Capital Punishment, Based on Professor Mittermaier's 'Todesstrafe' ...
Carl Joseph Anton Mittermaier, Karl Heinrich Schaible
COM? A ^'H^ m^^'' nL. . /?^a^ <^ //^6 TO THE EIGHT HON. LOED BEOUGHAM AND YAUX, " WHO," (TO QUOTB THE WOBDS OF PB0FBS80B MITTBBICAISB,) "is OBBMANT, as in all OTHBB COimTKIES, IS YENBBATED AS ONB OF THB MOST DISTINOniSHED JUBISTS, COMBININa THB BICHBST BZPEBIBNCB OF OLD AOB WITH YOUTHFUL FBESHin&SS OF MIND,** 18 MOST BESFBCTFULLT DBDICATBD BT THE EDITOR. a2 Deab Stansfeld, — Allow me to claim your friendly interest for a Book which only requires to be known in order to produce certain beneficial results. You will, I doubt not, ere long, be called upon, as a member of the Legislature, to express an opinion on this question, which mtut soon be decided. Both for that reason, and as an egression of my individual derotedness to yourself, I felt as if I could not dismiss this little labour of mine without writing these few words. Yours ever, J. M. M. James Staksfeld, Esq., LL.B., M.F. &c. &c. &c. CONTENTS. Cbap. ' p^OX Frbfacb _. Tii m Biographical Sketch of Pbofessob Mittebmaieb xi L Capital Panishment — Penalties in General — Historical Sketch : 1 n. Humanitarian Doctrines: their Bearing on the Theory of Capital Punishment 12 in. Opinions of Writers on Capital Punishment since 1830 46 rV. Legislation of the last Thirty Years 67 V. The Theory of State Bights in relation to Punishment 77 VI. The Policy of Criminal Law .-. 94 VII. Statistics of Crimes committed and Capital Sentences passed in yarious Countries 100 Vin. Capital Sentences and Executions 1 13 IX. Capital Punishment as a Deterrent 130 X. Capital Sentences, Executions, and their Effects 135 XI. Executions, and the Condemnation of Innocent Persons 145 Xn. The Beformation of Pardoned Criminals 150 XUL Pardons — their Beneficial Besults 154 XIY. Arguments in Fayour of Capital Punishment 167 XV. These Arguments examined 172 XVL Arguments for the Abolition of Capital Punishment 184 XVn. Propositions for mitigating the Eyil Effects of Capital Punishment examined 201 XVIIL Capital Punishment in England 220 vi CONTENTS. APPENDICES. Pags A. Porcia Lex r. 231 B. Sir Thomas More 232 C. John Howard 233 D. Edward Livingston 236 E. Snbjects for 'Research, and Letter from Professor Upham 237 F. Excerpt from Mr. Bright's Speech in House of Commons, May 3, 1864 ^ 241 G. Mr. Charles Neate, M.P., on Fear of Death as a Preyentiye of Crime 244 H. Mr. Alderman Harmer's Evidence before Select Committee of House of Commons, May 18, 1819 - 248 L An Execution in London, 1864 255 K. Statistics of Murder in Enghind and Wales 259 Index 261 PREFACE. A TBEATisB from Ptofessor Mittermaier's pen on any topic connected with the theory or practice of the law, is worthy of perusal by the profession; but there is no subject on which he is more entitled to be heard, than the one discussed in the following pages. The events of every day show, that this is a topic of interest not only to lawyers, but to the public at large. For a long series of years Professor Mittermaier has devoted a large portion of his time and abilities to the investigation of this most important question. He is no mere theoretical opponent to Capital Punishment, and , the advocates for the maintenance of the penalty will find in him a fsiir though powerful antagonist. In order to adapt the work to the requirements of the English reader, it appeared necessary to make a few alterations. Accordingly in Chapters I. and 11. fuller details regarding the history of the subject, and the writers on it, have been given. Besides, a concluding chapter has been added, in which the question has been considered in its special bearing on the actual state of England. Vlli PREFACE. Since the sheets were in type, Professor Mittermaier has kindly forwarded the results of his continued inves- tigations with regard to the literature, statistics, and legislation on Capital Punishment in various countries up to the present date. I regret that these valuable materials could not be embodied in this edition. In the preparation of the work I readily acknowledge my great obligations to J. Schonemann, Esq., whose acquaintance with the literature of his crwn country, as well as that of France and of Italy, and whose classical and historical learning have been to me an important and almost indispenBable assistance. I am also indebted to M. A. Garvey, Esq., LL.B., G. Harry Palmer, Esq., M.A., and F. W. Ramsay, Esq., M.D., for various valuable suggestions, and to Mr. Wil- liam Tallack, the secretary of the Society for the Abolition of Capital Punishment, for courteously placing at my disposal books and notes relating to the subject. Dr. Charles H. Schaible, a friend of Professor Mittermaier's family, has kindly furnished the short biography which immediately follows. J. MACRAE MOIR. 2, Middle Temple Lane, Temple, January 20th, 1865. #- PASSAQES FBOM THE LIFE OF KAEL JOSEF ANTON MITTERMAIER, PBOFESSOB OF LAW IN THE UNIYEBSITT OF HEIDELBEBG. By KARL SCHATBLE, Ph.D., M.D., BOTAL MIUTABT ACADBMT, WOOLWICH ; EZAMINBB IN THE TJNIVEBBITT OF LONDON. PASSAGES FROM THE LIFE OP KAEL JOSEF ANTON MITTEEMAIEE. In sketching the life of a man of science, it is seldom that we have to report deeds which at once command public attention, such as the glorious exploits of a victorious general, or to describe works like the productions of a celebrated artist. The man of science does not fight bloody battles, or erect cathedrals rising up to the sky, which perpetuate his name to distant ages. His struggles, victories, and conquests, are accomplished in silence, and the monuments which he leaves behind him are visible only to the intellectual eye. Never- theless, his activity is far more conducive to the progress of mankind, although less apparent. He who has opened new paths to science, who has successfully combated ignorance, the heaviest fetter of humanity, or, as a teacher, has promoted the intellectual development of thousands, has performed more noble and more enduring work than the mightiest warrior. Such