Capital Punishment il IZ cssay origi;inlly presented lo the North Central Pas11 Co~ifcrencc of thc Northern Nehrnskn District, October, 1960. ' nz~tlzor is HOW asto tor of Otlr Sal~ior Lzlti~cra?~ Churclz, K a m a s C Ka lz sns . -\DING to ihc Fifth Commanchnent of the Decalog, A""" taking or destroying of Iluman life is strictly forbidden, whet this be by premeditated murder, suicide, euthanasia, or sheer n lessncss and careIcssncss. Life is Gotl's 13rccic;us gift to matl. we are to guard this gift through rules of health, hygiene, and nl cnl science, so God guards it by His providential carc and by r~lles laid down in the Fifth Commantlmcnt. Our carthly lifl pre(:ious, ant1 iiilcc gone, it cannot be replaced. Capital pun ment, 111c pcnaity of' death pronounced by a compctent and autl~ tntive trib~rnal, is one of the wavs in which God would have ~rotccted. '''Tho~l shalt not kill," is a wariring to man to keep h a ofl ~ a l l t l if hc tiocsn't, then thc propcr authorities of the state 1 the right to take his iife. Thc 111ain p ~ ~ r l ~ x e of capital punishment is to protect life. 1 method of protecting life finds its origin in the rigid systein of tl cratic laws in the Old Testament and still esists by divine sanc in thc New Testanicnt where God placed this power into the hc; of constitutccl authority. 'Thcrc is no denying that we have beconle hardencd to inur \tTc rcacl and hear of it so often that ivc have become call01 to its rcal seriousness. There arc enough murders committed ( ?car to depopulate a city of several thousand. If a tornado, ea (1ualic, or a Hood ~vould dcstroy so Inany people, the nation ~\ r ( bc sllocked; but ln~lrder that Inany people in a given year and pop~~lacc pays little atten tion! Many citizens, deeply concel about this, feel that we ought to use thc death penalty more quci~tly in order to chcclc this trend to~vard more murders. Ot feel that capital punishment is not the answer. Other method ~ x ~ ~ i s h ~ n c n t and intensified programs of prevention and rehab) tion lleecI to hc deviscd. It is the scope of this paper to examine ~~rgiimcnts pro and con and to see whether we call arrive at 5 tcnable conclusions. I. HISTOEICAL DEVELOPMENT AND PRESENT STATUS EIebrew laws, theocratic in nature, contained very rigid regula- tions as far as the dcath penalty was concerned. LVe do note, how- Stoil/ ever, that in their laws we find introduced the idea of degrees in ' crime and degrees in punishment, for not every case of destroying G. I I life was pnishable wit11 death. Circumstances determined the de- f gree or severity of the punishment. We would emphasize the fact !! th. that the Mebrcw laws were absolute and permitted no legal loopholes lelh: and masterful maileuverings so frequently found in the courts of a democratic society. I . a :ill . , I t is interesting to note that there were a number of crimes and sins, in addition to murder, punishable with death. \Ve list these with Bible references. '.' mi?: ' ?'he silt of adultery. "And the man that committeth adultery ~thor with another man's wife, even he that committeth adultery with his .e lir: neighbor's wife, the adulterer and the adulteress shall surely be put ha nk to death." Lev. 20 : 10. t ]la! 1 . TI,<; ' the ' ncho hdnl' maul, nd I!. ce~nt: re f~ Othe;. I O ~ S pi abilit- ine thr t sonl The silz of bestiality. "Whosoever lieth with a beast shall sure- ly be put to death." Ex. 22: 19. The sin of blnsphemy. "And he that blaspherneth the name of the Lord, he shall surely be put to death, and all the congregation shall certainly stone him: as well as the stranger, as he that is born in the land, when he blasphemeth the name of the Lord, shall be put to death." Lev. 24 : 16. The sin of cursing one's parents. "And he that curseth his father, or his mother, shall surely be put to death." Ex. 2 1 : 1 7. The silt of idolatry. "If thy brother, the son of thy mother, or thy son, or thy daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee secretly, saying, Let us go and serve other gods, which thou has not known, thou, nor thy fathers; Nanlely of the gods of the people which are round about you, nigh unto thee, or far off from thee, from the one end of the earth even unto the other end of the earth; Thou shall not consent unto him, nor hearken unto him; neither shall thine eye pity him, neither shalt thou spare, neither shalt thou conceal him; But thou shalt surely kill him; thine hand shall be first upon him to put him to death, and afterwards the hand of all the people. And thou shalt stone him with stones, that he die; because he hath SOU! thrust thee away from the Lord thy God, which brought the of the land of Egypt, from the house of bondage." Deut. 13:1 T h e sin of incest. "And if a man shall take his sister, his er's daughter, or his mother's daughter, and see her nakedness, she see his nakedness; it is a wicked thing; and they shall bl off in the sight of their people; he hath uncovered his sister's n; ness; he shall bear his iniquity." Lev. 20: 17. The sin of rape. " I f a man find a betrothed damsel in the: and the man force her, and lie with her: then the man only the with her shall die." Deut. 27 :25. The sin of breaking the Sabbath Zaws. "And while the dren of Israel were in the wilderness, they found a man that ered sticks upon the sabbath day. And they that found him ga ing sticks brought