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KEMMLER'S CASE AND THE DEATH-PENALTY. I. By Jacob Spahn. IT is the purpose of this paper to take issue with an ancient craft to which the writer himself belongs. He commences by modestly yet firmly premising that no man has the right to take another man's life but in just defence of his own life. And what is true of one man in this plain and commonplace respect is true of all men, even public executioners. That men are gregarious, and so form society, mili tates against no fundamental truth of ethics in the premises. Such truth stands out, and will eternally abide as much an estab lished fact in the world as any phenomenon of the physical universe. Legislation, however copious, would not pacify the turbulent course of the Niagara. The surging stream would still mightily hurl its emerald waters over the great chasm in the thundering rhythm of the centuries past. Idle would be an act of Congress to affect the course of the tradewinds. This every person of ordinary in telligence understands. Not so obvious, however, is the futility of legislation seeking to annihilate or modify incontestable ethical facts bearing upon human rights and cer tain well-established psycho-physiological phenomena with reference to man; whence creep into codes of justice such anomalies as capital punishment and innumerable crimes, only nominally so, arising from hu man acts neither wrong, nor mischievous, nor involving moral turpitude. With reference to capital punishment, Blackstone quotes, in justification, the an cient law alleged to have been delivered to Noah by God himself, to wit : "Whoso sheddeth man's blood, by man his blood shall be shed." 1 And the great commentator adds : 1 Commentaries, book iv. p. 9.
"In other instances they [capital punishments] are inflicted after the example of the Creator in his positive code of laws for the regulation of the Jewish republic, as in the case of the crime against nature. But they are sometimes inflicted without such express warrant or example, at the will and discretion of the human legislature, as for forgery, for theft, and sometimes for offences of a lighter kind." 1 In Blackstone's semi-benighted time (still quite recent, moreover), some petty crimes, and all the graver ones, were punishable by death, and most of the last " without the benefit of clergy." The death-penalty, too, was inflicted in a great and curious variety of forms.2 Yet even then the ghastly business of killing malefactors generally had its efficacy questioned; for the commentator gossipingly relates that Elizabeth of Russia abro gated the death-penalty, and relied almost wholly upon prison restraint and discipline, to preserve the internal peace of her domains, and regulate the public and private morals of her subjects. Blackstone, therefore, pertinently asks : — "For is it found, upon further experience, that capital punishments are more effectual? Was the vast territory of all the Russias worse regulated under the late Empress Elizabeth than under her more sanguinary predecessors? Is it now, under Catherine II., less civilized, less social, less secure? And yet we are assured that neither of these illus trious princesses, throughout their whole adminis tration, inflicted the penalty of death."* Simple, garrulous soul, this Blackstone, in the face of the current law of his day, with the capital penalty inflicted for com parative trifles, sans " the benefit of clergy "! 1 Commentaries, book iv. p. 9. 3 Ibid., p. 243. 1 Ibid.