a champion in the field of the intellect, who in his long life has gained many a victory, and is still, in advanced age, successfully carrying on the work, is K^ J. A. Mittebmaieb. He has not only spread light far and wide by his numerous writings on jurisprudence, but he has also been the personal instructor of many thousand scholars who have flocked around him from various lands, to listen to his animating words, and who now, engaged in the business of life as lawyers, statesmen, xii LIFE OF EABL J. A. MITTEBMAIEB. legislators, and men of letters, cherish a grateful remembrance of their former master. As a legislator, he has himself had the satisfaction of seeing many of his views on law adopted prac- tically by entire nations ; and with all the comprehensive and varied activity of his mind, he has preserved np to a venerable old age such purity of soul, such a warm and feeling heart, that any hostile feelings to which the passion of parties may have given rise in the midst of his active career, have long since subsided. I will endeavour to draw a short sketch of the literary and political life and activity of this distin- guished man. E. J. A. Mittermaier was bom on the 8th August, 1787, in Munich, where his father was an apothecary. His mother possessed a calm, clear, and acute intellect, and great activity : his father had extensive knowledge in natural history^ a quick understanding, and a gentle, pure, almost enthusiastic mind. The son appears to have inherited the qualities of both his parents, but chiefly those of his father. It may be of some interest to mention here that his Mher's brother-in-law was the well-known seaman Zimmermann, who repeatedly sailed round the world as Captain Cook's steersman. The uncle's highly coloured descriptions of distant lands nearly induced his nephew to turn sailor, and certainly aroused in him, at an early age, that constant inclination for travelling which he subsequently lost no opportunity of gratifying. Unfortunately, Mittermaier did not long enjoy the loving guidance of his fleither, who died at a comparatively early age. His mother married again ; but the intercourse between the lively boy and the rather gloomy, severe stepfather was not very intimate. The boy was sent to the school of a clergy- man, a hard, narrow-minded man, who, however, possessed an uncommon knowledge of ancient and modem languages, and implanted in his pupil a love for foreign languages, which, at a later period, proved of the greatest advantage to him. Thus, in his eleventh year, Mittermaier was qualified to act in his stepfather's shop as interpreter to the French LIFE OF EARL J. A. MITTERMAIEB. xiii ampes, which at that period were marching through Mimich. Mittermaier was subsequently a pupil of the Lyceum of that city, the masters of which, though Eoman Catholic clergymen, were men of liberal education, and aimed at general refinement of mind. At this time Mittermaier showed a special inclination for the natural sciences: he intended to become a surreyor of mines; and, for. this purpose, in his thirteenth year, he passed the preliminary examination held by the Govemment. But on account of his apparently very weak health, his stepfather would not allow him to continue in this career. For the same reason, he was prevented from studying medicine. Accordingly, when in his sixteenth year, he entered the University of Landshut (Bavaria) as a student of law ; but, fEiithfiil to his early predilections, he continued to attend lectures on the natural sciences, anatomy, and medicine. The direction of his mind, which will be indicated in another place, to treat jurisprudence as a kind of natural history, his clear perception of the importance, for the lawyer, of forensic medicine, and especially of that branch of it which relates to mental diseases, and his comprehensive knowledge of this . subject, are undoubtedly attributable to the early development of his youthful inclination. That he did not neglect the study of philosophy, however, is proved by the fjEict that when a young student he wrote a book (unpublished) on the Law of Nature (Naturrecht). Mittermaier was obliged, at that period, to increase his income by giving private instruction. He be- came a tutor in the family of Herr von Zentner, then Bavarian Minister of State, continuing to attend the university lectures, and Herr von Zentner, who had formerly been a professor in the University of Heidelberg, kindly assisting him in his studies. Having concluded his university career, Mitter- maier practised as an advocate in Munich. At this period, an intimate friendship was formed between the young lawyer and the celebrated jurist Feuerbach, who became one of the ministers, and was charged with the compilation of the Bavarian Criminal Code. Mittermaier, well versed in languages, assisted Feuer- xiv LIFE OF KARL J. A. MITTEBMAIEE. bach, by famishing him with translations of and extracts from French and Italian laws. Thus Mittermaier not only became thoroughly acquainted with the criminal law of Bavaria, but at an early age made himself familiar with the difiGlculties of legislation. He now resolved to devote himself to an academical career, but wished first to visit other universities. For this purpose, a small stipend of 600 florins was firanted to him by the par- sixnonions govenunent, which probably considered L Jply sufficient for the yonng man, apparently snflfering from diseaBO of the lungs, and not likely to live much longer. This ill- judged economy nearly occasioned the death of the proteg^ of the liberal government, since it compelled him to eke out his scanty income by giving numerous private lessons in law at the University of Heidelberg, which he visited in 1808, and where he attended the lectures of Martin, Thibaut, Heise, Zachariae, and ElUber, then the ornaments of that universitv. A severe typhus fever was the consequence of this overwork in Heidelberg. At Heidelberg his feelings of patriotism were powerfully aroused at this time by his intimacy with a great number of noble