Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
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New York: Maynard, Merrill, and Co.
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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DEATH PENALTY, The. The employment of this penalty has been universal. We find it among all peoples and in all ages. If it appears to have been more generally inflicted as nations emerged from their condition of barbarism, it is because barbarians were accustomed to take the law into their own hands. When governments undertook to punish all crimes, and thus do away with private vengeance, it seemed natural that society should avenge itself for crime by the death of the criminal; and when this public vindictiveness sought to restrain malefactors by intimidation, an endeavor was made to inspire horror by means of torture. It was not enough that nearly all crimes were punished by death; the penalty was aggravated by the most horrible torments. We shudder today when we read of the wheel, the stake, drawing and quartering, and all the frightful sufferings that the fertile imagination of man has invented. We shall not enumerate here the frightful list of these tortures. And yet may not a useful lesson be drawn from it, even at this day, happily so far removed from those ages, by the legislator, who is too much disposed, in one way or another, to seek a remedy for all disorder in intimidation?


—Beccaria was the first publicist to raise a doubt as to the legitimacy of the death penalty and to propose its suppression. Indeed we can not ascertain that this grave question was ever seriously discussed before his time. If a few nations—the Egyptians and Romans, for instance—tried to restrain its application, it was from entirely different motives than those of humanity. Plato thought it ought to be inflicted only in cases where the culprit was incorrigible. Says he: "If the legislator sees that the criminal is irredeemable, what punishment should he mete out to him? Since he knows that for such persons life is not the most advantageous state, and that by their death they become of two-fold utility to others, their punishment being an example which prevents others from doing wrong, and at the same time rids the republic of dangerous subjects, he can hardly do otherwise than pronounce sentence of death upon such culprits. But except in such cases he ought not to employ this remedy." Quintilian takes the same view of the matter, and adds that if the guilty could be reclaimed, their regeneration would be more useful to the republic than their punishment by death. Thus the right to punish by death was not questioned, but only the social utility of the death penalty. At the beginning of the sixteenth century we witness a movement of the human conscience tending to restrict the cases in which this penalty should be inflicted. Alphonse de Castro, for example, maintained at this time that judges could only inflict the death penalty in cases in which God himself had authorized its infliction. Jean Bodin tells us of the public discussion of the question "Can judges pronounce sentence of death except in cases in which the edicts had decreed it?" "This question," says he, "was discussed by Lothair and Azo, the two greatest jurisconsults of their time, and they chose for arbiter the emperor Henry VII. while he was at Boulogne-la Grasse, and they agreed that whichever of them the emperor decided against should give the other a horse. Lothair, who maintained that the right of capital punishment belonged only to the sovereign, carried off the prize; but nearly all jurisconsults held, with Azo, that the judges had the same power, saying that Lothair equum tulerat, sed Azo æquum. Grotius only treats of capital punishment from a religious point of view, and decides it in the affirmative, basing his argument on the laws of Moses and the texts of Holy Writ. Puffendorf accords without hesitation the right of life and death over his subjects to the sovereign. Montesquieu only touches on the question, but does not hesitate to declare capital punishment to be necessary. The death penalty is, according to him, "a sort of retaliation by which society refuses security to a citizen who has deprived another of it, or has tried to do so. This penalty is based upon the very nature of things, upon reason, and upon the sources of good and evil. A citizen merits death when he has so violated public security as to take another's life, or try to do so. The death penalty is the medicine of diseased society."


—Finally, J. J. Rousseau, following the doctrine of Hobbes, placed it upon still another basis. "Every criminal who attacks the rights of society becomes by his deeds a rebel and a traitor to his country; he ceases to be a citizen of it by violating its laws, and even levies war against it. In such a case, the preservation of the state is incompatible with his own; one or the other must perish, and in putting the guilty one to death, he is so treated less as a citizen than as an enemy. The proceedings and the sentence are the proofs and declaration that he has broken the social treaty, and that consequently he is no longer a member of the state. Hence, if he is recognized as such by reason of his stay he should be removed by exile, as a violator of the social agreement, or as a public enemy, by death." Such was the state of the question when Beccaria wrote. It needed some courage to declare, in the face of history, which recorded the infliction of the death penalty in all times and among all peoples, and in the face of the philosophers, who were astounded at his audacity and who discountenanced it, the illegitimateness of this penalty, and to say that legislators, in adopting it, were usurping a right which did not belong to society. Beccaria maintains, in the first place, that no such right exists, because no member of society could consent to the sacrifice of life when he enters into the social contract. Locke had, however, already established, in his treatise "On Civil Government," that man, even in a state of nature, may punish the slightest violation of its laws. He asks: Can he punish such violation by death? And he answers that for every misdeed punishment may be inflicted of a degree of severity sufficient to bring repentance to the criminal, and to strike fear into others to such an extent that they will have no desire to commit the same misdeed. Filangieri afterward wrote: "Man, in his state of natural independence, has a right to life, and can not renounce this right. But can he lose it? Can he be deprived of it without renouncing it? Have I the right to kill the bad man who attacks me? No one has any doubts on this subject. If I have the right to kill him, he has lost the right to live, for it would be extraordinary that two rights opposed to each other should exist at the same time. Now, in society, it is not one single individual who arms himself against another individual, for the purpose of punishing him for crime, but society entire. The depositary of public power exercises this general right which each individual has transferred to society as a body." Kant replies to this: "This proof proves too much, since for the same reason no one would be bound to expose his life in defense of his country. Moreover it is sophistry and a poor interpretation of right, since nobody is made to suffer punishment because he consented to it beforehand, but because he consented to commit a crime. By the social contract each one submits beforehand to every law necessary to the maintenance of society, and consequently, also, to the penal law." (Metaphysik der Sitten, §§ 44, 45.) The best answer is, that we must put aside this fiction of a social contract, upon which the publicists of the eighteenth century based their arguments, and seek the rights of man, not in a state of nature which has never existed, but in the social state, which is his natural state.


