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 offense, 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: "Extir pate the offender, and give yourself no further trouble about him." And in conformity with this view of the matter, lie 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 offense has been committed, there is no form of trial, or proportion of punishments to offenses; 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 Punish ments, 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 con demned, by 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, affee tiou, 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 Hominy, 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, forget ting, undoubtedly. that if human tribunals have a right to inflict a severer punishment than death, they roust 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 prin ciple of Christian charity. To these it is replied that they proceed on a misapprehen "sion 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 offense felony. On time 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 offenses referred to by Blackstone as punishable with death, four fifths had been made so during the reign 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 offenses which involved sentence of death: stealing in a dwelling house to the amount of 40s.; steal ing privately in a shop goods of the value of 53.; counterfeiting the stamps that were used for the sale of perfumery; and doing the same with the stamps used for the certifi cates for hair pouder. Thanks, however, to the exertions of sir Samuel Hominy, 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. Tiiis discretionary control op 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.