporal penalties is abolished, with the gradual building up from the twelfth century of modern principles of government. The death-penalty is increasingly preferred as emphasizing the thought of the equality of all men before the law. It is misused for a time as the easiest way of ridding society of dangerous persons, and then, in the sixteenth and seventeenth centuries, the question is widely discussed how far it ought properly to be applied, sad the principle of justice is urged in favor of its restriction to very grave crimes. These arguments, however, produced no great effect until the reaction from the excessive use of it led to the creation of a third form of penalty in a regular system of imprisonment, thoroughly established about 1700. The considerations which moved John Howard and others in the' eighteenth century to agitate for prison reform on the ground of humanity led also to the more frequent discussion of the desirability of abolishing capital punishment, and finally to an almost universal recognition of the sole ground on which its maintenance can be defended. It is now admitted that on grounds of humanity the State has no right to annihilate the individual existence, and that so far as these grounds go, the heaviest penalty that may be inflicted is that of penal servitude for life. From the standpoint, however, of abstract justice, it is still possible to defend the death-penalty, not in the interest of terrifying offenders, nor yet on the basis of a lex talionis, but on that of a proportion between crime and penalty, which may fairly demand that the severity of the punishment shall correspond in 407some measure to the importance of the social function injured by the crime. With this is connected the requirement that the penalty shall be impressive—as much so as the crime—in order that the authority of the law shall be upheld, and equal, falling with the same severity on all classes of the community. The validity of this argument will be denied by those who reject the principle of equivalent compensation and, taking their stand exclusively on the principle of humanity, seek as the result of punishment the amelioration of the offender and the deterrence of him from any further crimes. But the fact that many of those who take this theoretical view acquiesce in the retention of capital punishment in practise shows that the traditional verdict of many centuries as to the relation of crime and punishment is still to be reckoned with in any discussion of this question.

(Richard Schmidt.)

III. Capital Punishment in Modern Times.

In modern times the maintenance or abolition of the death-penalty has been considered mainly from the standpoint of social utility and social justice. In the history of penology the influence of Christian and humane sentiments has been distinctly felt; but many drastic punishments have been laid aside, not because they were cruel and severe, but because they were ineffective. As mutilation has been practically abandoned in civilized countries, so reliance upon capital punishment as a means of repressing crime has been greatly weakened. A conclusive proof of this is seen in the restriction of the number of offenses to which it is applied. Scarcely more than a century ago 200 offenses were included in the list of capital crime in England. Until 1894 twenty-five offenses were made capital under the military code of the United States, twenty-two under the naval code, and seventeen under the penal code. Under Federal laws the number of capital offenses has now been reduced to three. Many advocates of capital punishment today are willing to limit its application wholly to cases of murder.

Publicity was formerly regarded as absolutely necessary for the deterrent effect of executions. Even after death the body of the criminal was exposed for weeks on the gibbet as a warning to malefactors. The practise of gibbeting has now been abandoned, and the practise of public execution is gradually following it. Within recent years seven or eight States of the Union, including New York, Massachusetts, New Mexico, North Dakota, have decided that attendance on executions should be limited to a number of legal or specified witnesses. The governors of Georgia and Kentucky have recommended similar legislation. In several States the electric chair has been substituted for the gallows with a view of mercifully rendering death instantaneous. Other States of the Union have abolished the death-penalty altogether. Michigan abolished it in 1847, Rhode Island in 1852, Wisconsin in 1853. Maine abolished it in 1876, restored it in 1883, and again abolished it in 1887. In 1903 New Hampshire abolished the death-penalty for murder in the first degree unless the jury should have fixed the same to the verdict; otherwise the sentence is for life imprisonment. In Kansas there have been no official executions since 1872, as no governor has exercised his power to order the execution of a prisoner. In 1907 the legislature amended the law by substituting life imprisonment for the death-penalty. The governor of Nebraska in 1903 urged the legislature to abolish capital punishment. Colorado abolished the death-penalty in 1897, but restored it 1901, as a result of a lynching outbreak in 1900.

In its session 1906–07 the subject of the abolition of capital punishment occupied a prominent place in the discussions of the French parliament without final result. Russia, one of the first countries to respond to the appeal of Beccaria, abolished it in 1753, except for political offenses. It was abolished in Portugal in 1867, in Holland in 1870, in Italy in 1890; and it has been abolished in the majority of the Swiss cantons, in Costa Rica, Brazil, Ecuador, Guatemala, Venezuela, and three states of Mexico. Some countries which have not formally abolished it by legislative act have suppressed it in practise. This is true of Belgium, and of some states of Mexico. It remains yet to be proven that an increase in capital crimes has followed the abolition of the death-penalty in any country. On the contrary, the higher development of civilization in these countries, the growth of the, humane sentiment, and increased reliance upon educational and preventive measures, instead of upon drastic deterrent laws, have led to a gradual reduction of crimes of violence.

Samuel J. Barrows.

Bibliography: G. B. Cheever, Punishment by Death: its Authority and Expediency, New York, 1849 (one of the most vigorous defenses of the practise); H. Seeger, Abhandlungen aus dem Strafrechte, Tübingen, 1858; C. J. Mittermaier, Die Todesstrafe nach den Ergebnissen der wissenschaftlichen Forschungen, Heidelberg, 1862 (the standard work against capital punishment, Eng. condensation by J. M. Moir, Capital Punishment, London, 1865); R. E. John, Ueber die Todesstrafe, Berlin, 1867; H. Hetzel, Todesstrafe in ihrer kulturgeschichtlichen Entwickelung, ib. 1870; F. von Holtzendorff, Das Verbrechen des Mordes und die Todesstrafe, ib. 1875; L. von Bar, Handbuch des deutschen Strafrechts, vol. i., ib. 1882; H. Romilly, The Punishment of Death, London, 1886; A. J. Palm, The Death Penalty, New York, 1891; J. MacMaster, The Divine Purpose of Capital Punishment, London, 1892; S. R. D. K. Olivecroner, De la peine de la mort, Paris, 1893; R. Schmidt, Aufpaban der Strafrechtspflege, pp. 178 sqq., 224 sqq., Leipsic, 1895; R. Katzenstein, Todesstrafe in einem neuen Reichsstrafgesetzbuch, Berlin, 1902; D. P. D. Fabius, De doodstraf, Amsterdam, 1906. For the ancient enactments consult Jurisprudentiæ anteiustinianæ, ed. E. Huschke, 5th ed., Leipsic, 1886 (cf. Index under "Capite puniuntur"), and "The Institutes of Justinian," Book IV., title xviii., in Moyle's transl., 4th ed., pp. 205–207, Oxford, 1906; A. H. J. Greenidge, Infamia; its Place in Roman Public and Private Law, 1894.

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