The infliction by due legal process of the penalty of death as a punishment for crime
Punishment, CAPITAL, the infliction by due legal process of the penalty of death as a punishment for crime. The Latins use the word capitalis (from ca put, head) to describe that which related to life, that by which life is endangered. They used the neuter form of this adjective, i.e., capitals substantively to denominate death, actual or civil, and banishment imposed by public authority in consequence of crime. The idea of capital punishment is of great antiquity and formed a part of the primal concepts of the human race. When Cain committed fratricide (Gen., IV), and was rebuked therefor by God, he uttered the lament that his life would be in danger by reason of the hostility of others. A mark was set upon him by the Lord which was a guarantee of his personal safety. The first Divine pronouncement which seems to sanction the death penalty is found in Gen., ix, 6: “Whosoever shall shed man’s blood, his blood shall be shed; for man was made to the image of God.” When the ancient Israelites had departed from Egypt and were sojourning in the Sinaitic Peninsula, they received from the Lord a code of legislation wherein the death penalty was prescribed for many offenses. Thus, in Ex., xxi, that penalty is prescribed for murder, for a willful assault upon the father or mother of an offender, for cursing a man’s father or mother, and for manstealing. Down to their latest days the Kingdoms of Israel and Juda preserved capital punishment as a feature of their criminal code.
No more cruel form of punishment for offenses deemed capital existed in ancient times than that which prevailed among the Jews, i.e. stoning to death. This form of capital punishment is repeatedly mentioned in the Old and New Testaments. It would appear from the Book of Esther that hanging was the punishment which prevailed among the Assyrians. Two of the king’s slaves who plotted against his life were thus punished (Esther, ii), and by that method the king’s prime minister, Aman, was executed, the gibbet used for that purpose being said in Esther, vii, to be the same one which Aman had prepared, “fifty cubits high” (ibid., v), with the design of hanging thereon Mardochai, the Jew, who had incurred his displeasure, but who was “precious in the sight of the Lord”.
The ancient Greeks punished homicide (phonos), committed by design, and many other offenses with death. The court which prescribed this penalty was the Court of the Areopagus. The court was not invested with discretionary power in awarding punishment, since Demosthenes says that the law determined this according to the nature of the crime. Willful murder was punished with death, and other degrees of homicide and malicious wounding were punished with banishment and confiscation of goods. Those who were convicted upon a charge of unintentional homicide, not perfectly excusable, were condemned to leave the country for a year. Treason (prodosia) was punished with death. The goods of traitors who suffered death were confiscated, and their houses razed to the ground. It was not permitted to bury their bodies in the country, but they were cast out into some desolate place. Hence, the bones of Themistocles, who had been condemned for treason, were brought over and buried secretly by his friends, as related by Thucydides. The posterity of a traitor received the treatment of outlaws. The Areopagus was the tribunal for the trial of cases wherein the charge against an individual was willful murder and wounding, or a charge of arson or poisoning. The Attic legend tells us that the first notable trial before the Areopagus was that of Orestes upon a charge of having murdered his mother, Schylus represents this trial as the origin of the court itself. Some authorities claim that the Ephetai acted as a court for the trial of murder in conjunction with that of Areopagus. The Ephetai certainly had jurisdiction over cases involving the lesser degrees of homicide.
The punishment of death at Athens was generally by poison in the case of freemen. After sentence, the condemned murderer was directed to take a cup of hemlock or other poison and drink it. In the case of the imposition of any penalty upon a criminal in the courts of Athens, the prosecutor proposed the penalty in the first instance and then the person condemned had the privilege of suggesting a different punishment. Thus it was that Socrates, when his death was proposed, after trial and conviction, suggested that instead of being punished by death he ought to be entertained at public expense for the rest of his life in the Prytaneum, the palatial quarters used by the Athenians for extending and providing municipal hospitality. Criminals of low social grade, such as slaves, were beaten to death with cudgels.