men, who were filled with hatred against the all-power- ful Napoleon, and were labouring for the regeneration of Germany. In the autumn of 1808 he undertook his first journey to Italy, and studied that country and its people, whose language and literature he had loved from his earliest youth. His literary activity at that period is shown by a work entitled The Doctrine of Evidence in Criminal Cases, An improved edition of this book was published in 1822 ; and it has been translated into French and Italian. At the beginning of 1809 a chair in the newly founded Bavarian University of Innsbruck, in the Tyrol, was offered to him. Scarcely yet recovered from the typhus fever, Mittermaier passed the prescribed LL.D. examination before entering upon his duties. But just then the people of the Tyrol rose vic- toriously against Bavaria and France, her ally and protector ; LIFE OF KARIi J. A. MITTERMAEER. xv and, instead of Bavarian professors, the noble patriot Andreas Hofer and his riflemen marched into Innsbruck. In 1809 Mittermaier became a lecturer in his old Uniyersity of Landshnt, where the celebrated Savigny received him as a £riend, and made over to him the lectures on Boman Law. Besides this subject Mittermaier delivered lectures on Criminal Law, and on the history of German Law, &c. In 1811 he obtained a professorial chair in the same University, having declined a similar offer from the University of Kiel. In the following year he married the sister of his friend Walther, the father of modem German surgery. This choice was a happy one ; for during the long active life of Mittermaier, his wife, who bore him seven children, has not only been a true and loving companion to him, but with a clear mind and sympathetic heart, has fully associated herself with his higher aspirations. She is still active in body and soul ; her husband's untiring companion and helpmate. When Mittermaier married the times were stormy. After long oppression the German people rose against Napoleon; the University of Landshut was not behind her German sisters in German feeling and patriotic deeds; and numerous young men hastened from the lecture -room to the field of battle. Not until events again gave the mind repose did Mittermaier resume his literary occupations. To this period belongs the publication of two works of Mittermaier, The Introdxnction to the Study of the History of German Law, and the Handbook of Forms and Procedures in Criminal Law [Handhuch des Peinlichen Processes], in which latter he was the first to treat scientifically a sub- ject then much neglected in Germany. He compared the German and the French modes of criminal procedure, and de- manded the introduction of the systems of public trial by oral evidence, in opposition to the then existing system of secret examination before a government law officer, who took down in writing the answers of the accused, and laid them before a council of judges for judgment ; but at the xvi LIFE OF KARL J. A. MITTERMAIER. same time lie pointed out also the defects of the French system. The university honoured the young professor by electing him three times in succession as its rector, in which capacity he reduced the confiised affairs of the university to order, and thus earned the general thanks of the country. Li scientific circles Mittermaier was already refi^arded as one of th^ greatest anthorities on Criminal Law, Geman CiTil Law, and Law Proceedings in Civil Matters ; and many Uni- versities tried to secure his services. He declined a chair at Halle (1818); but in 1819 he accepted one at the newly- founded University of Bonn (Bhenish Prussia). Here, in the Khine lands, where French law, even after the country's deliverance from France, had remained in fiill force, Mitter- maier studied French Legal Practice, and introduced practical exercises for preparing students for the bar. At this time he published a work on The Fundamental Deficiencies of Criminal Law, as exhibited in Manuals and Codes. In this book he pointed out, how serious a mistake it is to admit into a code too many general, and purely scientific doctrines which cannot be applied to individual cases. Various circumstances ren- dered his short residence at Bonn unpleasant to him, in spite of his intimate relations with the circle of eminent scholars who had gathered there. He was charged with the temporary administration of the office of University Judge, t. e. magis- trate of the students, who are in German Universities under a separate jurisdiction. During this period occurred the great persecution of the popular leaders, by which the German Sovereigns, at the command of their Bussian master, showed their gratitude to the German people, who had saved them from Bonaparte. In no part of Germany was this persecution carried on with more violence and blind rage than in Prussia ; and the professors of Bonn, against whom the narrow-minded, stupid king had a personal antipathy, were particularly exposed to the storm. Under these circumstances Mittermaier, in 1821, willingly LIFE OF KARL J. A. MITTERMAIEB. xvii accepted a chair at the Uniyersity of Heidelberg, where he has ever since laboured anintemiptedly, refusing various offers of chairs at other universities and institutions. Here was fiiUy developed one of the most characteristic features of his activity, which had reference to the practical wants of his time and coimtry. While his energy as an author and a teacher continued without interruption ; while the number of his auditors gradually increased to thousands, drawn from the most distant countries ; he now entered into immediate con- nection with the parliamentary and political life of his adopted country, Baden. At present it is not easy to form a calm judgment on the influence exercised by Baden during the period from 1830 to 1848, on the political development of the whole of Germany. The revolutions which have subsequently extended over great countries ; the struggles for lofty objects which are still going on, have removed the events of that time to the