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1 - The Death Penalty

From Draconian Legal Codes to the Enlightenment

Published online by Cambridge University Press:  01 December 2022

John Bessler
University of Baltimore


This chapter notes how ancient societies used capital punishment, highlighting methods of execution and various legal codes (e.g., Draco's Code and the Code of Hammurabi) authorizing executions. The chapter discusses the "divine right of kings," corporal punishments used in prior centuries, and the lex talionis doctrine. It also highlights how punishment practices were tied to religious and societial beliefs, including interpretation of religious texts. The chapter traces the change in the law from the Dark Ages to the Enlightenment, taking note of how judicial torture--a practice associated with contintental European civil law systems--was outlawed in certain locales in the eighteenth century even as harsh systems of punishment (e.g., the English "Bloody Code") persisted. The chapter also describes the Enlightenment thinkers--John Bellers, George Fox, William Penn, Voltaire, Montesquieu, Frederick II, Cesare Beccaria, and William Blackstone--who critiqued torture and capital punishment or called for the death penalty's abolition or curtailment. The chapter describes the death penalty's abolition in Tuscany (1786) and Austria (1787) and how the Enlightenment shaped the law.

The Death Penalty's Denial of Fundamental Human Rights
International Law, State Practice, and the Emerging Abolitionist Norm
, pp. 31 - 70
Publisher: Cambridge University Press
Print publication year: 2022

1.1 Draconian Punishments in the World’s Early Legal Codes

Societies have used capital punishment, in one form or another, since the beginning of recorded human history.1 The Bible’s Old and New Testaments contain references to it,2 and anthropologists have documented prehistoric cave drawings depicting executions.3 At Cingle de la Mola Remigia, on Spain’s eastern coast, four cave paintings dating from 6500 BC show what a scholar describes as “organized killings,” with one showing a man lying down, his arms and legs bound with rope, and his body riddled with arrows, as seventeen men jubilantly raise their bows.4 In ancient times, through the Dark Ages and the Renaissance, and from the Enlightenment to the modern era, societies have executed people in myriad ways.5 Methods have included blowing from a cannon’s mouth, boiling in oil, breaking on the wheel, burning at the stake, burying alive, crucifixion, crushing beneath wheels or the feet of animals, disemboweling while alive, drawing and quartering, drowning, flaying alive, the garrote, hanging, impaling, keelhauling, piercing with javelins, pushing off of cliffs, sawing in half, scaphism, starvation, stoning to death, and throwing to wild beasts.6 The Codes of Ur-Nammu and Hammurabi, two ancient Sumerian texts, made death the punishment for many crimes,7 as did Draco’s Code, the fourteenth-century BC Hittite Code, Rome’s Twelve Tables, the Theodosian and Justinian Codes, and other ancient laws.8

In early societies, barbaric and severe punishments were meted out for sin and transgressions against tyrants and iron-fisted kings and queens. “In Ancient Greece, around the sixth century B.C.E.,” one source notes, “Phalaris, the tyrant of Acragas, commissioned Perillos of Athens to create a new execution device for criminals.” “The result was the brazen bull, where a criminal would be shut inside a hollow brass bull sculpture, which would be heated to extreme temperatures to roast the criminal inside,” that source observes, adding of the particular cruelty associated with that day and age: “Being the tyrant that he was, Phalaris tested the bull on Perillos.”9 Under Rome’s ancient doctrine of patria potestas,10 fathers had immense authority and could, if desired, even order the deaths of their own family members.11 “Under the patria potestas,” one book recounts, “a Roman father had absolute power over his family. He could sell them as slaves; he could make them work in his fields even in chains; he could punish as he liked and could even inflict the death penalty.”12 In the Latin Codex Theodosianus, or Code of Theodosius (AD 438), the first collection of Roman laws in the Christian era, scores of crimes – approximately 120 – were punishable by death.13 Executions were thus carried out for a wide variety of acts, including religious transgressions such as blasphemy and heresy.14

In prior centuries, the subjects of rulers and kings were tortured and put to death for treason and violent and nonviolent crimes alike. Emperor Leo V ordered the killing of more than 100,000 Paulician heretics,15 and as many as 72,000 individuals were executed during Henry VIII’s reign from 1509 to 1547.16 Two of Henry VIII’s own wives – Anne Boleyn and Catherine Howard – were executed on the orders of England’s volatile and blood-thirsty monarch.17 With legal codes drawn from religious texts, sins – breaches of biblical commands – were commonly punishable by death or through corporal or other shaming punishments. Corporal punishments included branding for theft, ear-boring for vagabonds, caning or flagellation for disciplinary infractions, the wearing of a scarlet letter for adultery, and the use of a “neck violin” (or “shrew’s fiddle”) to torment an offender and the wearer of it. “The handle of the neck violin,” the Dictionary of Torture (2014) notes, “was used to drag the man out in public while a cudgel was used to bash his head at the same time.”18 The pillory – as Curious Punishments of Bygone Days (1896) explains – was also used for many offenses.19 Puritans equated crime with sin, using the Bible to justify executions.20 In the Massachusetts Body of Liberties (1641), an early colonial legal code drafted by Nathaniel Ward, a Puritan minister and lawyer, the prohibition of blasphemy ominously proclaimed: “If any man shall Blaspheme the name of God, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death.”21

The “divine right of kings” and the Ten Commandments were first and foremost on the minds of sixteenth-, seventeenth-, and eighteenth-century lawmakers, monarchs, and legal commentators.22 Biblical passages and a commandment of the laws of Moses, variously translated as “thou shall not murder” or “thou shall not kill,” were invoked to put people to death, with the Roman Catholic Church once officially endorsing the death penalty.23 Monarchs specifically reserved the right to order killings. For example, in the True Law of Free Monarchies (1598), King James VI of Scotland articulated his own self-serving views on absolute royal prerogative. “By the Law of Nature,” he contended, “the King becomes a naturall Father to all his Lieges at his Coronation.” “Kings are called Gods by the propheticall King David, because they sit upon God his Throne in the earth,” he declared.24 While England’s Glorious Revolution of 1688–89 spawned the Declaration of Rights and then the statutory English Bill of Rights (1689), establishing that kings did not possess absolute power, in the early 1600s, James I (the English monarch also known as King James VI of Scotland) made this assertion of absolute power to the Lords and Commons at Whitehall: “The State of the monarchy is the supremest thing upon earth: For Kings are not only God’s lieutenants upon earth, and sit upon God’s throne, by even by God himself they are called Gods.” The English Declaration of Rights, condemning James II and his “evil counsellors, judges and ministers” for subverting “the laws and liberties of this kingdom,” put clear limits on monarchical power and set out the rights of Parliament and the English people.25

