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CAPITAL

PUNISHMENT

579 Switzerland. — Capital punishment was abolished in the law was finally upheld both in the state and Federal Switzerland in 1874 by Federal legislation; but in 1879, cour s. Through the United States as a whole public in consequence of a plebiscite, each canton was empowered to restore the death penalty for offences in its territory. °^W-i.+l ls

CertainI

y not against capital punishment. the mitigation of the law as to punishment the The Federal Government was unwilling to take this course, agitations against capital punishment have lost their force. but was impelled to it by the fact that, between 1874 u many Continental and American writers, and some and 1879, cases of premeditated murder had considerably Jingusn writers and associations, advocate the increased. Seven of the cantons out of twenty-two have total abolition of the death punishment. Emile Tbe ques‘ exercised the power given to restore capital punishment. de Girardin, writing against all forms of punish- ^oliLn But there do not seem to have been any cases in which ment, said that he would abolish that of death the death penalty was inflicted; and on the assassination last as being the least cruel and the most effectual. The of the empress of Austria at Geneva it was found that ultimate argument of the opponents is that society has the laws of the canton did not permit the execution of the no rig to take the life of any one of its members on any assassin. ground. Rut they also object to capital punishment: (1) United States of America.—Under the Federal laws 1 1 US rounds sentence of death may be passed for treason against the °? ?, time . g for repentance; > because it (2) mayondeprive sinner of his ffull medicalthe grounds, United States and for piracy and for murder within the because homicide is usually if not always evidence of Federal jurisdiction. But for the most part the punish- mental disease or irresponsibility; (3) on utilitarian ment of crime is regulated by the laws of the constituent grounds, because capital punishment is not really destates of the Union. terrent, and is actually inflicted in so few instances for The death penalty was abolished in Michigan in 1846 murder that criminals discount the risks of undergoing except for treason, and wholly in Wisconsin in 1853. In it; (4) on legal grounds, i.e., that the sentence being Maine it was abolished and subsequently re-enacted, but irrevocable and the evidence often circumstantial only again abolished in 1887. In Rhode Island it was abolished there is great risk of gross injustice in executing a person in 1852, but restored in 1882, only in case of murder convicted of murder; (5) on moral grounds, that the committed by a person under sentence of imprisonment for life. . In all the other states the death penalty may punishment does not fit the case nor carry out the true of punishment, namely, the reformation of the still be inflicted : in Alabama, Delaware, Georgia, Mary- function offender. land, and West Virginia, for treason, murder, arson, and The punishment is probably retained, partly from inrape, in Alaska, Arizona, Kansas, New Jersey, Mississippi grained habit, partly from a sense of its appropriateness Montana, New York, North Dakota, Oregon, and South for certain crimes, but also that the ultima ratio may Dakota for treason and murder; in Colorado, Idaho, be available in cases of sufficient gravity to the commonIllinois, Iowa, Massachusetts, Minnesota, Nebraska, New weal. The apparent discrepancy between the number of Hampshire, New Mexico, Nevada, Ohio, Oklahoma, Penn- trials and convictions for murder is not in England sylvania, D tah, and Wyoming for murder only; in Kentucky and Virginia for treason, murder, and rape; any evidence of. hostility on the part of juries to capital in Vermont for treason, murder, and arson; in Indiana punishment, which has on the whole lessened rather than increased since the middle of the 19th century. It is for treason, murder, and arson if death result; in rarely if ever necessary in England, though common in California for treason, murder, and train wrecking; in America, to question the jurors as to their views on capital North Carolina for murder, rape, arson, and burglary; in Ilorida, Missouri, South Carolina, Tennessee, and punishment. The reasons for the comparatively small number of convictions for murder seem to be: (1) that Texas for murder and rape ; in Arkansas and Louisiana for court and jury in a capital case lean in favorem vitce, and treason, murder, rape, and administering poison or use of if the offence falls short of the full gravity of murder, dangerous weapons with intent to murder. Louisiana is conviction for manslaughter only results; (2) that in the cited by Girardin (le droit de punir) as a state in which absence of a statutory classification of the degrees of the death penalty was abolished in 1830. Under the murder, the prerogative of mercy is exercised in cases influence of the eminent jurist, Livingston, who framed falling short of the highest degree of gravity as recognized the state codes, the legislature certainly passed a resolu- by lawyers and public opinion; (3) that where the contion against capital punishment. But since as early as viction rests on circumstantial evidence the sentence is 1846 it has been there lawful, subject to a power given to not executed unless the circumstantial evidence is conthe jury, to bring in a verdict of guilty, “ but no capital clusive ; (4) that charges of infanticide against the mothers punishment,” which had the effect of imposing a sentence of illegitimate children are treated mercifully by judge of hard labour for life. In certain other states the jury jury, and usually terminate in acquittal, or in a conhas under local legislation the right to award the sentence. and viction of concealment of birth; (5) that many persons The constitutionality of such legislation has been doubted, tried as murderers are obviously insane ; (6) that coroners’ but has been recognized by the courts of Illinois and Iowa. juries are somewhat recklessly free in returning inquisitions Sentence of death is executed by hanging by the neck of murder without any evidence which would warrant the except in New York and Ohio, where it is carried out trial of the person accused. by “electrocution,” or by passing through the body of The medical doctrine, and that of Lombroso with rethe convict a current of electricity of sufficient intensity spect to criminal atavism and irresponsibility have probably to cause death and until death is caused. The execution is carried out privately in a specified prison, only certain tended to incline the public mind in favour of capital punishment, and Sir James Stephen and other eminent specified persons or classes of persons are allowed to be jurists, have even been thereby tempted to advocate the present, and no coroner’s inquest is held (Ohio Stat., §§ execution of habitual criminals. It certainly seems 7338-7344, New York State Laws of 1888, c. 489). The strange that the community should feel bound carefully validity of the New York law was attacked, largely on to preserve and tend a class of dangerous lunatics, and to the ground that the method of death which was pre- give them, as Charles Kingsley says, “the finest air in scribed under it was a “ cruel and unusual punishment ” and the right to kill two gaolers a week.” and therefore contrary to one of the clauses of the Consti- England The whole question of capital punishment was contution of the United States; but the constitutionality of sidered by a royal commission appointed in 1864, which