By this term is now meant the infliction of the penalty of death for crime under the sentence of some properly constituted authority, as distinguished from killing the offender as a matter of self-defence or private vengeance, or under the order of some self-constituted or irregular tribunal unknown to the law, such as that of the Vigilantes of California, or of lynch law. In the early stages of society a man-slayer was killed by the "avenger of blood" on behalf of the family of the man killed, and not as representing the authority of the state (Pollock and Maitland, Hist. Eng. Law, ii. 447.) This mode of dealing with homicide survives in the vendetta of Corsica and of the Mainotes in Greece, and in certain of the southern states of North America. The obligation or inclination to take vengeance depends on the fact of homicide, and not on the circumstances in which it was committed, i.e. it is a part of the lex talionis. The mischief of this system was alleviated under the Levitical law by the creation of cities of refuge, and in Greece and Italy, both in Pagan and Christian times, by the recognition of the right of sanctuary in temples and churches. A second mode of dealing with homicide was that known to early Teutonic and early Celtic law, where the relatives of the deceased, instead of the life of the slayer, received the wer of the deceased, i.e. a payment in proportion to the rank of the slain, and the king received the blood-wite for the loss of his man. But even under this system certain crimes were in Anglo-Saxon law bot-less, i.e. no compensation could be paid, and the offender must suffer the penalty of death. In the laws of Khammurabi, king of Babylon (2285-2242 B.C.), the death penalty is imposed for many offences. The modes for executing it specially named are burning, drowning and impalement ( Oldest Code of Laws, by C. H. W. Johns, 1903). Under the Roman law, "capital" punishment also included punishments which deprived the offender of the status of Roman citizen ( capitis deminutio, capitis amissio), e.g. condemnation to servitude in the mines or to deportation to an island ( Dig. 48.19) .
The modes of capital punishment in England under the Saxon and Danish kings were various: hanging beheading, burning, drowning, stoning, and, foreign precipitation from rocks. The principle on which this variety depended was that where an offence was such as to entitle the king to outlaw the offender, he forfeited all, life and limb, lands and goods, and that the king might take his life and choose the mode of death. William the Conqueror would not allow judgment of death to be executed by hanging and substituted mutilation; but his successors varied somewhat in their policy as to capital punishment, and by the 13th century the penalty of death became by usage (without legislation) the usual punishment for high and petty treason and for all felonies (except mayhem and petty larceny, i.e. theft of property worth less than is.); see Stephen, Hist. Cr. Law, vol. i. 458; Pollock and Maitland, Hist. Eng. Law, vol. ii. 459 It therefore included all the more serious forms of crime against person or property, such as murder, manslaughter, arson, highway robbery, burglary (or hamesucken) and larceny; and when statutory felonies were created they were also punishable by death unless the statute otherwise provided. The death penalty was also extended to heretics under the writ de heretico comburendo, which was lawfully issuable under statute from 1382 (5 Ric. II. stat. 5) until 1677 (2 9 Chas. II. C. 9). For this purpose the legislature had adopted the civil law of the Roman Empire, which was not a part of the English common law (Stephen, Hist. Cr. Law, vol. ii. 438-469).
The methods of execution by crucifixion (as under the Roman law), or breaking on the wheel (as under the Roman Dutch law and the Holy Roman Empire), were never recognized by the common law, and would fall within the term "cruel and unusual punishments" in the English Bill of Rights, and in the United States would seem to be unconstitutional (see Wilkinson v. Utah, 1889, 136 U.S. 436, 446).
The severity of barbarian and feudal laws was mitigated, so far as common-law offences were concerned, by the influence of the Church as the inheritor of Christian traditions and Roman jurisprudence. The Roman law under the empire did not allow the execution of citizens except under the Lex Porcia. But the right of the emperors to legislate per rescriptum principis enabled them to disregard the ordinary law when so disposed. The 83rd novel of Justinian provided that criminal causes against clerics should be tried by the judges, and that the convicted cleric should be degraded by his bishop before his condemnation by the secular power, and other novels gave the bishops considerable influence, if not authority, over the lay judiciary. In western Europe the right given by imperial legislation in the Eastern Empire was utilized by the Papacy to claim privilege of clergy, i.e. that clerks must be remitted to the bishop for canonical punishment, and not subjected to civil condemnation at all. The history of benefit of clergy is given in Pollock and Maitland, Hist. English Law, vol. i. pp. 424-440, and Stephen, Hist. Cr. Law, vol. iii. 459, 463. By degrees the privilege was extended not only to persons who could prove ordination or show a genuine tonsure, but all persons who had sufficient learning to be able to read the neck-verse ( Ps. li. v. i). Before the Reformation the ecclesiastical courts had ceased to take any effective action with respect to clerks accused of offences against the king's laws; and by the time of Henry VII. burning on the hand under the order of the king's judges was substituted for the old process of compurgation in use in the spiritual courts.