In prior centuries, kings and queens routinely invoked God, religious texts, and their hereditary power to justify tyrannical acts, including the issuance of torture warrants, the infliction of draconian corporal punishments, and the carrying out of executions.26 In The Theory of the Divine Right of Kings, John Neville Figgis wrote that “the Divine Right of Kings in its completest form involves the following propositions: (1) Monarchy is a divinely ordained institution. (2) Hereditary right is indefeasible … (3) Kings are accountable to God alone.” In a University of Cambridge speech in King Charles II’s time,27 the “divine right of kings” was described in 1681 as follows: “We will still believe and maintain that our Kings derive not their title from the people but from God; that to him only they are accountable; that it belongs not to subjects, either to create or censure, but to honour and obey their sovereign, who comes to be so by a fundamental hereditary right of succession, which no religion, no law, no fault or forfeiture can alter or diminish.”28 Sometimes, real or perceived threats (as Queen Elizabeth I of England viewed Mary, Queen of Scots) would be eliminated through execution, with monarchs – from Louis XVI in France to Nicholas II of Russia to Faisal II of Iraq – often meeting their end on a scaffold or through an assassination or firing squad.29

With religion and law so closely intertwined in societies and legal traditions, Benedict Carpzov (1595–1666), a privy councilor and professor at Leipzig, wrote extensively about the criminal law.30 He did so when, in Europe, “witches” were still being hunted, tortured, and executed, with tens of thousands of hangings or burnings at the stake taking place.31 Having read the Bible cover to cover fifty-three times, the devout Carpzov viewed the Mosaic law – the Old Testament’s jus divinum – as “having precedence over the law of the land.”32 Persecuted Quakers – arrested, convicted, and imprisoned, and sometimes executed33 – had, in line with their peace-loving philosophy, gone against the grain and questioned the death penalty’s use in the seventeenth century.34 But the tradition of using executions to punish traitors, heretics, vice, and a wide assortment of criminal acts was then firmly entrenched, as was the civil law’s use of judicial torture in continental Europe. Only over time – thanks to the Enlightenment – would fierce societal debates emerge about torture, the death penalty, corporal punishment, and methods of execution.35 Voltaire himself endowed a prize of 50 louis d’or for the best contribution on penal reform composed in the spirit of Beccaria’s Dei delitti e delle pene, with Condorcet, in his Reflexions sur la jurisprudence criminelle (1775), denouncing “punishments by the wheel or by fire” and “torture and other useless cruelties.”36

1.2 The Ancien Régime Versus the Enlightenment

The anti-death penalty and anti-torture movements have centuries-old origins, with some opposition to executions aired publicly in the seventeenth century, including by Quakers such as John Bellers, and some privately by those fearful of the Inquisition and persecution. “From the philosophical viewpoint,” Carl Ludwig von Bar notes in A History of Continental Criminal Law, “attacks were made upon capital punishment as early as Carpzov.”37 “Nothing is as cruel and inhumane,” Benedict Carpzov opined in the seventeenth century, “as by torture to mangle humans created in God’s image.”38 “During the first half of the eighteenth century, the extortion of confessions in criminal trials within and without the Inquisition gradually waned,” Günter Frankenberg, a German law professor, writes of how torture (known as the painful question) began to fall out of favor. Although in 1720 Prussia’s Frederick I permitted torture subject to royal review, one of his more enlightened successors, Frederick II (“Frederick the Great”), decided to abolish torture in 1740 (within a month of his ascension to the throne) except for “especially serious cases.” In 1754, Frederick the Great went even further, ordering a complete cessation of judicial torture.39 As the Enlightenment matured, the use of torture was subjected to even more intense scrutiny, with Beccaria and others articulating why torture should not be put to use.40 “In the eighteenth and nineteenth centuries,” Tobias Kelly of the University of Edinburgh stresses, noting Voltaire and Beccaria’s advocacy against the practice of state authorities intentionally inflicting severe physical pain, “the campaign against torture was used to mark opposition to the ancien régime in the name of the values of enlightened liberalism.”41

Spurred on by the writings of Montesquieu, Voltaire, Beccaria, and others, critiques of torture and capital punishment ripened and drove law reform.42 Both Montesquieu and Beccaria loathed unnecessary and disproportionate punishments,43 and Beccaria – in On Crimes and Punishments – vigorously spoke out against torture while simultaneously questioning the need for executions. Beccaria contended that torture is unlikely to produce truthful testimony and runs contrary to the long-established principle that no one innocent be punished. “No man,” he wrote, “can be considered guilty before the judge has reached a verdict, nor can society deprive him of public protection until it has been established that he has violated the pacts that granted him such protection.” Beccaria expressed the view that “a man judged infamous by the law” should not suffer “the dislocation of his bones.” Although Beccaria’s ideas on torture “were not new,” Dutch lawyer Chris Ingelse writes, Beccaria’s book made “persuasive arguments” and “achieved great success.” In short, the law changed in various locales to eliminate the use of torture – what the French called la question. By 1830, Ingelse observes, “torture had been abolished as a means of law enforcement in all European States” and “[m]easures against torture were also taken in the colonies.”44

