Vickipedia

CAPITAL PUNISHMENT in criminal jurisprudence is the punishment of death. It is called capital punishment because the head (Lat. Caput), from being the most vital, is usually that part of the body which is acted on. This applies especially to beheading and hanging; but almost all modes of depriving a criminal of life appear to have in view the peculiar vulnerability, and, at the same time, vitality of the head. This extreme penalty, notwithstanding the practice of the world from the remotest times down to the present day, has frequently been reprobated by philosophers and philanthropists, who have even gone so far as to deny the right so to punish to any earthly power. The weight of authority, however, appears in favor of capital punishment. Mr. Bentham, one of the most reasonable and discriminating authorities on the subject, in his well-known and valuable treatise, says, that the idea of C. P. would naturally suggest itself in the infancy of a state. When any one had committed an offence, and disturbed the peace of society, the question would then first arise : ‘ How shall we prevent these things ?’ and the answer most likely to occur to a set of barbarians would be : ‘ Extirpate the offender, and give yourself no further trouble about him.’ And in conformity with this view of the matter, he alludes in a note to the case of the Hottentots, who have no fixed laws to direct them in the distribution of justice, and consequently, when an offence has been committed, there is no form of trial, or proportion of punishments to offences; but the kraal (village) is called together, the delinquent is placed in the midst, and without further ceremony, demolished with their clubs, the chief striking the first blow. The Marquis Beccaria, in his remarkable Essay on Crimes and Punishments, strongly argues against the capital sentence being carried out in any case, denying the right, in fact, of government so to punish, and maintaining, besides, that it is a less efficacious method of deterring others, than the continued example of a living culprit condemned, by laboring as a slave, to repair the injury he has done to society.

Bentham. on the contrary, holds that death is regarded by most men as the greatest of all evils ; and that especially among those who are attached to life by the ties of reputation, affection, enjoyment, hope, or fear, it appears to be a more efficacious punishment than any other. On the question of right, Beccaria is still more pointedly refuted by Sir Samuel Romilly, who observed : ‘ Beccaria and his disciples confess that it is not the greatest of evils, and recommend other punishments as being more severe and effectual, forgetting undoubtedly, that if human tribunals have a right to inflict a severer punishment than death, they must have a right to inflict death itself’ (Memoirs, vol. iii. p. 278). It is not a little interesting to know, that such was the opinion of one who did so much as a statesman to mitigate the severity of the criminal law.

Against C. P. arguments are often urged from Scripture, based on the general principle of Christian charity. To these it is replied that they proceed on a misapprehension and misapplication of the principle ; and reference is confidently made to the Old Testament as sufficiently exhibiting the mind of the great Lawgiver in regard to this matter.

Death was, in former times in England, the ordinary punishment for all felonies, and the certain doom of those who could not avail themselves of benefit of clergy (q. v.), i.e., the common law inflicted death on every felon who could not read, and the law implied that punishment, where a statute made any new offence felony. On the other hand, the numerous act of parliament creating felonies without benefit of clergy, show that the statute law was still more sanguinary, so that of the 160 offences referred to by Blackstone as punishable with death, four-fifths had been made so during the reigns of the first three Georges. That some idea may be formed of such Draconian justice as was then established, we may mention the following as among the offences which involve sentence of death—stealing in a dwelling-house to the amount of 40s.; stealing privately in a shop goods of the value of 5s.; counterfeiting the stamps that were used for the sale of perfumery! and doing the same with the stamps used for the certificates for hair powder ! Thanks, however, to the exertions of Sir Samuel Romilly, the inhumanity and impolicy of such a state of the criminal code gave way, towards the end of the reign of George III., to a course of legislation which has reduced the application of death as a punishment within its present humane limits.

Practically, indeed, it is only in the case of treason and murder that the capital sentence is ever pronounced; and even then, it is not always carried out, for the crown reserves to itself and exercises a right of review which frequently leads to such a change in the convict’s fate as at least spares his life. This discretional control on the part of the executive is essential in the present state of the law, which affords no means for a judicial appeal on the merits; for the very nature of the punishment, when finally executed, precludes the idea of all benefit to the sufferer, should the verdict of the jury afterwards turn out erroneous, and the innocence, instead of the guilt, of the accused be established. The law as it stands, indeed, allows a capital sentence to be reversed if technical error can be shown on the face of the judgment or other matter of record—but what avails that, after the sentence has been executed?

