In 1777, upon the execution of the preacher Dr. William Dodd, Samuel Johnson produced one of his most memorable aphorisms: “Depend upon it. Sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.” Six years later, he deplored the abolition of public executions at Tyburn, echoing St. Paul on the evils of neophilia when he blamed this on the “fury of innovation.” On Tyburn hangings, he observed, “Sir, executions are intended to draw spectators. If they do not draw spectators, they don’t answer their purpose.”

Johnson also regretted the decline in corporal punishment at school, speaking as both a former recipient and doler-out of same: “There is now less flogging in our great schools than formerly, but then less is learned there; so that what the boys get at one end, they lose at the other.” He was equally disturbed by the growing tendency to spare the rod and spoil the child in private circumstances, rebuking the Scottish Lady Errol as follows: “The rod produces an effect which terminates in itself. A child is afraid of being whipped, and gets his task, and there’s an end on’t; whereas, by exciting emulation, and comparisons of superiority, you lay the foundation of lasting mischief; you make brothers and sisters hate each other.”

Samuel Johnson was no advocate of (in the modern jargon) cruel and unusual punishments. He was a devout Christian and a man of good works, celebrated for his generosity to beggars, his provision of money and accommodation for many poor men and women, and his abolitionist views on slavery. He lived in the age of Reason, not the Dark Ages; and both he and his ideas were at the center of things, not on the margins.

Neither Johnson’s arguments nor his character give comfort here for opponents of corporal and capital punishment, those who believe that no noose is good noose. Between Samuel Johnson and the code of Hammurabi (around 1900 B.C.) lies a stretch of over three and a half millennia. Here we find the earliest statement of the lex talionis—the revenge of an eye for an eye and a tooth for a tooth.

Despite the apparent severity, Hammurabi restricted the death penalty to homicide (deliberate and accidental), theft, adultery, and bearing false witness. For other crimes, the punishments were lesser, and graded. It should be emphasized for the benefit of feminists that women’s rights were acknowledged: ill-used and neglected wives could obtain divorce, whilst mistresses were also allowed to have legal rights. On the punishing side, I especially like the dispositions for delinquent professionals. If a house fell on its owner, builder and architect were liable to death, mutilation, or a heavy fine; the same punishments awaited doctors convicted of malpractice.

The major fault in Hammurabi’s Code is one that was frequently repeated in late Roman, Byzantine, and medieval law. Too often, there was one law for the rich and powerful, another for the poor and weak: law was a respecter of persons. With Hammurabi, this took a colorful form. One statute provided that if a nobleman bit off another nobleman’s nose, the victim might bite off his attacker’s nose in retribution. But if a nobleman bit off a commoner’s nose, the victim was entitled to bite off only half his attacker’s proboscis. We are not informed as to how common an event nose-biting was in ancient Babylon.

Hammurabi took justice and punishment away from individuals and put it in the hands of the state, via its judges. It must have seemed a good idea at the time, but at the movies, I always cheered for Dirty Harry and Charles Bronson. Given the inability of the police to cope—it’s not their fault—there is a case to be made for vigilante justice. But this can go wrong. A glance at Europe’s most primitive country, Albania, is instructive. There, albeit curbed under the savage communist rule of Enver Hoxha, vendetta and revenge are largely in private hands, though subject to an elaborate set of rules laid out in the centuries-old Great Kanon: intent to avenge a family wrong must be registered with the authorities; only certain family members may qualify as the avenger; the hunted is given so many days start; if he takes refuge in a tower of sanctuary, he is safe while there—some fugitives have been holed up for years. Talk about vengeance being a dish best taken cold! Recently, a man was beheaded with an axe in the lobby of Tirana’s best hotel as culmination of one such family feud—his killer had been searching for him for 40 years.

I doubt we want this particular Balkan brew. But other entrepreneurial aspects of justice might be considered, such as the privatized prison, which has made some headway in America and Britain, in the latter thanks to Margaret Thatcher. Unlike most modern heads of Western states, Thatcher always voted to restore capital punishment. She defends it in characteristically crisp terms in the second volume of her memoirs. The Path to Power: “The state has not just a right but a duty to deter and punish violent crime and to protect the law-abiding public. . . . Despite all the uncertainties and complexities, the potential victim of the murderer deserves that highest protection which only the existence of the death penalty gives.”

