The subject in its details is full of controversies, and a discussion of it at any length would embrace the whole field of economics. The subject will be found fully dealt with in every important economic work, but the following may be specially consulted:—J.S. Mill,Principles of Political Economy; J.E. Cairns,Some Leading Principles of Political Economy; F.A. Walker,Political Economy; A. Marshall,Principles of Economics; E. Bohm v. Bawerk,Capital and Interest; K. Marx,Capital; J.B. Clark,Capital and its Earnings; see also the economic works of W.H. Mallock (Critical Examination of Socialism, 1908, &c.) for an insistence on the importance of “ability,” or brain-work, as against much of modern socialist theorizing against “capitalism.”
The subject in its details is full of controversies, and a discussion of it at any length would embrace the whole field of economics. The subject will be found fully dealt with in every important economic work, but the following may be specially consulted:—J.S. Mill,Principles of Political Economy; J.E. Cairns,Some Leading Principles of Political Economy; F.A. Walker,Political Economy; A. Marshall,Principles of Economics; E. Bohm v. Bawerk,Capital and Interest; K. Marx,Capital; J.B. Clark,Capital and its Earnings; see also the economic works of W.H. Mallock (Critical Examination of Socialism, 1908, &c.) for an insistence on the importance of “ability,” or brain-work, as against much of modern socialist theorizing against “capitalism.”
CAPITAL PUNISHMENT.By this term is now meant the infliction of the penalty of death for crime under the sentence of some properly constituted authority, as distinguished from killing the offender as a matter of self-defence or private vengeance, or under the order of some self-constituted or irregular tribunal unknown to the law, such as that of the Vigilantes of California, or of lynch law (q.v.). In the early stages of society a man-slayer was killed by the “avenger of blood” on behalf of the family of the man killed, and not as representing the authority of the state (Pollock and Maitland,Hist. Eng. Law, ii. 447.) This mode of dealing with homicide survives in the vendetta of Corsica and of the Mainotes in Greece, and in certain of the southern states of North America. The obligation or inclination to take vengeance depends on the fact of homicide, and not on the circumstances in which it was committed,i.e.it is a part of thelex talionis. The mischief of this system was alleviated under the Levitical law by the creation of cities of refuge, and in Greece and Italy, both in Pagan and Christian times, by the recognition of the right of sanctuary in temples and churches. A second mode of dealing with homicide was that known to early Teutonic and early Celtic law, where the relatives of the deceased, instead of the life of the slayer, received the wer of the deceased,i.e.a payment in proportion to the rank of the slain, and the king received the blood-wite for the loss of his man. But even under this system certain crimes were in Anglo-Saxon law bot-less,i.e.no compensation could be paid, and the offender must suffer the penalty of death. In the laws of Khammurabi, king of Babylon (2285-2242b.c.), the death penalty is imposed for many offences. The modes for executing it specially named are burning, drowning and impalement (Oldest Code of Laws, by C.H.W. Johns, 1903). Under the Roman law, “capital” punishment also included punishments which deprived the offender of the status of Roman citizen (capitis deminutio, capitis amissio),e.g.condemnation to servitude in the mines or to deportation to an island (Dig.48. 19).
United Kingdom.—The modes of capital punishment in England under the Saxon and Danish kings were various: hanging, beheading, burning, drowning, stoning, and precipitation from rocks. The principle on which thisBritish and foreign laws and methods.variety depended was that where an offence was such as to entitle the king to outlaw the offender, he forfeited all, life and limb, lands and goods, and that the king might take his life and choose the mode of death. William the Conqueror would not allow judgment of death to be executed by hanging and substituted mutilation; but his successors varied somewhat in their policy as to capital punishment, and by the 13th century the penalty of death became by usage (without legislation) the usual punishment for high and petty treason and for all felonies (except mayhem and petty larceny,i.e.theft of property worth less than 1s.); see Stephen,Hist. Cr. Law, vol. i. 458; Pollock and Maitland,Hist. Eng. Law, vol. ii. 459. It therefore included all the more serious forms of crime against person or property, such as murder, manslaughter, arson, highway robbery, burglary (or hamesucken) and larceny; and when statutory felonies were created they were also punishable by death unless the statute otherwise provided. The death penalty was also extended to heretics under the writde heretico comburendo, which was lawfully issuable under statute from 1382 (5 Ric. II. stat. 5) until 1677 (29 Chas. II. c. 9). For this purpose the legislature had adopted the civil law of the Roman Empire, which was not a part of the English common law (Stephen,Hist. Cr. Law, vol. ii. 438-469).
