Associate Professor, University of the Philippines.

The wisdom and necessity of capital punishment have been discussed and debated by criminologists, philosphers and legislators for more than a hundred years. Diverse theories have been set forth; yet up to the present time it is still an unsettled question, none of the theories propounded having received universal sanction and approval. In many a jurisdiction it has been abolished for reasons more or less sentimental in their nature, to be re-established and revived again after a few years undoubtedly of sad experience and failure in the experiment. And even in our own days public opinion and legislation on this subject have been more or less fluctuating.

In our own country, this important question has awakened the interest of many a thoughtful citizen, due to the modern reforms that have been embodied in the project for a Correctional Code recently submitted to the consideration of the Legislature by the Code Committee. It is there provided, among other things, that capital punishment may be inflicted only upon those convicted more than once for the crime of murder. Its authors undoubtedly must have been greatly influenced by the Religion of Humanity, or Humanitarianism, the highest expression of Christian thought, which has brought about the abolition of slavery and has been working for half a century to secure the abolition of the death penalty, under the leadership and inspiration of Comte and his disciples.

But before any satisfactory discussion and treatment of the subject can be attempted, we believe that a brief consideration of the object of criminal legislation and its penalties is necessary. Criminologists, penologists and publicists on Criminal Law have advanced different theories as to the province of penal legislation. Some consider that retribution is its real object, and that penalties are imposed as retaliation and punishment for the wrong-doers and as a vengeance as well. Others believe that the object of penalty is deterrence, making it serve as a warning not only to the offenders but also to the public at large. Still others find the object and purpose of criminal legislation in what is called social defense, that is the defense of society from the attacks and menace of the criminal class, for the preservation of individual and collective safety and the maintenance of public peace and order. But some of the more modern writers think that the true object of criminal legislation is the reformation of the criminal himself, considering him as a degenerate, having fallen below the normal man, and trying to bring about his regeneration.

In our opinion, however, the real object and purpose of the whole body of Criminal Law is the attaintment and realization of justice, which is secured, in the first place, by the proper defense of the whole social fabric from the attacks of the vicious and criminal to whom punishment is meted out for the purposes of retribution and deterrence at the same time; and, in the second place, by the reform of the great majority of the morally infirm in general so that they might properly fulfill their duties as good and law-abiding citizens.

Now, in the discussion of the wisdom and advisability of the preservation on the statute books of the death penalty, we must also bear in mind three postulates relative to the condition of 'man: Normality, Degeneracy and Regeneration. Considering the members of the criminal class as degenerates, as persons who have fallen below the level of the average man, and the possibility of their regeneration and return to normal life, how is their regeneration going to be brought about? Humanity may be regenerated by the reform of its abnormal members and also by the elimination of the undesirable and the unfit. (1) But modern standards of Morality and Codes of Ethics as well as the teachings of Christian Religion will not countenance the wholesale and indiscriminate elimination or extermination of the unfit and undesirable, either morally, physically and intellectually. Yet there exists a constant demand for the improvement of the individual and of society, and a constant and fierce struggle for existence between man and Nature and intense competition of life between man and man, in which the existence and improvement of the individual are made possible only by the survival of the fittest; and the less fortunate succumb. What has been the fate of the once happy peoples inhabiting the different parts of the globe which have been colonized by the European races? And are not famines, floods, wild beasts and pestilence the constant source of dangers to the life and safety of primitive man? And have not men been executed for crimes, and for religious and political motives? So has the death penalty been justified by Nature as well as by History, and on the principle of self-preservation. (2)

Writers on this subject may be naturally divided into three classes: the conservatives advocating its preservation and effective use, to which class belong such distinguished writers as De Flury, (3) Garofalo, (') Beccaria, (5) Romagnosi, (*) Hackel, (7) Ferri (8) and Tarde, (') at times; the radicals advocating its abolition,

(1) Garofalo's Criminology, pp. 220, 376, 410.
(2) Ferri's Criminal Sociology, p. 528.

Tarde's Penal Philosophy, p. 529.
Lombroso's Crime, etc., p. 426.

(3) De Flury's L'Ame du Criminal, (1898).
(*) Garofalo's Criminology, p. 380.

(5) Ferri's Crim. Sociology, p. 528.

(*) Ferri's Crim. Sociology, p. 528.

(7) De Quiros' Modern Theories of Crime., p. 193.

(") Ferri's Crim. Sociology, p. 532.

(") Tarde's Penal Philosophy, pp. 546-7.

to which class belong the no less distinguished jurists such as De Quiros, (10) Aschaffenburg (") and Mittermaier; and a middle class worthily represented by Lombroso, (12) advocating its retention and application only in extreme cases, preserving it as a sword of Damocles.

