Capital Punishment in criminal jurisprudence is the punishment of death (Lat. capitis pœna). 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. Thus many hold strongly that, while higher animals may destroy the lower, man being the highest created existence on earth can be lawfully deprived of life by God alone. They argue that the voluntary destruction of human life by man is in all circumstances a violation of natural law—an argument which seems to involve the absolute prohibition not only of capital punishment, but of war. The weight of authority, however, appears in favour of capital punishment. Bentham says, that the idea of capital punishment 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.' The Marquis Beccaria 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 labouring 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 deterrent than any other. On the question of right, Beccaria is still more pointedly refuted by Sir Samuel Romilly, who did so much to mitigate the severity of the criminal law: '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.'
In all discussions on this subject it is necessary to bear constantly in mind the principles of punishment in general. These have been a fruitful subject of controversy for many centuries, but the general rule can hardly be better stated than in the words of Plato (Gorgias, § 525): 'Every one who undergoes punishment, if that punishment be rightly inflicted, ought either to be made better thereby, and profit by it, or serve as an example to the rest of mankind, that others, seeing the sufferings he endures, may be brought by fear to amendment of life.' And again (Protagoras, § 324) he says, 'No one, when punishing a criminal, directs his thought to the fact, or punishes him for the fact of his having committed a crime; but he who wishes to inflict rational punishment acts with regard to the future, that the man who is punished, and all who see him punished, may be deterred from doing wrong again.' The argument, then, in favour of the law which awards death to the murderer is briefly this, that this punishment, more than any other, tends to deter men from committing the crime of murder. The ideal after which we are bound to strive is the fulfilment of the absolute law, imposed on us by our nature, 'Thou shalt not kill.' It is the duty of the state to realise and vindicate this natural law. The law enacted by the state, which inflicts capital punishment for murder, is thus justified only in so far as it tends to prevent murder, and so realise the great natural law. If there be a mode in which the murderer's life can be spared without sacrificing other lives, then capital punishment is forbidden by the same natural law by which on the opposite assumption it was justified. Thus we are driven back on the teaching of experience. The question can be answered only relatively, and statistics seem to show that the same answer will not be always and everywhere the true one. In some states of society—e.g. in certain half-settled states of Western America—criminal statistics afford strong confirmation of the theory which maintains the superior efficacy of capital punishment as a deterrent. On the other hand, the experience of many states in Europe, where the death penalty has been abolished, is difficult to reconcile with the view that the maintenance of the extreme penalty affords the best security for human life. Before leaving this discussion, it seems right to notice an element of danger if the law, naturally conservative, lose touch of public opinion. With the advance of civilisation and the spread of more humane views among the community, there is, on the part of the public, a tendency to look on this punishment as unduly severe. The result is that juries, influenced by considerations springing from the nature of the penalty, hesitate or even refuse to find convictions, so that the punishment comes to lack certainity—an essential feature, without which no punishment can be effectual as a deterrent. That some influence, similar to this, is at work may be fairly inferred from the official statistics of Great Britain in recent years. In the thirty years from 1850 to 1879 inclusive, 2005 persons were committed for trial on a charge of wilful murder. Of this number 665, or 33 per cent., were found guilty. The number of convictions for non-capital crimes is 76 per cent. Thus we have only 33 per cent. of convictions in cases of murder against 76 per cent. for other crimes. A disproportion so marked suggests an unwillingness on the part of juries to convict in cases where conviction involves the consignment of the criminal to an irrevocable punishment. Such an element of uncertainty in the punishment of so grave a crime as wilful murder is clearly fraught with danger to society.