background, and have dimmed the recollection of them, 80 that the views entertained respecting that period are fre- quently confused and inaccurate. The men devoted to political reaction in Germany make the liberal agitation of Baden at that time responsible for the commotions of the following period ; and many of the patriotic and bold men, who look only forward, f forget that the fruits of the present would never have been ripened without the preparatory work of that eventful epoch. But history will not refuse her acknowledgment to the labours of the deputies of the people of Baden, to the legislative deeds of the practical politicians of that country, guided by the theoretical politicians of the two Universities, Heidelberg and J Freiburg. History will establish as an honourable fact, that the parliamentary life of Baden at that time, when in Prussia not even the beginning of a more liberal development could be discerned, has been the school for the constitutional life of the whole of Germany. Among the highly honoured men who devoted themselves to this arduous task, Mittermaier, by universal consent, stands in . the first rank. As early as 1827 he became a member of the m in i, xviii LIFE OF KABL J. A. MITTERMAIER. Legislative Committee of Baden, in which he was associated with Nebenius, Bekk, DutUinger, YoUy, uid other prominent men in the service of Baden, up to the dissolution of the Com- mittee about 1845. In co-operation with them, he created the criminal code, which has served as a model for many other similar compilations. This is especially true of the books relating to the criminal code, which were based upon the system of public trial by oral evidence. With regard to criminal procedure, Mittermaier directed the public attention to England ; and showed that the necessary basis of such a procedure as deserved confidence, especially as regards the impartial treatment of the complainant and of the defendant, existed in the legal practice of England much more than in that of France. Mittermaier soon had an opportunity of taking an active and influential part in the political affairs of Baden, for in 1831 he was elected a member of the Lower House. In this sketch it is impoBsible to describe in detail his activity in the field of politics. The most important questions of legislation, and of the entire constitutional life of the country were origi- nated and promoted by Mittermaier. He was in the front rank during the struggles of that period for the liberty of the press ; to his efforts were chiefly due the laws which freed the soil from the last remnant of feudal rights (Zehntablossung), and the '^ Forms and Procedures in Civil Law " (Biirgerliche Processordnnng). It was he who, as reporter of the Com- mittee of the Lower House, to which the subject had been referred, overcame the greatest difficulties in carrying the new communal law (Gemeindeordnung), which gave to the smallest village, as in Switzerland, an independent self-government, which even in England towns only possess. The success of these labours was greatly promoted by his benevolent, con- ciliatory manners, which led to his election as preside (qr speaker) of the Lower House in the succeeding parliaments from 1833 to 1840. This office prevented him from joining any political party, but in opinion he belonged to the moderate LIFE OF KABL J. A. MITTEBMAIBB. xix tiberal section of the opposition, which, after the death of Winter, Minister of State, was destined to become a real opposition party. At this period he receiyed an honourable distinction, which of all the many titles, decorations, and honours bestowed apon him,* gave him the greatest pleasure — ^viz., the Freedom of the Oity of Heidelberg. Since that time he has displayed the greatest zeal in the affairs of his fellow-citizens, of whose common council he is a member. As administrates: of the Lyceum, as councillor, as one of the founders, and for many years chairman, of the ^' Society of Benevolence,*' and of the Orphan Asylum, and as a member of various useful sodJeties, he has untiringly devoted his time even to purely communal affairs. Even now, in advanced age, he is not prevented by any circumstance from giving weekly lectures on moral and scientific subjects to the children of the Orphan Asylum, an entirely unsectarian institution. Besides his activity in German science, in political affairs, and in the more limited concerns of the town in which he resides, Mittermaier had long been engaged in the study of foreign faws, which, in various ways, re-acted upon his own views, an influence which was strengthened by his travels and his personal intercourse with foreign scholars. Italy, a coun- try with whose judicial system Germany would scarcely have become acquainted but for the labours of Mittermaier, he had, as already stated, visited in his youth ; and the connections which had been subsequently formed through his acquaintance with the language, literature, and especially the medisBval law- history of the country, grew into intimate personal firiendships with the best representatives of scientific Italy, to the various chief cities of which he made frequent and prolonged visits. He published the results of his Italian studies in his work en« * Gennan, French, Belgian, Italian, and Fortagnese decorations of knighthood were bestowed upon him in great nmnbers ; almost all the judicial faculties and societies elected him a member of their bodies ; and the Uniyersity of Cambridge, in the United States, made him a Doctor of American Lav7. b2 XX UFE OF EARL J. A. MITTEBMAIER. titled The State of Italy {Itaiienische Zustdnde), in which he displayed great and deserved affection for that country and its people. The hook was immediately translated into Italian, and at once secured for its author the warm gratitude of the Italians, who found in it a hearty recognition of their nation- ality. They have since greeted him with genuine enthusiasm when he has addressed them, at their scientific meetings, in their own melodious tongue. In a similar