him unto Moses and Aaron, and unto all the gregation. And they put him in ward, because it was not decl what should be done to him. And the Lord said unto A/loses, man shall be surely put to death: all the congregation shall 5 him with stones without the camp." Num. 15:32-35. The sin of unchastity. "Then they shall bring out the da to the door of her father's house, and the nlen of her city shall s her with stones that she die; because she hath wrought foil Israel, to play the whore in her father's house; so shalt thou put away from anlong you." Deut. 22:21. Thc silt of witchcraft. "Thou shalt not suffer a witch to 1 Ex. 22:18. It seems that these rigid requirements of the law set the also for other nations for years to come. The laws of Hammu were extre~nely severe in meting out punishments. The death 1 alty was used as a punishment for many crimes. Soon, howe men began to see the injustices and inequalities, and more care exercised in the use of the death penalty. In the thirteenth cent death was, by the common law of England, the punishment f o ~ felonies (except mayhem and petty larceny), but under t h e ir ence of the church this extreme sevcrity of the law was lessel From the beginning of the 17th century to the middle of the 1 century, the condemned felons were given the option of deporta Capital Punishment 7 field, it Jar I 1 cM. ! gath. the[. con. larei Ihi ;ton[ I mse! itoni y ic : evil for the purpose of colonization. At the beginning of the 19th cen- tury, due to certain writers and molders of public opinion, the two hundred capital crimes were reduced to four, namely; high treason, rnrder, piracy with violence, and destruction of dockyards. Since the middle of the 19th century the death penalty under English law has been exacted only for murder. I t seems that treason, from at- tacking the divinity of kingship to the modern crime of attacking the security of the state, has always been punishable by death.3,4s5 In the study of the historical development of the laws cover- ing capital crimes, it is also interesting to note the different forms of pnishment that have been used. We list the following methods as among the severest and most gruesome; burning at the stake, boil- ing in oil, buried alive in an iron casket, breaking the body on the wheel, flaying, throwing the criminal to ferocious animals, stoning, drotvning, crucifixion, and decapitation. 6*7 From old world history we turn briefly to our country. The early colonists listed twelve offenses as being capital in nature. This number was gradually reduced. In 1892, a federal law was passed which reduced the number of crimes to three, namely; treason, murder, and rape. Since that time the matter of punishing capital crimes exclusive of treason has been left pretty well to the constitu- ent states. The number of prisoners executed in the United States under civil authority from 192 1 to 1950 shows a steady decrease. The average annual number of executions in this thirty-year ~er iod was 1 3 5. In 1950, it totaled 82, the lowest number in the three decades. The November, 1 S 5 3, issae of the Annals of the American Acad- emy of Political and Social Sciences, says: "The trends in the use of the death penalty are solidly established in history. A study of them during the past 250 years can be summarized briefly: the over- all international trend is toward the progressive abolition of capital punishment." This trend in our country is demonstrated by the decreasing number of executions. In 1958, there were only 48 executions and in 1959, there were 49. J. Edgar Hoover makes this comment: "The average sentence served by persons after con- viction for murder is only 43% months and the prison doors in our country swing open every 2% hours day after day to release a murderer."g Today there are 35 countrics throughout the world where a tal punishment has been completely abandoned, and sentim against the death penalty is rapidly gaining ground in our co try. Iu 11. ARGUMENTS PRO Xlreadv prior to the famous Chcssman case of California, th hare been many voices against capital punishment. But we has to add that the voices in favor of capital puilishment 11al.e not b silenced. It is our intention in this portion of the paper to pres the main argunlents for and against the death penalty. \Ve be with the arguments favoring the retention of this form of punish the murderer. The basic argument in favor of capital punishment is tha serves as a deterrent to crime. This, as we shall show later, ; seenled to be God's objective in introduciilg capital punishmt If it is argued that the death penalty does not serve as a crime terrent, then thc fault lies not in capital p~~nishmeil t itself, b u ~ the infrequency with which i t is administered, with legal loop111 and technicalities, subterfuges, delays, legal maneuverings, , often, a deliberate attempt to arouse public opinion in favor of ! ing the condemned criminal's life. I t is claimed by seine that ; is one of t I~c basic reasons for the occasional existence of lynch 1nobs. Enragcd citizens fear that the law will be too lenient the cri~ninal, consequently they take the law into their own ha1 There have been countries and states where the death penalty once abolished, but then restored whcn it became apparent i cririlc was beginning to take a Roinan holiday. Rumania, after restored the death