Against capital punishment 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 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 (q.v.) of Clergy—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 acts 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 by 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 involved 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! So it was a capital offence to rob a rabbit-warren, to cut down a tree, to personate a Greenwich pensioner, or to harbour an offender against the Revenue Acts. It would be possible to extend almost indefinitely the list of offences for which men could be legally hanged at the commencement of the present century. It must, however, be remembered that the practice of the law had for many years been much less severe than the theory. Thus, while there were more than 200 offences in the statute-book for which capital punishment might be inflicted, there were only twenty-five offences for which any one had suffered death during the preceding three-quarters of a century. To the exertions of Sir Samuel Romilly we are mainly indebted for the reformation of our criminal code, and the removal from the statute-book of the obsolete relics of a barbarous age. From 1808 to his death in 1818 Romilly, undaunted by many discouraging failures, strenuously continued his humane efforts to destroy this cruel system. Later, the cause of criminal reform found in Sir James Mackintosh a bolder and abler, if not more earnest, champion, and under his praiseworthy exertions, aided by the wise counsels of Peel, the inhumanity and impolicy of the old criminal code gave way to a course of legislation which has reduced the application of death as a punishment within its present humane limits. In 1823 five statutes, exempting from capital punishment about a hundred felonies, were passed by both houses without a dissentient voice, and Peel's subsequent efforts in 1826 to consolidate the criminal law were no less successful. The punishment of forgery with death ceased in 1832-37. Since the statute of 1861 there remain in England only four crimes punishable by death—setting fire to H.M. dockyards or arsenals, piracy with violence, treason, and murder. Practically 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 discretionary 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. 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. By the Criminal Procedure (Scotland) Act of 1887, 50 and 51 Vict. chap. 35, it is enacted that capital sentences shall be abolished except on conviction of murder or of offences against the Act 10 Geo. IV. chap. 38, by which a variety of attempts to murder are made capital.
In the United States, each state has jurisdiction over its own territory, and the laws punishing crime differ in several respects. In many of the states murder is by statute divided into different degrees, differing from each other by the malice and premeditation which accompany the act. Death by hanging is the usual penalty for murder of the first degree, but in a few states imprisonment for life is substituted for capital punishment. In some states, as Michigan, Wisconsin, Rhode Island, and Maine, capital punishment has been done away with. In the states of New York and Iowa, on the other hand, the legislatures, having abolished the death penalty, were compelled by the consequent increase of crime to restore it.
In Holland there have been no executions since 1860, and capital punishment was totally abolished by law in 1870. In Roumania it was abolished in 1864, and Portugal has adopted the same course. In Belgium the punishment of death is practically abolished, for, though the death sentence is formally retained, no execution has taken place in that country since 1863. In Switzerland capital punishment was totally abolished in 1874, but, owing to a marked increase in the number of murders, by a federal decree of June 18, 1879, the cantons recovered the right of re-establishing the punishment of death in their respective territories. Seven of the cantons immediately took advantage of the permission; but, though they have recovered the right to hang criminals if they please, it appears from a letter written by the chancellor of the confederation in 1883, that down to that date the sentence of death had not been passed in any of the seven cantons. In the remaining fifteen cantons, including more than four-fifths of the population of the republic, the death penalty remains totally abolished. In many European countries in which the extreme penalty is still enforced, the law has been practically abrogated by the marked growth of more humanitarian sentiments. Thus in Austria, during the ten years from 1870 to 1879, of the 806 persons sentenced to death, only sixteen were executed. In Sweden during the same period, out of thirty-two sentenced to death, only three were executed; in Denmark, out of ninety-four, only one; in Bavaria, out of 249 committed for murder, only seven were executed. In North Germany, during the ten years from 1869 to 1878, 1301 persons were convicted of 'homicidal crime,' and 484 of them were sentenced to death, but only one was executed—Hödel, who attempted the assassination of the Emperor William.
For the various methods of execution, whether hanging as in England and most parts of the United States, beheading by sword or guillotine as in Germany and France, garrotting as in Spain, and death by electricity as in New York, see EXECUTION, and the articles on the several methods. In England, in 1868 (as in Germany since 1877), an act was passed directing that all executions should henceforth take place within the walls of prisons.