manner, during a prolonged residence in Paris (1827), Mittermaier became intimate with many French jurists ; and, as at that time a number of the most eminent men of Spain and Portugal, devoted both to liberty and to science, were living in France as exiles, he enjoyed a personal intercourse with them also, which he turned to good account. With his French, Spanish, and Portuguese Mends, Mittermaier has ever since kept up an active scientific corre- spondence. With not a few eminent scholars and statesmen of Belgium also, in which country he has repeatedly resided, Mittermaier has formed personal Mendships, some of which originated more than thirty years ago. His ardent desire to visit North America has not bSen fulfilled ; nevertheless, he has succeeded in becoming ac- quamted with many legislators and scholars belonging to the various States of that Continent, and has carried on with them a lively correspondence. As has been already said, Mittermaier, at the commence- ment of his literary life, made the laws of England the object of zealous studies. Connections subsequently formed with eminent Englishmen were of great service to him. His growr ing conviction of the great importance of the development of English law, especially in reference to the reform of the German Criminal Code, induced him, in spite of his already advanced years, to visit England and Scotland in 1850. Prepared for this journey by a renewed study of the English language, and of the great law institutions of the land, he LIFE OF EABL J. A. MITTEBMAIER. XXI particularly endeayoored to acquire an exact knowledge of English criminal law. In this he was greatly assisted by the kindness of Lord Ebrington, of Mr. Colquhoun, and others ; and by the friendship of Messrs. Jardine and Hard- wick, who were at that time magistrates in London ; by Mr. Dowling; and by Messrs. Best, Austin, and Bowyer. Colonel Jebb, who was then at the head of the penal establish- ments, the Beyerend Mr. Clay, of Preston, and Captain Crof- ton, of Dublin, also furnished him with valuable information respecting the organization of English and Irish prisons. At that time he had the honour of being eled^d a corresponding member of the Juridical Society and of the Association for the Promotion of Social Science. He published the results of his studies in England in his works On the English Prison'- System, and on English^ Scottish, and North American Criminal Procedure, By means of his intercourse with eminent foreign jurists^ and of his large collection of juridical works in various lan- guages,* Mittermaier gradually acquired such an extensive and comprehensive knowledge of foreign law as probably nobody ever possessed before him ; and it became the custom in Germany, whenever a question of foreign law was to be decided either in a court of law or as a matter of science, to consult l^ttermaier as a true oracle. Having thus given a general account of Mittermaier*s labours in the department of foreign law, we now return to his active life at the beginning of 1840. The remarkable political activity which was manifested at this time in various parts of Germany found Mittermaier in retirement and suffering severely from the recent loss of his promising eldest son. Scarcely, however, had he returned in the autumn of 1845 from Italy, where, as representative of Germany, he had attended the great Italian scientific Congress at Naples, when * He had begnn the formation of this collection when a young man. After a pedestrian tour in Italy he had brought home, in his knapsack, some rare Italian works on mediaeval law. xxii LIFE OF KARL J. A. MITTEBMAIEH. the general elections for the Lower House of Baden eommenced. He was induced again to accept a seat in that assembly, of which he was again elected Speaker. Li the meantime, the breach between the Liberal majority of the House and the G-OYemment had become wider. One cause of this was the refusal of the Government to grant full civil equality with the adherents of the recognized creeds, to the newly formed religious community called '* German Catholics," which aimed at a reformed Catholic Church, separated from Eome. The position oT the Speaker, who still adhered to his Liberal prin- ciples and zealouAy supported the claim of the German Catholics, although he did not embrace their views, had thus become very difficult. That Mittermaier, nevertheless, was able to combine the maintenance of his principles with due respect for parliamentary right and usage, proves his great talent for public life, as well ^as the respect which he enjoyed. The years 1846 and 1847 are of the greatest importance in their bearing on the relations of German science to German practical/ life. In them were held, at Frankfurt and Lubeck, two meetings, called meetings of ^' Germanists " (Germanis- tenversammlungen), in which Mittermaier took a most active part. The first meeting requested him to undertake the con- sideration of the question of "juries," regarded from a prac- tical and juridical point of view. His report, which he read the following year to the meeting at Lttbeck, was considered as the official recognition, so to say, on the part of German jurisprudence, of the much debated institution of juries ; and thus prepared the way for its subsequent adoption, when in March, 1848, the German nation, rising en rruissey claimed this along with many other reforms, in their demand of rights, called " Marzforderung." This stormy and eventful epoch was approaching. The German people, after having, by the greatest possible sacrifices, won its freedom in the wars of independence against Bonaparte, now made its first attempt, by endeavouring to create a free and united Germany, to take that rank among the nations LIFE OF EABL J. A. MITTERMAIEB. xxiii whicb is due to its high and noble aspirations after tmth and righty as well as to its moral character, its conrage, and its perseyerance. The attempt failed at that time, because the people, unfortunately tdo ready to trust the oaths of its soto- reigns, allowed its hardly