While Beccaria and his fellow Milanese associate, Pietro Verri, sought to abolish torture, a practice international law now explicitly prohibits, only limited reform on that front had taken place before Beccaria’s meteoric rise to prominence after the publication of Dei delitti e delle pene (1764). Aside from the 1740 and 1754 actions of Prussian king Frederick II, who called judicial torture “gruesome” and “an uncertain means to discover the truth,” in Scandinavia, Sweden had outlawed torture for ordinary crimes in 1734, not doing so for all purposes until 1772. Holy Roman Empress Maria Theresa of Austria (1717–80), the ruler of the Habsburg Empire, was slower to act, abolishing torture only in 1776, mainly at the urging of Austrian law professor Joseph von Sonnenfels. The son of a rabbi who converted to Catholicism, Sonnenfels had condemned both capital and corporal punishments in 1767, later penning a report on the abolition of torture in 1775.45 Across the Atlantic, eighteenth-century Americans also vocalized their opposition to torture. In Virginia’s ratification debate, one delegate, George Nicholas, put it this way: “If we had no security against torture but our declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.” In response, George Mason – a fellow Virginian – replied that “the worthy gentleman was mistaken in his assertion that the bill of rights did not prohibit torture,” saying a “clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.”46

Long before the Enlightenment, medieval executioners got their grisly on-the-job training wielding axes and swords, with the title of royal executioner often passing from father to son in places like France, although some European offenders were then still being burned at the stake.47 A 1582 Saxon criminal ordinance required that heretics “must suffer capital punishment by fire,” although Carpzov – wrestling with the proper method of execution – considered “capital punishment by the sword sufficient.”48 With sodomy and bestiality then considered capital crimes, and with livestock and other animals – horses, pigs, cows, rats, or weevils – put on trial and executed in the Middle Ages,49 Carpzov declared in his influential Practica Nova Rerum Criminalium (1635): “if for any cause the sodomite shall be punished only with the sword, then the beast participant of his crime shall not be burned, but shall be struck dead and buried by the knacker or field-master (Caviller oder Feldmeister).”50 Cultural traditions in Asia, Europe, or elsewhere dictated both the number of capital offenses and the modes of execution. “The earliest methods of execution,” one source notes, “were crucifixion, drowning, beating to death, burning to death and impalement, and later, in the tenth century AD, hanging became the usual method of execution in Britain.”51 In time, English executioners – having botched many executions – attempted to perfect the art of hanging by performing experiments, calculating the height of the scaffold and the optimal width and length of rope to deploy for the noose.52 “The early system of executing criminals in South Africa,” one source observes of that locale, “consisted not only of the ‘traditional’ methods of execution such as hanging, but also included such practices as slow strangulation and disembow[e]lment.”53 “In the Mongol belief system,” historian Marie Favereau writes, “bones symbolized descent through the male line, so Mongol executions typically were carried out by strangulation or another method that left the victim’s bones intact.”54

European and other societies once universally embraced capital punishment, though pardons and commutations – instances of forgiveness or mercy – demonstrated and amplified the prerogative and power of tyrants and monarchs to single-handedly make life-or-death decisions.55 Whenever the Roman or British Empire – or some other royal dynasty – made a new conquest, the death penalty laws of the time could be expected to be exported to the new province or colony. Thus, when Europeans colonized the New World, transatlantic migrants – whether steeped in the continental civil law tradition or the English common law – brought along their habits, legal customs, and preferred criminal procedures. Not surprisingly, death penalty regimes – whether imposed from afar or adopted or adapted locally – would then be put to use in those colonial locales. “As in British colonies,” academic Andrew Novak writes in The Death Penalty in Africa, “the death penalty in French Africa was a dramatic show of the power of the colonial state.”56 While indigenous people, including Native Americans in the Americas, employed varied forms of capital punishment,57 “they were often” – as death penalty expert Richard Dieter notes – “the victims of this practice, as colonizers subjugated native tribes.”58 The first execution of a European settler on American soil happened in 1608 when Captain George Kendall was put to death in Virginia for being a Spanish spy.59 But archaeological sites – among them, Indian burial mounds and former Aztec and Inca domains – contain clear forensic evidence of violent deaths or human sacrifices that long pre-date that execution.60

In Judeo-Christian societies, proponents of executions frequently pointed to specific biblical verses to justify them,61 although not all Christians or religious leaders favored the death penalty’s use in specific cases. Christians were often persecuted, brutalized, and victimized by Roman rulers and executions; some early theologians chose to distance themselves from state-sanctioned killing, asserting that it violated ethical precepts; and rabbinic texts placed severe restrictions on the death penalty’s use.62 In the fourth century, for example, John Chrysostom (347–407) – Archbishop of Constantinople – opposed capital punishment for heresy, with Pope Nicholas I – in the ninth century – observing: “You should save from death not only the innocent but also criminals, because Christ has saved you from the death of the soul.”63 One Puritan reformer, Gerrard Winstanley, later offered this similar message: “It is not for one creature called man to kill another, for this is abominable to the Spirit, and it is the curse which hath made the Creation to groan under bondage; for if I kill you I am a murderer, if a third come, and hang or kill me for murdering you, he is a murderer of me; and so by the government of the first Adam, murder hath been called Justice when it is but the curse.”64 According to an illustrative summary of rabbinic teachings: “One section of the Mishnah has this to say about capital punishment: ‘The Sanhedrin that executes one person in seven years is called cruel.’ Rabbi El’azar ben Azariah (c. AD 100) said, ‘One in seventy years.’”65

Although capital punishment has long had its individual skeptics and detractors, the death penalty, through the centuries, stubbornly persisted in the face of such critiques. A Buddhist king, Amandagamani, in what is now Sri Lanka, abolished the death penalty during his reign in the first century AD, but Sri Lanka (formerly known as Ceylon) – throughout its history – witnessed many death sentences and executions despite periods of de facto abolition.66 In AD 724, Japan’s Emperor Shomu, another Buddhist, also forbade executions, as did other early Buddhist rulers, such as King Açoka, in India. In prior centuries, though, countless state-sponsored killings took place in Asia – including in India, China, and Japan – and, though much less frequently in recent times, they still take place in the eastern democracies of India and Japan up to the present day.67 Although retentionist countries now, China and Japan both in fact witnessed periods of abolition centuries ago, with Chinese Emperor Xuanzong abolishing the death penalty in AD 747 for a ten-year period and Japanese emperor Saga Tennô abolishing capital punishment in AD 818, initiating what became a more than 300-year period of abolition.68 Innumerable executions have taken place in China across dynasties and political leaders, with one scholar, Jeremy Monthly, observing – in a figure reminiscent of the barbarity of the English “Bloody Code” – that “there were well over one hundred crimes legally punishable by death” in centuries-old Chinese imperial codes.69

