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-- AngelaChen - 08 Nov 2009 | | | Influences from England and the Continent | |
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< | "American criminal law...took its shape directly from English criminal law of the sixteenth, seventeenth and eighteenth centuries." As such, it is impossible to understand regulations of capital punishment in early America without first having some idea of what the equivalent regulations were in England.
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> | "American criminal law...took its shape directly from English criminal law of the sixteenth, seventeenth and eighteenth centuries." It is therefore difficult to understand regulations of capital punishment in early America without first having some idea of what the equivalent regulations were in England. | | | 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 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).
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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 (even if only 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. As such, 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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< | 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. | >
> | An understanding of the relationship between religion and both the prescription and use of the death penalty in early America is 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. | | | | |
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< | 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. | >
> | One of the key purposes of the Christian faith as it relates to the capital punishment was its fundamental use in bolstering the legitimacy 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 even 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, for a significant part 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. | | | | |
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< | 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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> | For much of the period relevant to this paper, religion also played a key role when it came to the executions themselves. Up until 1830 when Connecticut banned public executions, it seems 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 earlier times, often in the limelight. Steelwater describes ministers in the Puritan hierarchy, for example, as "the masters of law, of innocence and guilt".
Note to self - things to write about in this section:
-Penitence
-Reduced role of ministers | | |
Utilitarianism and Philosophy | |
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> | In the context of abolition of capital punishment (at least for most common crimes), probably few had such a pervading force as the Italian philosopher and politician Cesare Beccaria. His text 'On Crimes and Punishments' (Chapter 28 of which is about the death penalty and hence relevant for current purposes) influenced society in Europe and America alike. Indeed, members of American society who appear to have been the 'abolitionists' of the time, made references to him in their own arguments and theories. Beccaria's writings on capital punishment are also noteworthy due to the emphasis placed on utilitarianism. Far from couching his exposition in religious terms or saturating them with obvious expressions of sympathy towards the sentenced, he devoted a large chunk of the chapter to - in his view - practical reasons why the death penalty should be abolished for all offences except treason. Inter alia, he suggested that perpetual penal servitude would be a more effective deterrent to crime, that witnessing executions was not a beneficial experience for the public, and that use of capital punishment reflected badly upon the state.
Thus, one begins to see some of the developments which ultimately led to the seeds of the pro-abolitionist movement in America. Perhaps the best way to elaborate upon and track these developments is to shed light upon the key reasons why the death penalty was believed to be desirable, and then show how these reasons became less persuasive over time and thus started to garner less support especially amongst an active and influential sector of the upper class.
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- Cesare Beccaria's pervading influence
- The rise of abolition in America and the thinkers behind it (e.g. Rush, Livingston, Jefferson)
- Fading utility of capital punishment as a widely applied sentence; subsequent narrowing of range of crimes for which death penalty was prescribed
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