acquired power to escape from its grasp again. Keyertheless, the high aim of the German nation will be reached sooner or later ; for Germany, by its reformation of the Church, by its literary regeneration in the last eentuiy, and by its war of independence against Napoleon, has sufficiently shown its national strength ; and it wiU, with untiring perseverance, accomplish its political regeneration also. It may be well anticipated that in this violent commo- tion of the German people, in 1848, Mittermaier took an active part. In the preliminary German Parliament, assembled at Frankfurt, called '^ Yorparlament,'' to which most of the patriotic Germans hastened, in order to guide the Bevolution, the general confidence of the assembly immediately called Mittermaier to the ehair ; and, in the succeeding ^* constitu- tional parliament,** he belonged to a great number of commit- tees, and was one of the most active members. These men made Mitterpiaier the object of most violent attacks, because they could not see without a bitter feeling a man of such high reputation remaining faithful to liberty, which they bad shamefully deserted. These attacks, which have xxiv LIFE OF KARL J. A. MITTERMAIER. in no way diminished the respect which Mittermaier enjoys, were the more unworthy, as being directed against a man who had never allowed* any feeling of personal irritation or hostility to mingle with his scientific or political opposition ; who, on the contrary, has always displayed towards his opponents the greatest mildness — in which he may indeed have erred, since mildness is not always compatible with vigoroas political opposition. Since 1849, Mittermaier has abstained from all direct political action. He has probably been of opinion that he^ could do more to promote the welfare of the people by devot- ing himself more exclusively to scientific pursuits, and by pro- moting charitable institutions in the town where he dwells. Accordingly, he has ever since stead&stiy refused to comply with the most urgent requests to allow himself to be re-elected a member of the Lower House, and has laboured with greater zeal in his calling of an instructor and author. To this period belongs his renewed study of English law, his journey to England, already mentioned, and his works on the institution of juries, whereby he has, more than any one else, contributed to a better knowledge of that institution and to its practical improvement in Germany. At this period, also, he resumed his efibrts against Capital Punishment^ which he had commenced with considerable success in the German Con- stitutional Parliament at Frankfurt; and it is owing to his exertions that some German criminal codes have been entirely freed from this blemish. The improvement of the systems of prison discipline occupied at the same time much of Mittermaier's attention, and he published several works on that subject. Both as an ordinary member and as chairman, he took an active and prominent part in the Congresses at Brussels and Frankfurt, the chief topics of discussion at which were prison discipline and charity. Moreover, with youthful zeal, he visited lunatic asylums and prisons, in order to obtain a clear perception of the connection between diseases of the mind and crimes, and consequently of moral responsi- LIFE OF EARL J. A. MITTERMAIEB. XXV bility. At the same time, he continaed to deliver nninter- raptedly his lectures on criminal law and criminal procedure, which were, and still are, listened to by large audiences. In addition to these varied labours, he has, for a considerable period, discharged in the Uniyersity of Heidelberg the duties of chairman of the Court of Arbitration, called ''Spruch- collegium,*' a peculiar German institution, according to whicl» the professors of the faculties of law pronounce judgment on difficult legal points. Our space does not permit us to describe in detail the activity of Mittermaier as an avihor^ or to enumerate all his very numerous works, and their translations into foreign lan- guages, as they appeared either in Qerman, French, Italian, or Spanish reviews and periodicals, or as independent works. We wiU, however, mention a few of his principal works in the various departments of law. His Laws of Evidence in Criminal Mat- ten, and the Handbook of Forms and Procedures in Criminal Law (1810-11), now transformed in a fourth edition into The German Criminal Procedure (1845-46), have been already mentioned. In the Art of Defence (1st edition, 1814 ; 4th, 1845), this important part of the criminal procedure was treated scientifically for the first time. A sequel to this is the work entitled The Principle of a Public Prosecution by means of an I oral Charge: the Trial by Jury (1845), which greatly contri-. buted to the abolition of written legal proceedings, which had formerly been usual. His English, Scottish, and North-Ame- rican Criminal Procedure (1851) has been already mentioned. The development of criminal procedure since 18l8 is repre- sented in the work Legislation on, and Legal Practice in, Mat- ters of Criminal Procedure (1856) ; and, finally, Mittermaier is at present engaged upon a partly-published work, Expe- riences relating to the Efficacy of Juries (1864). The object of this work is to secure the permanence of the institution of trial by jury, by removing its imperfections and by supplying its deficiencies. In this endeavour, Mittermaier takes the English system as his principal model. On the subject of the material xxvi LIFE OF KAEL J. A. MITTERMAIEB. part of criminal law, he has rendered most valuahle service by his new edition of Fenerbach's Maamal, and by an extensive series of essays published in a periodieal edited by him, called New Archives of Criminal Law (1817-56), in which he has traced oontinuonsly the development of legislation and. of law literature. The most important work in this department appears to ns to be that on Capital Punishment, which is now rendered accessible to English readers. The 7th edition of his book entitled Maadms of German Civil