The Massachusetts Body of Liberties (1641) provides a case study of how cruelty was ostensibly reprobated, but state-sanctioned killing nonetheless persisted and continued to be embraced. That code of laws publicly declared, in general terms, that “[f]or bodily punishments we allow amongst us none that are inhumane, barbarous or cruel.”70 Yet that same legal code – clearly not treating executions as so qualifying – authorized the death penalty’s use for these twelve crimes (eleven based explicitly on Old Testament verses): (1) adultery, (2) bestiality, (3) blasphemy, (4) conspiracy and rebellion, (5) false witness in capital cases, (6) idolatry, (7) manslaughter, (8) man stealing, (9) murder, (10) poisoning, (11) sodomy, and (12) witchcraft.71 The Book of the General Lawes and Libertyes Concerning the Inhabitants of Massachusetts Collected Out of the Records of the General Court for the Several Years Wherein They Were Made and Established (1648) similarly prohibited “barbarous” and “cruel” punishments, but its criminal law provisions – relying upon Mosaic law – also authorized executions and nonlethal corporal punishments, such as whipping.72 The inability or unwillingness of seventeenth-century drafters of legal codes to conceptualize death sentences or grotesque bodily punishments as torturous or cruel represents a major deficiency – a kind of blind spot – in Enlightenment thought. The continuation of slavery and the transatlantic slave trade shows just how flawed – and bigoted, shameful, and reprehensible – Enlightenment thought could be in the minds of some in that era.

In Europe, where so much scientific inquiry and intellectual activity took place during the Enlightenment, executions – whether dictated by statutes or custom – were once all too common. The English “Bloody Code” – in an effort to terrorize the populace – made scores of crimes, even small thefts, punishable by death;73 the frequency of German executions is documented in Rituals of Retribution, a book by historian Richard Evans;74 the Italian peninsula saw innumerable state-sanctioned killings, with more than 3,200 executions recorded in Milan alone between 1471 and 1763;75 and the French, too, frequently used executions, whether by breaking on the wheel, drawing and quartering, burning at the stake, or – after its invention – through the guillotine.76 While Louis Michel le Peletier proposed a criminal code to France’s National Constituent Assembly in 1791 to abolish all “phony offenses created by superstition,” that country’s Penal Code of 1810 – a Napoleonic Code – made thirty-six crimes punishable by death. The family dynasties of executioners thus kept busy putting people to death. “From the early thirteenth century through the reformation of the penal code in 1791,” Sonya Vatomsky writes in the Smithsonian magazine, “the executioners of France lived a life apart, their clothing marked and their families ostracized.” “All together,” Vatomsky notes, “Charles-Henri Sanson executed a total of 2,918 people during his appointment, and oversaw the very first execution by guillotine.” Charles-Henri Sanson (1739–1806), France’s Royal Executioner and the High Executioner of the First French Republic, followed in the footsteps of his great-grandfather, Charles Sanson (1658–95), who’d been appointed to the position in 1688,77 the same year that England’s Glorious Revolution ushered in the English prohibitions against “excessive” bail and fines and “cruel and unusual punishments.”78

The law’s history holds up a mirror to life in prior times. And throughout the law’s long history, death sentences – linked to societal custom or the interpretation of religious texts – were imposed for a dizzying array of crimes until the modern era. The English “Bloody Code” – the moniker given to the criminal-law regime in England from 1688 to 1815 – led to innumerable individuals being executed for murder, theft, and a wide array of other offenses, with severity in punishment becoming the coin of the realm.79 The number of capital offenses changed over time from one monarch or Parliament to the next, but both heinous and relatively minor crimes – even nonviolent ones such as small-scale property offenses – were often met with death sentences. “[P]oor men and women were sometimes executed for stealing bread,” one history observes.80 Even private, purely consensual acts (e.g. of homosexuality) were prosecuted and punished with death or imprisonment. “In 1656,” the Supreme Court of Connecticut emphasized in State v. Santiago (2015) in examining the history while declaring that state’s death penalty unconstitutional, “the New Haven colony recognized twenty-three different capital crimes.” As that state supreme court, in its landmark ruling, observed of that time and place in the seventeenth century: “An individual could be executed for conduct offending the colony’s strict religious sensibilities (e.g., idolatry, witchcraft, blasphemy, cursing or smiting a parent, defiance by a rebellious son, profaning the Sabbath); for behavior deemed to be sexually deviant (adultery, masturbation, bestiality, heterosexual and homosexual sodomy, incest); for repeated incidents of burglary or robbery; as well as for rape, rebellion, and killing of various sorts.”81

1.3 The Way Things Were: lex talionis, the Old Testament, and Barbaric Customs

Huge crowds attended public executions at which murderers, rapists, burglars, counterfeiters, forgers, highway robbers, shoplifters, and thieves were hanged.82 In a time still dominated by a lex talionis approach, children older than the age of 7 were eligible to be put to death for capital offenses.83 Applications of the lex talionis doctrine – however perverted – thus prevailed in prior centuries. “In the seventeenth century,” one source notes of the law as it once existed in Anglo-American life, “the dominant principles of punishment were said to be: 1. lex talionis is the highest justice according to the Law of God; 2. the legislator should endeavor to frighten prospective criminals by the most severe penalties; and 3. the legislator shall seek to appease the Deity by the most severe penalties.”84 “As late as 1734,” yet another source recounts, recalling the death penalty’s once ubiquitous global reach in law codes, “the Swedish Code, ‘Sveriges Rikes Lag’, carried the death penalty for 68 offenses.”85 “In its pure formulation,” it has been said of the life-for-life, hand-for-hand philosophy so prevalent in the 1600s and 1700s, “the lex talionis, or law of retaliation, requires that what was done to the victim be done to the criminal.”86 Notably, the lex talionis concept – as initially conceived in legal codes – actually also served to limit the severity of punishments. As Southern Methodist University law professor Meghan Ryan summarizes the literature: “While this early form of retribution seems harsh, some scholars have explained that, compared to the unlimited punishments that preceded the articulation of lex talionis in the Hammurabi Code, this was a humane innovation in that it actually served as the first legal limitation on punishment.”87

