DEATH PUNISHMENT OF

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DEATH, PUNISHMENT OF. The questions most commonly discussed by philosophers and jurists under this head are, 1. as to the right of governments to inflict the punishment of death; 2. as to the expediency of such punishment; 3. as to the crimes to which, if any, it may be most properly confined and limited; 4. as to the manner in which it should be inflicted. A few words will be said on each of these points.1. As to the right of inflicting the punishment of death. This has been doubted by some distinguished persons; and the doubt is often the accompaniment of a highly cultivated mind, inclined to the indulgence of a romantic sensibility, and believing in human perfectibility. The right of society to punish offences against its safety and good order will scarcely be doubted by any considerate person. In a state of nature, individuals have a right to guard themselves from injury, and to repel all aggressions by a force or precaution adequate to the object. This results from the right of selfpreservation. If a person attempts to take away my life, I have, doubtless, a right to protect myself against the attempt by all reasonable means. If I cannot secure myself but by taking the life of the assailant, I have a right to take it. It would otherwise follow, that I must submit to a wrong, and lose my life, rather than preserve it by the means adequate to maintain it. It cannot, then, be denied that, in a state of nature, men may repel force by force, and may even justly take away life, if necessary to preserve their own. When men enter society, the right to protect themselves from injury and to redress wrongs is transferred, generally, from the individuals to the community. We say that it is generally so, because it must be obvious that, in many cases, the natural right of selfdefence must remain. If a robber attacks one on the highway, or attempts to murder him, it is clear that he has a right to repel the assault, and to take the life of the assailant, if necessary for his safety; since society, in such a case, could not afford him any adequate and prompt redress. The necessity of iustant relief, and of instant application of force, justifies the act, and is recognised in all civilized communities. When the right of society is once admitted to punish for offences, it seems difficult to assign any limits to the exercise of that right, short of what the exigencies of society require. If a state have a right to protect itself and its citizens in the enjoyment of its privileges and its peace, it must have a right to apply means adequate to this object. The object of human punishments is, or may be, threefold; first, to reform the offender; secondly, to deter others from offending; and, lastly, to secure the safety of the corn where, to say what shall punishment to be assigr offence. That discrete its nature, justly a part power, and to be exerc the actual state ofteociet} must be differently exer ages, and in different c same punishment whic country, may be sufficiei offence, or render it cor less, may, in Another wholly fail of the effect, ments fail of effect, mon resorted to, if the offenc which affects society in i or safety, or interests. 1 cy of a crime must ofb strong ground for severe only as it furnishes proo punishment is insufficu from committing it, but i ed necessity of protectin dangerous crimes. But that life is the gift of G< it cannot justly be taker the party himself, or anc not take it away, he ci power on others. But 1 argument as obvious. L gift of God than other ments or rights. A man God, a right to personal lil tion, as well as to life; and breathe at large, as yet no one doubts that, L ment, he may be confi cell; that he may be p< oned or deprived of free to live on bread and wat one doubts that he maj the exercise of any pri\ rights short of taking h reasoning, if worth any all these cases in an equ certain cases (that is, in cases of mala proMbita, and not mala in se), from the consent of the offenders. The marquis Beccaria, on the other hand, denies that any such consent can confer the right, and therefore objects to its existence. But the notion of consent is, in nearly all cases, a mere theory, having no foundation in fact. If% a foreigner comes into a country, and commits a crime at his first entrance, it is a very forced construction to say that he consents to be bound by its laws. If a pirate commits piracy, it is almost absurd to say that he consents to the right of all nations to punish him for it. The true and rational ground on which the right rests, is not the consent of the offender, but the right of every society to protect its own peace, and interests, and property, and institutions, and the utter want of any right, in other persons, to disturb, or destroy, or subtract them. The right flows, not from consent, but from the legitimate institution of society. If men have a right to form a society for mutual benefit and security, they have a right to punish other persons who would overthrow it. There are many cases where a sta^e authorizes life to be taken away, the lawfulness of which is not doubted. No reasonable man doubts the right of a nation, in a just war, especially of selfdefence, to repel force by force, and to take away the lives of its enemies. And this right is not confined to repelling present force, but it extends to precautionary measures, which are necessary for the ultimate safety of the nation. In such a war, a nation may justly insist upon the sacrifice of the lives of its own citizens, however innocent, for the purpose of ensuring its own safety. Accordingly, we find that all nations enrol militia and employ troops for war, and require them to hazard their lives for the nreservation of the state. Tn these cases. own free consent, a proper basis on wh such society depend itous supposition; ai to very incorrect resu that the Scriptures m and justify the inflict ments in certain case 2. As to the exped ishment. This ope discussion. Some al doubt the right, do s ency of inflicting it. that a wise legislator* affixing such a pun very enormous and The frequency of a < a sufficient reason fc punishment. It sho great atrocity and (h which cannot other guarded against. In to any offence, we s) are the objects and en< is clear that capital p