sentence; Austria, in 1938, restore( after 3L3 years of abolition; Italy, in the year 1939; and SO Dakota restored it in 1939, giving the jury the right to grant merc Eight states during 1959 and 1960 refused to abolish cay punisl~n~cnt. The most noteworthy case was that of Califor which refused the governor's request to pass a law to aboIish death 13enalty. This received public attention because of t he Ch 111an case. Justice must be upheld and the basic American law that accused is assumed innocent until proven guilty, must be hen( Capital Punishrnerzt 9 api- lent lun- 1 ere iten lee11 sent :gin ling ~t it also ent. de- t in oles a n d say- this ling vi th nds. was tha t 74 d it ~uth :J,. l1 pita1 mia, t h e less- t h e ored and respected, but the present-day trend to coddle the criminal, it is argued, is certainly no crinle deterrent. Let me quote a few per- tinent exai~lples froin Courtiley Ryley Cooper's book, Here's to Crime: "The Eremer kidnaping could not have been accomplisl~ed without the aid of two members of the Police Department." "Verne Miller, thc multiple murderer was ushered froin city to city bearing letters of introduction which, in one case, put hinl on a golf course with city ~fficials."~"Affiliated criillesters regard the electric chair as hav- ing beell built for suckers. Fellows with brains and iilfluence may be put into the death house, where they call watch the casuals of crinle travel to the last waltz, but i t is only a visit until 'somebody can get to the governor'."14 It is argued by thc abolitionists that a life senteilce call be more of a deterrent than capital punishn~ent. There are, however, a number of cases on record where imlxisonment did not stop a man's continued murdering. One of the states that restored capital punishment did so because a murderer killed his keeper. He had been sentenced for life; now in the new crime what other sentence 173s there to be imposed except the death penalty? There might be a point to a life sentence being a crime deterrent if we had more life sentences. As pointed out above, the average "life term" runs only about 43% months. At the age of 2 3 a man knows that with good behavior he can soon get out and still have a long life ahead of h i n ~ . A life term, terminating after 4 3 % months, simply does not scare many hardened criminals. Advocates of abolition say that life imprisonment is worse than death. This apparently does not hold true so far as the thinking of the criilliilal is concerned, for no cri~llinal has ever been known to reject a coinnlutation of a death sen tencc to life imprisonment. If a condemned criminal can or must make a choice, he will take a life sentence in preference to the death penalty. 111. ARGUMENTS CON Death penalty opponents make a strong case in their argu- ments. Herbert IVechsler, Professor of Law at Columbia Univer- sit!, lists five basic reasons why people oppose capital punishment. l5 1. The argument against deterrence. Sociologist Thorsten Sellin compared the number of homicides per 3 00,000 population in areas where the death penalty is used with those in areas 1 ~ 1 it has been abolished. His studies reveal that the frequency of hc cide does not seem to be influenced by the retention of the dt penalty. Another writer reaches the same conclusion and st2 "Our growing psychological understanding of the motivation of n dercrs makes it clear that the death penalty has no deterrent ef on potential murderers." lG Men like Warden Lewis E. Lawe! Sing Sing, Clarence Darrow, renowned criminal lawyer, and ers in the American League to Abolish Capital Punishment h argued that the death penalty does not stop crime and that the r dernned usually are too poor to afford good legal counsel. T point to the fact that the educated and well-to-do generally are ; to escape capital punishment. Hearst publications at the time of the murders committed Ruth Judd editorialized thus: "Does the State set a Christian ample by committing inurder for murder when Christ taught followers to abandon the ancient, brutal, and brutalizing polic! an eye for an eye and a tooth for a tooth? Does the State sc civilized example in conlmitting murder for murder? The S murders in cold blood, and it murders with deliberation, premed tion, and intent to kill,-and it murders as cruelly and brutall! any ll~urderer can,-and finally it insists upon killing with sa\ methods rather than allowing a woman to put herself out of the 11 111 all history horrible punishments have not prevented crime. T have merely brutalized the community or given evidence of an rend y brutalized con~munity ." Ilavid Dressler in an article on capital punishment appeal in the January, 1960, issue of Coronet says: "The death pen would be nora ally acceptable to some if it could be shown that ( cuting one individual deters others from committing like offen In the 18th century in England, pickpockets were hanged be1 great gatherings as a warning. The practice was abandoned beca too lnally pickpockets picked the pockets of people watching hansings." He also refers to an incident in 1877 when ten IVCI-e hanged on one day in Pennsylvania for n~urderous conspir: At that time the New York Herald editorialized: "IVe mav be tain that the pitiless severity of the law will deter the most wit from anything like the inlitation of these crimes," Mr. Dres Capital Punishwent 1 1 lere mi. atb I :ect 01 ad- aye on- be1 ble bs es- dis of t a ate ' ta- as lge IV. lev al- says: "The conclusion was f17rong. The next day two prosecution \vitnesses were murdered. Within two weeks, five of the prosecu- tors lnct the same fate."li And thus the abolitionists go on, seeking to produce strong evidence against the argument of deterrence. We ma,7 sun1 up their arguillcnts somewhat along these lines. "It is the certaiiltg and not the severity of punishment that deters criminals. hen a murder is comnlitted the murderer is usually in a state of iilteilse anger, jealousy, and excitement; at the moment he isn't thinking of the consequences in terms of capital punishment." 