In Scotland, the administration of the criminal law has perhaps been, on the whole, as severe as in England. Mr. Erskine says, that ‘ those crimes that are in their consequences most hurtful to society, are punished capitally or by death,’ a category that is certainly sufficiently indefinite; and anciently, it might be shown that the executions in Scotland for offences corresponding to those which were capitally punished in England, were, in proportion to the population, quite as numerous as those in the latter country, But in the more modern practice of Scotland, capital sentence was only pronounced in the four pleas of the crown—viz., murder, rape, robbery, and wilful fire-raising, to which may be added housebreaking. At present the penal system in Scotland may be said to be identical with that in England, death, as a punishment, being only inflicted in the case of convictions for murder.

With respect to the mode of executing C. P., we need not detain the reader by any account of the obsolete cruelties and tortures of former times. It may suffice to state that hanging and beheading are the two methods which now, for the most part, are practised in the different European states, indeed, with the exception of Spain, by all. In the last country, the death of the culprit is instantaneously caused by the Garrotte (q. v.). In England, Scotland, and Ireland, and in all the dependencies of the crown, the convict is hanged; while in France he is decapitated by the Guilotine (q. v.), an instrument which the old Scotch Maiden (q. v.) very much resembled. In Germany, beheading is the mode of execution adopted; but in Austria, criminals convicted of capital offences are hanged, as in England. Capital punishment was abolished in Switzerland, Holland, Portugal, Roumania, and about 1874 in some of the United States, as Wisconsin, Maine, and Iowa. In the latter state it was restored in 1878; in 1881 the power was conferred on the several Swiss cantons of deciding whether to restore the punishment of death or not; and some of them immediately took advantage of the permission. See EXECUTION.

See Basil Montagu On the Punishment of Death (1813); of Sir Samuel Romilly (1840), and his writings; Bentham,. of Punishment (1830); Beccaria, Essay on Crimes and Punishments (1775); Berner Die Abschaffungdes Todesstrafe (1861); Mittermaier, Die Todesstrafe (1862; Eng. edition by J. M. Moir); Von Holtzendorff, Das Verbrechendes Mordesunddie Todesstrafe (1874); Clode’s Administration of Justice under Military Law.

CAPITAL PUNISHMENT IN THE ARMY AND NAVY.—1. In the Army.—The law on this subject is covered by the Army Discipline and Regulation Act (1879), which is a consolidation of the Mutiny Act, the Articles of War, and other acts; it is kept in force by a short Continuous Act passed annually. The offences punishable with death are as follows. (1) Any officer or soldier who shall excite or join in any mutiny or sedition in any forces belonging to her Majesty’s army, or Royal Marines, or who shall not use his utmost endeavors to suppress it, and knowing of it, shall not give immediate information of it to his commanding officer; or (2) who shall hold correspondence with, or give advice or intelligence to, any rebel or enemy of her Majesty; or (3) who shall treat with any rebel or enemy without her Majesty’s license of the chief commander; or (4) shall misbehave himself before the enemy; or (5) shall shamefully abandon or deliver up any garrison, fortress, post, or guard committed to his charge; or (6) shall compel the governor or commanding officer to deliver up or abandon such place; or (7) shall induce others to misbehave before the enemy, or abandon or deliver up their posts; or (8) shall desert her Majesty’s service; or (9) shall leave his post before being regularly relieved, or shall sleep on his post; or (10) shall strike or offer any violence to his superior officer, being in the execution of his office, or shall disobey any lawful command of his superior officer; or (11) who, being confined in a military prison, shall offer any violence against a visitor or other his superior military officer, being in the execution of his duty.

No judgment of death by a court-martial shall pass, unless two-thirds at least of the officers present shall concur therein; and judgment of death may be commuted for penal servitude for any term not less than four years, or for imprisonment for such term is shall seem meet.

The employment of a soldier in the service subsequent to his arrest on a capital charge, may operate as a remission of the lenience of death. In 1811, a private of the 3d Buffs was sentenced to be shot, but by a mistake was permitted to serve in an engagement with the enemy, after he had been put into arrest for to crime. On this ground, the Duke of Wellington pronounced that he was under the necessity of pardoning, the prisoner.

