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-- AngelaChen - 08 Nov 2009 | | | Leon Radzinowcz's multi-volume study of the history of English criminal law 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. 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.
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< | 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), 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).
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> | Although early American lawmakers were influenced strongly by English law (both common law and statute), it would be erroneous to believe that most colonies 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), 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. Aside from coloring the adoption of the law itself in America, 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 to some extent molded 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, 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.
Religion and the Role of Ministers
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- How faith led to the law; shifting relations between the law and the Bible
- Justification for the death penalty in the Bible,
- Public executions as religious events with Ministers playing a key role; how this changed as penitence began to be seen as a private matter rather than one best administered by public institutions
- Evolving and diversifying ideas of religion and dilution of religious sense of purpose that permeated the origins of many colonies (e.g. Mass.)
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> | An understanding of the relationship between religion and both the prescription and use of the death penalty in early America is, I believe, crucial to finding answers to the question I am investigating. A number of the nascent colonies put great emphasis on God and the Bible and this was reflected in their laws, as will be shown. As noted earlier and as I will describe in detail here, the gradual dilution of religious ideals and diverging beliefs may have been an important factor leading to abolitionist movements.
One of the key purposes of the Christian faith as it relates to the capital punishment seems to have been its fundamental use in justifying the use of the death penalty. The 'Capital Laws' section of the 'Massachusetts Body of Liberties' is a clear example of this - each capital crime is accompanied by one or more references to the text of the Bible. The Massachusetts Bay Colony was perhaps unique in that it 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 and characterized by more uneven distribution of property. However, though other colonies were perhaps not quite as fervently driven by religious beliefs, their early laws nonetheless reflected the paramountcy of faith, much more so then than in the present day. For instance, the Lawes Divine, Morall and Martiall of Virginia is entitled with, opens with, and is peppered throughout with religious references. The 'Almightie God' is essentially made out to be the fount of all justice, with offences such as blasphemy featuring prominently at the beginning of the text, punishable by death.
In the early period, religion also played a key role when it came to the executions themselves. Up until 1830 when Connecticut banned public executions, it appears that executions were carried out in public in all colonies (later states) and when it came to the actual 'ceremony' of hanging ministers were, during the early period, often in the limelight. Steelwater describes ministers in the Puritan hierarchy, for example, as "the masters of law, of innocence and guilt".
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Utilitarianism and Philosophy
- Cesare Beccaria's pervading influence
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| 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" |
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| 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" |
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| META FILEATTACHMENT | attachment="Steelwater_Title_Page.pdf" attr="" comment="Steelwater, The Hangman's Knot (2003)" date="1258519980" name="Steelwater_Title_Page.pdf" path="Steelwater_Title_Page.pdf" size="793705" stream="Steelwater_Title_Page.pdf" user="Main.AngelaChen" version="1" |
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| META FILEATTACHMENT | attachment="Beccaria_Title_Page.pdf" attr="" comment="Chapter 28 from Beccaria, On Crimes and Punishments and Other Writings (first published 1764), edited by Richard Bellamy" date="1258521972" name="Beccaria_Title_Page.pdf" path="Beccaria_Title_Page.pdf" size="2172624" stream="Beccaria_Title_Page.pdf" user="Main.AngelaChen" version="1" |
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| META FILEATTACHMENT | attachment="Newgate_Calendar_Volume_2.pdf" attr="" comment="The Newgate Calendar was first published under that name in 1774. This version dates from 1926 - there is an earlier version available at http://www.archive.org/stream/newcompletenewga01jackiala#page/n1/mode/2up (see page 362) - unfortunately the file saved as a PDF is too large to upload" date="1259168393" name="Newgate_Calendar_Volume_2.pdf" path="Newgate Calendar Volume 2.pdf" size="2639932" stream="Newgate Calendar Volume 2.pdf" user="Main.AngelaChen" version="1" |
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| META FILEATTACHMENT | attachment="Capital_Laws.pdf" attr="" comment="Extract from the 'Massachusetts Body of Liberties' (1641)" date="1259182461" name="Capital_Laws.pdf" path="Capital Laws.pdf" size="667956" stream="Capital Laws.pdf" user="Main.AngelaChen" version="1" |
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| META FILEATTACHMENT | attachment="Lawes_Divine,_Morall_and_Martiall.pdf" attr="" comment="Lawes Divine, Morall and Martiall, Virginia (1611)" date="1259183734" name="Lawes_Divine,_Morall_and_Martiall.pdf" path="Lawes Divine, Morall and Martiall.pdf" size="551885" stream="Lawes Divine, Morall and Martiall.pdf" user="Main.AngelaChen" version="1" |
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