2 . Effect on the Administratio~z of Justice. The second argu- ment used by the opponents of capital punishment is this that it has a negative effect on the administration of justice. I t is argued that a trial in which life is at stake becomes inevitably a morbid and sen- sational affair, fraught with emotionalism for or against the defend- ant. This often affects the outcome of the trial, leading to errors ill which in turn lead to appeal after appeal. The em- pl~asis of the argument here is that too many innocent people have been executed. Edwin M. Borchard, Professor of Law in Yale University, reviewing 65 cases of criminal prosecutions and convic- tions of con~pletely innocent people came to the conclusion that these cases fall into clearly defined categories. His studies reveal that the following factors were largely responsible for condemning a i d convicting the innocent in the miscarriage of justice: mistaken identity, actually no crime committed, convictions based solely on circui~lstantial evidence, perjury, frame-ups, ovcrzealousness of po- lice, gross negligence of the police, overzealousness of the prosecu- tion, prejudice because of prior convictions, the bad reputation of the accused, and comn~unity sentiment demanding a con~iction.'~ As more cases of such a nature come to the attention of the public eye, the more intense becomes the feeling against capital punish- ment. Sir Fitzroy Kelly called attention to 22 cases of capital convic- tions between 1802 and 1840 in which innocence was afterwards fully established. Seven of these 22 actually suffered death. I t is estimated that 5 percent of those put to death are in reality inno- cent of the crimes of which they were accused.lg I t is also argued that the death penalty makes for a far more expensive administration of justice, since it involves unending chains of appeals on behalf even of the most obviously guilty hope to be released on a technicality. It makes for greater inec ity in the administration of justice, since anyone with enough fri and money can "beat the rap" one way or another.20 Thougl may not agree with all of the arguments of the abolitionists, must admit that they are sincere and honest in their plans and tives. It is not the desire on the part of the abolitionists to 1, the standards of justice, to excuse crime, or to gloss over the ousness of murder. Eather, it seems to be their desire to f i i more efficient way of dealing with the criminal. 3 . The argurrzc7zt of inequality. Though this is already plied in the above section dealing with the administration of jus thc third main argument emphasized quite extensively by the o nents of capital punishment is this that not all cases are treated a Since judges and juries must make the decisions, no ~ V O c though identical in nature and equally guilty, will be handle exactly the same way. 11s a case in point we refer to the S where it is usually the Negro who is executed for rape. In ! states it is claimed that sincc the abolition of capital punishn more convictions for life terms have been gotten because of the ings of jury members against the death penalty. Thus the acc arc more apt to he treated alike, is the argument. 4 . Thc nrgzrrnclxt of ii-repara27iEity. With capital punishr as the penalty, a mistake by which an innocent nlan is convi cannot be corrected. The nnfortunate but innoccnt man has 1 esecutctl and he can not be restored to life by any process of while onc with a life tern^, if and when found innocent, can bl 1c;lsed and rehabilitated. His loss of time and personal humilk can he partially offset by certain compensatory measures on the of the court. 5. ?'he argui~zent of salvagi~lg and rehabilitati~zg the yrisc Abolitio~~ists feel that Ice ought to be more concerned about vaging prisoners and reconditioning them for a useful life in so than killii~g them off in the electric chair. All sorts of statistics be found, however, to prove either side of the case. Califc statistics show that of 332 prisoners convicted of first degree 1 der and paroled between 1945 and 1954, only nine had bee1 tunied to prison on a new felony conviction bv June 30, 1956 Capital Pztzzishnle~lt 13 ; tice , some nent. feel- used m e ~ ~ t icied been lan.: le re- ation pait olrer. : sal- ~cie? s can ornia mur- n re- . ST,-I'IE~lEX'rS BY LUTHERAN THEOLOGIANS Lutller, col~lmentillg on tile Fifth C o m m a n d ~ ~ ~ e n t , sa)'s: ''Here llo\y \ \e go fort11 fro111 our 110use aniollg OLlr nei$bors to learn live one ever!