The methods of execution by crucifixion (as under the Roman law), or breaking on the wheel (as under the Roman Dutch law and the Holy Roman Empire), were never recognized by the common law, and would fall within the term “cruel and unusual punishments” in the English Bill of Rights, and in the United States would seem to be unconstitutional (seeWilkinson v. Utah, 1889, 136 U.S. 436, 446).
The severity of barbarian and feudal laws was mitigated, so far as common-law offences were concerned, by the influence of the Church as the inheritor of Christian traditions and Roman jurisprudence. The Roman law under the empire did not allow the execution of citizens except under theLex Porcia. But the right of the emperors to legislateper rescriptum principisenabled them to disregard the ordinary law when so disposed. The 83rd novel of Justinian provided that criminal causes against clerics should be tried by the judges, and that the convicted cleric should be degraded by his bishop before his condemnation by the secular power, and other novels gave the bishops considerable influence, if not authority, over the lay judiciary. In western Europe the right given by imperial legislation in the Eastern Empire was utilized by the Papacy to claim privilege of clergy,i.e.that clerks must be remitted to the bishop for canonical punishment, and not subjected to civil condemnation at all. The history of benefit of clergy is given in Pollock and Maitland,Hist. English Law, vol. i. pp. 424-440, and Stephen,Hist. Cr. Law, vol. iii. 459, 463. By degrees the privilege was extended not only to persons who could prove ordination or show a genuine tonsure, but all persons who had sufficient learning to be able to read the neck-verse (Ps. li. v. 1). Before the Reformation the ecclesiastical courts had ceased to take any effective action with respect to clerks accused of offences against the king’s laws; and by the time of Henry VII. burning on the hand under the order of the king’s judges was substituted for the old process of compurgation in use in the spiritual courts.
The effect of the claim of benefit of clergy is said to have been to increase the number of convictions, though it mitigated the punishment; and it became, in fact, a means of showing mercy to certain classes of individuals convicted of crime as a kind of privilege to the educated,i.e.to all clerks whether secular or religious (25 Edw. III. stat. 3); and it was allowed only in case of a first conviction, except in the case of clerks who could produce their letters of orders or a certificate of ordination. To prevent a second claim it was the practice to brand murderers with the letter M, and other felons with the Tyburn T, and Ben Jonson was in 1598 so marked for manslaughter.
The reign of Henry VIII. was marked by extreme severity in the execution of criminals—as during this time 72,000 persons are said to have been hanged. After the formation of English settlements in America the severity of the law was mitigated by the practice of reprieving persons sentenced to death on condition of their consenting to be transported to the American colonies, and to enter into bond service there. The practice seems to have been borrowed from Spain, and to have been begun in 1597 (39 Eliz. c. 4). It was applied by Cromwell after his campaign in Ireland, and was in full force immediately after the Restoration, and is recognized in the Habeas Corpus Act 1677, and was used for the Cameronians during Claverhouse’s campaign in south-west Scotland. In the 18th century the courts were empowered to sentence felons to transportation (seeDeportation) instead of to execution, and this state of the law continued until 1857 (6Law Quarterly Review, p. 388). This power to sentence to transportation at first applied only to felonies with benefit of clergy; but in 1705, on the abolition of the necessity of proving capacity to read, all criminals alike became entitled to the benefit previously reserved to clerks. Benefit of clergy was finally abolished in 1827 as to all persons not having privilege of peerage, and in 1841 as to peers and peeresses. Its beneficial effect had now been exhausted, since no clergyable offences remained capital crimes.
At the end of the 18th century the criminal law of all Europe was ferocious and indiscriminate in its administration of capital punishment for almost all forms of grave crime; and yet owing to poverty, social conditions, and the inefficiency of the police, such forms of crime were far more numerous than they now are. The policy and righteousness of the English law were questioned as early as 1766 by Goldsmith through the mouth of the vicar of Wakefield: “Nor can I avoid even questioning the validity of that right which social combinations have assumed of capitally punishing offences of a slight nature. In cases of murder their right is obvious, as it is the duty of us all from the law of self-defence to cut off that man who has shown a disregard for thelife of another. Against such all nature rises in arms; but it is not so against him who steals my property.” He adds later: “When by indiscriminate penal laws the nation beholds the same punishment affixed to dissimilar degrees of guilt, the people are led to lose all sense of distinction in the crime, and this distinction is the bulwark of all morality.”
The opinion expressed by Goldsmith was strongly supported by Bentham, Romilly, Basil Montaguand Mackintosh in England, and resulted in considerable mitigation of the severity of the law. In 1800 over 200 and in 1819 about 180 crimes were capital. As the result of the labour of these eminent men and their disciples, and of Sir Robert Peel, there are now only four crimes (other than offences against military law or naval discipline) capitally punishable in England—high treason, murder, piracy with violence, and destruction of public arsenals and dockyards (The Dockyards, &c., Protection Act 1772). An attempt to abolish the death penalty for this last offence was made in 1837, but failed, and has not since been renewed. In the case of the last two offences sentence of death need not be pronounced, but may be recorded (4 Geo. IV. c. 48). Since 1838 it has in practice been executed only for murder; the method being by hanging.
