Chapter VI: Part 6

The opinion expressed by Goldsmith was strongly supported by Bentham, Romilly, Basil Montaguand Mackintosh in England, and resulted in considerable mitigation of the severity of the law. In 1800 over 200 and in 1819 about 180 crimes were capital. As the result of the labour of these eminent men and their disciples, and of Sir Robert Peel, there are now only four crimes (other than offences against military law or naval discipline) capitally punishable in England--high treason, murder, piracy with violence, and destruction of public arsenals and dockyards (The Dockyards, &c., Protection Act 1772). An attempt to abolish the death penalty for this last offence was made in 1837, but failed, and has not since been renewed. In the case of the last two offences sentence of death need not be pronounced, but may be recorded (4 Geo. IV. c. 48). Since 1838 it has in practice been executed only for murder; the method being by hanging.

The change in the severity of the law is best illustrated by the following statistics:--

+--------+-------------------+---------------------+
| | Death Sentences. | Sentences Executed. |
| Years. +---------+---------+----------+----------+
| | For all | For | For all | For |
| | Crimes. | Murder. | Crimes. | Murder. |
+--------+---------+---------+----------+----------+
| 1831 | 1601 | 14 | 52 | 12 |
| 1833* | 931 | 9 | 33 | 6 |
| 1838* | 116 | 25 | 6 | 5 |
| 1862* | 29 | 28 | 15 | 15 |
+--------+---------+---------+----------+----------+

* Each of these years followed upon legislation mitigating severity
of punishment.

During the twelve years from 1893 to 1904, 788 persons were committed for trial for murder, being an average of 65. The highest number was in 1893 (82) and the lowest in 1900 (51). Of those tried in 1904, 28 (26 males and 2 females) were convicted of murder, 16 (all males) were executed; 9 males and 2 females had their sentences commuted to penal servitude for life.

In Scotland capital punishment can be imposed only for treason, murder and offences against 10 Geo. IV. c. 38, i.e., wilful shooting, stabbing, strangling or throwing corrosives with intent to murder, maim, disfigure, disable, or do grievous bodily harm, in all cases where if death had ensued the offence would have been murder. Prior to 1887 rape, robbery, wilful fire-raising and incest, and many other crimes, were also capital offences; but in practice the pains of law were restricted at the instance of the prosecution. The method is by hanging.

In Ireland capital punishment may be inflicted for the same offences as in England, except offences under the Dockyards Protection Act 1772, and it is carried out in the same manner.

_Offences under Military Law_.--Thus far only crimes against the ordinary law of the land have been dealt with. But both the Naval Discipline Act of 1866 and the Army Act empower courts-martial to pass sentence for a number of offences against military and naval laws. Such sentences are rarely if ever passed where an ordinary court is within reach, or except in time of war. The offences extend from traitorous communication with the enemy and cowardice on the field to falling asleep while acting as a sentinel on active service. It is for the authority confirming a sentence of death by court-martial to direct the mode of execution, which both in the British and United States armies is usually by shooting or hanging. During the Indian Mutiny some mutineers were executed by being blown from the mouth of cannon. As to the history of military punishments see Clode, _Military and Martial Law_.

_British Colonies and Possessions_.--Under the Indian Penal Code sentence of death may be passed for waging war against the king (s. 121) and for murder (s. 302). If the murder is committed by a man under sentence of transportation for life the death penalty must be imposed (s. 303). In other cases it is alternative. This code has been in substance adopted in Ceylon, in Straits Settlements and Hong-Kong, and in the Sudan. In most of the British colonies and possessions the death penalty may be imposed only in the case of high treason, wilful murder and piracy with violence. But in New South Wales and Victoria sentence of death may be passed for rape and criminal abuse of girls under ten. In Queensland the law was the same until the passing of the Criminal Code of 1899.

Under the Canadian Criminal Code of 1892 the death sentence may be imposed for treason (s. 657), murder (s. 231), rape (s. 267), piracy with violence (s. 127), and upon subjects of a friendly power who levy war on the king in Canada (s. 68). But the judge is bound by statute to report on all death sentences, and the date of execution is fixed so as to give time for considering the report. The sentence is executed by hanging. In South Africa the criminal law is based on the Roman-Dutch law, under which capital punishment is liable for treason (_crimen perduellionis_ or _laesae majestatis_), murder and rape (van Lecuwen, c. 36). In the Cape Colony rape is still capital (_R. v. Nonosi_, 1885; 1 Buchanan, 1898). In Natal rape may be punished by hanging (act no. 22, 1898). Though the Roman-Dutch modes of executing the sentence by decapitation or breaking on the wheel have not been formally abolished, in practice the sentence in the Cape Colony is executed by hanging. In the Transvaal hanging is now the sole mode of executing capital punishment (Criminal Procedure Code, 1903, s. 244). The Roman-Dutch law as to crime and punishments has been superseded in Ceylon and British Guiana by ordinance.

_Austria-Hungary_.--In Austria capital punishment was in 1787 for a time abolished, but was reintroduced in 1795 for high treason, and in 1803 for certain other crimes. Under the penal code still in force in 1906 it might be inflicted for the offences in the table given below, but not on offenders who were under twenty when they committed the offence. The annexed table indicates that the full sentence was sparingly executed. Under a Penal Code drafted in 1906, however, only two offences were made capital, viz. high treason against the person of the emperor and the graver cases of murder. The sentence is executed by hanging.