Greece and Rome are widely regarded as the cradle of Western civilization. Most of what we know as Greek history is, in fact, Athenian history, since there was no such thing as a united Greece until the Romans imposed it, and no unity after Rome until the 19th century. The first law code in Athens was the work of a certain Draco. Most crimes carried the death penalty, a state of affairs prefiguring later times in some other countries. The Stoics in Greece and Rome would cognately argue that all sins are equal, and their beliefs formed the mainstream school of philosophy for centuries.

Then came Solon, who repealed Draco’s laws, which people had said were written in blood. When asked why he had attached the death penalty to nearly all crimes, Draco is supposed to have said that the lesser ones deserved it, hence for the major ones there was nothing else. Solon disagreed, but retained capital punishment for homicide. More to the point, to protect the weak, he gave every citizen the privilege of going to law on behalf of anyone whose rights had been infringed, summing up his purpose in these words: “The city where those who have not been wronged show themselves just as ready to punish the offender as those who have been is the best governed.” This brings us back to the notion of who should punish: the state or the individual? We should recall that neither Greece nor Rome had anything resembling the modern District Attorney or Public Prosecutor.

This is the moment when an opponent of the present argument is most likely to bring up the case of Socrates, executed in 399 B.C. at the age of 70 on two unlikely-sounding charges: not believing in the gods of Athens and corrupting the youth. If the first indictment is problematical, the other charge is sustainable. Socrates was tried four years after the defeat of Athens by Sparta in the 27-year-long civil war. Her maritime empire was lost, and for eight bloody months Athens was tyrannized by a 30-man junta, ruling with Spartan military support. This was overthrown, and it was the restored democracy that put Socrates to death. Now, two of his most notorious pupils were the gilded youth Alcibiades, an Athenian John F. Kennedy of sorts, who had at various times plotted against the democracy and gone over to the enemy Sparta; and Critias, who became leader of the aforementioned junta. As we would say, Socrates was tried, convicted, and sentenced by a jury of his peers, not 12 good men and true, but 501. With bitter war memories and emotions still high, one can understand if not excuse the verdict. Is his condemnation any more bizarre than some of the Nuremberg ones in 1946? How ever did the judges let Albert Speer escape the gallows while such purely military men as Admiral Jodl did not? Also, albeit one of the most odious defendants (it was said that even Hitler found his anti-Semitic newspaper Der Sturmer distasteful), Julius Streicher was no worse than a propagandist.

In his Seventh Letter, Plato denounced the execution of Socrates as the one great crime of the democracy. It is understandable that this pupil of Socrates should deplore his old teacher’s death—I wonder if my own students would take a similar view? But it did not deflect the mature Plato from favoring the death penalty and other condign punishments. In his Republic, he goes on about flogging, eye-gouging, and crucifixion, while in his last and most totalitarian manifesto, The Laws, he prescribes death for those who do not believe in the gods of his proposed state, which was one of the very things that brought Socrates down.

Socrates is often thought of, somewhat romantically, as the pagan Christ, a comparison encouraged by the early Church. Both were artisans by pedigree and training, respectively sculptor and carpenter. Both were eloquent on a soapbox, good at debate, riposte, and asking awkward questions in public. Neither published anything—they would have been denied tenure in a modern university—and their ideas are chiefly known through the versions of their students, not a form of literary immortality I would choose for myself. Both were put to death by the state, the Athenian democracy and the Roman Empire. God, it would appear, was in favor of capital punishment, not to mention cruel and unusual forms. Why else would He arrange it that His Son be flogged almost to death, then crucified? The Gospel writers spend no time denouncing the principle of execution: what was wrong was that Christ had been chosen for death rather than Barabbas, who “lay amongst them for insurrection,” meaning he was an anti-Roman guerrilla, as the two thieves on the cross may have been. What Christ thought of these matters is not clear. His most memorable utterances not always being consonant with each other. Does “thou shalt not kill” include capital punishment? What about “Render unto Caesar . . . “?

We may add in the case of God that Hell and its torments qualify as cruel and unusual punishments, a notion popular through Christian history from Roman and medieval times via Hieronymus Bosch to Sunday morning television evangelists. A rather nice cop-out was once provided by the Catholic priest in that popular British sitcom Bless Me, Father: “Impossible to think that Hell does not exist, impossible to think that there is anyone there.” Back on earth, we should stress that had Christ been a Roman citizen, He could not have been legally crucified, because citizens were exempt from this mode of execution. That is why Paul, who was a citizen and who claims his rights as one in the New Testament, was beheaded. Pontius Pilate understood this point before signing Christ’s death warrant. Incidentally, it is still not generally recognized in the West that Pontius is venerated as a saint in the Ethiopian Church (feast day, June 25).