- one hinlself toward his neigh- bor. Tllerefore, God alld go\t.rnlllent are not iilcluded in this C0111- lllandlllent, nor is the po\ver to kill, which they haw, taken away. F~~ ~~d delegated His authorit? to p ~ ~ n i s h evil-doers to the ~ O V - t=nlmrllt instead of pal-ents, \\.]lo aforetime were required to bring their 0n.n children to judgment and scntcnce thein to death. There- fore. n.hat is here forbidtlel, is fol-bidden to the individual in his rclation to anyone else, and not to the goveri~ment."~' JV. H. T. Dau says: "liot to iilflict capital punishment is a flagrant disregard of the di\,ine Lan-. 'The dignit\- of hunlan life is shown by the \\ords: 'I11 the imagc of God made Hc: man.' h;fan differs froill fish, fo11-I, anrl beasts ~ ~ h i c h arc killed for fooct." Theodore Graebner: "Capital punishment has back of i t both the natural law and the principles of go1,ernment which we find in the New Testament." P. E. Iiretzmann: "The punishment of ~llurder is laid into the hands of the government, which shall punish the murderer by requiring his life in exchange for that which 11c took. 'This is the first com- mand regarding the authority of t he goverilillcnt in the wielding of tile s~vorcl.'"? Paul h4. Bretscher : "Yet over against all such reason- ing stands the clear and unequivocal will of God that crime should be puuished by the powers that be. A state which refuses to exer- c j s ~ this right to perform this dutv which God Himself has imposed on it defies. the will of our just and righteous GocI. But this God ill not be mocked, neithcr by the citizens nor by the authorities of the State. 'Li:hatsoewr a man soweth that shall he also rcap'.Jy?l I'robably the most noteworthy attempt to ha\;e an entire church both- speak on thc subject of capital punishmellt was made at the 1960 convention of the United Lutheran Church. The ULC Board of Social Rlissions recommended "that the Church declare itself for the abolition of capital punishment, and urge governments to seek inore equitable and effective forms of pur~ishrnent."~~ The Board reported: "We believe that the state remains free under God to decide whether i t will practice capital punishment or relinqoish the exercise of this right." Among the Board's arguments in support of the recommendation, the following two points seem to receive the greatest emphasis: 1 . ''It (capital punishment) tc to fall disproportionately upon those least able to defend ti selves." 2 . I t makes a miscarriage of justice irrevo~able."~~ The recomniendation was not adopted by the convention. T: were 238 votes for it and 248 against it.3G V. PERTINENT TEXTS IN SCRIPTURE Our discussion cannot possibly be colnplete unless we look at the texts in Scripture that deal with this isnportant ma The first murderer was Cain. What about His punishment the motive for the same? There were, no doubt, a number of sons why God placed the mark on Cain. I t was to be his pun ment for the crinlc committed. It was to draw him to repenta But in addition to this, it was also to serve as a warning to otl and through this warning God wanted to keep similar crime! check. As time went on, however, we note that violence increa When the sons of God married with the daughters of men, 1 decidcd to chcck this wickedness by sending the deIuge after years of grace. It was immediately after the flood when God in duced capital punishlnent as a check against repetition. In Gen 9 : 6 we read : "\Vhoso sheddeth man's blood, by man shall his bl be shed, for in the image of God made he man." In the cast Cain, He persoilally dealt with the situation. In the post-delul age He arranged for constituted authority to administer capital I: ishment. This is the first commandment of God to the governn in the matter of wielding the sword. If a man should become g~ of shedding his fellow lnan's blood, he should suffer death for t crime. It is quite apparent that this was not only to be a pun nlent, but also o deterrent.?? In addition to the punishment deterrence, Got1 had another motive. He wanted for Himsel nation and a land that would be free of such wickedness. In 81 bers 35 : 33 n e read: "So ye shall not pollute the land whereir arc; for blood it defileth the land: and the land cannot be clear; of the blood that is shed therein, but by the blood of hinl that s it. Defile therefore not the land which ye shall in)lerit." \Y a inurdcred man \bras l!ing in a field and no one knew the iden o f the inurdercr, tllen the elders of the city nearest the place ~ v t the body was found were to sacrifice a heifer in a rough va and say these words: "Our hands have not shed this blood, neit here a l s ~ ttcr. ant1 rca- lisll- nce. hers s in .sed. God 120 ltro- lesis lood e of rian lull- lent lilt\, that ~ish- and If a um- I ve lsed ,hcd hen rtih ]ere .]lev thcr Capital Punishment 1 5 haye our eycs seen it. Be merciful, 0 Lord, unto Thy people Israel, lj;hom -fIlou ]last redeemed, and lay not inilocent blood unto the of Israel's charge." That is how earnest God was in keep- ing Israel free from murder. God furthermore stresses the dignity HC places on man. He was created in His image. This image, to be sure, mas lost by sin, but restored i n part by the redeeming powers of Christ. But here the unregenerate are also included, for in a ,ides sense, they bear the image of God in this that they are rational beings and have an inlillortal soul. The whole crux of capital punishment seeins to lie in the ques- ti011 jyhether or not it is part and parcel of the inoral law of God. jt does not belong to the illoral law of God in the sense that the state is morally obligated to take the life of every murderer; how- ever, neither did Jesus in the New Testament abolish capital pun- isl~i~lent as belonging to the political and ceremonial laws of the Old Testament. It is more correct to say that capital punishment in the N e ~ v Testanlent exists by divine permission and sanction and is to bc used b!