[119] Beccaria, Dei delitti e delle pene, § 16.
[120] Romilly, Punishment of Death, p. 56 sqq.
[121] Ibid. p. 47 sq. Hetzel, op. cit. p. 454 sqq.
[122] Mittermaier, Die Todesstrafe, p. 150 sqq. Olivecrona, Om dödsstraffet, p. 130 sqq.
[123] Mittermaier, op. cit. pp. 62, 133. von Mehring, Frage von der Todesstrafe, p. 19 sqq.
[124] Bentham, Rationale of Punishment, p. 186 sqq. Cf. Hetzel, op. cit. p. 442 sqq.
[125] Bentham, op. cit. p. 191 sq. Mittermaier, op. cit. pp. 98 sqq., 148.
[126] Romilly, op. cit. p. 3 sqq.
Under the influence of these and similar arguments, but chiefly owing to an increasing reluctance to take human life, the legislation of Europe has, from the end of the eighteenth century, undergone a radical change with reference to the punishment of death. In several European and American States it has been formally abolished, or is nowadays never inflicted,[127] whilst in the rest it is practically restricted to cases of wilful murder. But it still has as strenuous advocates as ever, and receives much support from popular feelings. It is said that the abolition of capital punishment would remove one of the best safeguards of society; that it definitely prevents the criminal from doing further mischief; that it is a much more effective means of deterring from crime than any other penalty; that its abolition would have the disadvantage of crimes widely differing in their nature being placed on the same footing; that a person criminally disposed, if he knew that he would only be punished with imprisonment for life, would, instead of merely perpetrating robbery, commit murder at the same time, being aware that no higher penalty on that account would be inflicted; and so forth. As usually, religion also is called in to give strength to the argument. Several writers maintain that the statements in the Bible which command capital punishment have an obligatory power on all Christian legislators;[128] we even meet with the assertion that the object of this punishment is not the protection of civil society, but to carry out the justice of God, in whose name “the judge should sentence and the executioner strike.”[129] But I venture to believe that the chief motive for retaining the punishment of death in modern legislation is the strong hold which the principle of talion has on the minds of legislators, as well as on the mind of the public. This supposition derives much support from the fact that capital punishment is popular only in the case of murder. “Blood, it is said, will have blood, and the imagination is flattered with the notion of the similarity of the suffering, produced by the punishment, with that inflicted by the criminal.”[130]
[127] Günther, op. cit. iii. 347 sqq. von Liszt, Lehrbuch des Deutschen Strafrechts, p. 261.