no efFect to reform It may have, and ord effect to deter otheii like offence ; but, sril shows that even thii inflicted for small c easily perpetrated, ai great temptation, doe as an effectual terr< are hardened by the of capital punishmem ent to them. Fainil of their horror. Th not those which hg suppressed offences, ion has great weigl acquittal or condem If a punishment be g ate to the offence, feelings, there arises. hardly be deemed unjust. The safety of society is most effectually guarded by cutting him off from the power of doing further mischief. If his life be not taken away, the only other means left are, confinement for life, or transportation and exile for life. Neither of these is a perfect security against the commission of other crimes, and may not always be within the ]K>wer of a nation without great inconvenience and great expense to itself. It is true that the latter, punishments leave open the chance of reform to the offender, which is, indeed, but too often a mere delusion ; but, on the other hand, they greatly diminish the influence of another salutary principle, the deterring of others from committing like crimes. It seems to us, therefore, that it is difficult to maintain the proposition that capital punishments are, at all times and under all circumstances, inexpedient. It may rather be affirmed that, in some cases, they are absolutely indispensable to the safety and good order of society. We should incline to say that, as a general rule, every nation, in its legislation on this subject, must be governed very much by the manners, customs, habits of thinking, and state of opinion, among the people upon whom it is to operate. In a rude and barbarous state of society, summary and almost vindictive punishments seem more necessary than in a highly polished and civilized state of society.3. As to the crimes to which capital punishments may, most properly, be limited. From what has been already said, this must depend upon the particular circumstances of every age and nation; and much must be left to the exercise of a sound discretion on the part of the legislature. As a general rule, humanity forbids such punishments to be applied to any but crimes of very great enormity, and danger to individuals or the state. If any crimes can be effectually suppressed by moderate means, these ought, certainly, to be first resorted to. The experience, however, of most nations, if we may judge from the nature and extent of their criminal legislation, seems to disprove the opinion so often indulged by philanthropists, that mdderate punishments are sufficient to suppress crimes, and that capital punishments are rarely necessary. The codes of most civilized nations abound with capital punishments. That of Great Britain, a nation in which the public legislation has a deep infusion of pdpular opinion, is thought to be uncommonly sanguinary. Blackstone, in his Commen taries (vol. iv, 18), admits that, in his time, . not less than one hundred and sixty crimes were, by the English law, punishable with death. In the code of the U. States, only ni7i6 crimes are so punishable, viz., treason, murder, arson, rape, robbery of the mail, fraudulent casting away ships, rescue of criminals capitally convicted during execution, and piracy, one species of which is the African slavetrade. In the codes of the several states of the Union, still fewer crimes are generally punishable with death. It remains yet to be proved, whether the general mildness of our penal code has afforded us any greater security against crimes than exists in other nations. Hitherto, the temptations to commit them, have been less here, than in other countries less abundantly and cheap ly supplied with the necessaries of life. It is still a question, fit to exercise the solicitude and ingenuity of our statesmen and philanthropists, whether we can safely cany on so mild a system in a more corrupt and dense state of society. If we can, it must be by a very sparing use of the power of pardoning; so that the certainty of absolute, unmitigated punishment shall follow upon the offence. Beccaria, with his characteristic humanity and sagacity, has strongly urged that the certainty of punishment is more important to deter from crimes than the severity of it. At present, there is great danger that the pardoning power, in our free forms of government, will, in a great measure, overthrow this salutary principle. Its exercise, therefore, ought to be watched with the greatest jealousy and care, lest the abuse of it should lead to the introduction either of absolute impunity for offences, or of more extensive capital punishments* It will probably be found, from the experience of most nations, that capital punishment ought not wholly to be dispensed with. On the other hand, it may be safely affirmed, that there is no positive necessity to apply it to a very large number of crimes. Treason, murder, arson, piracy, o highway robbery, burglary,, rape, and some other offences of great enormity, and of a kindred character, are not uncommonly punished in this manner; but beyond these, it is extremely questionable whether there is any necessity or expediency of applying so great a severity. Still, however, as has been already intimated, much must depend upon the opinion and character of the age, and the prevailing habits of the people, and u}>on the sound exercise of legislative discretion. What may be deemed uselessly severe uf fanĀ© age or country, may be positively required disposal. But, generally, all the punish by the circumstances of another age or ment is remitted by the crown, except the country. hanging and beheading: and when it is4*. As to the manner of inflicting the not, by connivance of the officers, the punishment of death. This has been criminal is drawn on a hurdle to the place different in different countries, and in dif of execution, and is not disembowelled ferent stages of civilization in the same until actually dead. In other cases, the countries. Barbarous nations are general punishment is now simply by hanging, or, ly inclined to severe and vindictive pun in the military and naval service, by shootishments, and, where they punish with ing. In France, formerly, the punishment death, to aggravate it by prolonging the of death was often inflicted by breaking sufferings of the victim with ingenious the