+-----------------------------+----------------------+----------------------+----------------------+
| Crimes Punishable by | 1853 to 1873. | 1875 to 1900. | 1901 to 1903. |
| Death. +----------------------+-----------+----------+-----------+----------+
| | Condemned.| Executed.| Condemned.| Executed.| Condemned.| Executed.|
+-----------------------------+----------------------+-----------+----------+-----------+----------+
| High treason | 4 | 0 | 1 | 0 | 0 | 0 |
| Murder s. 136 | 880 | 102 | 2085 | 81 | 180 | 9 |
| Killing by robbers, s. 141 | 12 | 3 | 35 | 1 | 3 | 0 |
| Public violence, ss. 85, 87 | . . | . . | 1 | 0 | 0 | 0 |
| Incendiarism, s. 167 | 5 | 0 | 0 | 0 | 0 | 0 |
| Criminal use of explosives | . . | . . | . . | . . | . . | . . |
| (explosives law, s. 4) | | | | | | |
+-----------------------------+-----------+----------+-----------+----------+-----------+----------+

_Belgium_.--Under the Belgian Penal Code of 1867 the death penalty is retained for certain forms of high treason, and for assassination and parricide by poisoning. It may not be pronounced on a person under eighteen. The sentence is executed publicly by the guillotine. No execution seems to have taken place since 1863.

_Denmark_.--Sentence of death may be imposed for most forms of high treason, aggravated cases of murder, rape and piracy. It is executed publicly by the axe. Offenders under eighteen are not liable.

_Finland_.--In Finland the death penalty is alleged not to have been inflicted since 1824. It may be imposed for the assassination of the grand duke or grand duchess or the head of a friendly state, and wilful murder of other persons.

_France_.--Under the _ancien regime_ in France, 115 crimes had become capital in 1789. The mode of execution varied, but in some cases it was effected by breaking on the wheel or burning, and was coupled with mutilation. Under the Penal Code of 1810, as amended in or after 1832, even so late as 1871, thirty offences were capital, one being perjury against a prisoner resulting in his condemnation to death (art. 361). At present it may be imposed for wounding a public official with intent to murder (art. 233), assassination, parricide, poisoning, killing to commit a crime or escape from justice (arts. 302, 304). But juries freely exercise the power of acquitting in capital cases, or of defeating the capital sentence by finding extenuating circumstances in more than seven-eighths of the cases, which compels the court to reduce the punishment by one or more degrees, i.e. below the penalty of death. And in recent times the prerogative of mercy has been continually exercised by the president, even in gross cases where public opinion demanded the extreme penalty. The sentence is executed in public by the guillotine.

_Germany_.--In many of the states of Germany capital punishment had been abolished (Brunswick, Coburg, Nassau, Oldenburg in 1849; Saxe-Meiningen, Saxe-Weimar, 1862; Baden, 1863; Saxony, 1868). But it has been restored by the Imperial Criminal Code of 1872, in the case of attempts on the life of the emperor, or of the sovereign of any federal state in which the offender happens to be (s. 80), and for deliberate homicide (s. 211)--as opposed to intentional homicide without deliberation--and for certain treasonable acts committed when a state of siege has been proclaimed. The sentence is executed by beheading (s. 13).

_Holland_.--In Holland there have been no executions since 1860. Capital punishment (by hanging) was abolished in 1870, and was not reintroduced in the Penal Code of 1886.

_Italy_.--Capital punishment was abolished in Tuscany as far back as 1786, and from Italy has come the chief opposition to the death penalty, originated by Beccaria, and supported by many eminent jurists. Under the Penal Code of 1888 the death penalty was abrogated for all crimes, even for regicide. The cases of homicide in Italy are very numerous compared with those in England, amounting in 1905 to 105 per million as compared with 27 per million in the United Kingdom.

_Japan_.--The penalty of death is executed by hanging within a prison. It may be imposed for executing or contriving acts of violence against the mikado or certain of his family, and for seditious violence with the object of seizing the territory or subverting the government or laws of Japan, or conspiring with foreign powers to commence hostilities against Japan. It is inflicted for certain forms of homicide, substantially wilful murder in the first degree.

_Norway_.--Under Norwegian law, up to 1905, sentence of death might be passed for murder with premeditation, but the court might as an alternative decree penal servitude for life. Sentence of death had also to be passed in cases where a person under sentence of penal servitude for life committed murder or culpable homicide, or caused bodily injuries in circumstances warranting a sentence of penal servitude for life, or committed robbery or the graver forms of wilful fire-raising. The sentence was carried out by decapitation (see BEHEADING); but there had been no execution since 1876. The new Norwegian Code, which came into force on the 6th of January 1905, abolished capital punishment.

_Portugal_.--There has been considerable objection in Portugal to capital punishment, and it was abolished in 1867.

_Rumania_.--Capital punishment was abolished in 1864.

_Russia_.--In 1750, under the empress Elizabeth, capital punishment was abolished; but it was restored later and was freely inflicted, the sentence being executed by shooting, beheading or hanging. According to a Home Office Return in England in 1907 the death penalty is abolished, except in cases where the lives of the emperor, empress or heir to the throne are concerned.

_Spain_.--Under the Spanish Penal Code of 1870 the following crimes are capital:--inducing a foreign power to declare war against Spain, killing the sovereign, parricide and assassination. The method employed is execution in public by the garrote. But the death sentence is rarely imposed, the customary penalty for murder being penal servitude in chains for life, while a parricide is imprisoned in chains "in perpetuity until death."

