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Notes

5 : "Forty thousand persons, of all ranks and degrees...give up their natural quiet night's rest in order to partake of this...which is more exciting than...any other amusement they can have" - William Thackeray, 'Going to See a Man Hanged', pg 450. Hangings were similarly popular amongst all classes in America, at least to begin with.

Leon Radzinowcz's multi-volume study of the history of English criminal law(7) devotes much attention to the death penalty and illustrates that certainly by the 18th century, capital punishment was widely prescribed for crimes ranging from murder to petty property offences. A good example of the English legislature's advocacy of harsh punishments, including the death penalty, is the Waltham Black Act of 1723 which declared a vast spectrum of crimes sanctionable by death. The then-widely read Newgate Calendar contains an extract from the Act itself and a description from the then-popular read Newgate Calendar of the original 'Waltham Blacks' whose activities led to Parliament's hasty enactment of said legislation(8). Incidentally, the fact that the Newgate Calendar was so prevalent in English homes during the period shows the wide acceptance of capital punishment in English society at the time - this acceptance naturally carried over into early America, where the death penalty was possibility 'required' even more so than in England due to the necessity of carving out what the Colonists perceived as 'law and order' in their new territories, often with harsh methods being the most effective ones.

Although early American lawmakers were influenced strongly by English law (both common law and statute), it would be erroneous to believe that they simply imported the English law on capital punishment (or indeed any English laws) wholesale into their respective colonies. For example, the Royal Charter for South Jersey (1646) did not use the death penalty at all (though this changed)(9), and petty property crimes were often punished less harshly (at least in the North) than back in England. Especially in the early period, the law did vary from colony to colony despite cross-influencing, and the capital crimes in each reflected the purposes and needs of that specific community. The Massachusetts Bay Colony, for instance, was heavily driven by (or indeed perhaps primarily founded because of) Puritan ideals; hence the use of capital punishment for a variety of 'moral' crimes until more secular views took hold. Contrast this with the much more prominent use of the death penalty for minor property crimes in the South, not least motivated by need to keep 'order' amongst a population dominated by the presence of slaves. Aside from adoption of the law itself, English practices such as the benefit of clergy also found their way across the Atlantic. Thus England's fingers touched not only the substantive laws on capital punishment in America - they also colored the actual use (or non-use) of the death penalty (benefit of clergy and other devices which gradually helped to ameliorate the perceived harshness of the death penalty - and their effect on abolition - will be discussed further in sections below).

Of course, Americans were not immune from influences from the rest of Europe. In terms of practices, the carrying out of 'simulated hangings', known throughout early modern Europe(10), came to have a significant role on this side of the Atlantic. Of possibly even greater importance was the effect that the Enlightenment in Europe had on thinking in America (with attitudes towards capital punishment being no exception) and the resulting growing criticism of the extent of the death penalty. Again, all of this will be explored further in the following sections.

Notes

6 : Bedau, pg 1

7 : Radzinowicz, A History of English Criminal Law and its Administration from 1750

8 : Newgate Calendar, Volume 2, pg 172

9 : Bedau, pg 4

10 : Bedau, pg 65

• Newgate_Calendar_Volume_2.pdf: Newgate Calendar, Volume 2