The change in the severity of the law is best illustrated by the following statistics:—
During the twelve years from 1893 to 1904, 788 persons were committed for trial for murder, being an average of 65. The highest number was in 1893 (82) and the lowest in 1900 (51). Of those tried in 1904, 28 (26 males and 2 females) were convicted of murder, 16 (all males) were executed; 9 males and 2 females had their sentences commuted to penal servitude for life.
In Scotland capital punishment can be imposed only for treason, murder and offences against 10 Geo. IV. c. 38,i.e., wilful shooting, stabbing, strangling or throwing corrosives with intent to murder, maim, disfigure, disable, or do grievous bodily harm, in all cases where if death had ensued the offence would have been murder. Prior to 1887 rape, robbery, wilful fire-raising and incest, and many other crimes, were also capital offences; but in practice the pains of law were restricted at the instance of the prosecution. The method is by hanging.
In Ireland capital punishment may be inflicted for the same offences as in England, except offences under the Dockyards Protection Act 1772, and it is carried out in the same manner.
Offences under Military Law.—Thus far only crimes against the ordinary law of the land have been dealt with. But both the Naval Discipline Act of 1866 and the Army Act empower courts-martial to pass sentence for a number of offences against military and naval laws. Such sentences are rarely if ever passed where an ordinary court is within reach, or except in time of war. The offences extend from traitorous communication with the enemy and cowardice on the field to falling asleep while acting as a sentinel on active service. It is for the authority confirming a sentence of death by court-martial to direct the mode of execution, which both in the British and United States armies is usually by shooting or hanging. During the Indian Mutiny some mutineers were executed by being blown from the mouth of cannon. As to the history of military punishments see Clode,Military and Martial Law.
British Colonies and Possessions.—Under the Indian Penal Code sentence of death may be passed for waging war against the king (s. 121) and for murder (s. 302). If the murder is committed by a man under sentence of transportation for life the death penalty must be imposed (s. 303). In other cases it is alternative. This code has been in substance adopted in Ceylon, in Straits Settlements and Hong-Kong, and in the Sudan. In most of the British colonies and possessions the death penalty may be imposed only in the case of high treason, wilful murder and piracy with violence. But in New South Wales and Victoria sentence of death may be passed for rape and criminal abuse of girls under ten. In Queensland the law was the same until the passing of the Criminal Code of 1899.
Under the Canadian Criminal Code of 1892 the death sentence may be imposed for treason (s. 657), murder (s. 231), rape (s. 267), piracy with violence (s. 127), and upon subjects of a friendly power who levy war on the king in Canada (s. 68). But the judge is bound by statute to report on all death sentences, and the date of execution is fixed so as to give time for considering the report. The sentence is executed by hanging. In South Africa the criminal law is based on the Roman-Dutch law, under which capital punishment is liable for treason (crimen perduellionisorlaesae majestatis), murder and rape (van Lecuwen, c. 36). In the Cape Colony rape is still capital (R. v. Nonosi, 1885; 1 Buchanan, 1898). In Natal rape may be punished by hanging (act no. 22, 1898). Though the Roman-Dutch modes of executing the sentence by decapitation or breaking on the wheel have not been formally abolished, in practice the sentence in the Cape Colony is executed by hanging. In the Transvaal hanging is now the sole mode of executing capital punishment (Criminal Procedure Code, 1903, s. 244). The Roman-Dutch law as to crime and punishments has been superseded in Ceylon and British Guiana by ordinance.
Austria-Hungary.—In Austria capital punishment was in 1787 for a time abolished, but was reintroduced in 1795 for high treason, and in 1803 for certain other crimes. Under the penal code still in force in 1906 it might be inflicted for the offences in the table given below, but not on offenders who were under twenty when they committed the offence. The annexed table indicates that the full sentence was sparingly executed. Under a Penal Code drafted in 1906, however, only two offences were made capital, viz. high treason against the person of the emperor and the graver cases of murder. The sentence is executed by hanging.
Belgium.—Under the Belgian Penal Code of 1867 the death penalty is retained for certain forms of high treason, and for assassination and parricide by poisoning. It may not be pronounced on a person under eighteen. The sentence is executed publicly by the guillotine. No execution seems to have taken place since 1863.
Denmark.—Sentence of death may be imposed for most forms of high treason, aggravated cases of murder, rape and piracy. It is executed publicly by the axe. Offenders under eighteen are not liable.