_Sweden_.--The severity of the law in Sweden was greatly mitigated so far back as 1777. Under the Penal Code of 1864 the penalty of death may be imposed for certain forms of treason, including attempts on the life of the sovereign or on the independence of Sweden, and for premeditated homicide (_assassinat_), and in certain cases for offences committed by persons under sentence of imprisonment for life. In 1901 a bill to abolish capital punishment was rejected by both houses of the Swedish parliament.

_Switzerland_.--Capital punishment was abolished in Switzerland in 1874 by Federal legislation; but in 1879, in consequence of a plebiscite, each canton was empowered to restore the death penalty for offences in its territory. The Federal government was unwilling to take this course, but was impelled to it by the fact that, between 1874 and 1879, cases of premeditated murder had considerably increased. Seven of the cantons out of twenty-two have exercised the power given to restore capital punishment. But there do not seem to have been any cases in which the death penalty has been inflicted; and on the assassination of the empress of Austria at Geneva in 1898 it was found that the laws of the canton did not permit the execution of the assassin. The canton of Zug imposes the lowest minimum penalty known, i.e. three years' imprisonment for wilful homicide, the maximum being imprisonment for life.

_United States of America_.--Under the Federal laws sentence of death may be passed for treason against the United States and for piracy and for murder within the Federal jurisdiction. But for the most part the punishment of crime is regulated by the laws of the constituent states of the Union.

The death penalty was abolished in Michigan in 1846 except for treason, and wholly in Wisconsin in 1853. In Maine it was abolished in 1876, re-enacted in 1883, and again abolished in 1887. In Rhode Island it was abolished in 1852, but restored in 1882, only in case of murder committed by a person under sentence of imprisonment for life (Laws, 1896, c. 277, s. 2). In all the other states the death penalty may still be inflicted: in Alabama, Delaware, Georgia, Maryland, and West Virginia, for treason, murder, arson and rape; in Alaska, Arizona, Kansas, New Jersey, Mississippi, Montana, New York, North Dakota, Oregon, and South Dakota, for treason and murder; in Colorado, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Nebraska, New Hampshire, New Mexico, Nevada, Ohio, Oklahoma, Pennsylvania, Utah and Wyoming, for murder only; in Kentucky and Virginia, for treason, murder and rape; in Vermont, for treason, murder and arson; in Indiana, for treason, murder, and for arson if death result; in California, for treason, murder and train-wrecking; in North Carolina, for murder, rape, arson and burglary; in Florida, Missouri, South Carolina, Tennessee and Texas, for murder and rape; in Arkansas and Louisiana, for treason, murder, rape, and administering poison or use of dangerous weapons with intent to murder. Louisiana is cited by Girardin (_le droit de punir_) as a state 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 hostility on the part of juries to capital punishment, which has on the whole lessened rather than increased since the middle of the 19th century. It is rarely if ever necessary in England, though common in America, to question the jurors as to their views on capital punishment. The reasons for the comparatively small number of convictions for murder seem to be: (1) that court and jury in a capital case lean _in favorem vitae_, and if the offence falls short of the full gravity of murder, conviction for manslaughter only results; (2) that in the absence of a statutory classification of the degrees of murder, the prerogative of mercy is exercised in cases falling short of the highest degree of gravity recognized by lawyers and by public opinion; (3) that where the conviction rests on circumstantial evidence the sentence is not executed unless the circumstantial evidence is conclusive; (4) that charges of infanticide against the mothers of illegitimate children are treated mercifully by judge and jury, and usually terminate in acquittal, or in a conviction of concealment of birth; (5) that many persons tried as murderers are obviously insane; (6) that coroners' juries are somewhat recklessly free in returning inquisitions of murder without any evidence which would warrant the conviction of the person accused.

The medical doctrine, and that of Lombroso with respect to criminal atavism and irresponsibility, have probably tended to incline the public mind in favour of capital punishment, and Sir James Stephen and other eminent jurists have even been thereby tempted to advocate the execution of habitual criminals. It certainly seems strange that the community should feel bound carefully to preserve and tend a class of dangerous lunatics, and to give them, as Charles Kingsley says, "the finest air in England and the right to kill two gaolers a week."

The whole question of capital punishment in the United Kingdom was considered by a royal commission appointed in 1864, which reported in 1866 (Parl. Pap., 1866, 10,438). The commission took the opinions of all the judges of the supreme courts in the United Kingdom and of many other eminent persons, and collected the laws of other countries so far as this was ascertainable. The commissioners differed on the question of the expediency of abolishing or retaining capital punishment, and did not report thereon. But they recommended: (1) that it should be restricted throughout the United Kingdom to high treason and murder; (2) alteration of the law of homicide so as to classify homicides according to their gravity, and to confine capital punishment to murder in the first degree; (3) modification of the law as to child murder so as to punish certain cases of infanticide as misdemeanours; (4) authorizing judges to direct sentence of death to be recorded; (5) the abolition--since carried out--of public executions.

AUTHORITIES.--Beccaria, _Dei Delitte e delle Pene_ (1790); Bentham,
_Rationale of Punishment_; Lammasch, _Grundris des Strafrechts_
(Leipzig, 1902); Olivecrona, _De la peine de mort_; Mittermaier,
_Capital Punishment; Report of the Royal Commission on Capital
Punishment_ (Parl. Pap., 1866, No. 10,438); Oldfield, _The Penalty of
Death_ (1901); Pollock and Maitland, _History of English Law_; Pike,
_History of Crime_; Sir J.F. Stephen, _History of Crime in England_;
S. Walpole, _History of England_, vol. i. p. 191; vol. iv. p. 74;
Andrews' _Old Time Punishments; A Century of Law Reform_ (London,
1901); Lecture ii. by Sir H.B. Poland; Howard Association
Publications. (W. F. C.)

