in which
the death penalty was abolished in 1830. Under the influence of the
eminent jurist, E. Livingston, who framed the state codes, the
legislature certainly passed a resolution against capital punishment.
But since as early as 1846 it has been there lawful, subject to a power
given to the jury, to bring in a verdict of guilty, "but no capital
punishment," which had the effect of imposing a sentence of hard labour
for life. In certain states the jury has, under local legislation, the
right to award the sentence. The constitutionality of such legislation
has been doubted, but has been recognized by the courts of Illinois and
Iowa. Sentence of death is executed by hanging, except in seven of the
states, where it is carried out by "electrocution" (q.v.).

The question of abolition.

With the mitigation of the law as to punishment, agitation against the
theory of capital punishment has lost much of its force. But many
European and American writers, and some English writers and
associations, advocate the total abolition of the death punishment. The
ultimate argument of the opponents of capital punishment is that society
has no right to take the life of any one of its members on any ground.
But they also object to capital punishment: (1) on religious grounds,
because it may deprive the sinner of his full time for repentance; (2)
on medical grounds, because homicide is usually if not always evidence
of mental disease or irresponsibility; (3) on utilitarian grounds,
because capital punishment is not really deterrent, and is actually
inflicted in so few instances that criminals discount the risks of
undergoing it; (4) on legal grounds, i.e. that the sentence being
irrevocable and the evidence often circumstantial only, there is great
risk of gross injustice in executing a person convicted of murder; (5)
on moral grounds, that the punishment does not fit the case nor effect
the reformation of the offender. It is to be noted that the English
Children Act 1908 expressly forbids the pronouncing or recording the
sentence of death against any person under the age of sixteen (s. 103).

The punishment is probably retained, partly from ingrained habit, partly
from a sense of its appropriateness for certain crimes, but also that
the _ultima ratio_ may be available in cases of sufficient gravity to
the commonweal. The apparent discrepancy between the number of trials
and convictions for murder is not in England any evidence of h