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c. 64, s. 2 (5), where judgment of death is passed at the Central Criminal Court upon a person convicted of any offence, the judgment may be carried into execution in any prison in the Central Criminal Court district, or in the county, if any, where the offence was committed, or is supposed to have been committed, which the judge may order; and if no order is made, then in the prison in which the convict is for the time being confined. As to execution on conviction in a county for an offence committed in a county of a city, see the Counties of Cities Act, 1811, 51 Geo. III. c. 100, and the Criminal Justice Administration Act, 1851, 14 & 15 Vict. c. 55, s. 23.

Duties of Sheriff.-With regard to the duties and powers of the sheriff as to execution of judgment of death, the Sheriffs Act, 1887, 50 & 51 Vict. c. 55, s. 13, provides that where judgment of death has been passed upon a convict the sheriff of the county is charged with the execution of the judgment, and may carry out the execution in any prison which is the common gaol of his county, or in which the convict was confined for the purpose of safe custody prior to his removal to the place where the Court was held, and is for the purpose of such execution to have the same jurisdiction and powers over the prison in which the judgment is to be carried into execution, whether such prison is or is not situate within his county, and over the officers of such prison, as he has by law over the common gaol of his county and the officers thereof. See also the Prisons Act, 1887, 40 & 41 Vict. c. 21, s. 30, and the Central Criminal Court (Prisons) Act, 1881, 44 & 45 Vict. c. 64, s. 2. As to the execution of the sentence of death on criminals in the county of Chester, see the Chester Courts Act, 1867, 30 & 31 Vict. c. 36, s. 4.

Regulations as to Executions.-Under the Capital Punishment Amendment Act, 1868, 31 & 32 Vict. c. 24, s. 3, the sheriff charged with the execution, and the gaoler, chaplain, and surgeon of the prison, or their deputies (see s. 11), and such other officers of the prison as the sheriff requires, are to be present at the execution. Any justice of the peace for the county, borough, or other jurisdiction to which the prison belongs, and such relatives of the prisoner, or other persons as the sheriff or visiting justices think proper to admit, may also be present.

The Secretary of State is empowered from time to time to make such rules and regulations with regard to the execution of judgment of death in every prison as he may deem expedient for the purpose of guarding against any abuse in the execution, of giving further solemnity to the same, and of making known without the prison walls the fact that such execution is taking place (ibid. s. 7). [See Regulation of June 5, 1902 (Stat. R. & O. Rev. 1904, vol. x., " Prison" (E), p. 65).]

As soon as possible after the execution the prison surgeon is to examine the body and ascertain the fact of death, and sign a certificate, and deliver it to the sheriff. The sheriff and gaoler and chaplain of the prison, and such of the other. persons present as the sheriff requires or allows, are also to sign a declaration to the effect that the judgment of death has been executed (ibid. s. 4).

Inquest.-A coroner's inquest is to be held on the body within twentyfour hours after the execution, and the jury at the inquest are to inquire and ascertain the identity of the body, and whether judgment of death was duly executed (ibid. s. 5). See also the Central Criminal Court (Prisons) Act, 1881, s. 2 (5).

Burial.-The Offences against the Person Act, 1861, 24 & 25 Vict.

c. 100, s. 3, provides that the body of every person executed for murder is to be buried within the precincts of the prison in which he was last confined at the conviction, and the sentence of the Court is so to direct. The Capital Punishment Amendment Act, 1868, s. 6, enacts that the body is to be buried within the walls of the prison within which the execution took place, unless a Secretary of State is satisfied, on the representation of the visiting justices, that there is not convenient space within the walls for burial; in which case he may by writing appoint some other fit place for that purpose. [In the Colonies, sentences of death are subject to confirmation by the Governor in Executive Council.]

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General. The social and ethical aspect of capital punishment is beyond the scope of this article; for a consideration of the subject from these points of view reference should be made to the following works:-Beccaria, Essay on Crimes and Punishments, 1807; Bentham, Rationale of Punishment, 1830; Carmignani, Sulla pena di Morte, 1836; Mittermaier on Capital Punishment, by Moir, 1865; Copinger, Essay on Abolition of Capital Punishment, 1876; Du Cane, Punishment and Prevention of Crime, 1885; Romilly, The Punishment of Death, 1886; Garofalo, Criminologia, 1890; Curtis, Pamphlet on Capital Punishment, 1891; Tallack, Penological and Preventive Principles, 2nd ed., 1895.

Capitulate.-From capitulare, to draw up in chapters or under different headings, hence to draw up terms of agreement, make conditions, negotiate, and lastly, conclude articles of surrender as distinguished from surrendering at discretion. See CAPITULATION; CAPITULATIONS.

