But whilst, among peoples of culture, capital punishment has been inflicted far beyond the limits of the lex talionis, we meet, on the other hand, among such peoples with opinions to the effect that it should not be applied even in the most atrocious cases. The old philosopher Lao-tsze, the founder of Taouism, condemned it both as useless and as irreverent. The people, he argued, do not fear death; to what purpose, then, is it to try to frighten them with death? There is only one who presides over the infliction of it. “He who would inflict death in the room of him who presides over it may be described as hewing wood instead of a great carpenter. Seldom is it that he who undertakes the hewing, instead of the great carpenter, does not cut his own hands.”[111] Nor does Confucius seem to have been in favour of capital punishment. When Chî K’ang asked his opinion as to the killing of “the unprincipled for the good of the principled,” Confucius replied:—“Sir, in carrying on your government, why should you use killing at all? Let your evinced desires be for what is good, and the people will be good.”[112] The early Christians generally condemned the punishment of death, as well as all other forms of shedding human blood;[113] but when the Church obtained an ascendency, the condemnation of it was modified into the doctrine that no priest or bishop must take any part in a capital charge.[114] Later on, from the twelfth century at least, the priest might assist at judicial proceedings resulting in a sentence of death, if only he withdrew for the moment, when the sentence was passed.[115] And whilst ostentatiously sticking to the principle, “Ecclesia non sitit sanguinem,”[116] the Church had frequent recourse to the convenient method of punishing heretics by relegating the execution of the sentence to the civil power, with a prayer that the culprit should be punished “as mildly as possible and without the effusion of blood,” that is, by the death of fire.[117] In modern times the views of the early Christians regarding capital punishment have been revived by the Quakers;[118] but the powerful movement in favour of its abolition chiefly derives its origin from the writings of Beccaria and the French Encyclopedists.
[111] Tâo Teh King, 74.
[112] Lun Yü, xii. 19.
[113] Hetzel, Die Todesstrafe, p. 71 sqq. Günther, Die Idee der Wiedervergeltung, i. 271. Lactantius, Divinæ Institutiones, vi. (‘De vero cultu’) 20 (Migne, Patrologiæ cursus, vi. 708): “… occidere hominem sit semper nefas, quem Deus sanctum animal esse voluit.”
[114] Supra, p. 381 sq. Lecky, History of European Morals, ii. 39. Laurent, Études sur l’histoire de l’Humanité, iv. 223; vii. 233.
[115] Gerhohus, De ædificio Dei, 35 (Migne, op. cit. cxciv. 1282).
[116] Katz, Grundriss des kanonischen Strafrechts, p. 54.
[117] Lecky, History of European Morals, ii. 41.
[118] Gurney, Views & Practices of the Society of Friends, pp. 377 n. 1, 389.
The great motive force of this movement has been sympathy with human suffering and horror of the destruction of human life—feelings which have been able to operate the more freely, the less they have been checked either by the belief in the social expediency of capital punishment, or by the notion of a vindictive god who can be conciliated only by the death of the offender. It has been argued that the punishment of death is no more effective as a deterrent from crime than are certain other punishments. According to Beccaria, it is not the intensity of a pain which produces the greatest effect on the mind of man, but its continuance; hence the execution of a culprit, occupying a short time only, must be a less deterring example than perpetual slavery, which ought to be the penalty for the greatest crimes.[119] Moreover, the circumstances which unavoidably attend the practical application of the punishment of death are such as excite the sympathy of the public in favour of the perpetrator of the crime and thereby seriously impair the efficacy of the punishment as an example.[120] An execution is regarded as less degrading than many other forms of punishment; when a man dies on the scaffold there is a counterpoise to the disgrace in the admiration excited by his firmness, whereas there is no such counterpoise when a man goes off in the prison van to be immured in a cell.[121] Statistical data prove, it is said, that, where capital punishment has been abolished either for certain crimes or generally, crime has not become more frequent after the abolition, whilst the re-enactment of capital punishment, or greater strictness in its execution, has nowhere diminished the number of offences punishable with death.[122] And the punishment of death is no more required by the dictates of abstract justice than it is requisite for the safety of the community. It is quite an arbitrary assumption, based on the rude theory of talion, that death must be inflicted on him who has caused death; such an assumption can be refuted simply by showing that there are many degrees of homicide.[123] Nay, far from being postulates of the highest justice, laws which prescribe capital punishment may lead to the highest injustice. As Bentham observes, “the punishment of death is not remissible”; error is possible in all judgments, but whilst in every other case of judicial error compensation can be made, death alone admits of no compensation.[124] And not only may the innocent have to suffer an irreparable punishment, but the criminal easily escapes his punishment altogether. Experience shows that the punishment of death has the disadvantage of diminishing the repressive power of the legal menace, because witnesses, judges, and jurymen exert themselves to the utmost in order to avoid arriving at a verdict of guilty in many cases where an execution would be the consequence of such a verdict.[125] Finally, the punishment of death almost entirely misses one of the most essential aims of every legitimate punishment, the reformation of the criminal. Nay, by putting him to a speedy death we actually prevent him from morally reforming himself, and from manifesting the fruits of sincere repentance; and we perhaps deprive him of the opportunity of making good his claim to mercy at the hands of another and a higher Tribunal, on which we are arrogantly encroaching in a matter of which we are wholly unfit to judge.[126]