Finland.—In Finland the death penalty is alleged not to have been inflicted since 1824. It may be imposed for the assassination of the grand duke or grand duchess or the head of a friendly state, and wilful murder of other persons.
France.—Under theancien régimein France, 115 crimes had become capital in 1789. The mode of execution varied, but in some cases it was effected by breaking on the wheel or burning,and was coupled with mutilation. Under the Penal Code of 1810, as amended in or after 1832, even so late as 1871, thirty offences were capital, one being perjury against a prisoner resulting in his condemnation to death (art. 361). At present it may be imposed for wounding a public official with intent to murder (art. 233), assassination, parricide, poisoning, killing to commit a crime or escape from justice (arts. 302, 304). But juries freely exercise the power of acquitting in capital cases, or of defeating the capital sentence by finding extenuating circumstances in more than seven-eighths of the cases, which compels the court to reduce the punishment by one or more degrees,i.e.below the penalty of death. And in recent times the prerogative of mercy has been continually exercised by the president, even in gross cases where public opinion demanded the extreme penalty. The sentence is executed in public by the guillotine.
Germany.—In many of the states of Germany capital punishment had been abolished (Brunswick, Coburg, Nassau, Oldenburg in 1849; Saxe-Meiningen, Saxe-Weimar, 1862; Baden, 1863; Saxony, 1868). But it has been restored by the Imperial Criminal Code of 1872, in the case of attempts on the life of the emperor, or of the sovereign of any federal state in which the offender happens to be (s. 80), and for deliberate homicide (s. 211)—as opposed to intentional homicide without deliberation—and for certain treasonable acts committed when a state of siege has been proclaimed. The sentence is executed by beheading (s. 13).
Holland.—In Holland there have been no executions since 1860. Capital punishment (by hanging) was abolished in 1870, and was not reintroduced in the Penal Code of 1886.
Italy.—Capital punishment was abolished in Tuscany as far back as 1786, and from Italy has come the chief opposition to the death penalty, originated by Beccaria, and supported by many eminent jurists. Under the Penal Code of 1888 the death penalty was abrogated for all crimes, even for regicide. The cases of homicide in Italy are very numerous compared with those in England, amounting in 1905 to 105 per million as compared with 27 per million in the United Kingdom.
Japan.—The penalty of death is executed by hanging within a prison. It may be imposed for executing or contriving acts of violence against the mikado or certain of his family, and for seditious violence with the object of seizing the territory or subverting the government or laws of Japan, or conspiring with foreign powers to commence hostilities against Japan. It is inflicted for certain forms of homicide, substantially wilful murder in the first degree.
Norway.—Under Norwegian law, up to 1905, sentence of death might be passed for murder with premeditation, but the court might as an alternative decree penal servitude for life. Sentence of death had also to be passed in cases where a person under sentence of penal servitude for life committed murder or culpable homicide, or caused bodily injuries in circumstances warranting a sentence of penal servitude for life, or committed robbery or the graver forms of wilful fire-raising. The sentence was carried out by decapitation (seeBeheading); but there had been no execution since 1876. The new Norwegian Code, which came into force on the 6th of January 1905, abolished capital punishment.
Portugal.—There has been considerable objection in Portugal to capital punishment, and it was abolished in 1867.
Rumania.—Capital punishment was abolished in 1864.
Russia.—In 1750, under the empress Elizabeth, capital punishment was abolished; but it was restored later and was freely inflicted, the sentence being executed by shooting, beheading or hanging. According to a Home Office Return in England in 1907 the death penalty is abolished, except in cases where the lives of the emperor, empress or heir to the throne are concerned.
Spain.—Under the Spanish Penal Code of 1870 the following crimes are capital:—inducing a foreign power to declare war against Spain, killing the sovereign, parricide and assassination. The method employed is execution in public by the garrote. But the death sentence is rarely imposed, the customary penalty for murder being penal servitude in chains for life, while a parricide is imprisoned in chains “in perpetuity until death.”
Sweden.—The severity of the law in Sweden was greatly mitigated so far back as 1777. Under the Penal Code of 1864 the penalty of death may be imposed for certain forms of treason, including attempts on the life of the sovereign or on the independence of Sweden, and for premeditated homicide (assassinat), and in certain cases for offences committed by persons under sentence of imprisonment for life. In 1901 a bill to abolish capital punishment was rejected by both houses of the Swedish parliament.