Capitulation (for original sense, see CAPITULATE).—Properly the making of terms for surrender of troops, fortresses, or a district to an enemy, but now commonly used for the surrender itself.

A capitulation is within the scope of the general powers intrusted to military and naval commanders. "Stipulations between the governor of a besieged place and the general or admiral commanding the forces by which it is invested if necessarily connected with the surrender, do not require the subsequent sanction of their respective sovereigns. Such are the usual stipulations for the security of the religion and privileges of the inhabitants, that the garrison shall not bear arms against the conquerors for a limited period, and other like causes properly incident to the particular nature of the transaction" (Wheaton, International Law, 6th ed., 1885, p. 473; Rivier, Droit des Gens, 1896, vol. ii. p. 361).

According to the Instructions for the Government of Armies of the United States in the Field, which were prepared by the distinguished American jurist, Francis Lieber, "So soon as a capitulation is signed the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition in his possession during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same" (art. 144).

The Russian jurist, Professor F. de Martens, sets forth the Russian view in the following interesting passage, translated from the French edition of this book:

"As regards the conditions on which a fortress or troops may capitulate, they are governed by the military laws of the country to which the said fortress or troops belong. International law does not

apply in this case. The commander of a place may violate its prescriptions. It hardly matters to the hostile troops, provided he hoists the flag of truce and undertakes to surrender. As to the conditions of the capitulation itself, they depend upon the conventions concluded. between the parties. In no case is it permissible to exterminate the inhabitants of a fortified place, or to pillage their dwellings, even when they have placed themselves at the mercy of the conqueror. When a whole army or a detachment of troops capitulates, it is the rule that the conditions imposed upon the conquered must not be contrary to military honour. Officers are generally left in possession of their arms as an honourable acknowledgment to them, and their personal property is also respected. The enemy take possession of the standards, the arms, the treasure of the army, etc. Neither the commander of a fortress which capitulates, nor of troops which surrender, has any right to make engagements in the name of his Government, or to contract any political obligation (Droit International, traduit par Alfred Léo, Paris, 1887, vol. iii. p. 304).

In reference to the last paragraph of the above quotation, see also Wheaton, op. cit. p. 473. States have on different occasions treated engagements of a general (political) character entered into by military commanders as ultra vires. This was the case with Kleber's capitulation of January 24, 1800, for withdrawal of the French army from Egypt (Rivier, op. cit. vol. ii. p. 361).

It was also the case when Lord William Bentinck, in 1814, promised to acknowledge the freedom and independence of Genoa, which the British Government shortly afterwards annexed to the kingdom of Sardinia (Blunstchli, Das Moderne Völkerrecht, 1872, s. 699, note; Phillimore, International Law, vol. iii. ss. 122-126).

war.

The capitulations during the Franco-German War usually contained the following conditions:-The conquered army to be prisoners of Officers and functionaries who undertake upon their honour and in writing to do nothing against German interests during the war to be excepted. All war material to be handed over with the place surrendered. Doctors to remain and attend the wounded.

At the capitulation of Metz (October 7, 1870), the soldiers were permitted, after the handing over of their arms, to keep their knapsacks, personal effects, and camping gear; and the officers who preferred captivity to an honourable understanding to take no part in the war, to carry their swords and their private belongings. More favourable conditions were accorded to the garrison of Belfort (February 15, 1871) after the conclusion of the general armistice. They were allowed to leave the place with the honours of war and retain their arms, baggage, and military equipments (Blunstchli, op. cit. s. 699).

[At the surrender of Port Arthur (January 1905), the Russian non-commissioned officers and privates were allowed to retain their uniforms and portable tents and necessary private property. All soldiers, sailors, volunteers, and other officials were taken prisoners. Military and naval officers and civil officials were allowed to bear arms and keep their private property of immediate necessity for daily life, and also to return to Russia upon parole not to take arms or action opposed to Japan till the end of the war.]

Capitulations.-The name given to articles of agreement (for origin, see CAPITULATE), by which the Porte in 1535 granted

certain immunities and privileges to French subjects. These immunities and privileges were in the reign of Elizabeth extended to English subjects (Twiss, Law of Nations, 1884, p. 463). Treaties of a similar character have been concluded by China with Great Britain (July 22, 1843), the United States (July 3, 1844), France (Oct. 24, 1844), and Russia (June 13, 1858), and were concluded by Japan with Great Britain (August 26, 1858), and most other European

States.