~ the powers that be as they see fit. It is to be used by the state, not in the spirit of vengeance or harsh retaliation, but rather in the spirit of protecting its citizens. Exodus 2 1 : 1 2- 11 is another important rcference to capital "He that smiteth a man, so that he die, shalI be surely put to death. And if a man lie not in wait, but God deliver him into his hand; then I will appoint thee a place whither he shall flee. But if a Inan come presumptuously upon his neighbor, to slay him with guile; thou shalt take him from mine altar, that he may die." The first reference in this text is to a deliberate murder. Such a man, without question, was to be pu t to death. But, "if a man lie not in wait," if the killing was not deliberate and intentional, then God would later designate cities of refuge to which the nlan could flee for safety. But if it was deliberate and premeditated and car- ried out in cold blood, then the murderer could not seek refuge. Fleeing to the sanctuary of the Lord and clinging to its altar would avail him nought. The murderer in such a case should simply be torn from the altar of the Lord and be put to death for the life he ]lad taken. He was to be put to death as quickly as possible. Leviticus 24: 17 is simply a restatement on what had already been said. "And he that killeth any man shall surely be put to death." few verses later, however, we have this addition, nar. that the laws covering capital punishment should also apply to strangers who happened to be in the land. "Ye shall have one n ner of' law, as well for the stranger, as for one of your own coun for I am the Lord, Thy God." Another reference is Numbcrs 35 : 30-32. ''Whoso killeth person, the murderer shall be put to death by the mouth of nesses; but one witness shall not testify against any person to c; him to die. Moreover ye shall take no satisfaction for the Iif~ a murderer, which is guilty of death; but he shall be surely pu death. And ye shall take no satisfaction for him that is fled to city of his refuge, that he should come again to dwell in the k until the death of the priest." In addition to a restatement of law of capital punishment, this text offers some specific instructi The additions in this text take care of the injustices that can ei occur in carrying out the death sentence. One of the main ol tions raised by the abolitionists is that men are often condem and even executed in spite of insufficient testimony. The prim of two or more witnesses is established here. The testimon!. of person, no matter how reliable and trustworthy he might other! be, should not be deemed sufficient to put a man to death. principle is clearly re-emphasized in Deuteronomy 17 : 6 . "At mouth of two witnesses, or three witnesses, shall he that is IVO of death be put to death; but at the mouth of one witness he s not be put to death." Furthermore, the Israelites were instrn not "to take satisfaction for the life of a murderer." He couId saw his life through the payment of a ransom or secure his free! through bribery. Perjury, insufficient evidence, and bribery 1 colldemned innocent Inen and have set guilty men free. ii'e turn to the New Testament. The first text under cor eration is Alattliew 26: 52. "Put up again thy sword into his PI for all they that take the sword shall perish with the sword." statement by Jesus in connection with the scene in Gethsen created by Peter's iiiipetuous act is used in support of capital pur ment. I t is argued that Jesus, through this statement, by imp tion, abolished capital punishment for blasphemy, idolatry, ir and the other sins mentioned in the Old Testament, but up capital p~inisll~nellt for murder as divinely required. The other of the argument is: "Can we really uphold capital punishmeilt Capital Punishment 17 anr pit- ause e 01 [t t o the and, the ons. asilr )jet- ined :iple one whe l'his the rthv ;hall cted not don1 haw lsid. lace; This lane ~ i s h - lica- lcest held side ; for \vhen in the Kew Testament we no longer exact the death penalty for the other sins and crimes mentioned?" To say that Jesus in this test upheld capital punishment as an absolute require- ment and that thereby He automatically eliminated the death pen- alt\* for other sins mentioned in the Old Testament is entirelv with- out fou~ldation and certainly does not fit into the contest nor into the spirit of the occasion. It is, however, correct to say that in the second part of the statement, "all they that take the sword shall perish with the sword," Jesus is upholding the principle that God has given the state the permission and the authority to wield the sword at its own discretion in punishing crime, and particular]>. murder. There are really two parts to the statement of Jesus. 1. Peter was not to interfere with God's plan of salvation. 