Front Page Titles (by Subject) § 11.: Capital punishment, when cruel and unusual.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1
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§ 11.: Capital punishment, when cruel and unusual.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Capital punishment, when cruel and unusual.—
That capital punishment may be imposed for the commission of crimes against the life of another, and crimes against those rights of personal security, which are in the estimation of the generality of mankind as dear as life itself, for example, arson and rape, seems to admit of no doubt, not even in the realms of reason and natural justice. Certainly there is no constitutional prohibition against its infliction for these offenses. These are mala in se, violations of the natural rights of man, and there is in the breast of every human being a natural fear of punishment, proportionate to each and every violation of human rights. In the absence of a regularly established society, in a state of nature, the power to inflict this punishment for natural crimes is vested in every individual, since every one is interested in providing the necessary protection for life. “Whereof,” Mr. Blackstone says, “the first murderer, Cain, was so sensible, that we find him expressing his apprehensions, that whoever should find him would slay him.”1 In organized society, a supreme power being established, which is able and is expressly designed to provide for the public security, the government succeeds to this natural right of the individual. “In a state of society this right is transferred from individuals to the sovereign power, whereby men are prevented from being judges in their own causes, which is one of theevils that civil government was intended to remedy.”2 These cases of capital punishment are readily justified, but it would seem to be a matter of very grave doubt, certainly on rational grounds, whether the legislature had the power to provide capital punishment for the commission of a crime which is only a malum prohibitum, an act which by the law of nature is not a violation of human rights. But whatever may be the final settlement of this question, by the common law capital punishment was inflicted for numerous crimes of very different characters and grades of heinousness. Says Blackstone: “It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of Parliament to be felonies without benefit of clergy; or in other words, to be worthy of instant death.”1 Sir Matthew Hale justifies this practice of inflicting capital punishment for crimes of human institution in the following language: “When offenses grow enormous, frequent and dangerous to a kingdom or state, destructive or highly pernicious to civil societies, and to the great insecurity and danger of the kingdom or its inhabitants, severe punishment and even death itself is necessary to be annexed to laws in many cases by the produce of law-givers.”2
It may now be considered as a settled doctrine that, in the absence of an express constitutional prohibition, the infliction of capital punishment rests entirely in the discretion of the legislature. The only constitutional limitation which can bear upon the subject under discussion, is that found in both the national and State constitutions, which prohibits the imposition of “cruel and unusual punishments.”3 Capital punishment in itself is not “cruel,” but the mode of its infliction may be “cruel and unusual,” and hence contravene this constitutional provision. Thus, for example, would be those cruel punishments of colonial times and of the common law, such as burning at the stake, breaking on the wheel, putting to the rack, and the like. In the present temper of public opinion, these would undoubtedly be considered “cruel and unusual punishments,” and therefore, forbidden by the constitution.4 But would the infliction of capital punishment for offenses, not involving the violation of the right to life and personal security, be such a “cruel and unusual” punishment, as that it would be held to be forbidden by this constitutional provision? It would seem to me that the imposition of the death penalty for the violation of the revenue laws, i. e., smuggling, or the illicit manufacture of liquors, or even for larceny or embezzlement, would properly be considered as prohibited by this provision as being “cruel and unusual.” But if such a construction prevailed, it would be difficult to determine the limitations to the legislative discretion.
There has been so little litigation over this provision of our constitutions, that it is not an easy matter to say what is meant by the clause. Judge Cooley says: “Probably any punishment declared by statute for any offense, which was punished in the same way at common law, could not be regarded as cruel and unusual in the constitutional sense. And probably any new statutory offense may be punished to the extent and in the mode permitted by the common law for offenses of a similar nature.”1 Capital punishment can be inflicted, in organized society, only under the warrant of a court of justice, having the requisite jurisdiction, and it must be done by the legal officer, whose duty it is to execute the decrees of the court. The sentence of the court must be followed implicitly. The sheriff is not authorized to change the mode of death, without becoming guilty of the crime of felonious homicide.1
4 Bl. Com. 8.
4 Bl. Com. 8.
4 Bl. Com. 18.
4 Bl. Com. 9.
U. S. Const. Amend., art. 8.
Done v. People, 5 Park. 364. In People v. Durston, 119 N. Y. 569, and People v. Kemmler, 119 N. Y. 580, in which the New York statute, directing the infliction of the death penalty by electricity, was held to be constitutional, the court declared that this was not a new punishment, but only a new method of inflicting capital punishment. And where a new method of inflicting the same punishment was directed by statute, its constitutionality can be successfully attacked only by proving that the new method would produce extreme and unnecessary suffering. In other words, a new punishment must be both cruel and unusual, in order to fall under the ban of this constitutional provision. See, also, in confirmation of these New York cases, In re Kemmler, 136 U. S. 436, in which it is held that the New York statute does not violate the Fourteenth Amendment of the Constitution of the United States, by imposing a cruel punishment. See post, § 31, as to the application of this constitutional provision to the punishment of crimes in general.
Cooley Const. Lim. 403, 404.
4 Bl. Com. 402-404.