The effect of the claim of benefit of clergy is said to have been to increase the number of convictions, though it mitigated the punishment; and it became, in fact, a means of showing mercy to certain classes of individuals convicted of crime as a kind of privilege to the educated, i.e. to all clerks whether secular or religious ( 25 Edw. III. stat. 3); and it was allowed only in case of a first conviction, except in the case of clerks who could produce their letters of orders or a certificate of ordination. To prevent a second claim it was the practice to brand murderers with the letter M, and other felons with the Tyburn T, and Ben Jonson was in 1598 so marked for manslaughter.
The reign of Henry VIII. was marked by extreme severity in the execution of criminals - as during this time 72,000 persons are said to have been hanged. After the formation of English settlements in America the severity of the law was mitigated by the practice of reprieving persons sentenced to death on condition of their consenting to be transported to the American colonies, and to enter into bond service there. The practice seems to have been borrowed from Spain, and to have been begun in 1 597 (39 Eliz. c. 4). It was applied by Cromwell after his campaign in Ireland, and was in full force immediately after the Restoration, and is recognized in the Habeas Corpus Act 1677, and was used for the Cameronians during Claverhouse's campaign in south-west Scotland. In the 18th century the courts were empowered to sentence felons to transportation (see Deportation) instead of to execution, and this state of the law continued until 1857 (6 Law Quarterly Review, p. 388). This power to sentence to transportation at first applied only to felonies with benefit of clergy; but in 1705, on the abolition of the necessity of proving capacity to read, all criminals alike became entitled to the benefit previously reserved to clerks. Benefit of clergy was finally abolished in 1827 as to all persons not having privilege of peerage, and in 1841 as to peers and peeresses. Its beneficial effect had now been exhausted, since no clergyable offences remained capital crimes.
At the end of the 8th century the criminal law of all Europe was ferocious and indiscriminate in its administration of capital punishment for almost all forms of grave crime; and yet owing to poverty, social conditions, and the inefficiency of the police, such forms of crime were far more numerous than they now are. The policy and righteousness of the English law were questioned as early as 1766 by Goldsmith through the mouth of the vicar of Wakefield: "Nor can I avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature. In cases of murder their right is obvious, as it is the duty of us all from the law of selfdefence to cut off that man who has shown a disregard for the life of another. Against such all nature rises in arms; but it is not so against him who steals my property." He adds later: "When by indiscriminate penal laws the nation beholds the same punishment affixed to dissimilar degrees of guilt, the people are led to lose all sense of distinction in the crime, and this distinction is the bulwark of all morality." The opinion expressed by Goldsmith was strongly supported by Bentham, Romilly, Basil Montagu and Mackintosh in England, and resulted in considerable mitigation of the severity of the law. In 1800 over 200 and in 1819 about 180 crimes were capital. As the result of the labour of these eminent men and their disciples, and of Sir Robert Peel, there are now only four crimes (other than offences against military law or naval discipline) capitally punishable in England - high treason, murder, piracy with violence, and destruction of public arsenals and dockyards (The Dockyards, &c., Protection Act 1772). An attempt to abolish the death penalty for this last offence was made in 1837, but failed, and has not since been renewed. In the case of the last two offences sentence of death need not be pronounced, but may be recorded (4 Geo. IV. c. 48). Since 1838 it has in practice been executed only for murder; the method being by hanging.
