1847.] Capital Punishment. 435 also scire, e. g. de Orat. II. 22. 91: sed tamen ille nec deligere scivit; and discere, e. g. de Orat. II. 16. 70: etiamsi haec nunquam separatim facere didicisset, and perdiscere; Ibid. 69: qui hominis figuram pingere perdidicerit. An example of a peculiar use of an infinitive after possum may here be mentioned. Cic. pro Caecina XVII 50: Potest pulsus, fugatus, ejectus denique; illud vero nullo modo potest, dejectus esse quisquam. This whole passage after the proleptic illud is very peculiar. 613. Cupio is not followed by ut in Cicero. Here also belongs cogito in this sense. Cf. Sic. pro Sext. XXXVIIL 81: siquidem liberi esse cogitaretis; Ibid. 82: ut-Graecum illum suum-occidere cogitarint; pro Mil. XX. 53: qui ipsius loci spe facere impetum cogitarat. Various peculiarities might be mentioned here, but we must limit ourselves to the citation of one passage which renders the distinction of the different constructions after concedere very clear. Cic. pro Rosc. Amer. XIX. 54: Verum concedo, ut ea praetereas, quae, quum taces, nulla esse concedis. 614. Nihil antiquius habeo is followed by the infinitive in Cic. ad Famm. XII. 29. 3: Nihil ei fuisset antiquius, quam ad Capitonem-reverti. 615. Rem. Suadeo with the accusative before the infinitive is found in Cic. pro Arch. VI. 14; pro Caecina V. 10; with the infinitive only de Finn. II. 29. 95: thus admonere in Verr. I. 24; monere de Finn. I. 20. 66. [To be concluded.] ARTICLE II. CAPITAL PUNISHMENT. By Daniel R. Goodwin, Professor of Languages, Bowdoin College, Brunswick, Me. [Concluded, from No. XIV. p. 323.] [It is due to the writer of this Article, and to the readers of the Bibliotheca, to say, that the whole of the Essay was prepared some months before the publication of the former part, and for a destination quite different from its appearance in this Review. If therefore the following portion should seem when taken by itself, to wear too much of a political aspect, we trust it will be excused, partly for the sake of this apology, and partly for the sake of its connection with the more strictly Theological portion which has preceded it. We have not thought it best altogether to omit the portion which follows, because, although considered in relation to the general principles involved, the former part of the discussion is by far the most fundamental and important; yet, considered in practical connection with the particular question in hand, we cannot help regarding the branch of that question discussed in this latter part, viz. the point of expediency, as really containing the substantial and decisive portion of the whole argument to all men of impartial minds and plain common sense.] Before proceeding to the argument from expediency, we will first dispose of a few miscellaneous objections which have not fallen directly in our way in the foregoing investigation of the question of right. 1st Objection. "Capital punishment is wrong because the in nocent are sometimes executed." If innocent men have been recklessly executed, whenever and wherever it may have been done, we shall be the last to say one word in extenuation of the deed. The wilful execution or procurement of an unrighteous sentence of death, knowing it to be such, we hold, of course to be murder, and murder of the most atrocious die. It adds to the common enormity of the crime the character of a treacherous and nefarious attempt against the mofal basis on which the whole fabric of human society reposes. Hence the Jews are properly stigmatized in the New Testament as the murderers of our Lord; although his crucifixion took place according to all the forms of law. Further, we maintain that all possible precaution against error ought to be taken in capital cases; and a capital sentence never passed or executed so long as there is any reasonable doubt of the guilt of the accused.1 1 By "reasonable doubt of guilt" we do not mean mere uncertainty, for absolute certainty is not to be expected; we mean a reasonable ground for believing that the innocence of the accused is not altogether improbable. “La certezza, morale non è che una probabilità, ma probabilità tale che è chiamata certezza, perchè ogni uomo di buon senso vi acconsente necessariamente per una consuetudine nata dalla necessità di agire, ed anteriore ad ogni speculazione. La certezza che si richiede per accertare un uomo reo è dunque quella che determina ogni uomo nelle operazioni più importanti della vita. Ma questa morale certezza di prove è più facile il sentirla che l'esattamente definirla.”—Beccaria; dè delitti e delle pene; sez. 14. 1847.] Abuses of the right of Punishment. 437 All cases of unjust executions whose occasion falls under these two heads, viz. false testimony or want of due caution in weighing the evidence, are cases of abuse. They prove nothing at all in regard to the right, except that, like all other rights, it may be abused. Other cases, if there are any, which do not fall under either of these two heads, are to be ascribed to the necessary fallibility of human judgments; and, if they prove that therefore, there is no right to inflict capital punishment upon the murderer, they prove that there is no right to inflict any punishment or in any way to administer legal remedies, until human justice can be raised above all liability to human error. It cannot be denied that more caution, as a matter of fact, is taken in capital cases, than in any other, whether civil or criminal; so much so, that the exceeding difficulty of obtaining a conviction for murder is constantly urged against the expediency of capital punishment by its assailants. Let them agree upon their indictment. They have busied themselves of late most strenuously in making up all the cases that can be discovered or surmised of unjust executions for whatever crime and arising from whatever cause, and are apparently endeavoring to make the world believe it the ordinary rule that no sooner does a capital trial come on than, by some inexplicable fatality, both judges and jury are seized with such a headlong desire to hang somebody, anybody but the right man, that they always convict the innocent and acquit the guilty.1 The cases of injustice which they allege are depicted in the most glowing colors and form a great part of the staple of most of their essays on this subject, interspersed here and there as the spice and spirit of the whole. But such things are addressed to men's feelings and imagination much more than to their reason; and would be appropriately answered by frequent pictures of horrible murders and massacres. Let them sift their cases and see how many of them are cases of real, unavoidable error; and then let them show that a liability to error in this case invalidates the 'We have heard a good woman urge it as a personal objection to capital punishment, that she lived in bodily fear of being one day hung in her innocence. People commonly think it more important to be protected from being murdered, as the greater danger of the two. * Montesquieu has well said: "C'est mal raisonner contre la religion [on toute autre chose,] de rassembler, dans un grand ouvrage, une longue énumération des maux qu'elle a produits, si l'on ne fait de même celle des biens qu'elle a faits. Si je voulais raconter tous les maux qu'ont produits dans le monde les loix civiles, la monarchie, le gouvernement républicain, je dirais des choses effroyables."