The lex talionis approach utilized by seventeenth- and eighteenth-century legal systems had deep roots, and it would not be uprooted easily – or without extensive agitation and struggle. Indeed, the close historical relationship between the interpretation of religious texts and capital punishment is especially notable in sixteenth- and seventeenth-century life, though secular, Enlightenment-era concepts and rationales for punishment (e.g. proportionality and deterrence) attracted greater prominence in the eighteenth century. With the eye-for-an-eye lex talionis doctrine still maintaining its popularity in the seventeenth and eighteenth centuries, Old Testament verses commonly provided the underlying authority for punishments.88 Then-prevailing interpretations of Deuteronomy, Exodus, or Leviticus could – quite literally – send someone to his or her death,89 just as the now-defunct doctrine of benefit of clergy (originally precluding the trial of clergymen in secular courts and later precluding the execution of first-time offenders able to memorize and recite lines of scripture) could save someone from execution.90 Psalm 51, which begins, “Have mercy on me, O God,” was the standard text and came to be called the “neck verse” because reciting it could save one from being hanged.91 In Old Testament verses, murder and adultery were punishable by death (Numbers 35:16, 18, 21, 31; Leviticus 20:10; 24:17), but so too were rape (Deuteronomy 22:25), incest (Exodus 22:19; Leviticus 20:11, 14, 16), blasphemy (Leviticus 24:14, 16, 23), witchcraft (Exodus 22:18; Leviticus 20:27; Deuteronomy 13:5; 18:20), idolatry (Leviticus 20:2, Deuteronomy 13:6–18; 17:2–7), striking a parent (Exodus 21:15, 17), and breaking the Sabbath (Exodus 31:14; 35:2; Numbers 15:32–36).92 Genesis 9:6 – “Whoso sheddeth man’s blood, by man shall his blood be shed” – was a popular biblical verse often invoked to justify executions.93

Throughout the world, death sentences were imposed in prior centuries not only to punish sin, but also to quash political dissent and slave rebellions, to kill minorities, immigrants, or foreigners, to punish felons and less serious offenders, and – at times – for purely superstitious reasons.94 And the horrific means by which people were put to death systematically terrorized individuals or whole communities, including the downtrodden and the poor, within the societies in which executions were so prevalent. “[E]xecutions became more elaborate exhibitions of violence,” one source notes of their use in the Middle Ages,95 with Niccolò Machiavelli, in Il Principe (The Prince), advising that rulers resort to cruel punishments, including executions, to consolidate and maintain power.96 In England, those convicted of high treason – betraying the king – or “petty treason” (i.e. a wife murdering her husband) were burned at the stake, the same gruesome punishment reserved for heretics. The English people did not abolish burning at the stake until 1790,97 just a year before the ratification of the US Bill of Rights, with England – now an execution-free country – once carrying out public executions by hanging, beheading with axes, and drawing and quartering.98 “In China,” one criminology text observes, “convicted offenders were sometimes sawn in half or flayed while alive, or suffered ‘death by a thousand cuts.’”99 The horrendous form of execution known in Chinese as lingchi chusi, whereby pieces of an offender’s body were cut off one by one, translates as “death by slicing” or “the lingering death.”100 ln some locales, criminals were tossed into the ocean in sacks with venomous animals as the chosen mode of execution.101 “By the Roman law,” the Minnesota Supreme Court reported in Minnesota v. Borgstrom (1897), “a parricide was punished by being sewed up in a leather sack with a live dog, a cock, a viper and an ape, and cast into the sea.”102

Deeply held religious and societal beliefs about criminals and punishment – even strange superstitions – undeniably drove the severe and tyrannically cruel response to dissent or crime in prior centuries. Before the Enlightenment and the world’s entry into the modern era, ecclesiastical or royal courts, as well as military commanders or feudal lords, adhered to bizarre rituals, including duels or combat to the death, frequently ordering executions in accord with traditions passed down from one generation to the next.103 For example, in medieval Europe and other primitive societies, trial by battle and trial by ordeal were common.104 “Prior to the Lateran Council of 1215,” an English barrister, Danny Friedman, writes, “trials were conducted in such a way as to obviate formal inquiry into the factual merits of the case and relied on ordeals conducted in the presence of a priest.” But trial by ordeal ended soon after 1215 because the Lateran Council, presided over by Pope Innocent III, forbade priests from participating in ordeals, with confessions introduced as a substitute. “In England, where trial by ordeal was prohibited by statute in 1219,” Friedman explains of that country’s abandonment of ordeal as a method of proof, “the system was replaced with trial by jury.” Circumstantial evidence was sufficient to convict under English law and there were no requirements for eyewitness evidence or confessions. In continental Europe, though, ordeals were replaced by an inquisitorial system. That system made circumstantial evidence inadmissible on the question of guilt or innocence, with torture becoming a common feature of judicial procedure because – as Friedman explains – “under the civil law inquisition, guilt of the most serious crimes carrying the death penalty could only be proved by the evidence of at least two direct eyewitnesses to the crime, or by the accused’s own confession.”105

