Capital Punishment (Lat. caput, head, the source of life; hence capitalis, anything affecting life, as crimen capitale, capital crime; poena capitalis, capital punishment), in modern law, the punishment of death. A capital offence by the Roman law imported only a loss of civil rights (amissio civitatis). In the primitive state of social organization, at least in the earliest condition of which we have any record, retaliation was the common method of punishing offences, and this was inflicted by the individual suffering the injury, or by his friends when the injury was loss of life. The right of individual revenge has not only existed in the savage state, but has been recognized, and to some extent tolerated, even after laws have been enacted for the restraint of crime; and in the laws of many nations, retaliation, that is, the infliction of the same injury upon the offender which he had committed, was allowed. Moses prescribed, as the measure of punishment for corporal injuries, an eye for an eye, a tooth for a tooth, and life for life (Exod. xxi.; Levit. xxiv.); and it would seem, in the latter case, that any person belonging to the family of the person whose life had been taken could pursue the murderer and slay him. " The avenger of blood " was a person having such right of private vengeance, and not a public officer appointed for that purpose.
The only means of escape from this mode of retribution was by fleeing to certain cities of refuge, and this was available only in cases of what we should call excusable homicide. - The offences designated by the laws of different nations as punishable by death are illustrative of the degree and peculiar form of civilization. The Hebrew polity being theocratic, many offences were punished capitally as being violations of the national faith, such as desecration of the sabbath, blasphemy, idolatry, witchcraft, cursing, offering children to Moloch, and disobedience to parents. Murder, adultery, incest, kidnapping a free person and selling him for a slave, and some other offences, were also capital. - The Athenian code of laws established by Draco prescribed the punishment of death for a large number of offences, greatly differing in degrees of criminality, which the lawgiver extenuated by saying that the smallest of the crimes specified deserved death, and there was no greater penalty which he could inflict for more heinous offences.
This severity was afterward very much modified, and the Athenian criminal code became very mild, but subject 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 accused; as in the case of Socrates, who, after trial by the court of areopagus, and being convicted 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 punished by death, or for which death was prescribed by law, were sacrilege, impiety (any open disrespect for religious rites or popular faith), treason, murder, or the attempt to murder, 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 spreading disbelief in the national religion. Although the judgment of the areopagus in the case of Socrates was unjust, yet the ordinary administration 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 singular 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 prevented from having full operation by the Valerian 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, forbidding 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 capital crime to go into voluntary exile, and thus avoid the judgment of the court; but in such cases his property could be confiscated for nonappearance. - 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 empire, 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 injured 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 loehren or bewahren). It was, however, assumed that the injured party had a right to choose whether to take the composition, or to get satisfaction by his own hand.
Similar provisions 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 relations 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. Associations were also formed among men of the same class for their mutual protection, the obligation assumed being to pursue the murderer 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 been 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, robbery 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 corruptly casting away or destroying a vessel belonging to private owners. Treason and murder are capital crimes in most of the states; in some also rape, arson, and robbery under aggravated circumstances; but some have abolished capital punishment altogether. Aggravated military offences, such as acting as a spy, desertion to the enemy or secretly communicating advice or intelligence to him, are punishable with death in all countries. In England, Scotland, 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 shooting, or, in case of crimes considered peculiarly dishonorable, by hanging.