American Legal History

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AngelaProject 23 - 07 Jan 2010 - Main.EbenMoglen
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-- AngelaChen - 08 Nov 2009
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 This project is intended to investigate the changing nature of the legal regulation of capital punishment in America between 1611 and 1846. More specifically, I would like to explore the following question: how and why did the death penalty evolve from its position as the favored sanction for a whole array of crimes - taking 1611, the year that the 'Lawes Divine, Morall and Martiall' came into use in the first permanent British settlement in America (Virginia) as our starting date - to its legal abolition for all common crimes for the first time? (Michigan, 1846)(1)

Notes

1 : Note that the abolition of capital punishment for all common crimes in Michigan did not lead others to follow suit. The death penalty has had a turbulent history between 1846 and the present, but that material is beyond the scope of this inquiry


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One preliminary note: the bounds of my research will generally be restricted to the death penalty in the aforementioned period as it related to those other than slaves (the majority of whom were Blacks) - although the position of slaves at the time is clearly an important topic, I believe that it may be better dealt with in a separate inquiry.
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  • There are two warning signs here. First, the question isn't really a question, it's just an invitation to a narrative. "How and why did X change from date B to date C?" is a perfectly sound historical topic, but it's far too unconfined to be a project based on direct encounter with primary sources. Second, your dates are chosen in a fashion that plainly prejudices the inquiry. The Lawes Divine Morall and Martiall aren't a particularly sensible starting point unless one simply wants the harshest early material one can find; as I pointed out originally, they're not in any real sense American law at all. And as you admit yourself, choosing to end with an outlier, the abololition of the death penalty in one state of the northwest frontier in 1846, doesn't accurately depict the state of the law at the end of your period. It does conform to the pace of English abolition, which essentially allows the direct importation of the Radzinowicz story of Whiggery and Beccaria, but while 1650-1850 (or 1856) might be a possible periodization for writing about English capital punishment in a Whiggish "Bloody Code to humanitarian abolitionism" fashion, it doesn't fit the realities of the US context.

One preliminary note: the bounds of my research will generally be restricted to the death penalty in the aforementioned period as it related to those other than slaves (the majority of whom were Blacks)

  • The majority? What's the minority you have in mind?

- although the position of slaves at the time is clearly an important topic, I believe that it may be better dealt with in a separate inquiry.

  • Why? This is another sign of something being put aside because it doesn't conform to a story. What sense would it make to explore the intense brutality of US criminal justice without observing its central commitment to brutality, which is the crucial importance of the death penalty in maintaining a system of racial subordination? A history of capital punishment in America at any time that excludes the treatment of enslaved people and their descendants would seem to me to be a wedding without musicians.
 Comments and criticism, as well as any information or sources, are very much welcomed and appreciated!
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  • The overbroad focus of the question is also reflected in the sources you collect, which look more like a library shelf than a collection of materials that specifically allowed the historian to infer the answer to a specific doubtful question. In the end, the text reads primarily as a set of points taken from Banner, while the sources read as "sources relating to US capital punishment found in the Hong Kong Central Library." I admit to the difficulty of working on this project in Hong Kong, which has not the same advantage when it comes to access to printed primary sources that rests in working in the second-largest law library in North America. I didn't expect you to try to complete such work without access to comprehensive collections of printed sources, and it will be difficult to do. But the key to the revision is to ask a narrow question that has an actual answer, and to find that answer by looking in the primary historical sources that can answer it, keeping a scanned collection of those materials for the benefit of a reader who wants to see the sources on which you rely. One might ask, for example, "Did colonial Pennsylvania employ capital punishment? If so, how did Quaker pacifism accept the institution, and if not, when did the death penalty start being used?" That set of specific questions, which have answers primary sources can disclose, would lead a thoughtful inquirer to some larger questions that future students could pursue....
 
META FILEATTACHMENT attachment="Banner_The_Death_Penalty.pdf" attr="" comment="Banner, The Death Penalty (2002)" date="1257731914" name="Banner_The_Death_Penalty.pdf" path="Banner_The Death Penalty.pdf" size="711047" stream="Banner_The Death Penalty.pdf" user="Main.AngelaChen" version="1"
META FILEATTACHMENT attachment="Bedau_Titlepage.pdf" attr="" comment="Bedau, The Death Penalty in America (1968)" date="1258519645" name="Bedau_Titlepage.pdf" path="Bedau_Titlepage.pdf" size="901923" stream="Bedau_Titlepage.pdf" user="Main.AngelaChen" version="1"
META FILEATTACHMENT attachment="Kronenwetter_Title_Page.pdf" attr="" comment="Kronenwetter, Capital Punishment: A Reference Handbook (1993)" date="1258519777" name="Kronenwetter_Title_Page.pdf" path="Kronenwetter_Title Page.pdf" size="1944482" stream="Kronenwetter_Title Page.pdf" user="Main.AngelaChen" version="1"

Revision 23r23 - 07 Jan 2010 - 00:29:48 - EbenMoglen
Revision 22r22 - 06 Jan 2010 - 04:13:47 - AngelaChen
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