Switzerland.—Capital punishment was abolished in Switzerland in 1874 by Federal legislation; but in 1879, in consequence of a plebiscite, each canton was empowered to restore the death penalty for offences in its territory. The Federal government was unwilling to take this course, but was impelled to it by the fact that, between 1874 and 1879, cases of premeditated murder had considerably increased. Seven of the cantons out of twenty-two have exercised the power given to restore capital punishment. But there do not seem to have been any cases in which the death penalty has been inflicted; and on the assassination of the empress of Austria at Geneva in 1898 it was found that the laws of the canton did not permit the execution of the assassin. The canton of Zug imposes the lowest minimum penalty known,i.e.three years’ imprisonment for wilful homicide, the maximum being imprisonment for life.
United States of America.—Under the Federal laws sentence of death may be passed for treason against the United States and for piracy and for murder within the Federal jurisdiction. But for the most part the punishment of crime is regulated by the laws of the constituent states of the Union.
The death penalty was abolished in Michigan in 1846 except for treason, and wholly in Wisconsin in 1853. In Maine it was abolished in 1876, re-enacted in 1883, and again abolished in 1887. In Rhode Island it was abolished in 1852, but restored in 1882, only in case of murder committed by a person under sentence of imprisonment for life (Laws, 1896, c. 277, s. 2). In all the other states the death penalty may still be inflicted: in Alabama, Delaware, Georgia, Maryland, and West Virginia, for treason, murder, arson and rape; in Alaska, Arizona, Kansas, New Jersey, Mississippi, Montana, New York, North Dakota, Oregon, and South Dakota, for treason and murder; in Colorado, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Utah and Wyoming, for murder only; in Kentucky and Virginia, for treason, murder and rape; in Vermont, for treason, murder and arson; in Indiana, for treason, murder, and for arson if death result; in California, for treason, murder and train-wrecking; in North Carolina, for murder, rape, arson and burglary; in Florida, Missouri, South Carolina, Tennessee and Texas, for murder and rape; in Arkansas and Louisiana, for treason, murder, rape, and administering poison or use of dangerous weapons with intent to murder. Louisiana is cited by Girardin (le droit de punir) as a state in which the death penalty was abolished in 1830. Under the influence of the eminent jurist, E. Livingston, who framed the state codes, the legislature certainly passed a resolution against capital punishment. But since as early as 1846 it has been there lawful, subject to a power given to the jury, to bring in a verdict of guilty, “but no capital punishment,” which had the effect of imposing a sentence of hard labour for life. In certain states the jury has, under local legislation, the right to award the sentence. The constitutionality of such legislation has been doubted, but has been recognized by the courts of Illinois and Iowa. Sentence of death is executed by hanging, except in seven of the states, where it is carried out by “electrocution” (q.v.).
With the mitigation of the law as to punishment, agitation against the theory of capital punishment has lost much of its force. But many European and American writers, and some English writers and associations, advocate theThe question of abolition.total abolition of the death punishment. The ultimate argument of the opponents of capital punishment is that society has no right to take the life of any one of its members onany ground. But they also object to capital punishment: (1) on religious grounds, because it may deprive the sinner of his full time for repentance; (2) on medical grounds, because homicide is usually if not always evidence of mental disease or irresponsibility; (3) on utilitarian grounds, because capital punishment is not really deterrent, and is actually inflicted in so few instances that criminals discount the risks of undergoing it; (4) on legal grounds,i.e.that the sentence being irrevocable and the evidence often circumstantial only, there is great risk of gross injustice in executing a person convicted of murder; (5) on moral grounds, that the punishment does not fit the case nor effect the reformation of the offender. It is to be noted that the English Children Act 1908 expressly forbids the pronouncing or recording the sentence of death against any person under the age of sixteen (s. 103).
The punishment is probably retained, partly from ingrained habit, partly from a sense of its appropriateness for certain crimes, but also that theultima ratiomay 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 leanin 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.
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(orKöpfel),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 theConfessio 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,missiand 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.
These capitularies make provisions of a most varied nature; it was therefore found necessary at quite an early date to classify them into chapters according to the subject. In 827 Ansegisus, abbot of St Wandrille at Fontenelle, made such a collection. He embodied them in four books: one of the ecclesiastical capitularies of Charlemagne, one of the ecclesiastical capitularies of Louis the Pious, one of the secular capitularies of Charlemagne, and one of the secular capitularies of Louis, bringing together similar provisions and suppressing duplicates. This collection soon gained an official authority, and after 829 Louis the Pious refers to it, citing book and section.
After 827 new capitularies were naturally promulgated, and before 858 there appeared a second collection in three books, by an author calling himself Benedictus Levita. His aim was, he said, to complete the work of Ansegisus, and bring it up to date by continuing it from 827 to his own day; but the author has not only borrowed prescriptions from the capitularies; he has introduced other documents into his collection, fragments of Roman laws, canons of the councils and especially spurious provisions very similar in character to those of the same date found in theFalse Decretals. His contemporaries did not notice these spurious documents, but accepted the whole collection asauthentic, and incorporated the four books of Ansegisus and the three of Benedictus Levita into a single collection in seven books. The serious historian of to-day, however, is careful not to use books v., vi. and vii. for purposes of reference.
