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:—
|For all |
|For all |
|1833 *|| 931|| 9||33|| 6|
|1838 *|| 116||25|| 6|| 5|
|* 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 |
1853 to 1873.
1875 to 1900.
1901 to 1903.
|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,