CAPITO (or KOPFEL), WOLFGANG [FABRICIUS] (1478-1541), German reformer, was born of humble parentage at Hagenau in Alsace. He was educated for the medical profession, but also studied law, and applied himself so earnestly to theology that he received the doctorate in that faculty also, and, having joined the Benedictines, taught for some time at Freiburg. He acted for three years as pastor in Bruchsal, and was then called to the cathedral church of Basel (1515). Here he made the acquaintance of Zwingli and began to correspond with Luther. In 1519 he removed to Mainz at the request of Albrecht, archbishop of that city, who soon made him his chancellor. In 1523 he settled at Strassburg, where he remained till his death in November 1541. He had found it increasingly difficult to reconcile the new religion with the old, and from 1524 was one of the leaders of the reformed faith in Strassburg. He took a prominent part in the earlier ecclesiastical transactions of the 16th century, was present at the second conference of Zurich and at the conference of Marburg, and along with Martin Bucer drew up the _Confessio Tetrapolitana_. Capito was always more concerned for the "unity of the spirit" than for dogmatic formularies, and from his endeavours to conciliate the Lutheran and Zwinglian parties in regard to the sacraments, he seems to have incurred the suspicions of his own friends; while from his intimacy with Martin Cellarius and other divines of the Socinian school he drew on himself the charge of Arianism. His principal works were:--_Institutionum Hebraicarum libri duo; Enarrationes in Habacuc et Hoseam Prophetas_; a life of Oecolampadius and an account of the synod of Berne (1532).

CAPITULARY (Med. Lat. _capitularium_), a series of legislative or administrative acts emanating from the Merovingian and Carolingian kings, so called as being divided into sections or chapters (_capitula_). With regard to these capitularies two questions arise: (1) as to the means by which they have been handed down to us; (2) as to their true character and scope.

(1) As soon as the capitulary was composed, it was sent to the various functionaries of the Frankish empire, archbishops, bishops, _missi_ and counts, a copy being kept by the chancellor in the archives of the palace. At the present day we do not possess a single capitulary in its original form: but very frequently copies of these isolated capitularies were included in various scattered manuscripts, among pieces of a very different nature, ecclesiastical or secular. We find, therefore, a fair number of them in books which go back as far as the 9th or 10th centuries. In recent editions in the case of each capitulary it is carefully indicated from what manuscripts it has been collated.

These capitularies make provisions of a most varied nature; it was therefore found necessary at quite an early date to classify them into chapters according to the subject. In 827 Ansegisus, abbot of St Wandrille at Fontenelle, made such a collection. He embodied them in four books: one of the ecclesiastical capitularies of Charlemagne, one of the ecclesiastical capitularies of Louis the Pious, one of the secular capitularies of Charlemagne, and one of the secular capitularies of Louis, bringing together similar provisions and suppressing duplicates. This collection soon gained an official authority, and after 829 Louis the Pious refers to it, citing book and section.

After 827 new capitularies were naturally promulgated, and before 858 there appeared a second collection in three books, by an author calling himself Benedictus Levita. His aim was, he said, to complete the work of Ansegisus, and bring it up to date by continuing it from 827 to his own day; but the author has not only borrowed prescriptions from the capitularies; he has introduced other documents into his collection, fragments of Roman laws, canons of the councils and especially spurious provisions very similar in character to those of the same date found in the _False Decretals_. His contemporaries did not notice these spurious documents, but accepted the whole collection as authentic, and incorporated the four books of Ansegisus and the three of Benedictus Levita into a single collection in seven books. The serious historian of to-day, however, is careful not to use books v., vi. and vii. for purposes of reference.

Early editors chose to republish this collection of Ansegisus and Benedictus as they found it. It was a distinguished French scholar, Etienne Baluze, who led the way to a fresh classification. In 1677 he brought out the _Capitularia regum francorum_, in two folio volumes, in which he published first the capitularies of the Merovingian kings, then those of Pippin, of Charles and of Louis the Pious, which he had found complete in various manuscripts. After the date of 840, he published as supplements the unreliable collection of Ansegisus and Benedictus Levita, with the warning that the latter was quite untrustworthy. He then gave the capitularies of Charles the Bald, and of other Carolingian kings, either contemporaries or successors of Charles, which he had discovered in various places. A second edition of Baluze was published in 1780 in 2 volumes folio by Pierre de Chiniac.

The edition of the Capitularies made in 1835 by George Pertz, in the _Monumenta Germaniae_ (folio edition, vol. i., of the _Leges_) was not much advance on that of Baluze. A fresh revision was required, and the editors of the _Monumenta_ decided to reissue it in their quarto series, entrusting the work to Dr Alfred Boretius. In 1883 Boretius published his first volume, containing all the detached capitularies up to 827, together with various appendices bearing on them, and the collection of Ansegisus. Boretius, whose health had been ruined by overwork, was unable to finish his work; it was continued by Victor Krause, who collected in vol. ii. the scattered capitularies of a date posterior to 828. Karl Zeumer and Albrecht Werminghoff drew up a detailed index of both volumes, in which all the essential words are noted. A third volume, prepared by Emil Seckel, was to include the collection of Benedictus Levita.

