The equalization of punishment with crime is therefore only possible by the cognition of the judge extending even to the penalty of death, according to the right of retaliation.This is manifest from the fact that it is only thus that a sentence can be pronounced over all criminals proportionate to their internal wickedness; as may be seen by considering the case when the punishment of death has to be inflicted, not on account of a murder, but on account of a political crime that can only be punished capitally.A hypothetical case, founded on history, will illustrate this.In the last Scottish rebellion there were various participators in it- such as Balmerino and others- who believed that in taking part in the rebellion they were only discharging their duty to the house of Stuart; but there were also others who were animated only by private motives and interests.Now, suppose that the judgement of the supreme court regarding them had been this: that every one should have liberty to choose between the punishment of death or penal servitude for life.In view of such an alternative, I say that the man of honour would choose death, and the knave would choose servitude.This would be the effect of their human nature as it is; for the honourable man values his honour more highly than even life itself, whereas a knave regards a life, although covered with shame, as better in his eyes than not to be.The former is, without gainsaying, less guilty than the other; and they can only be proportionately punished by death being inflicted equally upon them both; yet to the one it is a mild punishment when his nobler temperament is taken into account, whereas it is a hard punishment to the other in view of his baser temperament.But, on the other hand, were they all equally condemned to penal servitude for life, the honourable man would be too severely punished, while the other, on account of his baseness of nature, would be too mildly punished.In the judgement to be pronounced over a number of criminals united in such a conspiracy, the best equalizer of punishment and crime in the form of public justice is death.And besides all this, it has never been heard of that a criminal condemned to death on account of a murder has complained that the sentence inflicted on him more than was right and just; and any one would treat him with scorn if he expressed himself to this effect against it.Otherwise it would be necessary to admit that, although wrong and injustice are not done to the criminal by the law, yet the legislative power is not entitled to administer this mode of punishment; and if it did so, it would be in contradiction with itself.
However many they may be who have committed a murder, or have even commanded it, or acted as art and part in it, they ought all to suffer death; for so justice wills it, in accordance with the idea of the juridical power, as founded on the universal laws of reason.But the number of the accomplices (correi) in such a deed might happen to be so great that the state, in resolving to be without such criminals, would be in danger of soon also being deprived of subjects.But it will not thus dissolve itself, neither must it return to the much worse condition of nature, in which there would be no external justice.Nor, above all, should it deaden the sensibilities of the people by the spectacle of justice being exhibited in the mere carnage of a slaughtering bench.In such circumstances the sovereign must always be allowed to have it in his power to take the part of the judge upon himself as a case of necessity- and to deliver a judgement which, instead of the penalty of death, shall assign some other punishment to the criminals and thereby preserve a multitude of the people.The penalty of deportation is relevant in this connection.Such a form of judgement cannot be carried out according to a public law, but only by an authoritative act of the royal prerogative, and it may only be applied as an act of grace in individual cases.
Against these doctrines, the Marquis Beccaria has given forth a different view.Moved by the compassionate sentimentality of a humane feeling, he has asserted that all capital punishment is wrong in itself and unjust.He has put forward this view on the ground that the penalty of death could not be contained in the original civil contract; for, in that case, every one of the people would have had to consent to lose his life if be murdered any of his fellow citizens.