In Military Law, owing to the necessity of enforcing strict discipline, capital punishment has always held an important place. The offences to which the death penalty is attached are in Britain regulated by statute. The law on the subject as regards the army is contained in the act known as the Army Discipline and Regulation Act, 1879. This measure consolidated into one act, and in several respects amended the provisions of, the old Mutiny Act and Articles of War. After some experience, it also was found capable of improvement, and in 1881 was in its turn amended and in some respects superseded by the Army Act, which now forms the foundation of the military law of the United Kingdom. By this act, which forms a permanent code, and is continued annually by act of parliament, capital punishment may be incurred by various acts of sedition, violence, and gross neglect of duty. Any soldier who deserts Her Majesty's service, or leaves without orders any guard or post, or offers violence to his superior officer, being in the execution of his office, or disobeys any lawful command of his superior officer, renders himself liable to the penalty of death, or such other penalty as the court-martial may inflict. A similar penalty attaches to a soldier who, while on sentry duty, so far forgets his duty as to sleep or be drunken, or who is guilty of certain flagrant acts of cowardice and misbehaviour before the enemy. In the ordinary case, sentence of death can be passed only by a general court-martial, consisting of nine officers, of whom five are not under the rank of captain. On active service, however, a summary court-martial, consisting of three officers, may award the death penalty. Another safeguard against undue haste and lack of consideration is found in the provision that no sentence of death can be pronounced by a court-martial unless two-thirds of the officers present, in the case of a general court-martial, and all in that of a field general court-martial, concur therein. It is also provided that a judgment of death may be commuted for penal servitude for any term not less than four years, or for imprisonment for such term as shall seem meet. It has further been held that the employment of a soldier in the service, subsequent to his arrest on a capital charge, operates as a remission of the sentence of death. In the army capital punishment is inflicted by the offender being either shot or hanged, the latter being the more disgraceful mode of execution. In the United States the concurrence of two-thirds of a general court-martial is also required; and no sentence of death can be carried out until confirmed by the president, save in cases of persons convicted in time of war, as spies, mutineers, deserters, or murderers.
In the British navy, the law on the subject is covered by 22 Geo. II. chap. 33, amended by the Naval Discipline Act, 29 and 30 Vict. chap. 109. Formerly 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. It was under these unnaturally severe Articles of War, passed in the twenty-second year of Geo. II., under the influence of the Duke of Cumberland, that the unfortunate Admiral Byng (q.v.), having been found guilty of neglect of duty in an action against the French, was shot in 1757. On that occasion the court-martial, before passing sentence, sent to the Admiralty in London to know whether they were at liberty to mitigate the sentence, but were informed that they had no such power. The provisions of the present act, however, confine sentence of death, without alternative, to cases of murder or traitorous misconduct in the presence of the enemy. As regards all other offences, the courts-martial are authorised to abstain from pronouncing sentence 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 death penalty is retained in the navy in the case of a large number of offences. The holding of illegal correspondence with an enemy, or in any way relieving an enemy, or the yielding in a cowardly or treacherous manner to such enemy, may be punished with death. The same penalty attaches to all disobedience to orders in time of action, to cowardice and neglect of duty during action, to desertion of the service, or the enticing of others to desert, to any attempt at mutiny or concealment of mutinous practices or designs. A sailor who commits robbery, who sleeps on watch, or forsakes his station, who by gross negligence in steering hazards his ship, or who on any pretence offers violence to a superior officer, being in execution of his duty, renders himself liable to capital punishment. In the navy the culprit, where he is an officer, is usually shot; where he is a common seaman, he is hanged at the yard-arm. In the United States all sentences of death must be approved by the president.
See Basil Montagu, On the Punishment of Death (1813); Memoirs of Sir Samuel Romilly (1840), and his writings; Bentham, Rationale of Punishments (1830); Beccaria, Essay on Crimes and Punishments (1775; Eng. trans. by Farrer, 1880); Berner, Die Abschaffung der Todesstrafe (1861); Mittermaier, Die Todesstrafe (1862; Eng. ed. by J. M. Moir); Von Holtzendorff, Das Verbrechen des
Mordes und die Todesstrafe (1874); Clode's Administration of Justice under Military Law; Professor Lorimer, Institutes of Law; W. A. Copinger, Capital Punishment (1876); J. M. Moir's Capital Punishment (1865); Stephen's History of the Criminal Law. See also the publications of the Howard Association, London.