Early editors chose to republish this collection of Ansegisus and Benedictus as they found it. It was a distinguished French scholar, Étienne Baluze, who led the way to a fresh classification. In 1677 he brought out theCapitularia regum francorum, in two folio volumes, in which he published first the capitularies of the Merovingian kings, then those of Pippin, of Charles and of Louis the Pious, which he had found complete in various manuscripts. After the date of 840, he published as supplements the unreliable collection of Ansegisus and Benedictus Levita, with the warning that the latter was quite untrustworthy. He then gave the capitularies of Charles the Bald, and of other Carolingian kings, either contemporaries or successors of Charles, which he had discovered in various places. A second edition of Baluze was published in 1780 in 2 volumes folio by Pierre de Chiniac.
The edition of the Capitularies made in 1835 by George Pertz, in theMonumenta Germaniae(folio edition, vol. i., of theLeges) was not much advance on that of Baluze. A fresh revision was required, and the editors of theMonumentadecided to reissue it in their quarto series, entrusting the work to Dr Alfred Boretius. In 1883 Boretius published his first volume, containing all the detached capitularies up to 827, together with various appendices bearing on them, and the collection of Ansegisus. Boretius, whose health had been ruined by overwork, was unable to finish his work; it was continued by Victor Krause, who collected in vol. ii. the scattered capitularies of a date posterior to 828. Karl Zeumer and Albrecht Werminghoff drew up a detailed index of both volumes, in which all the essential words are noted. A third volume, prepared by Emil Seckel, was to include the collection of Benedictus Levita.
(2) Among the capitularies are to be found documents of a very varied kind. Boretius has divided them into several classes:—
(a) TheCapitula legibus addenda.—These are additions made by the king of the Franks to the barbarian laws promulgated under the Merovingians, the Salic law, the Ripuarian or the Bavarian. These capitularies have the same weight as the law which they complete; they are particular in their application, applying, that is to say, only to the men subject to that law. Like the laws, they consist chiefly of scales of compensation, rules of procedure and points of civil law. They were solemnly promulgated in the local assemblies where the consent of the people was asked. Charlemagne and Louis the Pious seem to have made efforts to bring the other laws into harmony with the Salic law. It is also to be noted that by certain of the capitularies of this class, the king adds provisions affecting, not only a single law, but all the laws in use throughout the kingdom.
(b) TheCapitula ecclesiastica.—These capitularies were elaborated in the councils of the bishops; the kings of the Franks sanctioned the canon of the councils, and made them obligatory on all the Christians in the kingdom.
(c) TheCapitula per se scribenda.—These embodied political decrees which all subjects of the kingdom were bound to observe. They often bore the name ofedictumor ofconstitutio, and the provisions made in them were permanent. These capitularies were generally elaborated by the king of the Franks in the autumn assemblies or in the committees of the spring assemblies. Frequently we have only the proposition made by the king to the committee,capitula tractanda cum comitibus, episcopis, et abbatibus, and not the final form which was adopted.
(d) TheCapitula missorum, which are the instructions given by Charlemagne and his successors to themissisent into the various parts of the empire. They are sometimes drawn up in common for all themissiof a certain year—capitula missorum generalia; sometimes for themissisent only on a given circuit—capitula missorum specialia. These instructions sometimes hold good only for the circuit of themissus; they have no general application and are merely temporary.
(e) With the capitularies have been incorporated various documents; for instance, the rules to be observed in administering the king’s private domain (the celebrated capitularyde villis,which is doubtless a collection of the instructions sent at various times to the agents of these domains); the partitions of the kingdom among the king’s sons, as, theDivisio regnorumof 806, or theOrdinatio imperiiof 817; the oaths of peace and brotherhood which were taken on various occasions by the sons of Louis the Pious, &c.
The merit of clearly establishing these distinctions belongs to Boretius. He has doubtless exaggerated the difference between theCapitula missorumand theCapitula per se scribenda;among the first are to be found provisions of a general and permanent nature, and among the second temporary measures are often included. But the idea of Boretius is none the less fruitful. In the capitularies there are usually permanent provisions and temporary provisions intermingled; and the observation of this fact has made it possible more clearly to understand certain institutions of Charlemagne,e.g.military service.
After the reign of Louis the Pious the capitularies became long and diffuse. Soon, from the 10th century onwards, no provision of general application emanates from the kings. Henceforth the kings only regulated private interests by charters; it was not until the reign of Philip Augustus that general provisions again appeared; but when they did so, they bore the name of ordinances (ordonnances).
