THE NEW SCHAFF-HERZOG
legislation on principles resembling those of the Jewish theocracy, its influence in the question
of capital punishment was not deci-
3. Attitude she. Germanic law at first, like
of the all primitive systems, made private
Church, vengeance and the mitigation of it by
surrender of property on the part of -the offender the principal factor in the punishment of crime. The Church undertook to regulate this to the extent of minimizing private vendettas, both by providing and supporting means of reconciliation between the contending parties and by strengthening orderly official justice. But in spite of the " horror of bloodshed " consistently emphasized by the Church, which from the tenth century on created an impressive mechanism against private vendettas in the Truce of God (q.v.), it was obliged to give a general support to the gradual upbuilding of the secular system of corporal, including capital, punishment in the kingdoms of western Europe. When the death-penalty had been finally established as a regular part of settled secular law, the Church in theory took the position of a simple spectator of its exercise. It forbade the clergy to take any part in its administration, laid down the principle Ecclesia non sitit sanguinem ('' The Church does not thirst for blood "), and admonished ecclesiastical authorities to provide asylums and in other ways to work for mercy to the offender in the hope of his improvement. This position was somewhat modified when the war against heresy began. Even in the eleventh century the State threatened heretics with death in isolated cases in France and Germany; and by the middle of the twelfth century the growth of heresy led to a formal alliance between Church and State, by which Frederick Barbarossa in 1184, and then other sovereigns of southern Europe, pledged the pope the support of the secular arm for the suppression of heresy. The penalties were at first outlawry, infamy, and confiscation of goods; but in 1224 Frederick II. approver! of death by fire as the penalty in Lombardy ; and this penalty, soon applied throughout Italy, was not only sanctioned but directly called for by Gregory IX. It was not long before the new principle was extended to Germany, France, England, and Spain, and the death-penalty, while theoretically administered by secular officials, was actually the consequence of an ecclesiastical condemnation.
The teaching of the Reformers brought about no essential alteration in the general attitude toward capital punishment; it might seem that the Reformation strengthened the institution, but really this attitude is rather the result of contemporary conditions. The death-penalty had been more frequently employed in all European states since the fifteenth century as a result of violent proletarian risings and the increase of the dangerous unemployed and vagabond population, and the period from 1530 to 1630 is that in which the number of executions reached its high-water mark. When a reaction came about, it was directed primarily against an excessive use of this penalty, and then toward the establishment of penitentiaries (.London 15S0, Amsterdam l.VJO, Hamburg |
1622, etc.), which brought about a decrease in the number of executions. The movement for the abolition of capital punishment did not proceed from a religious source. While Locke, Voltaire, Montesquieu, and Thomasius had all recognized it as a necessary part of the social system, and Rousseau in the Contrut social had left it theoretically free play, it was Cesare Beccaria in 1764 who, as a deduction from Rousseau's general ideas, proclaimed its irreconcilability with abstract justice. In modern times no agreement has been reached on the basis of religious convictions.
II. Place of Religious Ideas in the Question: The historical outline given above shows clearly that the sanction and province of capital punishment in secular law can not be brought directly under religious control. The old philosophical doctrine of the " Christian State " is now no longer recognized. On modern principles, the State's justification for existence lies in its necessity to the unhampered development of human activity; and on this rests its power of punishing, and in particular its right to apply the death-penalty. The essential characteristics of a just and proper punishment will thus have to be determined by a course of empirical historical research.
In the older development of the penal code of all nations, corporal punishment is found concurrently with penalties affecting the property of the offender; but the corporal is finally preferred because it is capable of application alike to all, while money fines have a varying effect according to the wealth of the offender. By degrees the permission of compounding for corporal penalties is abolished, with the gradual building up from the twelfth century of modern principles of government. The deathpenalty is increasingly preferred as emphasizing the thought of the equality of all men before the law. It is misused for a time as the easiest way of ridding society of dangerous persons, and then, in the sixteenth and seventeenth centuries, the question is widely discussed how far it ought properly to be applied, and the principle of justice is urged in favor of its restriction to very grave crimes. These arguments, however, produced no great effect until the reaction from the excessive use of it led to the creation of a third form of penalty in a regular system of imprisonment, thoroughly established about 1700. The considerations which moved John Howard and others in the eighteenth century to agitate for prison reform on the ground of humanity led also to the more frequent discussion of the desirability of abolishing capital punishment, and finally to an almost universal recognition of the sole ground on which its maintenance can be defended. It is now admitted that on grounds of humanity the State has no right to annihilate the individual existence, and that so far as these grounds go, the heaviest penalty that may be inflicted is that of penal servitude for life. From the standpoint, however, of abstract justice, it is still possible to defend the death-penalty, not in the interest of terrifying offenders, nor yet on the basis of a lex talioms, but on that of a proportion between crime and penalty, which may fairly demand that the severity of Iln> punishment shall correspond in