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,
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
7. - 3d. That the infliction of the punishment does not prevent crimes,
any more thau, 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 punisliments; 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
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.
Source: Bouviers Law Dictionary 1856 Edition
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