Page:The American Cyclopædia (1879) Volume III.djvu/765

CAPITAL PUNISHMENT 755 afterward very much modified, and the Athe- nian criminal code became very mild, but sub- ject to an arbitrary power reserved to the assembly of the people over the lives of all the citizens, and also to a discretion, which in many instances was left to the areopagus, and even to the dicasts of the people, of determining the punishment as well as the guilt of the ac- cused; as in the case of Socrates, who, after trial by the court of areopagus, and being con- victed of the charge against him, was retried with reference to the punishment. It was generally in the power of an Athenian to escape from a trial, if he was unwilling to incur the risk, by going into voluntary exile. Arrest before trial was not the practice in judicial proceedings, either civil or criminal, in the Athenian courts. The crimes ordinarily pun- ished by death, or for which death was pre- scribed by law, were sacrilege, impiety (any open disrespect for religious rites or popular faith), treason, murder, or the attempt to mur- der, and incendiarism. There may have been other cases, but we have no record of them. The charge against Alcibiades, which drove him into exile, was the mutilation of the busts of Hermes which had been placed in the streets of Athens. Socrates was accused of spread- ing disbelief in the national religion. Although the judgment of the areopagus in the case of Socrates was unjust, yet the ordinary adminis- tration of justice by that court was impartial and lenient. The Roman laws compiled by the decemvirs were severe. The lex talionis, or punishment like to the injury, was admitted in cases of maiming or other corporal violence ; but exemption could be obtained by a pecuniary compensation. Montesquieu mentions the sin- gular provision by which the penalty of death was denounced against the writers of libels and poets, as showing that the laws were framed for the support of a despotic government. The severity of the twelve tables, into which the laws were digested by the decemvirs, was pre- vented from having full operation by the Vale- rian laws, which had been previously passed in the consulship of Valerius Poplicola, taking from the consuls the power of inflicting the punishment of death, and giving an appeal from the consul to the people in all cases ; and finally by the Porcian law, A. U. 454, forbid- ding any one to bind, scourge, or kill a Roman citizen. Criminal jurisdiction in capital cases was therefore vested in the assembly of the people. Trials were always had in those cases before the comitia centuriata. The same usage prevailed at Rome which existed at Athens, viz. : of allowing a criminal accused of a capi- tal crime to go into voluntary exile, and thus avoid the judgment of the court ; but in such cases his property could be confiscated for non- appearance. The Germans in their primitive state allowed private retaliation for injuries, and long after they had become established as nations within the territory of the Roman em- pire, and had become subject to codes of laws, this was still considered a natural right, and judicial authority interposed no check except to impose terms of compromise when the in- jured party was willing to accept pecuniary compensation. The Salic law prescribed the rate of composition for different crimes, which was called wehrgeld, composition money (from wehren or bewahren). It was, however, as- sumed that the injured party had a right to choose whether to take the composition, or to get satisfaction by his own hand. Similar pro- visions are found in the laws of theBurgundians, Visigoths, and Ripuarian Franks. The Anglo- Saxons, like the other German nations, had a scale of fines for every species of crime ; that for murder was called moigbota or manbote, (See ANGLO-SAXONS.) Besides paying the re- lations of the deceased, a murderer was also obliged to make compensation to the master if the deceased was a slave, or to the lord if the deceased was a vassal under his protection. It was common for the poorer class to enroll themselves as the retainers of some superior, who was then bound to protect them. Asso- ciations were also formed among men of the same class for their mutual protection, the obligation assumed being to pursue the mur- derer of any one belonging to the association, and inflict punishment. In England there was during a long period a serious interference with the regular administration of criminal justice, growing out of the exemption claimed by and. conceded to the church in behalf of the clergy and their retainers. (See BENEFIT OF CLERGY.) It became usual, therefore, to incorporate in statutes a prohibition of the benefit of clergy where it was intended that the death penalty should be inflicted. At the time Blackstone wrote there were 160 different offences which had been declared felonies without benefit of clergy, and might be visited with that penalty; but gradually the fearful list has be'en reduced to the crimes of treason and murder, regarded as the two most heinous. By the laws of the United States the crimes punishable by death are treason, murder, arson, rape, piracy, rob- bery of the mail with jeopardy to the life of the person in charge thereof, rescue of a person convicted of a capital crime when going to execution, burning a vessel of war, and cor- ruptly casting away or destroying a vessel be- longing to private owners. Treason and mur- der are capital crimes in most of the states; in some also rape, arson, and robbery under aggra- vated circumstances ; but some have abolished capital punishment altogether. Aggravated military offences, such as acting as a spy, de- sertion to the enemy or secretly communicating advice or intelligence to him, are punishable with death in all countries. In England, Scot- land, Ireland, Austria, and the United States the punishment is by hanging, in France by the guillotine, in Spain by the garrote, and in most of the other European states by beheading, which was the method employed formerly in England. The military punishment is by shoot-