The Roman law was notably severe in regard to public offenses. A law of the Twelve Tables contained some provision as to homicide (Plin., “H.N.”, xviii, 3), but this is all that we know. It is generally assumed that the law of Numa Pompilius, quoted by Festus (s.v. Parrici Qumstores), “Si quis hominem liberum dolo sciens morti duit paricida esto” [If any one with guile, and knowingly, inflicts death upon a freeman, let him be (considered as) a parricide], was incorporated into the Twelve Tables, and is the law of homicide to which Pliny refers; but this cannot be proved. It is generally supposed that the laws of the Twelve Tables contained provisions against incantations (malum carmen) and poisoning, both of which offenses were also included under parricidum (parricide). The murderer of a parent was sewed up in a sack (culeus or culleus) and thrown into a river. It was under the provisions of some old law that the Senate by a consultum (decree) ordered the consuls P. Scipio and D. Brutus (138 B.C.) to inquire into the murder in the Silva Scantia. The Lex Cornelia de sicariis et venefccis (concerning assassins and sorcerers) was passed in the time of Sulla (82 B.C.) and derives its distinctive name from his middle name, Cornelius. This law contained provisions as to death or fire caused by dolus malus (evil fraud) and against persons going about armed with the intention of killing or thieving. The law not only provided for cases of poisoning, but contained provisions against those who made, sold, bought, possessed, or gave poison for the purpose of poisoning; also against a magistrate or senator who conspired in order that a person might be condemned in a judicium publicum (public judgment), etc. To the provisions of this law was subsequently added a senatus consultum (decree of the senate) against mala sacrificia (evil sacrifices) otherwise called impia sacrificia (impious sacrifices), the agents in which were brought within the provision of this lex. The punishment inflicted by the law was the interdictio aquae et ignis (prohibition of the use of water and fire), according to some modern writers. Marcianus (Dig. 49, tit. 8, s. 8) says that the punishment was deportatio in insulam et bonorum ademtio, that is, banishment to an island and deprivation of personal property. These statements are reconcilable when we consider that deportation under the emperors took the place of interdictio, and the expression in the “Digest” was suited to the times of the writers or the compilers. Besides, it appears that the lex was modified by various senatorial decrees and imperial rescripts.
The Lex Pompeia de parricidiis, passed in the time of Cn. Pompeius, extended the crime of parricide to the killing (dolo malo, i.e., by evil fraud) of a brother, sister, uncle, aunt, and many other relations enumerated by Marcianus (Dig. 49, tit. 9, s. 1); this enumeration also comprises stepfather (vitricus), stepmother (noverca), stepson (privignus), stepdaughter (privigna), a male or female patron (patronus, patron), an avus (grandfather) who killed a nepos (grandson), and a mother who killed a filius (son) or filia (daughter); but it did not extend to a father. All privies to the crime were also punished by the law, and attempts at the crime also came within its provisions. The punishment was the same as that affixed by the lex Cornelia de sicariis (Dig., 1 c.), by which must be meant the same punishment that the lex Cornelia affixed to crimes of the same kind. He who killed a father or mother, grandfather or grandmother, was punished, more majorum (according to the custom of the fathers) by being whipped till he bled, sewn up in a sack with a dog, cock, viper, and ape, and thrown into the sea, if the sea was at hand, and if not, by a constitution of Hadrian, he was exposed to wild beasts, or, in the time of Paulus, to be burnt. The ape would appear to be a late addition. Only the ‘murderer of a father, mother, grandfather, grandmother was punished in this manner (Modest. Dig. 49, tit. 9, s. 9); other parricides were simply put to death. From this it is clear that the lex Cornelia contained a provision against parricide, if we are rightly informed as to the provisions thereof, unless there was a separate lex Cornelia relating to the specific crime of parricide. As already observed, the provisions of these two laws were modified in various ways under the emperors.
It appears from the law of Numa, quoted by Festus (s.v. Parrici Quaestores), that a parricida was any one who killed another dolo malo. Cicero (pro Rose. Am., c. xxv) appears to use the word in its limited sense, as he speaks of the punishment of the culleus. In this limited sense there seems no impropriety in Catiline being called parricida, with reference to his country; and the dictator Caesar’s death might be called a parricidium (the crime of parricide), considering the circumstances under which the name was given (Suet., Caes., c. lxxxviii). If the original meaning of parricida be what Festus says, it may be doubted whether the etymology of the word (pater and credo) is correct; for it appears that paricida or parricida meant murderer generally, and afterwards the murderer of certain persons in a near relationship. If the word was originally patricide, the law intended to make all malicious killing as great an offense as parricide, though it would appear that parricide, properly so called, was, from the time of the Twelve Tables at least, specially punished with the culleus, and other murders were not.
Carnifex (flesh-maker) was the appellation given to the public executioner at Rome, who put slaves and foreigners to death (Plaut., “Batch.”, iv, 4, 37; “Capt.”, v, 4, 22), but not citizens, who were punished in a manner different from slaves. It was also his business to administer the torture. This office was considered so disgraceful that he was not allowed to reside within the city (Cit., “Pro. Rabir.”, 5), but lived without the Porta Metia, or Esquilina (Plant., “Pseud.”, i, 3, 98), near the place destined for the punishment of slaves (Plaut., “Cas.”, ii, 6, 2; Tacit., “Ann.”, xv, 60; Hor., “Epod.”, v, 99) called Sestertium under the emperors (Plant., “Galb.”, 20). It is thought by some writers, from a passage in Plautus (Rud., iii, 6, 19), that the carnifex was anciently keeper of the prison under the triumviri capitales; but there does not appear sufficient authority for this opinion (Lipsius, “Excurs. ad Tacit. Ann.”, ii, 32).