criminal on the wheel. (Damiens was devices in cruelty. And even in civilized torn to pieces by horses, after he had been countries, in cases of as political nature, or tormented with redhot pincers, and had of Very great atrocity, the punishment has suffered other horrid tortures.) The usual been sometimes inflicted with many hor punishment now is beheading by the rible accompaniments. Tearing the crim guillotine. In cases of parricide, the criminal to pieces, piercing his breast with a inal is conducted, barefooted, and covered pointed pole, pinching to death with red with a black veil, to the place of execuhot pincers, starving him to DEATH, break tion, where his right hand is cut off just ing his limbs upon the wheel, pressing before he is beheaded. In Austria, the him to death in a slow and lingering general mode of punishment is by hangmanner, burning him at the stake, cruci ing. In Prussia, hanging is rarely inflictfixion, sawing him to pieces, quartering ed; but the usual punishment is beheadhim alive, exposing him to be torn to ing with a heavy axe, the criminal's head pieces by wild beasts, and other savage being first tied to a block. In other Gerpunishments, have been sometimes resort man states, the uncertain mode of execued to for the purposes of vengeance, or tion by the sword still exists. Sand was public example, or public terror. Com executed in this manner. It should be pared with these, the infliction of death remarked, however, that, in Germany, by drowning, by strangling, by poisoning, hanging has always been deemed the by bleeding, by beheading, by shooting, most infamous sort of punishment; and by hanging, is a moderate punishment. In the sentence has often been commuted for modern times, the public opinion is strong beheading by the sword, as a milder mode ly disposed to discountenance the pun of punishment. In the U. States of Amerishmentof death by any but simple means; ica, hanging is the universal mode of and the infliction of torture is almost uni capital punishment; and, indeed, the con versally reprobated. Even in govern stitution of the U. States contains a pigments where it is still countenanced by vision, declaring that " cruel and unusual the laws, it is rarely resorted to; and the punishments shall not be inflicted." In sentence is remitted, by the policy of die China, murderers are cut to pieces; robprince, beyond the simple infliction of bers, not. In Russia, the punishment of death. In Prussia, where atrocious crim death has been frequently inflicted by inals are required, by the penal code, to be the knout. In Turkey, strangling, and broken upon the wheel, the king always sewing the criminal up in a bag, and issues an order to the executioner to stran throwing him into the sea, are common gle the criminal (which is done by a small modes of punishment. In the Roman cord not easily seen) before his limbs code, many severe and cmel punishments are broken. So, in the same country, were prescribed. During the favored where larceny, attended with destruction times of the republic, many of these were of life, is punished by burning alive, the abolished or mitigated. But again, under fagots are so arranged as to form a the emperors, they were revived with full kind of cell, in which the criminal is suf severity. In the ancient Grecian states, focated by the fumes of sulphur, or other the" modes of punishment were also semeans, before the flame can reach him. vere, and often cruel. But the most genLi England, in high treason, the criminal eral mode of punishment, in ordinary is sentenced to be drawn to the gallows, cases, seems, both in Greece and Rome, 10 he hanged by the neck, and cut down to have been by hanging. Whether the alive, to have his entrails taken out and ancient Greek mode of capital punishburned while he is yet alive, to have his ment, by taking poison at such hour as the heap! cut off, and his body divided into condemned party should choose, has ever tour parts, and these to be at the king's 'been adopted in any modern nation, we .are miahle to say. As far as we have been able to learn, it is not in use among any Christian people; and the idea of suicide connected with it would probably prevent any such nation from adopting it. Whether executions ought to be in public or in private, has been a question much discussed, and upon which a great diversity of opinion exists among intelligent statesmen. On the one hand, it is said that public spectacles of this sort have a tendency to brutalize and harden the people, or to make them indifferent to the punishment; and the courage and firmness, with which the criminal often meets death, have a tendency to awaken feelings of sympathy, and even of admiration, and to take away much of the horror of the offence, as well as of the punish ment. On the other hand, it is said that the great influence of punishment, in deterring others from the like offence, cannot be obtained in any other way. It is the only means to bring home, to the mass of the people a salutary dread and warning; and it is a public admonition of the certainty of punishment following upon crimes. It is also added, that all punishments ought to be subjected to the public scrutiny, so that it may be known that all the law requires, and no more, has been done. If punishments were inflicted in private, it could never be known whether they were justly and properly inflicted upon the persons condemned; or whether, indeed, innocent persons might not become the victims.In England, the court before which the trial is had, declares the sentence, and directs the execution of it; and its warrant is a sufficient authority to the proper officer to execute it. In the courts of the U. States, there is a like authority ; but in the laws of many of the states, there is a provision that the execution shall not talro nlas"o ovnont Kir o \nratfartt fWim tYta and America, the very fa and sentence are final, pin tion and deliberation in t of criminal justice, and towards the prisoner c punishment cannot be general humanity of the nations, upon persons w who are pregnant, unt delivered and the form It is said that Frederic tl all judgments of his coi persons to death, to be paper; thus he was cor of them as they lay on other papers, from w readily distinguished. I long time to consider sue set an excellent example their duty.