| Death Sentences. | Sentences Executed. | Years. | For all | For | For all | For | Crimes. | Murder. | Crimes. | Murder. | 1831 | 1601 | 14 | 52 | 12 | 18 33 1 | 931 | 9 | 33 | 6 | 1838 1 | 116 | 25 | 6 | 5 | 1862 1 | 29 | 28 | 15 | 15 The change in the severity of the law is best illustrated by the following statistics: - During the twelve years from 1893 to 1904, 788 persons were committed for trial for murder, being an average of 65. The highest number was in 1893 (82) and the lowest in 1900 (51). Of those tried in 1904, 28 (26 males and 2 females) were convicted of murder, 16 (all males) were executed; 9 males and 2 females had their sentences commuted to penal servitude for life. In Scotland capital punishment can be imposed only for treason, murder and offences against io Geo. IV. c. 38, i.e. wilful shooting, stabbing, strangling or throwing corrosives with intent to murder, maim, disfigure, disable, or do grievous bodily harm, in all cases where if death had ensued the offence would have been murder. Prior to 1887 rape, robbery, wilful fire-raising and incest, and many other crimes, were also capital offences; but in practice the pains of law were restricted at the instance of the prosecution. The method is by hanging. In Ireland capital punishment may be inflicted for the same offences as in England, except offences under the Dockyards Protection Act 1772, and it is carried out in the same manner. Offences under Military Law. - Thus far only crimes against the ordinary law of the land have been dealt with. But both the Naval Discipline Act of 1866 and the Army Act empower courts-martial to pass sentence for a number of offences against military and naval laws. Such sentences are rarely if ever passed where an ordinary court is within reach, or except in time of war. The offences extend from traitorous communication with the enemy and cowardice on the field to falling asleep while acting as a sentinel on active service. It is for the authority confirming a sentence of death by court-martial to direct the mode of execution, which both in the British and United States armies is usually by shooting or hanging. During the Indian Mutiny some mutineers were executed by being blown from the mouth of cannon. As to the history of military punishments see Clode, Military and Martial Law. 1 Each of these years followed upon legislation mitigating severity of punishment. British Colonies and PossessionsUnder the Indian Penal Code sentence of death may be passed for waging war against the king (s. 121) and for murder (s. 302). If the murder is committed by a man under sentence of transportation for life the death penalty must be imposed (s. 303). In other cases it is alternative. This code has been in substance adopted in Ceylon, in Straits Settlements and Hong-Kong, and in the Sudan. In most of the British colonies and possessions the death penalty may be imposed only in the case of high treason, wilful murder and piracy with violence. But in New South Wales and Victoria sentence of death may be passed for rape and criminal abuse of girls under ten. In Queensland the law was the same until the passing of the Criminal Code of 1899. Under the Canadian Criminal Code of 1892 the death sentence may be imposed for treason (s. 657), murder (s. 231), rape (s. 267), piracy with violence (s. 127), and upon subjects of a friendly power who levy war on the king in Canada (s. 68). But the judge is bound by statute to report on all death sentences, and the date of execution is fixed so as to give time for considering the report. The sentence is executed by hanging. In South Africa the criminal law is based on the Roman-Dutch law, under which capital punishment is liable for treason (crimen perduellionis or laesae majestatis ), murder and rape (van Leeuwen, c. 36). In the Cape Colony rape is still capital (R. v. Nonosi, 1885; 1 Buchanan, 1898). In Natal rape may be punished by hanging (act no. 22, 1898). Though the Roman-Dutch modes of executing the sentence by decapitation or breaking on the wheel have not been formally abolished, in practice the sentence in the Cape Colony is executed by hanging. In the Transvaal hanging is now the sole mode of executing capital punishment (Criminal Procedure Code, 1903, s. 244). The Roman-Dutch law as to crime and punishments has been superseded in Ceylon and British Guiana by ordinance. Austria-HungaryIn Austria capital punishment was in 1787 for a time abolished, but was reintroduced in 1795 for high treason, and in 1803 for certain other crimes. Under the penal code still in force in 1906 it might be inflicted for the offences in the table given below, but not on offenders who were under twenty when they committed the offence. The annexed table indicates that the full sentence was sparingly executed. Under a Penal Code drafted in 1906, however, only two offences were made capital, viz. high treason against the person of the emperor and the graver cases of murder. The sentence is executed by hanging. BelgiumUnder the Belgian Penal Code of 1867 the death penalty is retained for certain forms of high treason, and for assassination and parricide by poisoning. It may not be pronounced on a person under eighteen. The sentence is executed publicly by the guillotine. No execution seems to have taken place since 1863. DenmarkSentence of death may be imposed for most forms of high treason, aggravated cases of murder, rape and piracy. It is executed publicly by the axe. Offenders under eighteen are not liable. FinlandIn Finland the death penalty is alleged not to have been inflicted since 1824. It may be imposed for the assassination of the grand duke or grand duchess of the head of a friendly state, and wilful murder of other persons.
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