Crucifixion was a method of inflicting capital punishment by nailing or tying malefactors to pieces of wood transversely placed the one upon the other. The crosses used by the ancients were of several forms; one shaped like the letter X has often been called crux Andreana (Andrew’s cross) because, according to tradition, St. Andrew suffered death upon a cross of that form; another was formed like the letter T, and a Roman writer, Lucian, uses that fact in disparagement of the letter itself. The third kind of cross, and that most commonly used, was made of two pieces of wood crossed so as to make four right angles. It was on this kind of a cross that Christ suffered, according to the unanimous testimony of the Fathers. Crucifixion, under the Roman law, was usually reserved for slaves and the worst kind of evildoers. The incidents of crucifixion were that the criminal, after the pronouncement of sentence, carried his cross to the place of execution, a custom mentioned by Plutarch and other writers as well as in the Gospels. Scourging was inflicted upon the persons executed as in the case of other capital punishments among the Romans. Grotius and other writers have called attention to the fact that the scourging of Christ was not in accordance with the Roman usage, because it was inflicted before the sentence of death was pronounced. The criminal was next stripped of his clothes, and nailed or bound to the cross. The latter was the more painful method, as the sufferer was left to die of hunger. Instances are recorded of persons who survived nine days. The Romans usually left the body on the cross after death.
During the Middle Ages, in spite of the zealous humanitarian efforts of the Church, cruel punishments were commonly employed, and the death penalty was very frequently inflicted. This severity was, in general, an inheritance from the Roman Empire, the jurisprudence of which, civil and criminal, pervaded Europe. One of the most horrible forms of punishment, derived from ancient Roman usages, was burning at the stake. The nations of modern Europe, as they gradually developed, seemed to have agreed upon the necessity of extirpating all influences and agencies which tended to pervert the faith of the people, or which seemed to them to betray the potency of evil spirits. Therefore, the laws of all these nations provided for the destruction of contumacious unbelievers, teachers of heresy, witches, and sorcerers, by fire. The words of Exodus (xxii, 18), “Wizards thou shalt not suffer to live”, sank deep into the consciousness of the medieval people, were literally interpreted, and rigidly observed. Witches were burned in England as late as the time of Sir Matthew Hale (1609-76). The Statute of Elizabeth in 1562 made witchcraft a crime of the first magnitude, whether directed to the injury of others or not. The Act of James the Sixth in 1603 defines the crime more minutely and provides the penalty of death. In Scotland, during the reign of the same monarch and even later, the prosecution and punishment of alleged witchcraft became a popular frenzy, to which the courts lent their zealous aid. The number of victims in Scotland from first to last has been estimated as more than four thousand. The last regular execution for witchcraft is said to have taken place at Dornoch in 1722, when an old woman was condemned by David Ross, Sheriff of Caithness. The same belief in witchcraft and the same overmastering dread of it pervaded New England. Many persons were convicted of witchcraft and were tortured, imprisoned, and burned. One of the leaders in ferreting out and punishing witches was the Reverend Cotton Mather who, although a man of prodigious learning and deep piety, betrayed in the prosecution of witches absolute fanaticism and merciless cruelty. The laws against witchcraft were formally repealed in England in 1736. They were not repealed in Austria until 1766.
Canon law has always forbidden clerics to shed human blood and therefore capital punishment has always been the work of the officials of the State and not of the Church. Even in the cage of heresy, of which so much is made by non-Catholic controversialists, the functions of ecclesiastics were restricted invariably to ascertaining the fact of heresy. The punishment whether capital or other, was both prescribed and inflicted by civil government. The infliction of capital punishment is not contrary to the teaching of the Catholic Church, and the power of the State to visit upon culprits the penalty of death derives much authority from revelation and from the writings of theologians. The advisability of exercising that power is, of course, an affair to be determined upon other and various considerations.
Much less severity prevails in England at present than during the reign of George III, when Sir William Blackstone felt impelled to say in his “Commentaries”: “Yet, though… we may glory in the wisdom of the English law, we shall find it more difficult to justify the frequency of Capital Punishment to be found therein, inflicted (perhaps inattentively) by a multitude of successive independent statutes upon crimes very different in their natures. It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than one hundred and sixty have been declared by Act of Parliament to be felonious without benefit of clergy; or, in other words, to be worthy of instant death” (bk. IV, c. 1).
