The punishment is probably retained, partly from ingrained habit, partly from a sense of its appropriateness for certain crimes, but also that the ultima ratio may be available in cases of sufficient gravity to the commonweal. The apparent discrepancy between the number of trials and convictions for murder is not in England any evidence of hostility on the part of juries to capital punishment, which has on the whole lessened rather than increased since the middle of the 19th century. It is rarely if ever necessary in England, though common in America, to question the jurors as to their views on capital punishment. The reasons for the comparatively small number of convictions for murder seem to be: (1) that court and jury in a capital case lean in favorem vitae, and if the offence falls short of the full gravity of murder, conviction for manslaughter only results; (2) that in the absence of a statutory classification of the degrees of murder, the prerogative of mercy is exercised in cases falling short of the highest degree of gravity recognized by lawyers and by public opinion; (3) that where the conviction rests on circumstantial evidence the sentence is not executed unless the circumstantial evidence is conclusive; (4) that charges of infanticide against the mothers of illegitimate children are treated mercifully by judge and jury, and usually terminate in acquittal, or in a conviction of concealment of birth; (5) that many persons tried as murderers are obviously insane; (6) that coroners’ juries are somewhat recklessly free in returning inquisitions of murder without any evidence which would warrant the conviction of the person accused.
The medical doctrine, and that of Lombroso with respect to criminal atavism and irresponsibility, have probably tended to incline the public mind in favour of capital punishment, and Sir James Stephen and other eminent jurists have even been thereby tempted to advocate the execution of habitual criminals. It certainly seems strange that the community should feel bound carefully to preserve and tend a class of dangerous lunatics, and to give them, as Charles Kingsley says, “the finest air in England and the right to kill two gaolers a week.”
The whole question of capital punishment in the United Kingdom was considered by a royal commission appointed in 1864, which reported in 1866 (Parl. Pap., 1866, 10,438). The commission took the opinions of all the judges of the supreme courts in the United Kingdom and of many other eminent persons, and collected the laws of other countries so far as this was ascertainable. The commissioners differed on the question of the expediency of abolishing or retaining capital punishment, and did not report thereon. But they recommended: (1) that it should be restricted throughout the United Kingdom to high treason and murder; (2) alteration of the law of homicide so as to classify homicides according to their gravity, and to confine capital punishment to murder in the first degree; (3) modification of the law as to child murder so as to punish certain cases of infanticide as misdemeanours; (4) authorizing judges to direct sentence of death to be recorded; (5) the abolition—since carried out—of public executions.
Authorities.—Beccaria, Dei Delitte e delle Pene (1790); Bentham, Rationale of Punishment; Lammasch, Grundris des Strafrechts (Leipzig, 1902); Olivecrona, De la peine de mort; Mittermaier, Capital Punishment; Report of the Royal Commission on Capital Punishment (Parl. Pap., 1866, No. 10,438); Oldfield, The Penalty of Death (1901); Pollock and Maitland, History of English Law; Pike, History of Crime; Sir J.F. Stephen, History of Crime in England; S. Walpole, History of England, vol. i. p. 191; vol. iv. p. 74; Andrews’ Old Time Punishments; A Century of Law Reform (London, 1901); Lecture ii. by Sir H.B. Poland; Howard Association Publications.
(W. F. C.)
CAPITO (or Köpfel), WOLFGANG [Fabricius] (1478-1541), German reformer, was born of humble parentage at Hagenau in Alsace. He was educated for the medical profession, but also studied law, and applied himself so earnestly to theology that he received the doctorate in that faculty also, and, having joined the Benedictines, taught for some time at Freiburg. He acted for three years as pastor in Bruchsal, and was then called to the cathedral church of Basel (1515). Here he made the acquaintance of Zwingli and began to correspond with Luther. In 1519 he removed to Mainz at the request of Albrecht, archbishop of that city, who soon made him his chancellor. In 1523 he settled at Strassburg, where he remained till his death in November 1541. He had found it increasingly difficult to reconcile the new religion with the old, and from 1524 was one of the leaders of the reformed faith in Strassburg. He took a prominent part in the earlier ecclesiastical transactions of the 16th century, was present at the second conference of Zurich and at the conference of Marburg, and along with Martin Bucer drew up the Confessio Tetrapolitana. Capito was always more concerned for the “unity of the spirit” than for dogmatic formularies, and from his endeavours to conciliate the Lutheran and Zwinglian parties in regard to the sacraments, he seems to have incurred the suspicions of his own friends; while from his intimacy with Martin Cellarius and other divines of the Socinian school he drew on himself the charge of Arianism. His principal works were:—Institutionum Hebraicarum libri duo; Enarrationes in Habacuc et Hoseam Prophetas; a life of Oecolampadius and an account of the synod of Berne (1532).
CAPITULARY (Med. Lat. capitularium), a series of legislative or administrative acts emanating from the Merovingian and Carolingian kings, so called as being divided into sections or chapters (capitula). With regard to these capitularies two questions arise: (1) as to the means by which they have been handed down to us; (2) as to their true character and scope.
(1) As soon as the capitulary was composed, it was sent to the various functionaries of the Frankish empire, archbishops, bishops, missi and counts, a copy being kept by the chancellor in the archives of the palace. At the present day we do not possess a single capitulary in its original form: but very frequently copies of these isolated capitularies were included in various scattered manuscripts, among pieces of a very different nature, ecclesiastical or secular. We find, therefore, a fair number of them in books which go back as far as the 9th or 10th centuries. In recent editions in the case of each capitulary it is carefully indicated from what manuscripts it has been collated.