2. Peter was to be aware of the authority of the state in wielding the sword rather than the individual citizen taking the law into his own hands. \lie might paraphrase the text in the following manner: "Peter, put your sword away, for my purposes are not achieved nor my kingdonl built by force and violence. And do you not realize that you can get yourself into serious trouble with the government if you take the law into your own hands; for if you should kill some- one, the government has the divine right to take your life in ex- change?" iifhat Jesus wants to emphasize in His statenlent as ~rompted by the occasion is that He wants no physical force to be used in promoting His cause. Under no circumstances are His followers ever to reach for the sword in matters of faith and salvation. If God wanted His Son to be rescued, He could do it by His own al- mighty powers or send legions of angels for that purpose, but there was to be no place for violence and force on the part of the dis- ciples. In the church, the sword must never be used for the re- pression of what some think to be error nor for the propogation of what others believe to be the truth. "The followers of Christ shall not carry on their work with force of arms, but by the Word, in the power of the Holy Ghost." (P. E. Kretzmann, Popukr Co~nment- ary.) Christ wants His Kingdom extended with the Sword of Truth and not with the sword of steel and violence. Adam Fahling in his Life of Christ says, "In offering resistance to those who were on the point of arresting Jesus, he (Peter) was blocking salvation himself." The point of the first part of this statement then is that J( wants no interference in carrying out His redemptive work that He does not want His Kingdom built by force. The point of the second portion of the text might be s marized something like this: Peter had taken the sword which not been given to him by authority. Christ admonishes him, dots not turn him over to the secular governinent for punishrnl Here we have a warning against any unauthorized use of the sn and a sanction for constituted government to use it at its discret \Vhnt Jesus would have said or donc if Malchus actually been kiilcd by Peter, we will have to consign to the realm of speculation. The clearest and probably the most important text we h in the New Testament is Romans 13, especially verse 4. Here origin, the authority, and the power of the government are clc. given. "For he is the minister of God to thee for good. BU thou do that which is evil, be afraid: for he is the minister of C I I a revenger to execute wrath upon him that doeth evil." In e\ conlmunity where people live together there will also be wicked I ple who will disturb the peace, steal from others, and do harn life and limb of their fellowmen. It is here that civil golrernrn must exercise its power according to God's will by punishing the doer, by iinposing a fine, by sentencing to a prison term, by tak the life of a guilty murderer, "for hc beareth not the sword in va If the rulers according to God's own Word, are to be a t e ~ to the evil and the evil are warned to bc afraid,-"for he bear not the sword in vain1'-then it is clear that the real purpose of death penalty is not only to punish, but also to restrain evil. the moral law in general serves as a curb in checking the co: outbursts of sin, so capital punishment is to repress violence ; murder. God in His Word designates His agent who in His n: and by His authority is to wield the sword in thc punishment ; restraint of evil. In the work of the Church Christians a r e representatives of God in carrying on His Kngdom work; in home the parents are the representatives of God in training children in the fear and nurture of the Lord; and so in civil aff \ for 2sus and UR- had but eat. :ord ion. had idle lave the arl\ t if ;od, ier? Pea- l to ielit evil iing in," rror reth the AS arse aid ame and the the the Iairs Capital Punishment 19 constituted government is the representative of God to praise and upllold the good and to be a terror to those who do evil-and this includes capital punishment. Government exists by divine right. ~t was ordained by God also for the purpose of protecting life and ivas endowed by God for backing up its authority with the power and the severity of the sword. I Peter 2: 14 brings out the same thought: "Submit yourselves to every ordinance of man for the Lord's sake: whether it be to the king, as supreme: or unto gover- nors, as unto them that are sent by him for the punishment of evil- doers, and for the praise of them that do well." Rev. 1 3 : 10 is another reference to the governmental sword. "He that leadeth into captivity shall go into captivity; he that killeth with the sword must be killed with sword. Here is the patience and the faith of the saints." The real emphasis here, however, is 3 conlfort to the saints in the days of persecution. Christians must expect martyrdom. That is inevitable where the enenlies of Christ have come into power. Pagan governmental powers, enemies of Christ, will use the sword against the true believers. Those who must suffer such persecutions are to be patient, for God in time and in His own way will punish those evil doers who interfere with His Kingdom work and plans. The state which abuses the privilege of the sword and misuses it in persecuting God's people will itself suffer at the hand of the Lord. "He that killeth with the sword must be killed with the sword." God in time will punish the state which is guilty of such abuse. VI. CONCLUSIONS On the basis of what has been presented, we now offer a num- ber of conclusions. 