The traditional method of capital punishment in England has been by hanging the criminal by the neck until dead, although during the Middle Ages beheading was customary. The English law in the time of Blackstone provided that a person convicted of treason of any kind should be drawn or dragged to the place of execution; that in case of high treason affecting the king’s person or government, the person convicted should be disembowelled while still alive, beheaded, and his body divided into four quarters. Murderers were not only hanged by the neck until they were dead, but their bodies were publicly dissected. A writ of execution upon a judgment of murder before the king in Parliament, delivered in May, 1760, recited the judgment: “That the said Lawrence Earl Ferrers, Viscount Tamworth, shall be hanged by the neck until he is dead and that his body be dissected and anatomized.” This barbarous sentence was literally carried into effect. After death, the body was conveyed from Tyburn in his lordship’s landau, drawn by six horses, to Surgeon’s Hall in the City of London; and there, after being disembowelled and cut open in the neck and breast, was exposed to public view in a room on the first floor. The dissection of the bodies of criminals led to great abuse, and was abolished in 1832.
In England during the seventeenth and eighteenth centuries the people seemed to have a passion for witnessing public executions. Many hired windows at a considerable expense for such occasions. George Selwyn was very fond of executions. His friend, G. Williams, writing to him of the condemnation of a man named John Wesket (January 9, 1765) for robbery in the house of his master, the Earl of Harrington, says: “Harrington’s porter was condemned yesterday. Cadogan and I have already bespoke places at the Brazier’s. I presume that we shall have your Honor’s company, if your stomach is not too squeamish for a single swim” (Selwyn’s Correspondence, I, 323). The Earl of Carlisle, writing to Selwyn, speaks of having attended the execution of Hackman, a murderer, on April 19, 1779 (ibid., IV, 25). Boswell, the biographer of Johnson, had a keen desire for witnessing executions, and often accompanied criminals to the gallows. He had a seat in the mourning coach conveying Hackman to Tyburn, and in the same carriage rode the ordinary of Newgate and the sheriff’s officer. Visiting Johnson on June 23, 1794, Boswell mentions that he has just seen fifteen men hanged at Newgate” (Boswell, “Life of Johnson”, Croker’s edition, VIII, 331).
During the French Revolution, executions in Paris were witnessed by vast throngs including many female Jacobins. These bloodthirsty women employed themselves with their knitting while attending daily at the scaffold, hence the familiar name les tricoteuses (the knitters). Those were the palmy days of the guillotine, the instrument which is still used for the decapitation of criminals in France. It was introduced by the National Convention during the progress of the French Revolution and was named after its supposed inventor, Joseph-Ignace Guillotin, a physician. He was not the inventor, but was only the person who first proposed its adoption. It consists of two upright posts grooved on the inside and connected at the top by cross beams. In these grooves a knife, having a sharp blade placed obliquely, is allowed to fall with tremendous force upon the neck of the victim who is bound upon a board placed at the foot of the upright posts. It is said by some authorities that this machine was invented by the Persians. It was well known in Italy, and from the thirteenth century onward it was the privilege of the nobility to be put to death by a machine of this kind, which was called mannaia. Conradin of Swabia was executed by such a machine at Naples in 1268. An instrument closely resembling the guillotine was employed for public executions during the Middle Ages. In Scotland, a machine called the “Maiden”, very similar to the guillotine, was used. A like machine was also used by the Dutch in the eighteenth century for executing slaves in their colonies. The ordinary mode in which capital punishment is performed in England and in the United States is by hanging. This was first established in England in 1241, when Maurice, a nobleman’s son, was hanged for piracy. In the military service capital punishment is inflicted by shooting, except in the case of spies and traitors, who are killed by hanging; such punishment being considered very disgraceful and therefore suited to the offense. American civil and criminal procedure having been derived from the common law of England, legislation has generally been in close accord with that of the English in regard to the punishment of crime.
The punishment of death, universal in his day, was declared by the famous Marquess Beccaria to be absolutely without justification. In his famous work, “Crime and Punishment”, he says (chap. xxviii): “The punishment of death is not authorized by any right; for I have demonstrated that no such right exists. It is, therefore, a war of a whole nation against a citizen, whose destruction they consider as necessary or useful to the general good. But, if I can further demonstrate that it is neither necessary nor useful, I shall have gained the cause of humanity. The death of a citizen can be necessary in one case only: when, though deprived of his liberty, he has such power and connections as may endanger the security of the nation; when his existence may produce a dangerous revolution in the established form of government. But even in this case, it can only be necessary when a nation is on the verge of recovering or losing its liberty; or in times of absolute anarchy, when the disorders themselves hold the place of laws. But in a reign of tranquility; in a form of government approved by the united wishes of the nation; in a state fortified from enemies without, and supported by strength within; where all power is lodged in the hands of the true sovereign; where riches can purchase pleasure and not authority, there can be no necessity for taking away the life of a subject.”