There were also capitularies of the Lombards. These capitularies formed a continuation of the Lombard laws, and are printed as an appendix to these laws by Boretius in the folio edition of theMonumenta Germaniae, Leges,vol. iv.
Authorities.—-Boretius,Die Capitularien im Longobardenreich(Halle, 1864); andBeitrage zur Capitularienkritik(Leipzig, 1874); G. Seeliger,Die Kapitularien der Karolinger(Munich, 1893). See also the histories of institutions or of law by Waitz, Brunner, Fustel de Coulanges, Viollet, Esmein.
Authorities.—-Boretius,Die Capitularien im Longobardenreich(Halle, 1864); andBeitrage zur Capitularienkritik(Leipzig, 1874); G. Seeliger,Die Kapitularien der Karolinger(Munich, 1893). See also the histories of institutions or of law by Waitz, Brunner, Fustel de Coulanges, Viollet, Esmein.
(C. Pf.)
CAPITULATION(Lat.capitulum, a little head or division;capitulare, to treat upon terms), an agreement in time of war for the surrender to a hostile armed force of a particular body of troops, a town or a territory. It is an ordinary incident of war, and therefore no previous instructions from the captor’s government are required before finally settling the conditions of capitulation. The most usual of such conditions are freedom of religion and security of private property on the one hand, and a promise not to bear arms within a certain period on the other. Such agreements may be rashly concluded with an inferior officer, on whose authority the enemy are not in the actual position of the war entitled to place reliance. When an agreement is made by an officer who has not the proper authority or who has exceeded the limits of his authority, it is termed asponsion, and, to be binding, must be confirmed by express or tacit ratification. Article 35 of the Hague Convention (1899) on the laws and the customs of war lays down that “capitulations agreed on between the contracting parties must be in accordance with the rules of military honour. When once settled they must be observed by both the parties.”
In another sense, capitulation is the name given to an arrangement by which foreigners are withdrawn, for most civil and criminal purposes, from the jurisdiction of the state making the capitulation. Thus in Turkey arrangements termed capitulations (q.v.), and treaties confirmatory of them, have been made between the Porte and other states by which foreigners resident in Turkey are subject to the laws of their respective countries. The term is also applied by French writers to the oath which on his election the Holy Roman emperor used to make to the college of electors; this related chiefly to such matters as regalian rights, appeals from local jurisdictions, the rights of the pope, &c.
CAPITULATIONS(from Lat.caput, or its Low-Latin diminutivecapitulum, as indicating the form in which these acts were set down in “chapters”; the Gr. equivalentcephaleosis, kephalaiosis, is occasionally used in works of the 17th century), treaties granted by a state and conferring the privilege of extra-territorial jurisdiction within its boundaries on the subjects of another state. Thus, in the 9th century, the caliph Harun-al-Rashid engaged to grant guarantees and commercial facilities to suchFranks, subjects of the emperor Charlemagne, as should visit the East with the authorization of their emperor. After the break-up of the Frank empire, similar concessions were made to some of the practically independent Italian city states that grew up on its ruins. Thus, in 1098, the prince of Antioch granted a charter of this nature to the city of Genoa; the king of Jerusalem extended the same privilege to Venice in 1123 and to Marseilles in 1136. Salah-ud-din (Saladin), sultan of Babylon (Cairo), granted a charter to the town of Pisa in 1173. The Byzantine emperors followed this example, and Genoa, Pisa and Venice all obtained capitulations. The explanation of the practice is to be found in the fact that the sovereignty of the state was held in those ages to apply only to its subjects; foreigners were excluded from its rights and obligations. The privilege of citizenship was considered too precious to be extended to the alien, who was long practically an outlaw. But when the numbers, wealth and power of foreigners residing within the state became too great, it was found to be politic to subject them to some law, and it was held that this law should be their own. When the Turkish rule was substituted for that of the Byzantine emperors, the system already in existence was continued; the various non-Moslem peoples were allowed their semi-autonomy in matters affecting their personal status, and the Genoese of Galata were confirmed in their privileges. But the first capitulation concluded with a foreign state was that of 1535 granted to the French. Lest it should be imagined that this was a concession wrested by the victorious Christian monarch from the decadent Turk, it should be borne in mind that Turkey was then at the height of her power, and that Francis I. had shortly before sustained a disastrous defeat at Pavia. His only hope of assistance lay in Suleiman I., whose attack on Vienna had been checked by the victorious Charles V. The appeal to Suleiman on the ground of the common interest of France and Turkey in overcoming Charles V.’s overweening power was successful; the secret mission of Frangipani, an unofficial envoy who could be disowned in case of failure, paved the way for De la Forest’s embassy in 1534, and in 1536 the capitulations were signed.1They amounted to a treaty of commerce and a treaty allowing the