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CAPITAL CRIME. One for the punishment of which death is inflicted, which
punishment is called capital punishment. Dane's Ab. Index, h.t.
2. The subject of capital punishment has occupied the attention of enlightened men for a long time, particularly since the middle of the last century; and none deserves to be more carefully investigated. The right of punishing its members by society cannot be denied; but how far this right extends, by the laws of nature or of God, has been much disputed by theoretical writers, although it cannot be denied, that most nations, ancient and modern, have deemed capital punishment to be within the scope of the legitimate powers of government. Beccaria contends with zeal that the punishment of death ought not to be inflicted in times of peace, nor at other times, except in cases where the laws can be maintained in no other way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the question, whether the punishment is allowed by the natural law. The principal arguments for and against it are here given.
4.-1. The arguments used in favor of the abolition of capital punishment, are;
5.-1st. That existence is a right which men hold from God, and which society in body can, no more than a member of that society, deprive them of, because society is governed by the immutable laws of humanity.
6.-2d. That, even should the right be admitted, this is a restraint badly selected, which does not attain its end, death being less dreaded than either solitary confinement for life, or the performance of hard labor and disgrace for life.
7.-3d. That the infliction of the punishment does not prevent crimes, any more than, other less severe but longer punishments.
8.-4th. That as a public example, this punishment is only a barbarous show, better calculated to accustom mankind to the contemplation of bloodshed, than to restrain them.
9.-5th. That the law by taking life, when it is unnecessary for the safety of society, must act by some other motive this can be no other than revenge. To the extent the law punishes an individual beyond what is requisite for the preservation of society, and the restoration of the offender, is cruel and barbarous. The law) to prevent a barbarous act, commits one of the same kind,; it kills one of the members of society, to convince the others that killing is unlawful.
10.-6th. That by depriving a man of life, society is deprived of the benefits which he is able to confer upon it; for, according to the vulgar phrase, a man hanged is good for nothing.
11.-7th. That experience has proved that offences which were formerly punished with death, have not increased since the punishment has been changed to a milder one.
12.-2. The arguments which have been urged on the other side, are,
13.-1st. That all that humanity commands to legislators is, that they should inflict only necessary and useful punishments; and that if they keep within these bounds, the law may permit an extreme remedy, even the punishment of death, when it is requisite for the safety of society.
14.-2d. That, whatever be said to the contrary, this punishment is more repulsive than any other, as life is esteemed above all things, and death is considered as the greatest of evils, particularly when it is accompanied by infamy.
15.-3d. That restrained, as this punishment ought to be, to the greatest crimes, it can never lose its efficacy as an example, nor harden the multitude by the frequency of executions.
16.-4th. That unless this punishment be placed at the top of the scale of punishment, criminals will always kill, when they can, while committing an inferior crime, as the punishment will be increased only by a more protracted imprisonment, where they still will hope for a pardon or an escape.
17th.-5th. The essays which have been made by two countries at least; Russia, under the reign of Elizabeth, and Tuscany, under the reign of Leopold, where the punishment of death was abolished, have proved unsuccessful, as that punishment has been restored in both.
18. Arguments on theological grounds have also been advanced on both sides. See Candlish's Contributions towards the Exposition of the Book of Genesis, pp. 203-7. Vide Beccaria on Crimes and Punishments; Voltaire, h.t.; Livingston's Report on a Plan of a Penal Code; Liv. Syst. Pen. Law, 22; Bentham on Legislation, part 3, c. 9; Report to the N. Y. Legislature; 18 Am. Jur. 334.