In the army, C. P. is inflicted by the offender being either shot or hanged—the latter being the more disgraceful mode of execution.

2. In the Navy.—These are regulated by the 22 Geo. II. c. 33, amended by the 29 and 30 Vict. c. 109, and other acts. Certain offences in the navy, whether on board ship or on shore, were punished with death absolutely, without any discretion in the court to alter or mitigate the sentence. But, by the 10 and 11 Vict., this severity is removed (excepting in the cases of murder or other unnatural offences mentioned in the act), and courts-martial are authorized to abstain from pronouncing judgment of death, if they shall think fit, and to impose such other punishment instead as the nature and degree of the offence may deserve. In this discretionary sense, the following offences are punishable, in the navy, with death : (1) The holding illegal correspondence with an enemy; (2) the not acquainting, within 12 hours after the opportunity to do so, the commander-in-chief, or other superior officer of the squadron, with any message from an enemy or rebel; (3) all spies bringing seducing letters from an enemy or rebel, or endeavoring to corrupt any one in the fleet to betray his trust; (4) the relieving an enemy or rebel in any way, directly or indirectly; (5) not preparing for fight when duty commands, or not making due preparations on likelihood of engagement, and not encouraging the inferior officers and men to fight courageously; (6) the treacherously or cowardly yielding or crying for quarter; (7) disobeying orders in time of action, or not using all possible endeavors to put the same effectually in execution; (8) being guilty of cowardice or neglect of duty in time of action; (9) through cowardice, negligence, or disaffection, forbearing to pursue the chase of an enemy, pirate, or rebel, beaten or flying, or not relieving or assisting a known friend in view to the utmost; (10) deserting to the enemy, or running away with any of her majesty’s ships or their belongings, or any pieces to the weakening of the service, or cowardly or treacherously yielding up the same; (11) deserting simply, or enticing others so to do; (12)making, or endeavoring to make, any mutinous assembly on any pretense whatever; (13) uttering words of sedition or mutiny; (14) concealing traitorous or mutinous practices or designs; (15) striking a superior officer, or offering any violence to him, being in execution of his office, on any pretense whatsoever; (16) unlawfully taming or setting fire to any ship property or furniture, not then appertaining to an enemy, pirate, or rebel; (17) neglect in steering any of her Majesty’s ships, so that the same be stranded, split, or hazarded; (18) sleeping on watch, or negligently performing duty, or forsaking station; and (19) robbery.

It is stated by Mr. Prendergast, in his Law Relating to Officers in to Army, that a sentence of death pronounced by a court-martial does not operate as an absolute dismissal from the service; for if the offender should be pardoned, he is restored to his former position. But though a pardon operates as a restoration to the service, the greater question still remains to be judicially decided, whether a restoration to the service operates as a pardon. This question is inseparably connected with the fate of the gallant but unfotunate Sir Walter Raleigh. He had been condemned to death for alleged participation in a treasonable plot to raise Arabella Stuart to the throne; and, after undergoing 13 years’ imprisonment, he received from James I., by a commission under Great Seal, the command of a fleet and army fitted out against Spanish possessions in South America, with power of life and death over the king’s subjects serving in the expedition. The enterprise failed; and on Sir Walter’s return to England, James caused his head to be struck off, according to the sentence originally pronounced. On showing cause against his execution, Sir Walter pleaded that his commission was tantamount to a pardon, and quoted a case of a man who had been condemned for felony, then pardoned on account of his subsequent service in the wars of Gascony. Lord Chief-Justice Montague, however, held that though an implied pardon of the kind cited might hold good in felony, that treason could only be pardoned by express words. There is the high legal authority of the late Lord Chancellor Campbell (Lives of the Chief-Justices, vol. i. pp. 357, 358) for saying that the chief-justice declared and expounded the law soundly; and that in strictness Sir Walter’s attainder, under the former judgment, could only be done away with by letters-patent under the Great Seal, expressly reciting the treason, and granting a free pardon. See, on the subject of these two articles, ARTICLES OF WAR, and MUTINY ACT.

As to the mode of C. P. in the navy, the culprit where he is an officer, is shot; where he is a common seaman, he is usually hanged at the yard-arm.