Before the professionalization of public prosecution systems, private prosecutions, whereby the victim of crime or a murder victim’s husband, wife, or next of kin would prosecute the offender, were also routine.106 A victim or the victim’s spouse or next of kin had the right to bring an action known as an appeal against a criminal for murder or another felony, and the motive was often revenge. As one academic, David Siepp, writes of the early common law approach: “Lawyers named vengeance as the motive for bringing appeals of felony. Year Books told that in some earlier period the widow and children of the slain man personally dragged the killer to the gallows. They recorded that a victim of rape personally castrated and blinded her wrongdoer.” In his Commentaries on the Laws of England (1769), Sir William Blackstone – using a common spelling convention of that time – specifically noted the “antient usage” that “all the relations of the slain should drag” the condemned “to the place of execution.”107 Vestiges of the Anglo-American system of private prosecution still exist to this day, with American states such as Kansas and Texas currently allowing murder victims’ families to hire a private lawyer to assist the public prosecutor in capital cases.108

With religious, cultural, or societal traditions fueling executions and corporal punishments, habit more than logic determined what punishments were used. In Islamic states, draconian Shari’a law – predicated on the Qur’an – was utilized (and in some cases, regrettably still is in some African and Middle Eastern locales)109 to impose death sentences, whether for apostasy, heresy, or other offenses. Adulterers – by ritualistic custom – were brutally stoned to death, with women placed in excavated holes before being subjected to lapidation.110 Other traditional punishments under Islamic law include beheadings with swords, death by drowning or impaling, eye-gouging, flogging, or amputation of limbs. The latter punishment involves the removal of the right hand for theft and, in “cross amputations,” the removal of the right hand and left foot for highway robbery (with six Bedouin tribe members, aged 22 to 29, so sentenced in 2011).111 In Riyadh, Saudi Arabia’s Deera Square – colloquially known as “Chop Chop Square” – public beheadings of criminals still occur after Friday prayers, with decapitated bodies still put on display in Saudi Arabia.112 In the thirteen death penalty retentionist countries that have incorporated Shari’a law into their criminal law (i.e. Afghanistan, Bahrain, Iran, Jordan, Kuwait, Libya, Nigeria (twelve northern states), Pakistan, Saudi Arabia, Somalia, Sudan, United Arab Emirates, and Yemen), victim–perpetrator reconciliation agreements are used that, in some cases, remove convicted murderers from the threat of execution only after the payment of compensation (diya). Diya, designed to prevent blood feuds in tribal societies, is paid after a murder conviction in order to avoid retaliation ordered by Shari’a courts as qisas (retribution).113

In predominantly Judeo-Christian cultures, where Old Testament passages were interpreted to dictate the imposition of death sentences, widely attended public executions became civil and religious displays of authority and state power. Spectators sometimes numbered into the tens of thousands.114 In a reflection of religion’s undeniable influence in shaping criminal justice practices, early English and American criminal indictments routinely alleged that murders were committed “at the instigation of the devil.”115 After death sentences were handed out, ministers, priests, or other religious leaders – along with prosecutors and local sheriffs – played central roles on execution day, preaching to their congregations about the ravages of sin and giving the condemned spiritual guidance.116 Printed broadsides, featuring “dying speeches” or relaying an offender’s last words on the scaffold, also conveyed religious messages.117 The Harvard Law School Library maintains a collection of nearly 600 English crime and execution broadsides, with one featured 1833 broadside titled “Execution of Six Men and One Woman the Mother of Nine Children.” Between 1735 and 1868 in England and Wales, more than 9,300 people were publicly executed in those locales.118 The Capital Punishment Amendment Act (1868) ended public executions in the United Kingdom, moving executions behind prison walls.119 In the United States, public executions were only gradually replaced by privately conducted executions in American states from the 1830s to the 1930s.120

1.4 The Enlightenment and Penal Reform

During the Enlightenment era, lawmakers and religious leaders, lawyers and philosophers, and various writers, including persecuted Quakers, began questioning the death penalty’s propriety, if not for all crimes, then at least for some. As William Schabas – a renowned international law and death penalty expert – notes of that era’s intellectual awakening on criminal justice: “Montesquieu, for example, called for limitation of the death penalty to murder, attempted murder, certain types of manslaughter and some offences against property, although he did not commit himself to full abolition.”121 Voltaire, who penned a popular commentary on Beccaria’s On Crimes and Punishments, likewise spoke out against executions for deserters and religious-oriented offenses.122 As Voltaire wrote: “It hath long since been observed, that a man after he is hanged is good for nothing, and that punishments invented for the good of society, ought to be useful to society. It is evident, that a score of stout robbers, condemned for life to some public work, would serve the state in their punishment, and that hanging them is a benefit to nobody but the executioner.”123 “Numerous Enlightenment figures,” historian Louis Masur explains, “addressed themselves to the problem of severe punishments.”124 From Quakers in England and Pennsylvania to Beccaria in Milan and from Voltaire and Lafayette in France to English reformers like Jeremy Bentham and Sir Samuel Romilly, many prominent Enlightenment voices were raised against capital punishment in one way or another.125

Such Enlightenment thought produced concrete actions. A few decades after Montesquieu, Voltaire, and Beccaria had critiqued the death penalty in their own particular styles, English Quakers – in the tradition of their ancestors – organized an anti-death penalty campaign in 1802. William Allen, a Quaker philanthropist, and Basil Montagu, a close friend of British politician and penal reformer Samuel Romilly, also founded a society in 1808 for diffusing information on the punishment of death. “The attitude of Quakers generally towards the punishment of death, except for murder in the highest degree, was hostile,” one source observes. “Humane individuals,” that source emphasizes, “hesitated to prosecute, especially for forgery; while juries seized upon every pretext to return verdicts of ‘Not guilty.’” “Reprieves,” it adds, “were frequent, for the lives of many were supplicated, and successfully; so that the death-penalty was commuted into transportation.” Elizabeth Fry, a Quaker woman who took it upon herself to care for prisoners, believed that capital punishment only “hardens the hearts of men” and “renders life insecure.”126 In early nineteenth-century England, property offenses such as counterfeiting and forgery were punishable by death, making hangings quite frequent spectacles. “From 1805 to 1818,” one report observes, “convicted forgers or counterfeiters represented almost one in three people executed in London and Middlesex, and one in five across England and Wales.”127

