CAPITAL PUNISHMENT (Latin caput, °the head°; hence capitalis, ;pertaining to or affecting the head'; hence ;affecting the life'), the punishment of death. The questions most commonly discussed byphilosophers and jurists under this head are: (1) As to the right of / overnments 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.
1. As to the right of inflicting the punish ment 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 sensi bility, and believing in human perfectibility. One of the first men of prominence to advocate the abolition of capital punishment was Robes pierre, the French revolutionist, who not only wrote many pamphlets against it, but re signed his position as criminal judge of Arras, to avoid pronouncing a death sentence. The right of society to punish offenses 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 self-preservation. 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 sub mit 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 so ciety, the right to protect theniselves from in jury and to redress wrongs is transferred gen erally 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 self-defense must remain. If a robber at tacks one on the highway, or attempts to mur der him, it is clear that he has a right to repel the assault, and to take the life of the assail ant if necessary for his safety, since society in such a case could not afford him any adequate and prompt protection. The necessity of instant relief, and of instant application of force, justi fies the act, and is recognized in all civilized communities. When the right of society is once admitted to punish for offenses, it seems difficult to assign any limits to the exercise of that right, short of what the exigencies of so ciety require. If a state has a right to pro tect 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: (1) To reform the offender (2) to deter others from offending; and (3) to secure the safety of the community, by depriving the offender of the power of doing mischief. The first consideration has only lately entered into human legislation, because of the inadequacy of our means to produce great moral results by the infliction of punishment. The two latter considerations enter largely into the theory and practice of legislation. Who is to be the judge in such cases? what is the adequate punishment for any offense? Certainly punishments ought not to be inflicted which are utterly dispro portionate to the offense, and beyond the exi gencies of society. No government has a right to punish cruelly and wantonly and from mere revenge; but still, the discretion must be vested somewhere, to say what shall be the degree of punishment to be assigned to a particular offense. That discretion must be, from its nature, justly a part of the legislative power, and to be exercised according to the actual state of society. It may,—nay, it must,— be differ ently exercised in different ages and in differ ent countries; for the same punishment which in one age or country may be sufficient to sup press an offense, or render it comparatively harmless, may, in another age or country, wholly fail of the effect. If mild punishments fail of effect, more severe ones must be re sorted to if the offense be of a nature which affects society in its vital principles, or safety, or interests. The very frequency of a crime must often furnish a very strong ground for severe punishment, not only as it furnishes proof that the present punishment is insufficient to deter men from committing it, but from the increased necessity of protecting society against dangerous crimes. But it is often said that lite
is the gift of God,. and therefore it cannot justly be taken away, either by the party himself or another. If he cannot take it away, he cannot confer that power on others. But the fallacy of this argument is obvious. Life is no more the gift of God than other personal endow ments or rights. A man has, by the gift of God, a right to personal liberty and locomo tion, as well as to life; to eat and drink and breathe at large, as well as to exist, yet no one doubts that, by way of punishment, he may be confined in a solitary cell; that he may be per petually imprisoned or deprived of free air, or compelled to live on bread and water. In short, no one doubts that he may be restrained in the exercise of any privileges or natural rights short of taking his life. Yet the reason ing, if worth anything, extends to all these cases in an equal degree. If, by his crimes, a man mayjustly forfeit his personal rights, why not his life? But we have seen that it is not true, even in a state of nature, that a man's life may not be taken away by another if the necessity of the case requires it. Why, then, may not society do the same if its own safety tequires it? Is the safety of one person more important than the safety of the whole com munity? Then, again as to a man's inability to confer on others a right which he does not himself possess. Suppose it is so; the conse quence which is deduced from this does not, in fact, arise. Blackstone, indeed, seems to de duce the right of society to punish capital offenses in certain cases (that is, in cases of male prohibits and not male in se) from the consent of the offenders. The Marquis Bee e,aria, 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 construc tion to say that he consents to be bound by its laws. If a pirate commits piracy, it is 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, interests, 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 over throw it. There are many cases where a state 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, espe cially of self-defense, to repel force by force and to take away the lives of its enemies. And the 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 enroll militia and employ troops for war, and require them to hazard their lives for the preservation of the state. In these cases life is freely sacrificed by the nation; and the laws enacted for such purposes are deemed just exercises of power. If so, why may not life be taken away by way of punishment if the safety of society requires it? If a nation may authorize, in war, the destruction of thousands, why may it not authorize the destruction of a single life, if self-preservation requires it? The mistake, however, is in supposing cannot be taken away without the consent of the party. If the foregoing reasoning be cor rect, such consent is neither supposed nor necessary. In truth, the supposition of an original compact between all the persons who are subject to the regulations of a society, by their own free consent, as the necessary and proper basis on which all the rights of such society depend, is at best a gratuitous supposi tion, and it sometimes leads to very incorrect results. It may be added that the Scriptures most clearly recognize and justify the infliction of capital punishments in certain cases.