(2) Among the capitularies are to be found documents of a very varied kind. Boretius has divided them into several classes:--

(a) The _Capitula legibus addenda._--These are additions made by the king of the Franks to the barbarian laws promulgated under the Merovingians, the Salic law, the Ripuarian or the Bavarian. These capitularies have the same weight as the law which they complete; they are particular in their application, applying, that is to say, only to the men subject to that law. Like the laws, they consist chiefly of scales of compensation, rules of procedure and points of civil law. They were solemnly promulgated in the local assemblies where the consent of the people was asked. Charlemagne and Louis the Pious seem to have made efforts to bring the other laws into harmony with the Salic law. It is also to be noted that by certain of the capitularies of this class, the king adds provisions affecting, not only a single law, but all the laws in use throughout the kingdom.

(b) The _Capitula ecclesiastica._--These capitularies were elaborated in the councils of the bishops; the kings of the Franks sanctioned the canon of the councils, and made them obligatory on all the Christians in the kingdom.

(c) The _Capitula per se scribenda._--These embodied political decrees which all subjects of the kingdom were bound to observe. They often bore the name of _edictum_ or of _constitutio_, and the provisions made in them were permanent. These capitularies were generally elaborated by the king of the Franks in the autumn assemblies or in the committees of the spring assemblies. Frequently we have only the proposition made by the king to the committee, _capitula tractanda cum comitibus, episcopis, et abbatibus_, and not the final form which was adopted.

(d) The _Capitula missorum_, which are the instructions given by Charlemagne and his successors to the _missi_ sent into the various parts of the empire. They are sometimes drawn up in common for all the _missi_ of a certain year--_capitula missorum generalia_; sometimes for the _missi_ sent only on a given circuit--_capitula missorum specialia_. These instructions sometimes hold good only for the circuit of the _missus_; they have no general application and are merely temporary.

(e) With the capitularies have been incorporated various documents; for instance, the rules to be observed in administering the king's private domain (the celebrated capitulary _de villis_, which is doubtless a collection of the instructions sent at various times to the agents of these domains); the partitions of the kingdom among the king's sons, as, the _Divisio regnorum_ of 806, or the _Ordinatio imperii_ of 817; the oaths of peace and brotherhood which were taken on various occasions by the sons of Louis the Pious, &c.

The merit of clearly establishing these distinctions belongs to Boretius. He has doubtless exaggerated the difference between the _Capitula missorum_ and the _Capitula per se scribenda;_ among the first are to be found provisions of a general and permanent nature, and among the second temporary measures are often included. But the idea of Boretius is none the less fruitful. In the capitularies there are usually permanent provisions and temporary provisions intermingled; and the observation of this fact has made it possible more clearly to understand certain institutions of Charlemagne, _e.g._ military service.

After the reign of Louis the Pious the capitularies became long and diffuse. Soon, from the 10th century onwards, no provision of general application emanates from the kings. Henceforth the kings only regulated private interests by charters; it was not until the reign of Philip Augustus that general provisions again appeared; but when they did so, they bore the name of ordinances (_ordonnances_).

There were also capitularies of the Lombards. These capitularies formed a continuation of the Lombard laws, and are printed as an appendix to these laws by Boretius in the folio edition of the _Monumenta Germaniae, Leges_, vol. iv.

AUTHORITIES.---Boretius, _Die Capitularien im Longobardenreich_
(Halle, 1864); and _Beitrage zur Capitularienkritik_ (Leipzig, 1874);
G. Seeliger, _Die Kapitularien der Karolinger_ (Munich, 1893). See
also the histories of institutions or of law by Waitz, Brunner, Fustel
de Coulanges, Viollet, Esmein. (C. Pf.)

CAPITULATION (Lat. _capitulum_, a little head or division; _capitulare_, to treat upon terms), an agreement in time of war for the surrender to a hostile armed force of a particular body of troops, a town or a territory. It is an ordinary incident of war, and therefore no previous instructions from the captor's government are required before finally settling the conditions of capitulation. The most usual of such conditions are freedom of religion and security of private property on the one hand, and a promise not to bear arms within a certain period on the other. Such agreements may be rashly concluded with an inferior officer, on whose authority the enemy are not in the actual position of the war entitled to place reliance. When an agreement is made by an officer who has not the proper authority or who has exceeded the limits of his authority, it is termed a _sponsion_, and, to be binding, must be confirmed by express or tacit ratification. Article 35 of the Hague Convention (1899) on the laws and the customs of war lays down that "capitulations agreed on between the contracting parties must be in accordance with the rules of military honour. When once settled they must be observed by both the parties."

In another sense, capitulation is the name given to an arrangement by which foreigners are withdrawn, for most civil and criminal purposes, from the jurisdiction of the state making the capitulation. Thus in Turkey arrangements termed capitulations (q.v.), and treaties confirmatory of them, have been made between the Porte and other states by which foreigners resident in Turkey are subject to the laws of their respective countries. The term is also applied by French writers to the oath which on his election the Holy Roman emperor used to make to the college of electors; this related chiefly to such matters as regalian rights, appeals from local jurisdictions, the rights of the pope, &c.