In the Western world, the Quakers – led in England by George Fox (1624–91), the charismatic founder of the Religious Society of Friends, and in Pennsylvania by the colony’s founder, William Penn (1644–1718) – actively sought milder punishments.128 In Penn’s “Great Law of 1682,” adultery, bigamy, incest, rape, and sodomy were all noncapital offenses, although the death penalty was authorized – as was then universally accepted – for premeditated murder.129 Pennsylvania’s first criminal code, in fact, set out a long list of offenses. But Pennsylvania’s colonial code prescribed the death penalty only for willful or premeditated murder, with the colony’s royal charter also making a second offense – treason – a capital crime. For many offenses, Penn favored long-term incarceration as an alternative to executions, with time spent behind bars said to allow the offender to “cogitate about his salvation, become reacquainted with his God, and do penance.”130

Another prominent Quaker, William Penn’s friend John Bellers (1654–1725), also opposed capital and corporal punishments with considerable vigor. In “Some Reasons Against Putting Felons to Death,” published in London in 1699 in his collection of essays, Bellers asserted that the “untimely Death” of felons was a “Stain … to Religion.” “If a Man had a Child, or near Relation, that should fall into a capital Crime,” Bellers wrote, “he would use all his interest to preserve his Life, how much soever he abhor’d his Fact, in hopes he might live to grow better, especially if he could have such a power of Confinement upon him, as might prevent his acting such Enormities for the future.” Citing biblical passages, Bellers saw the premature taking of an offender’s life as a “200 Pound loss out of the value of the Kingdom.” Instead, he favored an “industrious Education,” writing that “it would also very well agree with our State before God, when any fall into such Crimes compassionately to keep them from further Mischiefs, and save such to Repentance, rather than to destroy them by sudden Death.” “To make no difference between the Punishment of Theft and Murder,” he stressed, amounted to “a great deficiency in our present Law, and often times must melt the Heart of a Compassionate Judge, to hear their Shrieks and Cries, when he (as the Mouth of the Law) pronounceth the Sentence of Death upon such forlorn Creatures.”131 Bellers saw anger as “an enemy of the Soul” and, consequently, opposed executions and the then common punishments of whipping or “stripes.”132 In “Some Reasons Against Putting Felons to Death,” Bellers stressed: “How sincerely can we say the Lord’s Prayer, Forgive us our Trespasses, as we forgive them which Trespass against us, when for the loss, possible of less than 20 Shillings, we Prosecute a Man to Death?” “Would it not be more natural and agreeable with our Prayers,” Bellers argued, “to have Compassion on our deluded Fellow Creatures?”133

1.5 The Enlightened Trio: Montesquieu, Beccaria, and Voltaire

The Enlightenment produced a chorus of calls for penal reform. In The Spirit of the Laws (1748), Montesquieu – the French jurist with a University of Bordeaux law degree who’d administered the criminal law in Bordeaux’s Parlement – had taken stock of capital punishment’s grotesque severity. After traveling to Italy, Germany, and Austria and living abroad for two years in England, he wrote that in “moderate states … the head of even the lowest citizen is esteemed”; “he is deprived of his life,” Montesquieu asserted, “only when the homeland itself attacks it; and when the homeland attacks his life, it gives him every possible means of defending it.”134 “[A] good legislator,” he stressed, “will insist less on punishing crimes than on preventing them; he will apply himself more to giving mores than to inflicting punishments.”135 Montesquieu’s book reshaped readers’ views of the law, including on how best to curtail abuses of state power.136 Frequently invoked by Enlightenment thinkers, Montesquieu’s name shows up in four of The Federalist PapersNo. 9, No. 43, No. 47 and No. 78.137 In The Federalist No. 47, James Madison referred to “the celebrated” Montesquieu, calling him “[t]he oracle who is always consulted and cited” on the subject of separation of powers.138 In 1823, influenced by Montesquieu, Beccaria, and others, Madison himself wrote to a Kentuckian, G. F. H. Crockett, who opposed capital punishment: “I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it: tho’ I do not see the injustice of such punishments in one case at least.”139

In The Spirit of the Laws, Montesquieu expressed the view that “[p]enal laws must be avoided in the matter of religion.”140 He also worried aloud about “cruel punishments,” something the English and American colonists explicitly prohibited in their foundational legal texts.141 The English Bill of Rights of 1689 – adopted by the English Parliament after the Glorious Revolution of 1688–89 deposed James II, a Catholic, and brought William and Mary, two Protestants, to the throne142 – had already barred “excessive fines,” “excessive bail,” and “cruel and unusual punishments.” Designed by Parliament to check monarchical abuses decades before Montesquieu’s Spirit of the Laws first appeared, the English Bill of Rights later became a template for identical or very similar legal prohibitions, including in Virginia’s Declaration of Rights (1776), other revolutionary American state constitutions, and the US Constitution’s Eighth Amendment.143 In a section of his book, “On the just proportion between the penalties and the crime,” Montesquieu called for a more nuanced gradation of punishment, observing: “Among ourselves, it is a great ill that the same penalty is inflicted on the highway robber and on the one who robs and murders. For the public safety, it is evident that there must be some difference in the penalties.”144

Montesquieu, who lived through a time of intense religious-based violence and atrocities, thus raised serious questions – as did Voltaire – about the administration of French justice.145 Seeking a more enlightened approach, Montesquieu explained in another influential section of his book on “the nature of penalties” and “their proportion”: “It is the triumph of liberty when criminal laws draw each penalty from the particular nature of the crime. All arbitrariness ends; the penalty does not ensue from the legislator’s capriciousness but from the nature of the thing, and man does not do violence to man.”146 Despite seeking criminal law reform and recognizing the evil and ills of arbitrariness, Baron de Montesquieu – a product of the 1700s and from a noble and prosperous family who presided over the Tournelle, the Bordeaux Parlement’s criminal division that heard legal cases, supervised prisons, and administered punishments and torture – nonetheless saw a continued place for executions. “A citizen deserves death,” he wrote, “when he has violated security so far as to take or to attempt to take a life.” Yet, Montesquieu – whose earlier book, Persian Letters (1721), had made him a literary celebrity – actively explored alternatives to death sentences for some crimes, seeing no need for their indiscriminate use. “The death penalty is the remedy, as it were, for a sick society,” Montesquieu wrote, adding: “When one violates security with respect to goods there can be reasons for the penalty to be capital; but it would perhaps be preferable, and it would be more natural, if the penalty for crimes committed against the security of goods were punished by the loss of goods.”147

