Page:EB1911 - Volume 05.djvu/292

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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 foreign precipitation from rocks.The principle on which this variety depended was that where an offence was such as to entitle theBritish and
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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 fa 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 clergy able 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 Wakeneld: “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