"Such treaties," observes Twiss, "are in the highest degree exceptional. But the law of European nations has itself always been exceptional in its application to Mohammedan and other non-Christian nations. Amongst Christian States there are no such fundamental differences in their respective standards of morality, as to render the criminal law of one State totally inapplicable to the subjects of another State; but amongst the Mohammedan and Buddhist nations there is so essential a diversity in the sanctions, which religion and morality attach to human conduct, as contrasted with those which prevail throughout Christendom, that from the oldest time an immiscible character between Europeans and Orientals has been maintained. Europeans are not admitted into the general body and mass of the society of Asiatic nations; they continue strangers and sojourners in the land, if they reside amongst them; they form de facto an extraterritorial community, which does not acquire a national character by permanent residence amongst them" (Law of Nations, Oxford, 1884, 2nd ed., p. 267).

[The capitulation régime formerly applied in Japan came to an end as regards British subjects in 1900 (Order in Council of March 3, 1900; Stat. R. & O. Rev., 1904, Foreign Jurisdiction, p. 276).]

[See article "Egypt:" Report of H.M.'s Agent and Consul-General on Egypt and the Soudan, 1904; P. P. 1905, Cd. 2409; Jenkyns, British Rule and Jurisdiction beyond the Seas, 1902; Hall, Foreign Jurisdiction, 1894.]

Caption (captio, capere).-Caption bears the same relation to a "commission" as a "return" does to a "writ." According to Jacob, Law Dictionary (s.v.), the term originally meant the certificate, by persons intrusted with a duty by a commission, that they had executed their commission, and related chiefly to business of two kinds :

(a) Commissions to take fines of lands (see FINES AND RECOVERIES). (b) Commissions to take answers in bills in Chancery and depositions. These bills are abolished, and the modern counterpart to this form of caption is the caption put at the end of an affidavit or statutory declaration by the commissioner of oaths before whom it is taken or made, and the certificate of an examiner of the Court, or commissioner to take evidence, that he has executed his commission. See COMMISSION, EVIDENCE ON.

(c) At present the term is applied almost exclusively to the formal heading to an indictment, deposition, affidavit, or recognisance, stating before whom it was found, taken, or made, and such matters as show that it was regularly taken or made before a Court or person lawfully entitled to take or make it. All these documents have by law to be sent to or filed in some Court, and the caption authenticates them (see 11 & 12 Vict. c. 42, ss. 17, 20; Taylor on Evidence, 10th ed., ss. 487, 892). See DEPOSITIONS.

VOL. II.

36

In the case of bedside depositions taken under sec. 6 of the Criminal Law Amendment Act, 1867, 30 & 31 Vict. c. 35, the section prescribes the addition to the deposition, by way of caption, of a statement of the reasons for taking it, and when or where it was taken, and the names of all persons present at the taking.

The rolls of Courts of Assize or Quarter Sessions, as the Courts were held under commissions of gaol delivery, oyer and terminer, or of the peace, had prefixed to the record of the indictments tried a caption or formal heading showing the commission and sitting of the Court, and the names and swearing of at least twelve of the grand jurors by whom the indictments were found. The whole forms a sort of preamble, but is not part of the indictment. This kind of caption is not now in use, except where the record of a criminal trial is made up for the purposes of a writ of error or of certiorari. As to its form, see Arch. Cr. Pl., 23rd ed., 93; Short and Mellor, Cr. Off. Pr. 704; 1 Chit. Crim. Law, 327-336.

Captive.-One taken prisoner in war. The following articles from the rules drawn up by the Institute of International Law (1880) may be taken as the views approved by jurists, and, so far as circumstances permit, as the practice of civilised belligerents (q.v.) in regard to captives:

Captivity is neither a punishment inflicted on prisoners of war, nor an act of vengeance; it is merely a temporary detention which is devoid of all penal character.

Prisoners of war are at the disposal of the enemy Government, not of the individuals or corps which have captured them.

They are subjected to the laws and rules in force in the enemy army. They must be treated with humanity.

All that belongs to them personally, except arms, remains their property.

Prisoners are bound to state, if asked, their true name and rank. If they do not do so, they may be deprived of all or any of the mitigations of imprisonment enjoyed by other prisoners circumstanced like themselves.

Prisoners may be subjected to confinement in a town, fortress, camp, or any other place, definite bounds being assigned which they are not allowed to pass; but they can only be confined in a building when such confinement is indispensable for their safe detention.

Insubordination justifies whatever measures of severity may be necessary for its repression.

Arms may be used against a fugitive prisoner after summons to surrender. If he is taken before he has rejoined his army, or has escaped from the territory under the control of his captor, he may be punished, but solely in a disciplinary manner, or he may be subjected to more severe surveillance than that to which prisoners are commonly subjected. But if he be captured afresh after having accomplished his escape, he is not punishable unless he has given his parole not to escape, in which case he may be deprived of his rights as a prisoner of war.

ance.

The Government detaining prisoners is charged with their maintenIn default of arrangement between the belligerents on this point, prisoners are given such clothing and rations as the troops of the capturing State receive in time of peace.

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