CAPITULATIONS (from Lat. _caput_, or its Low-Latin diminutive _capitulum_, as indicating the form in which these acts were set down in "chapters"; the Gr. equivalent _cephaleosis_, kephalaiosis, is occasionally used in works of the 17th century), treaties granted by a state and conferring the privilege of extra-territorial jurisdiction within its boundaries on the subjects of another state. Thus, in the 9th century, the caliph Harun-al-Rashid engaged to grant guarantees and commercial facilities to such Franks, subjects of the emperor Charlemagne, as should visit the East with the authorization of their emperor. After the break-up of the Frank empire, similar concessions were made to some of the practically independent Italian city states that grew up on its ruins. Thus, in 1098, the prince of Antioch granted a charter of this nature to the city of Genoa; the king of Jerusalem extended the same privilege to Venice in 1123 and to Marseilles in 1136. Salah-ud-din (Saladin), sultan of Babylon (Cairo), granted a charter to the town of Pisa in 1173. The Byzantine emperors followed this example, and Genoa, Pisa and Venice all obtained capitulations. The explanation of the practice is to be found in the fact that the sovereignty of the state was held in those ages to apply only to its subjects; foreigners were excluded from its rights and obligations. The privilege of citizenship was considered too precious to be extended to the alien, who was long practically an outlaw. But when the numbers, wealth and power of foreigners residing within the state became too great, it was found to be politic to subject them to some law, and it was held that this law should be their own. When the Turkish rule was substituted for that of the Byzantine emperors, the system already in existence was continued; the various non-Moslem peoples were allowed their semi-autonomy in matters affecting their personal status, and the Genoese of Galata were confirmed in their privileges. But the first capitulation concluded with a foreign state was that of 1535 granted to the French. Lest it should be imagined that this was a concession wrested by the victorious Christian monarch from the decadent Turk, it should be borne in mind that Turkey was then at the height of her power, and that Francis I. had shortly before sustained a disastrous defeat at Pavia. His only hope of assistance lay in Suleiman I., whose attack on Vienna had been checked by the victorious Charles V. The appeal to Suleiman on the ground of the common interest of France and Turkey in overcoming Charles V.'s overweening power was successful; the secret mission of Frangipani, an unofficial envoy who could be disowned in case of failure, paved the way for De la Forest's embassy in 1534, and in 1536 the capitulations were signed.[1] They amounted to a treaty of commerce and a treaty allowing the establishment of Frenchmen in Turkey and fixing the jurisdiction to be exercised over them: individual and religious liberty is guaranteed to them, the king of France is empowered to appoint consuls in Turkey, the consuls are recognized as competent to judge the civil and criminal affairs of French subjects in Turkey according to French law, and the consuls may appeal to the officers of the sultan for their aid in the execution of their sentences. This, the first of the capitulations, is practically the prototype of its successors. Five years later, similar capitulations were concluded with Venice. The capitulations were at first held to be in force only during the lifetime of the sultan by whom they were granted; thus in 1569 Sultan Selim II. renewed the French capitulations granted by his predecessor. In 1583 England obtained her first capitulation, until which time France had been the official protector of all Europeans established in Turkey. Later on, England claimed to protect the subjects of other nations, a claim which is rejected in the French capitulations of 1597, 1604 and 1607, the last-named of which explicitly lays down that the subjects of all nations not represented at Constantinople by an ambassador shall be under French protection. In 1613 Holland obtained her first capitulation, with the assistance of the French ambassador, anxious to help a commercial rival of England. In 1673 the French, represented by the marquis de Nointel, succeeded in obtaining the renewal of the capitulations which, for various reasons, had remained unconfirmed since 1607. Louis XIV. had been anxious to secure the protectorate of all Catholics in Turkey, but was obliged to content himself with the recognition of his right to protect all Latins of non-Turkish nationality; his claims for the restoration to the Catholics of the Holy Places usurped by the Greeks was also rejected, the sultan only undertaking to promise to restore their churches to the Jesuit Capuchins. An important commercial gain was the reduction of the import duties from 5 to 3%; and all suits the value of which exceeded 4000 _aspres_ in which French subjects sued, or were sued by, an Ottoman subject, were to be heard not by the ordinary tribunals but at the Porte itself. Later, France's friendship secured for Turkey a successful negotiation of the peace of Belgrade in 1739, and the result was the capitulation of 1740; this is no longer limited in duration to the sultan's lifetime but is made perpetual, and, moreover, declares that it cannot be modified without the assent of the French. It conferred on the French ambassador precedence over his colleagues. Austria had obtained capitulations in 1718, modified in 1784; Russia secured similar privileges in 1784. In the course of the 18th century nearly every European power had obtained these, and such newly-established countries as the United States of America, Belgium and Greece followed in the 19th century.

The chief privileges granted under the capitulations to foreigners resident in Turkey are the following: liberty of residence, inviolability of domicile, liberty to travel by land and sea, freedom of commerce, freedom of religion, immunity from local jurisdiction save under certain safeguards, exclusive extra-territorial jurisdiction over foreigners of the same nationality, and competence of the forum of the defendant in cases in which two foreigners are concerned (though the Sublime Porte has long claimed to exercise jurisdiction in criminal cases in which two foreigners of different nationality are concerned--the capitulations are silent on the point and the claim is resisted by the powers).

The same system has been followed by such countries as Persia, China, Japan and Siam.

The practical result of the capitulations in Turkey is to form each separate foreign colony into a sort of _imperium in imperio_, and to hamper the local jurisdiction very considerably. As the state granting the capitulations progresses in civilization it chafes under these restraints in its sovereignty. Turkey's former vassals, Rumania and Servia, though theoretically bound to respect the capitulations so long as they formed part of Turkey, had practically abrogated them long before securing their independence through the treaty of Berlin in 1878. The same may be said of Bulgaria. Japan was liberated from the burden of the capitulations some years ago.

The extra-territorial jurisdiction exercised by the foreign powers over their subjects in Turkey and other countries where capitulations exist is regulated by special legislative enactments; in the case of the United Kingdom by orders in council.