The partisans of the preservation and effective use and application of the death penalty, finding some of its justification in Nature and History, further justify it on the ground of deterrence (13) and the consequent decrease and diminution of criminality, (") and the so-called artificial selection (1) eliminating the undesirable and unfit to secure the improvement of the individual and society, considering the penalty imposed as a retribution for the proper defense of society.

On the other hand, the advocates of its abolition absolutely deny the defensive efficacy of the death penalty as a deterrence, (1) and allege that by making public executions more or less dramatic, they tend to increase criminality by force of example and imitation, converting the criminal into a sort of a hero among the uneducated classes; (17) that, at most, it has no effect on the increase or decrease of criminality and its suppression (18); that it is inhuman and revolting and might cause irreparable loss in case of mistake or miscarriage of justice ("); and that its abolition would decrease criminality, (20) citing furthermore the reluctance of courts and juries in imposing the death penalty, often-times acquitting the defendant rather than take the responsibility for his death, and invoking likewise the ever growing regard for human life and personality.

And those holding the middle ground, such as Lombroso, although contending for the retention of capital punishment, argue that it should be applied only in extreme cases-in meritorious cases—preserving it as a sword of Damocles, and a warning to everybody as a punishment that might be possibly inflicted at any time. (21) Let us now analyze the arguments set forth, in support of their respective views, by the writers on this subject. Statistics generally prove that the application of the death penalty deters criminals and consequently has a tendency to diminish crimi

(10) De Quiros' Modern Theories of Crim., p. 194.
(1) Aschaffenburg's Crime and Its Repression, p. 267.

(12) Lombroso's Crime et al., p. 426.

(13) Garofalo's Criminology, pp. 249, 378.

(14) Garofalo's Criminology, p. 380.

(15) De Quiros' Modern Theories of Criminality, p. 193.

(16) Ferri's Crim. Sociology, p. 530.

Aschaffenburg's Crime and its Repression, p. 266. (17) Aschaffenburg's Crime and its Repression, p. 267. Lombroso's Crime, etc., p. 426.

(18) Aschaffenburg's Crime and its Repression, p. 267. (19) Aschaffenburg's Crime and its Repression, p. 266. (20) Tarde's Penal Philosophy, p. 543.

(21) Garofalo's Criminology, p. 380. Lombroso's Crime, etc., p. 426.

nality; and it cannot, therefore, be successfully denied that the imposition of the death penalty really intimidates and deters, as in England and France (22); and that its abolition or suspension naturally tends to authorize murders and increase criminality, as in Belgium, Switzerland, Prussia and Italy. (23) It is true that there have been instances in which it has been shown that the criminals have not taken seriously the death penalty imposed upon them; but they may be considered as exceptional casescases of abnormal men devoid of the normal feelings and emotions of the average individual. That the application of the death penalty is really an effective means of social defense, in different countries it has been seen that its effective use has suppressed many a military revolt, political conspiracies and organizations of criminals and bandits, as in Italy and Austria (24); and that it has been gradually re-established in many jurisdictions which had formerly abolished it, as in several cantons in Switzerland. (25)

It is beyond dispute that murderers are a constant menace to society upon which they are a burden more than anything else; and that they may be naturally considered as unfit to live in the society of men; and that their elimination might help in bringing about the improvement of the individual and of the race through a process of artificial selection. It cannot be said that such a theory is inhuman. It must be borne in mind that the preservation and application of the death penalty have for their object the protection of the members of society, and the criminal class are among them; and their only duty is to be good and law-abiding citizens to receive its benefit and avoid its application. Nor is the application of the death penalty contrary to the principles of Justice. The eternal principles of Justice demand reward for good conduct and service, and punishment for wrong-doing; and if it is true that human personality and life are sacred and inviolable, there cannot be advanced any tenable argument why the murderer should generally be spared his life, after he has unjustly deprived another of what is dearest to the latter. The highest interests of public peace and order, and the safety of the whole social fabric demand that an adequate atonement should be made; that both the criminals and the public at large should be made to understand and realize the seriousness and gravity of the offenses committed, re-establishing the juridical order that has been altered and violated. Each and every man, woman and child has a perfect right to the full enjoyment of personal security; and its enjoyment.should not be limited or curtailed by any consideration for the criminal class and murderers in particular. The argument that the death penalty, as a defensive measure, is defective and inadequate in that it does (22) Garofalo's Criminology, pp. 249,378, 380.