establishment of Frenchmen in Turkey and fixing the jurisdiction to be exercised over them: individual and religious liberty is guaranteed to them, the king of France is empowered to appoint consuls in Turkey, the consuls are recognized as competent to judge the civil and criminal affairs of French subjects in Turkey according to French law, and the consuls may appeal to the officers of the sultan for their aid in the execution of their sentences. This, the first of the capitulations, is practically the prototype of its successors. Five years later, similar capitulations were concluded with Venice. The capitulations were at first held to be in force only during the lifetime of the sultan by whom they were granted; thus in 1569 Sultan Selim II. renewed the French capitulations granted by his predecessor. In 1583 England obtained her first capitulation, until which time France had been the official protector of all Europeans established in Turkey. Later on, England claimed to protect the subjects of other nations, a claim which is rejected in the French capitulations of 1597, 1604 and 1607, the last-named of which explicitly lays down that the subjects of all nations not represented at Constantinople by an ambassador shall be under French protection. In 1613 Holland obtained her first capitulation, with the assistance of the French ambassador, anxious to help a commercial rival of England. In 1673 the French, represented by the marquis de Nointel, succeeded in obtaining the renewal of the capitulations which, for various reasons, had remained unconfirmed since 1607. Louis XIV. had been anxious to secure the protectorate of all Catholics in Turkey, but was obliged to content himself with the recognition of his right to protect all Latins of non-Turkish nationality; his claims for the restoration to the Catholics of the Holy Places usurped by the Greeks was also rejected, the sultan only undertaking to promise to restore their churches to the Jesuit Capuchins. An important commercial gain was the reduction of the import duties from 5 to 3%; and all suits the value of which exceeded 4000aspresin which French subjects sued, or were sued by, an Ottoman subject, were to be heard not by the ordinary tribunals but at the Porte itself. Later, France’s friendship secured for Turkey a successful negotiation of the peace of Belgrade in 1739, and the result was the capitulation of 1740; this is no longer limited in duration to the sultan’s lifetime but is made perpetual, and, moreover, declares that it cannot be modified without the assent of the French. It conferred on the French ambassador precedence over his colleagues. Austria had obtained capitulations in 1718, modified in 1784; Russia secured similar privileges in 1784. In the course of the 18th century nearly every European power had obtained these, and such newly-established countries as the United States of America, Belgium and Greece followed in the 19th century.
The chief privileges granted under the capitulations to foreigners resident in Turkey are the following: liberty of residence, inviolability of domicile, liberty to travel by land and sea, freedom of commerce, freedom of religion, immunity from local jurisdiction save under certain safeguards, exclusive extra-territorial jurisdiction over foreigners of the same nationality, and competence of the forum of the defendant in cases in which two foreigners are concerned (though the Sublime Porte has long claimed to exercise jurisdiction in criminal cases in which two foreigners of different nationality are concerned—the capitulations are silent on the point and the claim is resisted by the powers).
The same system has been followed by such countries as Persia, China, Japan and Siam.
The practical result of the capitulations in Turkey is to form each separate foreign colony into a sort ofimperium in imperio,and to hamper the local jurisdiction very considerably. As the state granting the capitulations progresses in civilization it chafes under these restraints in its sovereignty. Turkey’s former vassals, Rumania and Servia, though theoretically bound to respect the capitulations so long as they formed part of Turkey, had practically abrogated them long before securing their independence through the treaty of Berlin in 1878. The same may be said of Bulgaria. Japan was liberated from the burden of the capitulations some years ago.
The extra-territorial jurisdiction exercised by the foreign powers over their subjects in Turkey and other countries where capitulations exist is regulated by special legislative enactments; in the case of the United Kingdom by orders in council.
In Turkey the capitulations are practically the only treaties in force with the powers, since the expiration about 1889 of the commercial treaties concluded in 1861-1862. As they all contain the “most-favoured nation” clause, the privileges in any one apply to all the powers, though not always claimed. Thus America and Belgium claim under their treaties with Turkey the right to try all their subjects, even if accused of offences against Ottoman subjects—a claim recently made by Belgium in the case of the Belgian subject Joris, accused of participation in the bomb outrage of 1905 at Yildiz. One peculiar privilege granted in the capitulations of 1675 (Art. 74) authorizes the king of England to buy in Turkey with his own money two cargoes of figs and raisins, in fertile and abundant years and not in times of dearth or scarcity, and provides that after a duty of 3% has been paid thereon no obstacle or hindrance shall be given thereto.