As with various other punishments, crucifixion was reserved for foreigners and slaves. The Romans did not play down its horrors. It was intended to be the deterrent. A Roman law states that it was designed “so that others might be deterred by its sight from the same crimes.” Did it work? Well, after the 6,000 survivors of Spartacus’s slave rebellion were executed in 70 B.C., there were no more slave uprisings on such a scale. Do we attribute this to the efficacy of punishment or to the Romans’ amelioration of a slave’s lot in life?

This whole question of deterrence is a notorious bugbear. Too often, it degenerates into both sides of the argument waving lists of statistics to prove their respective points. While agreeing that it does not clinch anything, I will wave one of my own, taken from a July 2, 1995, article by Angela Ellis-Jones in the London Sunday Telegraph. In the period 1959-63 in Britain, where the death penalty was abolished in 1965, there was an annual average of 284 murders and manslaughters. The corresponding figure for 1989-93 was 613. What no figures show, of course, because they cannot, are the murders that were not committed by criminals who were deterred by the fear of execution.

We have no figures for crime from any period of Greek or Roman history—I examined the matter many years ago in an essay on crime and criminals in the Graeco-Roman world. But there is a cognate issue here. Advocates of gun control always ridicule the formula of the National Rifle Association: guns don’t kill, people do. The Romans, however, who had no guns, seem in principle to support the NRA, for another of their laws states that “Those who carry weapons for the sake of protecting their own safety do not appear to carry weapons for the sake of killing men.” It is notable that the catalog of horrors of life in Rome (it sounds roughly like an ancient Detroit where Robocop would fear to go) compiled by the satirist Juvenal circa A.D. 100 makes no mention of criminals or honest citizens using weapons. By contrast, according to the historian Thucydides, in classical Greece, Athens was the first community where the citizens voluntarily gave up the right to bear arms. But we know from Athenian historians and law-court speeches that violent crime did not disappear as a result.

The Romans are, of course, famous for their laws, above all those bearing on crime and property. The notion of condign punishment is there from the beginning, in the earliest set of laws (mid-fifth century B.C.) established in the new Republic, the Twelve Tables—two more than Moses if you like your wisdom dispensed in tablet form. Modern farmers might like the death penalty prescribed for black magicians who moved their neighbors’ standing crops into their own fields—rustling corn, indeed! My own favorite is the one that had arsonists burned alive.

Such strains of what may technically be called (in textbooks, it often is) judicial savagery extend from Babylon through Greece and Rome to late antiquity, then to Byzantium and medieval Europe. It is notable that the first Byzantine law code (that of Leo III, A.D. 717-40) to prescribe blinding and other mutilations for specific crimes was promulgated exactly at the time that the Byzantines came into forcible contact with the new power and religion of Islam, the strict Sharia version of whose justice famously lops off the hands of thieves. It was likewise in medieval Europe, and in England down to at least the Tudor period. In the words of the best modern writer on this subject (J.G. Bellamy, Crime and Public Order in the Later Middle Ages):

There is little evidence that the mass of medieval men objected to the use made of imprisonment. It was a social and legal necessity. As well as being a tool of secular rulers, it was popular with ecclesiastics. That all criminals should be punished was an axiom which few men denied. Most medieval Englishmen agreed that on conviction a misdoer should be punished as quickly as possible and that the punishment should be so arranged that all should notice it.

It can here be subjoined that the notion of prison as a punishment was not an ancient one. Bellamy also shows from the copious medieval records three other pertinent things: the most ferocious punishments available to judge and jury were not always used; care was taken that prison guards were decent men, not brutes; and there were complaints that prisons were often too luxurious, especially when compared to the poor conditions of many a free man, a situation all too recognizable nowadays.

In the last few years, politicians of many stripes in many countries have called for the restoration of capital punishment, also corporal punishment, and the stiffening of conditions for parole. Currently in Canada, a Liberal (not a right-winger) Member of Parliament (John Nunziata) is pushing for a measure that will make it harder, if not impossible, for murderers to be released from prison on the say-so of a social worker or psychiatrist. It does not matter what one thinks of these particular politicians or their other policies. Whether or not we have the right or duty to take the life of somebody who has taken that of somebody else has always been and remains a cosmic moral issue.