The learned marquess makes a most impressive argument in favor of penal servitude for life as a substitute for the judicial killing of criminals. Voltaire, in his commentaries on the treatise of Beccaria, emphasizes his opposition to capital punishment by saying, “It hath long since been observed that a man after he is hanged is good for nothing, and that punishments invented for the good of society ought to be useful to society. It is evident that a score of stout robbers, condemned for life to some public work, would serve the state in their punishment, and that hanging them is a benefit to nobody but the executioner.” These two authorities, as well as Sir William Blackstone, refer to the favorable results which followed the abolition of capital punishment in Russia by the Empress Elizabeth and the continuance of the same policy by her successor, Catherine III. Beccaria makes a telling argument against the execution of criminals in saying: “The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or necessity of war, have taught men to shed the blood of their fellow creatures, the laws which are intended to moderate the ferocity of mankind should not increase it by examples of barbarity, the more horrible as this punishment is usually attended with formal pageantry. Is it not absurd that the laws, which detect and punish homicide, should, in order to prevent murder, publicly commit murder themselves? What are the true and most useful laws? Those compacts and conditions which all would propose and observe, in those moments when private interest is silent, or combined with that of the public. What are the natural sentiments of every person concerning the punishment of death? We may read them in the contempt and indignation with which everyone looks on the executioner, who is nevertheless an innocent executor of the public will; a good citizen, who contributes to the advantage of society; the instrument of the general security within, as good soldiers are without. What then is the origin of this contradiction? Why is this sentiment of mankind indelible to the scandal of reason? It is, that in a secret corner of the mind, in which the original impressions of nature are still preserved, men discover a sentiment which tells them that their lives are not lawfully in the power of anyone, but that of necessity only, which with its iron scepter rules the universe.”
The opposite view was taken by Jeremy Bentham. In his work, “Rationale of Punishment” (1830) he says 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 more efficacious punishment than any other. Sir Samuel Romilly in his “Memoirs” (1840) takes issue with Beccaria. “Beccaria,” he says, “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 severer punishment than death, they must have a right to inflict death itself” (III, 278). It may be said in this connection that Sir Samuel Romilly was one of the most strenuous and efficacious agents in reforming and humanizing the criminal code of England. The battle is still raging between the advocates and the opponents of capital punishment. It has been well observed by Montesquieu that the excessive severity of law hinders its execution, for when the punishment surpasses all measure the public will frequently, out of humanity, prefer impunity to such punishment. The same benevolent and philosophical idea was also expressed in the first statute enacted by the English Parliament in the reign of Queen Mary; and that statute recites in its preamble: “That the state of every King consists more assuredly in the love of the subjects towards their prince than in the dread of laws made with rigorous pains; and that laws made for the preservation of the Commonwealth without great penalties are more often obeyed and kept than laws made with extreme punishments.”
The policy at present pursued by the nations of the world generally favors capital punishment, although it has been abolished in Italy, Holland, most of the cantons of Switzerland, Belgium, Portugal, and Rumania, and in the States of Michigan, Rhode Island, Wisconsin, Iowa, and Maine. It has fallen into practical disuse in Finland and Prussia. It is retained in Russia only for treason and military insubordination. The State of Colorado abolished it in 1897, but as the result of a lynching outbreak in 1900 it was restored in 1901. The death penalty is inflicted by the guillotine in France, Belgium, Denmark, Hanover, and two cantons of Switzerland. In these countries the execution is public. Criminals are executed privately by the guillotine in Bavaria, Saxony, and in two cantons of Switzerland. Execution upon the gallows is in vogue in Austria and Portugal. Hanging is conducted privately in Great Britain and in most of the states of the Federal Union. In the States of New York, New Jersey, Massachusetts, Ohio, North Carolina, and Virginia, criminals are executed by electricity. In China and in fifteen cantons of Switzerland criminals condemned to death are publicly beheaded; in Prussia they are privately beheaded. In Ecuador, and in the Grand Duchy of Oldenburg, they are shot. In Spain they are executed by means of an instrument called the garrotte, and such executions are public. In China they are strangled in public with a cord. In Brunswick they are beheaded.
JOHN WILLEY WILLIS