In Turkey the capitulations are practically the only treaties in force with the powers, since the expiration about 1889 of the commercial treaties concluded in 1861-1862. As they all contain the "most-favoured nation" clause, the privileges in any one apply to all the powers, though not always claimed. Thus America and Belgium claim under their treaties with Turkey the right to try all their subjects, even if accused of offences against Ottoman subjects--a claim recently made by Belgium in the case of the Belgian subject Joris, accused of participation in the bomb outrage of 1905 at Yildiz. One peculiar privilege granted in the capitulations of 1675 (Art. 74) authorizes the king of England to buy in Turkey with his own money two cargoes of figs and raisins, in fertile and abundant years and not in times of dearth or scarcity, and provides that after a duty of 3% has been paid thereon no obstacle or hindrance shall be given thereto.

FOOTNOTE:

[1] La Forest, a knight of St John of Jerusalem, was the first
resident ambassador of France at Constantinople. He died in 1537.

CAPIZ, a town and the capital of the province of Capiz, Panay, Philippine Islands, on the Capiz or Panay river, about 4 m. from its mouth on the N. coast. Pop. (1903) 18,525. Capiz has a large and beautiful Roman Catholic church (of stone), a Protestant church (with a hospital) and good government buildings, and is the seat of the provincial high school. Alcohol of a superior quality is manufactured in large quantities from the fermented juice of the nipa palm, which grows plentifully in the neighbouring swamps. Fishing and the weaving of fabrics of cotton, hemp and pineapple fibre are important industries. Rice and sugar are raised in abundance. Tobacco, Indian corn and cacao are produced to a limited extent; and rice, alcohol, sugar and copra are exported. Coasting vessels ascend the river to the town. The language is Visayan.

CAPMANY Y MONTPALAU, ANTONIO DE (1742-1813), Spanish polygraph, was born at Barcelona on the 24th of November 1742. He retired from the army in 1770, and was subsequently elected secretary of the Royal Academy of History at Madrid. His principal works are--_Memorias historicas sobre la marina, commercio, y artes de la antigua ciudad de Barcelona_ (4 vols. 1779-1792); _Teatro historico-critico de la elocuencia Espanola_ (1786); _Filiosofia de la elocuencia_ (1776), and _Cuestiones criticas sobre varias puntos de historia economica, politica, y militar_ (1807). Capmany died at Barcelona on the 14th of November 1813. His monograph on the history of his birthplace still preserves much of its original value.

CAPO D'ISTRIA, GIOVANNI ANTONIO [JOANNES],[1] COUNT (1776-1831), Russian statesman and president of the Greek republic, was born at Corfu on the 11th of February 1776. He belonged to an ancient Corfiot family which had immigrated from Istria in 1373, the title of count being granted to it by Charles Emmanuel, duke of Savoy, in 1689. The father of Giovanni, Antonio Maria Capo d'Istria, was a man of considerable importance in the island, a stiff aristocrat of the old school, who in 1798, after the treaty of Campo Formio had placed the Ionian Islands under French rule, was imprisoned for his opposition to the new regime, his release next year being the earliest triumph of his son's diplomacy. On the establishment in 1800, under Turkish suzerainty, of the septinsular republic--a settlement negotiated at Constantinople by the elder Capo d'Istria--Giovanni, who had meanwhile studied medicine at Padua, entered the government service as secretary to the legislative council, and in one capacity or another exercised for the next seven years a determining voice in the affairs of the republic. At the beginning of 1807 he was appointed "extraordinary military governor" to organize the defence of Santa Maura against Ali Pasha of Iannina, an enterprise which brought him into contact with Theodores Kolokotrones and other future chiefs of the war of Greek independence, and awoke in him that wider Hellenic patriotism which was so largely to influence his career.

Throughout the period of his official connexion with the Ionian government, Capo d'Istria had been a consistent upholder of Russian influence in the islands; and when the treaty of Tilsit (1807) dashed his hopes by handing over the Ionian republic to Napoleon, he did not relinquish his belief in Russia as the most reliable ally of the Greek cause. He accordingly refused the offers made to him by the French government, and accepted the invitation of the Russian chancellor Romanzov to enter the tsar's service. He went to St Petersburg in 1809, and was appointed to the honorary post of attache to the foreign office, but it was not till two years after, in 1811, that he was actually employed in diplomatic work as attache to Baron Stackelberg, the Russian ambassador at Vienna. His knowledge of the near East was here of great service, and in the following year he was attached, as chief of his diplomatic bureau, to Admiral Chichagov, on his mission to the Danubian principalities to stir up trouble in the Balkan peninsula as a diversion on the flank of Austria, and to attempt to supplement the treaty of Bucharest by an offensive and defensive alliance with the Ottoman empire. The Moscow campaign of 1812 intervened; Chichagov was disgraced in consequence of his failure to destroy Napoleon at the passage of the Beresina; but Capo d'Istria was not involved, was made a councillor of state and continued in his diplomatic functions. During the campaign of 1813 he was attached to the staff of Barclay de Tolly and was present at the battles of Lutzen, Bautzen, Dresden and Leipzig. With the advance of the allies he was sent to Switzerland to secure the withdrawal of the republic from the French alliance. Here, in spite of his instructions to guarantee the neutrality of Switzerland, he signed on his own responsibility the proclamation issued by Prince Schwarzenberg, stating the intention of the allied troops to march through the country. His motive was to prevent any appearance of disagreement among the allies. The emperor Alexander, to whom he hastened to make an explanation in person, endorsed his action.

