592
THE GREEN BAG
circumstances and the persons concerned in each particular case that the jury should have the right to render a verdict of guilty with or without capital punishment. 'It is safe to say that they will always impose the death penalty in all proper cases. Where a verdict of guilty without capital punishment is rendered, the judge should have a large discretion in the imposition of the penalty, in order that he may be able to make the punishment fit the crime. But where the verdict is guilty with capital pun ishment, swift and inexorable death, in horrid form, should be the inevitable pen alty. The crime stands alone in horror among all crimes, and its punishments too should stand alone in terror among all pun ishments. The convict should be executed in public by some form of death so supremely horrible as to strike terror even to the hearts of fiends themselves. The English in India found that the death penalty had no terrors for the mutinous Sepoys until they began to blow them into eternity from the mouths of cannon. It might be well legally to destroy our human fiends by blowing them into atoms with dynamite, or by casting them into a burning pit, simulating as nearly as may be the popular conception of the fires of hell. Only such a death will ever seem adequate pun ishment for such a crime. If the punish ment be inhuman, is there anything human about the crime or the criminal? Is any sacrifice too great to be demanded in expia tion of such a crime? If it is not granted by the law, the wild cry for vengeance of a people writhing in dumb, helpless agony will continue to be heard and heeded by the mob; and lawless executions will increase in num ber and in horror. The situation is daily becoming more unbearable, and we lawyers must end it or cease boasting of our useful ness to civilization and society. Laws IIr III, and IV of our decalogue may be considered together, as they are all of the same character, denounce offenses against women, and impose the death pen
alty. It is interesting to note the careful distinctions and studied refinements made by this barbarous code of lawlessness which are well illustrated by these three of its laws. It will be observed that the adulterer may be slain by the husband alone, while the seducer and the slanderer may be put to death either by his victim or by any near relative of hers. Mark also that the adul terer and the seducer may be assassinated without warning of any kind, while the slanderer must have a hearing and be given a chance for his life. None of these three laws are so widely recognized and enforced as Law I, but they are recognized and obeyed to an extent sufficient to make them extremely danger ous both to individuals and to society. When any one of them is set up in defense of a prosecution for homicide, it is seldom, indeed, that the accused is convicted; and who shall say how often they are thus falsely pleaded to excuse bloody murder? While their enforcement is not usually at tended with the multiplied horrors of lynch ing, yet they are amenable to all the other potent objections to that bloody custom and to some others peculiarly their own. The bloody work of the lyncher is not a solitary crime; it is usually done, to some extent at least, in the open, but the offenses denounced by these three laws are usually punished by cowardly assassination at the hands of one man without sponsors or wit nesses. In case of rape there is always, at least, proof of the corpus delicti; this is fre quently lacking in cases of adultery, seduc tion, and slander. When we add to this grave defect in the proof of a capital crime the many powerful motives to charge these offenses falsely in justification of homicide prompted by other motives it becomes evi dent that no civilized state can long endure them and that they must be abrogated. They all probably have for their raison d'etre the absurdly inadequate remedy pro vided by law. In many of the states none of these offenses are punishable as crimes,