—The question has been carried to a higher plane; the right of society has been contested, not because of a lack of consent on the part of its members, but because man's life, legitimate defense aside, is inviolable and beyond all human power. The inviolability of the life of man, it has been said, is not a self-evident axiom, but a principle capable of demonstration. Nowhere in this world is there a power over existence, for such belongs to God, who gave it, and who alone can take it away. There is and can be no power over existence upon this earth, except that of the individual who has received it (existence). The life of man is inviolable in principle because the right to exist, which God alone has given, is an equal right for all men. Each has an equal right to preserve his own life, without pretending to dispose of that of others, for existence is of divine origin. Such is the principle of its inviolability. But now comes the deed of a criminal who seeks the life of a fellow-creature. In this case the right of legitimate defense is exercised, which is only a consequence of the inviolability of the life of man, since such right exists only in the case of danger from aggression. Now, whether individuals or society be concerned, the right to exist changes neither in its nature, nor in the legitimate condition of its exercise. It is not a collective, but a personal right, and is the most inviolable and sacred gift that man has received. It may be objected, that liberty is a gift just as life is, and that if society be permitted to take away the one, it would not be consistent to contest its right to deprive one of the other. The answer is, that the right of self-preservation, exercised by society, does not justify the death penalty when the danger has ceased, but that it justifies, on the contrary, detention, if the will to do evil has survived the crime, and if there be reason to presume, consequently, that this perverse will, again set free, shall again begin to work harm. At any rate, the sacrifice of life is illegitimate if the sacrifice of a man's liberty is sufficient for the defense of society. And then, finally, if this life is given to man as a probation and preparation for another life, has any one the right to deprive him of a single one of the moments accorded him for the regeneration of his soul, and in which to atone for his misdeeds by good ones? All these reasons are grave ones. The conscience meditating upon them grows restless, and is calmed only by turning to the history of the human race. Legislators of all times and countries have not hesitated to inflict the penalty of death. Man's life is inviolable and sacred! Does that mean that it is so in all cases indiscriminately? What becomes then of the right of defense? And of the right of war? Is it peril which creates right? It is precisely because it believes itself menaced, and because the death penalty, being a preventive of the repetition of crime and by the fear it inspires, seems in keeping with the gravity of the attempts against it, that society intends to maintain it. If social power is bound to look upon natural rights as sacred, if it should intervene only to guarantee the exercise of these rights, it is clear that capital punishment must take cognizance of these same rights, when a person has rendered himself unworthy to exercise them; they can be suspended or annihilated so far as his person is concerned. Finally, if man is forbidden to shorten the life of his fellow-man, as some maintain, for fear of cutting him off before repentance, the same rule prevents us from firing upon the enemy and killing the brigand who attacks us. For if the right of self-defense authorizes us not to take into account at all the future lot of our assailant in eternity, why should not social right be endowed with the same power?


—The most powerful argument against the death penalty is the examination into its necessity. Beccaria himself, promptly abandoning his first thesis, maintained (and it is the principal basis of his opinion) that the death penalty had ceased to be necessary. And he even makes this remarkable concession, that this penalty seems to him to be necessary whenever there is no other way of deterring from crime: Quando fesso il vero e unico freno per distogliere gli attri dal commettere delitti, (when the true and only means of deterring others from the commission of crime is gone). Thus he does not radically uphold its abolition; he maintains that it is nearly always inefficacious, impotent and useless. It has since been said, following out his idea: "We do not think that society never had the power of life and death over man, we simply believe that it has such a right no longer. Society, being necessary, has, we think, all the rights necessary to its existence; and if at the commencement of its existence, in the imperfection of its primitive organization, in its scarcity of repressive means, it looked upon the right to smite the guilty as its supreme right, its only means of self-preservation, it could smite without committing crime, and inflict death in all conscience. Is it the same to-day? And in the actual condition of a society armed with sufficient force to substitute moral punishment, corrective punishment for murderous punishment, can such a society remain a homicide?" Thus formulated, the question becomes one of fact. We have only to examine whether society, in the actual state of civilization, with its material and moral forces, is surrounded with enough guarantees to enable it to do without this supreme penalty. M. Rossi consequently resumes the controversy as follows: "The death penalty is a means of justice which is extreme, dangerous, which ought to be employed only with the greatest reserve in cases of real necessity, which we all ought to desire to see suppressed, and toward the abolition of which duty commands us to direct our efforts, by preparing a state of things which shall render its abolition compatible with public and private welfare."