Capo d'Istria was present with the allies in Paris, and after the signing of the first peace of Paris he was rewarded by the tsar with the order of St Vladimir and his full confidence. At the congress of Vienna his influence was conspicuous; he represented the tsar on the Swiss committee, was associated with Rasumovsky in negotiating the tangled Polish and Saxon questions, and was the Russian plenipotentiary in the discussions with the Baron vom Stein on the affairs of Germany. His _Memoire sur l'empire germanique_, of the 9th of February 1815, presented to the tsar, was based on the policy of keeping Germany weak in order to secure Russian preponderance in its councils. It was perhaps from a similar motive that, after the Waterloo campaign, he strenuously opposed the proposals for the dismemberment of France. It was on his advice that the duc de Richelieu persuaded Louis XVIII. to write the autograph letter in which he declared his intention of resigning rather than submit to any diminution of the territories handed down to him by his ancestors.[2] The treaty of the 20th of November 1815, which formed for years the basis of the effective concert of Europe, was also largely his work.

On the 26th of September 1815, after the proclamation of the Holy Alliance at the great review on the plain of Vertus, Capo d'Istria was named a secretary of state. On his return to St Petersburg, he shared the ministry of foreign affairs with Count Nesselrode, though the latter as senior signed all documents. Capo d'Istria, however, had sole charge of the newly acquired province of Bessarabia, which he governed conspicuously well. In 1818 he attended the emperor Alexander at the congress of Aix-la-Chapelle, and in the following year obtained leave to visit his home. He travelled by way of Venice, Rome and Naples, his progress exciting the liveliest apprehensions of the powers, notably of Austria. The "Jacobin" pose of the tsar was notorious, his all-embracing ambition hardly less so; and Russian travellers in Italy, notably the emperor's former tutor, Cesar de Laharpe, were little careful in the expression of their sympathy for the ideals of the Carbonari. In Metternich's eyes Capo d'Istria, "the coryphaeus of liberalism," was responsible for the tsar's vagaries, the fount of all the ills of which the times were sick; and, for all the count's diplomatic reticence, the Austrian spies who dogged his footsteps earned their salaries by reporting sayings that set the reactionary courts in a flutter. For Metternich the overthrow of Capo d'Istria's influence became a necessity of political salvation. At Corfu Capo d'Istria became the repository of all the grievances of his countrymen against the robust administration of Sir Thomas Maitland. At the congress of Vienna the count had supported the British protectorate over the Ionian Islands, the advantages of which from the point of view of trade and security were obvious; but the drastic methods of "King Tom's" government, symbolized by a gallows for pirates and other evil-doers in every popular gathering place, offended his local patriotism. He submitted a memorandum on the subject to the tsar, and before returning to Russia travelled via Paris to England to lay the grievances of the Ionians before the British government. His reception was a cold one, mainly due to his own disingenuousness, for he refused to show British ministers the memorandum which he had already submitted to the Russian emperor, on the ground that it was intended only for his own private use. The whole thing seemed, rightly or wrongly, an excuse for the intervention of Russia in affairs which were by treaty wholly British.

On his return to St Petersburg in the autumn of 1819, Capo d'Istria resumed his influence in the intimate counsels of the tsar. The murder of the Russian agent, Kotzebue, in March, had shaken but not destroyed Alexander's liberalism, and it was Capo d'Istria who drew up the emperor's protest against the Carlsbad decrees and the declaration of his adherence to constitutional views (see ALEXANDER I.). In October 1820 Capo d'Istria accompanied the tsar to the congress at Troppau. The events of the year--the murder of the due de Berry in March, the Revolutions in Spain and in Naples--had produced their effect. Alexander was, in Metternich's exultant language, "a changed man," and Capo d'Istria apparently shared his conversion to reactionary principles. The Austrian chancellor now put forth all his powers to bring Alexander under his own influence, and to overthrow Capo d'Istria, whom he despised, distrusted and feared. In 1821 Alexander Ypsilanti's misguided raid into the Danubian principalities gave him his opportunity. The news reached the tsar at the congress of Laibach, and to Capo d'Istria was entrusted the task of writing the letter to Ypsilanti in which the tsar repudiated his claim, publicly proclaimed that he had the sympathy and support of Russia. For a while the position of Capo d'Istria was saved; but it was known that he had been approached by the agent of the Greek _Hetairia_ before Ypsilanti, and that he had encouraged Ypsilanti to take up the ill-fated adventure which he himself had refused; he was hated at the Russian court as an upstart Greek, and Metternich was never weary of impressing on all and sundry that he was "using Russian policy for Greek ends." At last nothing but long habit and native loyalty to those who had served him well, prevented Alexander from parting with a minister who had ceased to possess his confidence. Capo d'Istria, anticipating his dismissal, resigned on the eve of the tsar's departure for the congress of Verona (1822), and retired into private life at Geneva.

On the 11th of April 1827, the Greek national assembly at Troezene elected Capo d'Istria president of the republic. The vote was a triumph for the Russian faction, for the count, even after his fall, had not lost the personal regard of the emperor Alexander, nor ceased to consider himself a Russian official. He accepted the offer, but was in no hurry to take up the thankless task. In July he visited the emperor Nicholas I. at Tsarskoye Selo, receiving permission to proceed and instructions as to the policy he should adopt, and he next made a tour of the courts of Europe in search of moral and material support. The news of the battle of Navarino (20th of October 1827) hastened his arrival; the British frigate "Warspite" was placed at his disposal to carry him to Greece, and on the 19th of January 1828 he landed at Nauplia.