ham was published in 1847. The subject of procedure in civil law was ably treated in his four Contributions, which appeared in the years 1820-26. The Archives for Practice in CivU Law, edited by Mittermaier, from 1818 to the present time, as well as his Archives for Criminal Law, afforded him opportunities of writing a running commentary on characteristic facts in the domain of judicial procedures. Besides these two legal periodicals, he edited, from 1828 till 1856, another, the Critical BevieWy relating to the Legislation and Jurisprudence of Foreign Countries, in which his knowledge of foreign juristic literature was made useful to all his German colleagues. Of Mittermaier's other very numerous works we will mention only the two important treatises on prison discipline, Improvement of Prisons (1858), and The Prison Question (1860). The chief characteristic of Mittermaier*s works is his pecu- liar and original method of treating the science of law in the same way as the naturalist now treats the physical sciences. As the naturalist has long ceased to invent the laws of nature otlt of his own imagination ; but, adopting a totally different course, carefully collects observations of phenomena as a basis for theory, that is, for the most general expression of the law manifested in those phenomena ; so Mittermaier, in the domain of law, endeavoured tb ascertain what institutions have been established by men at various epochs and in various places, and what effects such institutions have produced ; believing that only in that way could a clear perception of the general idea of law be obtained. But in proceeding thus he never fell LIFE OF EABL J. A. MITTERMAIER. xxvii into the great error of eonsidering as absolutely and immti- tably best tbat which has had an historical existence ; on the contrary, he has neyer been afraid of advocating even the most thoroagh innovation as soon as he has recognized its abstract jnstiee and practical fitness. Closely connected with this direction of thought are his efforts in fayour of law reforms, based upon his knowledge of foreign institutions. If he had restricted his studies to the field of German law, his conclu- sions could not haye been free from one-sidedness — a defect from which his little less than universal knowledge has almost wholly preserved them. Thus he has succeeded in rendering the study of foreign literature and legal institutions a necessary part of German legal science ; while he has carefrilly avoided the mistake of unduly exalting foreign systems over those which prevail in his own country. In &ct, he and Eichhom were the founders of the science of German civil law; and he has constantly and unsparingly condemned the blind imita- tion of French law institutions in criminal law and criminal procedure. Another striking characteristic of Mittermaier's mind is its * constant direction towards the practical side of every question. Theory has an interest for him only in so &r as it can be made subservient to the practical objects of life : he has always been averse to the abandonment of practical advantages for the mere sake of theoretical perfection. Law never presented itself to his mind as an abstract olg'ect of thought, on which intellectual subtilty may be exercised ; on the contrary, he has ever regarded it as the embodiment of popular rights, Hving in the consciousness of the people, constantly growing and assuming new forms. Accordingly, his own perception of law has under- gone uninterrupted development ; every day he has endeavoured to learn something new, and to detect errors which he was never ashamed of acknowledging and abandoning. Thus may be ex- plained his course in reference to the question of trial by jury. At the time when the utmost efforts were required in order to convince governments and lawyers of the great value of oral and XXTiii LIFE OF KARL J. A. MITTERMAIER. public legal proceedings, Mittermaier, anxious not to imperil the success of these efforts, considered it more prudent to defer the discussion of the jury question. Besides, he was then best acquainted with the French jury system, which he justly con- sidered very defective. But when the basis of public and oral legal proceedings was securely laid, he directed his energies to the new struggle, and contributed, more than any other indi- vidual, to the speedy adoption of trial by jury. Pure theorists, who deem it derogatory to learn from experience, and rigid supporters of what is established, were, of course, equally incapable of understanding and appreciating such a course of action. In concluding this rapid sketch, we may say that, even if Mittermaier*s labours had been confined to the single object of reforming the Criminal Law, his success in that aim would have sufficed to entitle him to be regarded as one of the greatest benefactors of the German people. No one has done so much as he to free that law from the reproach of cruelty and unjustifiable severity. A comparison of the German criminal law, as it existed at the beginning of this century, even after its first scientific reform by the gigantic minds of Feuerbach and Grolmann, with its present state, will be sufficient to con- vince every one of the truth of this assertion. Li the history of German jurisprudence, Mittermaier's name will never perish ; and posterity will remember him with thankful reverence for his disinterested exertions in the cause of humanity, and especially for his efforts to bring about the abolition of capital punish* merit — ^a remnant of barbarous times, which will soon be swept away by the spread of knowledge and of sound views of jurisprudence. I here conclude my sketch of this long and well-filled public life. This is not the place for an account of Mitter- maier*s private life, of which I will only say, that it is pure and clear as crystal, and in perfect harmony with the noble character and aims to which I have endeavoured to do justice in the preceding pages. UFE OF KARL J. A. MITTERMAIER. xsdx May the yontlifdl old man still work on for