—This opinion, which tends to the gradual abolition of capital punishment, is perceptibly gaining ground. It is remarkable that this great question, far from fatiguing the human mind and of being lost sight of entirely, like so many other questions concerning which controversy has cooled, remains active and, so to speak, always on the offensive. Attacks and dissertations do not cease. The partisans of the abolition of the death penalty multiply. Legislation is beginning to weaken on the subject; some states diminish more and more the cases of its infliction; others go still further and do not extend it to women, minors and old men; a few even advocate its entire suppression.


—There is one point in this matter settled for all time, namely, its suppression in the case of political offenses. This is not the proper place to define political offenses; we shall only say that under this name are included, in general, crimes which are directed against the variable institutions of every nation. Guizot has demonstrated, in an eloquent book (De la peine de mort en matière politique) that this penalty has lost its efficacy in the case of political crimes, because it no longer, as of old, has the effect of crushing a party in the person of its chief, and because no leader of our days is upon so lofty an eminence as to drag with him in his fall all the members of the same party; because capital punishment to-day, in political affairs, appeals only to the passions and to ideas, and punishment has never modified ideas nor disarmed the passions; and finally, because the public conscience repudiates the infliction of this penalty for acts purely political, and that a penalty which has not the sanction of public opinion is more dangerous than useful. We may add that acts of this nature, supposing more of audacity than perversity, more restlessness of mind than corruption of heart, more of fanaticism than of vice, imprisonment for life, it would seem, ought to be sufficient for the end society has in view, namely, the assuring of its own security. Changing circumstances, cooling passions, dissolving factions, everything tends to diminish the importance of a sentenced political offender, and to render his existence a very slight danger. Would not society have to reproach itself subsequently with blood uselessly spilt? Need we go very far back in French annals to find examples of these fatal executions, and of the lasting remorse which followed them?


—One of the glories of the revolution of 1830 is, that it declared as a principle the abolition of the death penalty in the case of political offenses. Capital punishment has not been inflicted in France since that time for purely political reasons. In truth, however, this principle, although respected, was not a law. It was the work of the revolution of Feb. 24. The French constitution of Nov. 4, 1848, declares, in article 5, that "The death penalty is abolished in matters political." And the law of June 8, 1850, a consequence of this abolition, says, "In all cases in which the death penalty is abolished by article 5 of the constitution, it is replaced by exile to a fortified place, designated by law, outside of the continental territory of the republic." We are only speaking now of crimes essentially political, and which have no connection with ordinary crimes. Complex crimes, which are both a political and a common law crime, should be visited with the ordinary punishments. It would not do to admit that attempts against individuals should be punished less severely because undertaken with a political end, for this would be acknowledging that such an end is, in itself, a mitigating circumstance in the case of all crimes.


—There remains one observation on all cases in which a person is sentenced to capital punishment, namely, that this penalty is replaced by hard labor for life, or labor for a term of years, if the jury decides that there are mitigating circumstances. We are here, of course, speaking of France. The person charged with the drawing up of the law of April 28, 1832, who introduced this clause in article 463 of the French penal code, said that "The interests of this sacred cause (abolition of capital punishment) which the ill success of a hazardous experiment might compromise; the interests of society, which can not be deprived of its most salutary protection without assuring to it some other not less energetic, if less sanguinary; the state of the country and of public opinion, concerning which the legislatures render a unanimous testimony; everything forces us to the conclusion that a gradual abolition only is reasonable and possible, and we believe that we have advanced far enough upon this way by the admission of mitigating circumstances." Thus the law abdicates its power, the legislator declares himself incompetent to solve this great social problem. It is therefore to the jury in criminal cases that we must leave this tremendous political and philosophical question. Has not this solution some drawbacks? Will the mighty power which the legislator abandons always fall into good hands? Are juries on a sufficiently high plane to judge of general questions, which are pregnant with interest to the future of society? Can they lose sight of the facts of the case, to judge of the utility and effects of punishment? Is it proper that it should be left to them to choose between light and heavy, humane and barbarous penalties? Does equality exist when this choice is made by prejudiced minds, influenced by different opinions, by notions more or less exact, and finally by political passion? Is it not a result of all this that the infliction of the death penalty in cases in which the facts are the same, has no longer any fixed rule? Besides, it depends upon the jury to practically abolish it, where they are the judges when it shall be inflicted; and in these few words may be summed up the solution of this great question.


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