1. Capital punishment is not murder, provided the accused person has been given a fair trial and his guilt incontrovertibly established. 2. Government has the authority and the duty to defend its country and to protect its citizens by waging war. By the same token it has the authority and the duty to protect its citizens by wielding the sword in capital punishment. If capital punishment is to be abolished on moral grounds, then by the same line of reason- ing we must also abolish aU wars. 3 . Capital punishment today exists by the express pernlission and personal sanction of God. 4. It is clear that God instituted the death penalty as a re- straint on crime and violence and if He in His omniscience and wisdom instituted i t with that in view, then it will still have the same effects today if consistently carried out. If capital punish- ment does not deter crime, it is not the fault of capital punishment itself, but it is the fault of the courts which do not exercise the i~ authority to the fullest measure. 5. Public sentiment is swinging toward the abolitioll of capi- tal punishment. Nine states, namely: Maine, Rhodc Island, Dela- ware, Michigan, North Dakota, Wisconsin, Minnesota, Alaska, and Hawaii have already abolished it. Convincing arg~lmellts a n d sub- stantiating statistics can be found on both sides of the question and these will naturally bc emphasized according to the beliefs and feel- ings of the person presenting them.28*2g 6. 'The state may ~vicld the sword in the nlalncr and method it chooses. A Christian can with good conscience uphold capital punishment, but he need not sanction the cruel methods that have often been used. Nowhere does the Bible prescribe for our day the method to be used in capital punishment, whether by sword, firing squad, lethal gas chamber, the hangman's noose, the electric chair, or by a less gruesome method, as for instance death by injection. '7. A Christian may stand on either side of the question with- out denying Scripture, provided he does not claim that the s t a t e is committing murcler when it carries out the death sentence. A Christian who is a member of a legislative body can vote to abolish capital punishment provided hc does not violate his conscience. S. The cleath penalty should be used only in cases where the guilt has been firmly established with incontrovertible proof. ( N u m . 35-30-32) (Deut. 17:6). To exact the death penalty on cir- cumstantial evidence alone can easily take the lives of innocent people. 9. If capital punishment is to be continued, then society ncccls to strive for a greater uniforl~lity in exacting the death pen- alty. The inequalities of justice are notorious in our country. Christian people can uphold capital punishment in theory, b u t the vrav it is carried out in practice is certainly an offense to the sensi- tive soul. Capital Punishment 2 1 ) e- ! ld ; NOTES I re f 1. Encyclopedia Britanica (1946), IV, 8 11. ir 1 3. Encyclopedia Britanica, loc. cit., 8 10. 4. Lamar Beman, op. cit., 158ff. 5. G r a n t S. M c C l e l l a n , Capital Punishment (H. Mr. Wilsorl Co., New i- ' York, 19611, 12. 3- 1 6. Encyclopedia Britanica, loc. cit., 8 1 1. 7. Lamar Beman, up. cit., 163. d / 8. Encyclopedia Britanica, loc. cit., 8 10. 1- 1 9, David Dres s l e r , "Capital Punishment is Mmdcr." Coronet, J a n u a v , 1960, 136. 10. Grant S. McClcllan, op. cit., 24ff. d 1 1. Encyclopedia Britanica, loc. cit., 8 10. d 12. Grant S. McClellan, oy. cit., 10. 'e 13. Courtney Rylcy Cooper, "Here's to Crime," Reader's Digest Rook Szcpplc- !e mcnt, June, 1933, 112. g 14. Ibid., 122. I, 15. Herbert Wechslcr, "Death Sentence: Its Pros, Cons," Lifc, M a y 9, 1960. 16. Lamar Beman, op. cit., 4. I- 17. David Dressler, loc. cit. is 18. Edwin M. Borchard, Convicting the Innocent (Garclen City Publishing 4 Company, N. Y., 1932), 379. h 19. Lamar Beman, op. cit., 354. 20. Ibid., 3. e 21. Concordia Triglotta (Concordia Publishing House, St. Louis, 192 1 ), 63 1. 1. 22. Paul E. Kretzmann, Popular Commentary (Concordia Publishing House, St. Louis, 1923) I, 21. lt 2 3. Concordia Theological Monthly (Concordia Publishing House, St. Lollis) Vol. 24, No. 3, 2 1 5. 24. The Lutheran (Philadelphia) Vol. 43, NO. 2, 23. Y 9 I- 25. United Lutheran Church Netus Bureau, October 17, 1960, 2. '. 26. The Lutheran, Vol. 43, No. 5, 8. e 27. George 0. L i l l e g a r d , From Eden to Egypt (North\vestcrn publishing House, Milwaukee, 1956), 82. 1- 28. Grant S. McClellan, op. cit., 10ff. 29. David Dressler, loc. cit., 136. Consulted but not cited in the notes: Da\is, John D.. A Dictionary o f the Bible. Philadelphia: The Westminster Press, 1929. Fah]ing. Adam, The Life of Christ. St. Louis: Concordia, 1936. G!ueck, Sheldon, Contributors to Correctional Science. National Probation ,4ssociation. XC\V York; 1936. Kinsolring. Lester, "Christianity and Capital Punishment." Pastoral ps!chol. ogy. June, 1960. Lane, \Vinthrop D., ''\%-hat Makcs Crimc?" Public Affairs Pamphlet. s,,~ 't'orli, 1945. hjatlrer, 13. ,4., The Tciz Com~nandments Will Not Btrdge. St. Louis: con. cordia, 195 1 . Thrasher, Frcderic &I., The Problem of Crinzc Preventiolz. National Proba- tion Association. New York: 1934. Yodcr, John Howard, "Capital Punishment and the Bible." Christiatlit!, To doy. February 1 , 1960.