-Esprit des loix. Liv. XXIV. ch. 2. right any more than in all other departments of the administration of human justice. 2d Objection. Here they meet us with another objection as a sort of clencher to the first. "Capital punishment is the only punishment which is remediless." We deny it utterly. All unjust punishment is in one sense remediless. Done is done. Besides, it is practically remediless, for rarely, if ever, is any effort made to remedy it so far even as a remedy is possible. This is not all. When a man, after having been imprisoned for a crime one, two, three, four, five, ten, twenty, or thirty years, dies; and is then found to have been innocent; how will you remedy it? Any man may die at any time; are you not, then, afraid to imprison him, lest you should do him remediless wrong? It is said to have been ascertained that some hundreds of persons have been buried alive; must we therefore keep all dead bodies above ground until the air is tainted with the putrefaction? Is no sexton allowed to throw a clod of earth upon a coffin, is no man allowed to have anything to do, directly or indirectly, with a burial, until he has assured himself to a perfect certainty by the evidence of his own senses, that death has actually taken place? In short, will the consciences of good men one day grow so tender that they will not dare to move to the right hand or the left, without first stopping for a demonstration? 3d Objection. We find the objection gravely made in respectable quarters, "that the innocent relatives and friends of the guilty man, who is hung, are made to suffer with him, and often more than he, the disgrace and infamy, etc." How is this to be avoided in any case? Does the infamy attach itself to the punishment, or to the crime? Or is it the mode of the punishment which is most complained of? How came this mode of punishment to be so infamous? How, except from its association with the crimes for which it has been inflicted? Crucifixion was a most ignominious punishment among the Romans; would it be so among us? Do people expect to make murder any more respectable by imprisoning instead of hanging the murderer? Suppose it were possible, is it desirable to do it? Will they not rather make imprisonment more odious? It is now felt to bring some disgrace on a man's friends when he is sent to the State prison. If murderers are sent there too, will it diminish the disgrace attached to imprisonment for other crimes? According to the objection, if any such disgrace or suffering already falls upon the innocent relations of the incarcerated culprit; imprisonment ought 1847.] Is Capital Punishment revengeful or unjust? 439 to be abolished. Much more then ought it to be abolished when this disgrace and suffering are increased. And the conclusion from the whole is, that it is wrong to hang or imprison any man who has any friends in the world; but if you can find a man perfectly friendless, this objection abandons him to his fate. 4th Objection. "Capital punishment is retaliatory." The whole force of this objection rests upon a paltry play upon the ambiguity of a word. If it be meant that this punishment is revengeful; we deny it totally. We deny that it ought to be, need be, or is any more revengeful, than any other punishment-imprisonment for example. If it were we would not defend it a moment. It is just and right. When the protection of society requires its infliction, it may be executed and ought to be executed, from motives of the purest justice and philanthropy. If, however, by its being retaliatory is meant merely that it is the infliction of like for like, and is therefore wrong; we see no force at all in the objection. According to this, if a man is guilty of false-imprisonment, it would be wrong to punish him with imprisonment, because that would be retaliatory; or if a man defrauds or steals from his neighbor, you may require him to make restitution perhaps, but as to any punishment beyond that, you may inflict what you please except taking another cent from him-that would be retaliatory.1 5th Objection. "The administration of this punishment is, always has been, and must be, unequal; and therefore unjust." If this objector mean, that all who are capitally convicted should be treated exactly alike—that no pardons or commutations should be granted; then he must settle the question with some of his friends whom he will find bitterly complaining of the unparalleled barbarity of Massachusetts in executing sixty per cent. of her con 1 Beccaria, the great apostle of our modern anti-gallows philanthropists, has no objection to this sort of retaliation. Of the punishment of false accusation he says: "Ogni governo e republicano e monarchico, deve al calumniatore dare la pena che toccherebbe all'accusato." This is the special case to which the principle is applied in the Mosaic code, and for which it has been retained in the canon law. But Beccaria is willing to give it a much wider application. He would have injuries against the person punished corporeally; against property, punished pecuniarily; against the honor, punished infamously. "Che la pena," says he, "sia conforme quanto più si possa alla natura del delitto." "Attentati contro la persona debbono infallibilmente esser puniti con pene corporali." "I furti che non hanno unito violenza dorrebbero esser puniti con pena pecuniatoria." "Le ingiurie personali e contrarie all' onore debbono essere punite coll' infamia."-De delitti e delle pene; Sezz. 15, 19, 20, 22 and 23. |