many, many years, with xmahated strength; and may he live to see the days when, in a united and free Germany, the seed that he has sown shall have produced a rich and ahundant harvest. Chables H. Sohaible. Boyal Military Academy, Woolwich^ Novemlfer, 1864. CAPITAL PUNISHMENT, BASED ON PROFESSOE MITTERMAIER'S TODESSTKAFE.' CAPITAL PUJ^flSHMEJ^T. CHAPTEE I. CAPITAL PUNISHMENTS — PENALTIES IN GENEBAL — HISTOBIGAL SKETCH. The History of Penal Legislation shows that the views of every nation regarding the infliction of Death Punish- ' ment have, in the process of time, undergone important changes. Equally important are the diflferences which contemporaneously exist in the legislation of any two great nations regarding the subject. The nature and definition of the crime^s by which a man forfeits his life — the procedure by which the fact of their perpetration is ascertained — ^the mode of putting the culprit to death, widely differ in different countries. The truth is, the laws on the infliction of death, which form the most important portion of the Penal Code, spring from the history, and are based upon the moral and religious views and the political constitution of a people. As a country advances in civilization, its Criminal Code is altered, and expe- rience shows, that with the progress of civilization the 1 2 CAPITAL FU^KTISHMENT. [CHAP. I. Penal Laws have been mitigated, the crimes by which the Ufe of man is forfeited haye been more clearly defined, and greatly reduced in number. It is unnecessary for our purpose that we should give here a complete historical survey of Penal Legislation in general, or of Capital Punishment in particular ; but the great influence which the legislation of the Bomans has had in developing the views of Uving nations, renders it incumbent on us to pay special attention to the re- sults they have arrived at regarding the subject under discussion.' In the Penal Law of the andents there are three fundamental ideas : — 1. Lex talionis^ 2. Belief in the necessity of Criminal Law as a deterrent. 8. The notion of making atonement to an offended Deity. 1. Lex falionis. — The principle of Lex talionis, or the law of retaliation, is more or less perceptible in the original penal views of every rude nation. The germ of Penal Legislation springs from a dim perception of a national duty to avenge a wrong done. Once per- formed, this duty becomes a precedent for further judgment and legislation, and increases in strength in proportion as a rude sensual nation sees retributive 1 *' Little is known regarding the Penal Law of the Greeks." — MiTTERMAiEB. This Statement of onr learned anther is confirmed bj the omission of the general topic and the scantiness of particular state- ments in Mr. Grote's celebrated History of Greete. PENAL LAW OF THE ANCIENTS. 8 justice realized by executions, while the delusion is con- firmed by the mystical notion thaH blood must be expiated ' by the blood of the manslayer. Hence we find in the twelve tables of the Bomans (No. 8), the retaliating enactment : — Si membrum rwpi^, ni cum eo pacit, talio esto.^ The word *'vindicta" for punishment points equally to revenge and retaliation* Under the influ- ence of such motives, Capital Punishment, as an act of retribution, is easily justified. 2. Belief in the necessity of criminal law as a deterrent. — The second fundamental idea of ancient Penal Legislation — viz. its function as a deterrent — accords with a low state of civilization, in which man's moral nature is not appreciated, and in which fear of physical suffering appears to the lawgiver to be the only feeling to which he can appeal. Hence, in such times» chastisement, maiming, and capital punishment, seem suitable and lawful penalties. 8« The notion of making atonement to an offended deity* — The third idea is that of atonement.. The deity of primitive nations is irascible, and being a creation of man's mind partakes of his attributes. The deity is offended by the sins and crimes of mortals, chiefly by those in which he is more immediately concerned — as, for instance, by any act implying contempt or even indif- ference towards his symbols, his priesthood, or institu- tions or properly devoted to his service. He is prone to avenge himself on a nation for the misdeeds committed by any of its members. The whole national sacrifice is rendered distasteful to him by the mere presence of the ' AuLirs Gellivs: lib. 20, cap. i., 5. 1—8 4 CAPITAL PUNISHMENT. [CHAP. I. obnoxious person. No better subject for conciliating his anger and expiating the national sin can be chosen than the person of the offender. This was besides a sacrifice that perfectly suited the theocratic views of the early Bomans. The offences against fellow-men and citizens were soon esteemed to be offensiye to the deity, and had to be expiated in a similar way as those by which he himself was hurt, as it were, in his own person. Whosoeyer, even through mere inadvertence, killed a man, was compelled to offer sacrifices, and to perform certain expiatory ceremonies. This explains the use of the word supplicium (act of supplication or worship) for Capital Punishment, the people appealing through it to the mercy of the offended protecting ntmien, and endeavouring to conciliate him by the death of the guilty person. Conformably to the theocratic bias of the early Bomans, a verdict of outlawry was pronounced by the formula ** Sacer eato,** which excluded the outlaw from the political commonalty, so that whoever slew him was, on that account, liable to no penalty. Concurrently, however, with the formation of the Bepublic, honour and freedom were better appreciated, and Capital Punishment was looked upon as no longer befitting a free citizen, but only adapted for slaves and the dregs of the population. Accordingly, the punish- ment of death was" repealed by tKe lej^ Porcia, and milder penalties were introduced.* But as, by degrees, the dignity of republican views was lowered, and ancient Boman virtus (manhood) degraded, Capital Punishment * Lex Porcia, vide Appendix A. 