Opponents of the death penalty always trot out three objections: an absolutist “thou shalt not kill”; the possibility of executing an innocent person; the lack of proof that capital punishment is a deterrent. The first one is a comfortingly glib prescription, but how can it reasonably be used to protect someone who has already broken it by committing murder? And does it mean that no one may ever be killed in any circumstances? If someone had had the chance to bump off Hitler before he had killed more millions, would it have been morally superior not to do so? Furthermore, “thou shalt not kill” is one sentence in the Bible, a religious text which large numbers of people do not believe. We are already selective about which of the Ten Commandments we follow: “Honor the Sabbath Day” went out the window long ago. The inconsistency of liberals on this is typical and total. On the one hand, they demand a secular society, no prayers in public schools. On the other, they do not scruple to reach in for one sentence out of a book they otherwise despise.

The argument that a jury of fallible humans may convict an innocent person is a red herring. We simply use common sense. Whenever there is the slightest doubt about a defendant’s guilt, the death penalty should not be used. When there are no doubts, thanks to confession and/or witnesses, plus DNA tests, it should.

I suppose that in the 30 years I have lived in Canada, the two most notorious murder trials (Paul Bernado apart) have been those of Steven Truscott and Clifford Olsen. Truscott was accused (in the 1960’s) of the rape and murder of a young giri. He was convicted, but not executed, served a sentence, and was released some years ago. The evidence was circumstantial, and subsequent books by Isobel Lebourdais and Bill Trent did much to undermine the prosecution’s case. Obviously, Truscott should not have been sentenced to death. But there was no doubt about the guilt of child-murderer Clifford Olsen, who gloried in his crimes and made deals for cash whereby he led police to the graves of further victims. Yet this creature is spared to live out a comfortable life in prison at the expense of taxpayers and the feelings of his victims’ parents.

A case from 1950’s Britain is often exhumed by abolitionists, especially since the recent movie and television documentary about it. A youth named Derek Bentley was tried for the shooting of an unarmed police officer during an attempted robbery. He was the accomplice of a younger teenager, Christopher Craig, who actually pulled the trigger. The case turned on the words “Let him have it, Chris,” shouted by Bentley to Craig. The prosecution maintained he meant Craig should shoot the officer; the defense argued that he was telling Craig to give up the gun and surrender. Both were convicted; Bentley was hanged. Since Craig was legally too young to be executed, it was seen as particularly unfair that Bentley should die. This misses the point, which is that the law that saved Craig was wrong. Teenage murderers are not naughty children but criminal thugs who know very well what they are doing. Again, liberals want it both ways: it is right that teenagers be allowed to drive cars (lethal weapons!), get married, and so on, but when it comes to taking responsibility for their actions, oh dear no, the little darlings are too young.

When capital punishment was abolished in Britain and Canada, one of the main arguments raised against it was that it was not acceptable in a “civilized society.” But 30 years on, will anyone seriously maintain that either British or Canadian society is more “civilized” without the death penalty than it was with capital punishment? The death penalty is often attacked as a mere act of revenge. Quite so. It is, and what is wrong with that? A distinguished Roman historian at Yale, Ramsay McMullen, denouncing what he called Roman judicial savagery, quoted Tocqueville: “A mesure que les peuples deviennent plus semblables les uns aux autres, Us se montrent reciproquement plus compatissants pour leurs miseres, et le droit s’adoucit.” Alas, fine words butter no parsnips: we are not there yet.

As earlier said, neither side has any conclusive statistics for deterrence. And one might add (I’m surprised abolitionists so rarely do) that Britain’s last official executioner (like his father before him), Albert Pierrepoint, concluded his memoirs (Executioner. Pierrepoint) with the statement that as far as he could tell, hanging was more revenge than deterrent. The point is, however, that all civilized societies have had coercive punishments, capital and corporal. Not to have had them is untypical and perverse. Desire for revenge is innate in humanity. It is not enough to reserve it for God. He may not exist, and if He does, if you take the Deist approach from Epicurus to Lord Herbert of Cherbury to Voltaire, He may not be concerned.

Although it is congenial to give oneself the last word on everything, it may often be more cogent to concede it to someone else, especially in the present debate where marginality is an issue. So I shall quote from Roger Scruton’s collection of essays Untimely Tracts, which was occasioned by the case of Klaus Barbie, who was brought with great fanfare from Bolivia to France in order to be elaborately protected from the fate he deserved. After this shaft, Scruton wrote: “A system of punishment without the penalty of death is a moral absurdity. Punishment exists in order to express and confirm the consciousness of crime. It is an essential instrument of civilization. . . . When a criminal comes before the law, he comes before an agent of justice, whose purpose is to make him suffer for his crime. Morally speaking, that is the important act. To think of punishment either as a deterrent or as a cure is to misunderstand it. . . . It is the criminal who chose to murder, and therefore he chose to die.”