In prior centuries, ones that bear little resemblance to life in the twenty-first century, torture, death sentences, and severe bodily punishments were an accepted part of everyday life, although as the Enlightenment blossomed serious questions began to be raised as to the legitimacy or necessity of torturous practices, death sentences, and nonlethal corporal punishments. While Montesquieu famously critiqued France’s criminal law and procedure,148 and while Giuseppe Bencivenni Pelli – a Florentine aristocrat who later served as the director of the Uffizi Gallery – privately questioned the death penalty’s use in a manuscript written from 1760 to 1761,149 it was Cesare Beccaria, a young Milanese nobleman,150 who made the first comprehensive argument against the death penalty’s use for murder in his landmark treatise, Dei delitti e delle pene (1764).151 Educated in Parma and at the University of Pavia, where he got his law degree, Beccaria became an active member of the Academy of Fists, also known as the Academy of Fisticuffs or Academy of Punches. That informal Milanese society, made up of leading intellectuals, including brothers Pietro and Alessandro Verri, debated the great subjects of their time, including crime and punishment.152 Like Beccaria, the Verri brothers were fascinated by penal reform and the notion of public happiness, with Pietro Verri sharing Beccaria’s interest in political economy and Alessandro Verri familiar with prison conditions in Milan. Beccaria’s treatise – a product of that association – became a must-read text for Enlightenment thinkers.153

In Dei delitti e delle pene, initially published in the Tuscan port of Leghorn (Livorno) without attribution because of its author’s fear of the Inquisition, Cesare Beccaria – ex-communicated for his views after his authorship was revealed – argued for proportion between crimes and punishments, asserting that the certainty of a punishment was more important than its severity.154 Beccaria’s book, quickly translated from Italian into French, and then into English as An Essay on Crimes and Punishments (1767), piggybacked off of many of the ideas in Montesquieu’s The Spirit of the Laws. But Beccaria – who also had a passion for algebra, mathematics, and economics – went even further than Montesquieu in calling for penal reform. While earlier Enlightenment texts had criticized the use of executions for certain nonhomicide offenses, Dei delitti e delle pene sought the death penalty’s abolition even for murder. Living within the Habsburg Empire, Beccaria did contemplate a very narrow exception for the potential use of executions if the death of a traitor “becomes necessary” if “the nation is losing or recovering its liberty, or in times of anarchy, when disorder itself takes the place of the law.”155 Seeing penal servitude for life as a more effective deterrent than executions, Beccaria was willing to contemplate the death penalty’s use only if someone confined in prison had such immense power while behind bars that the entire nation’s power structure would be threatened or if there was a risk of the society descending into lawlessness. Because of its anti-death penalty advocacy, Dei delitti e delle pene – quickly banned by the Catholic Church – has been called “[t]he beginning of the modern saga of reform and abolition.”156

Simultaneously railing against torture, Cesare Beccaria’s book – at first published anonymously in Tuscany because of Beccaria’s well-founded fear of persecution by the powers that be in Rome157 – forthrightly asked: “Is death really a useful or necessary punishment for the security or good order of society?” “It seems absurd to me,” he wrote, “that the laws, which are the expression of the public will, and which execrate and punish homicide should themselves commit one, and that to deter citizens from murder they should order a public murder.”158 With Beccaria favoring lifetime “penal servitude,” he made this impassioned plea: “[I]f I can demonstrate that the death penalty is neither useful nor necessary, I will have won the cause of humanity.” “For a punishment to be just,” Beccaria reasoned, “it must have only that degree of intensity that suffices to deter men from crime.” Beccaria’s view was that “there is no one who, upon reflection, would choose the total and permanent loss of his own liberty, no matter how advantageous a crime might be: therefore, the intensity of perpetual penal servitude, substituted for the death penalty, has all that is necessary to deter even the most determined mind.”159 Quoting his French counterpart who had died in 1755, Beccaria wrote: “Every punishment, which does not arise from absolute necessity, says the great Montesquieu, is tyrannical. A proposition which may be made more general, thus. ‘Every act of authority of one man over another, for which there is not an absolute necessity, is tyrannical.’”160 Beccaria’s book was translated into multiple languages,161 and it fueled a worldwide debate about capital punishment and the Ancien Régime’s grotesque barbarism.162

Voltaire, the famed and tireless penal reformer celebrated for Candide (1759),163 had actually inspired much anti-death penalty sentiment even before Beccaria’s book first appeared, thus setting the stage for the Enlightenment’s receptivity to On Crimes and Punishments. In the early 1760s, Voltaire drew considerable public attention to religious intolerance by railing against the wrongful execution of Jean Calas, a Huguenot cloth merchant. Through his writings and advocacy, Voltaire led the French people in a public campaign for religious tolerance and to reform France’s antiquated criminal code. Calas’s eldest son had been found hanging in his father’s textile shop in Toulouse, and Calas – a Protestant – had ultimately been charged with murdering his son to supposedly prevent his son’s conversion to Catholicism. Jean Calas first attributed the crime to an intruder, but then insisted his son had committed suicide, then a crime that would have led to the mutilation of his son’s body. After being condemned to death by Toulouse’s Parlement on March 9, 1762, Calas was publicly broken on the wheel, strangled, and then had his body burned to ashes. Voltaire, outraged by what happened, initiated and then coordinated a posthumous campaign to exonerate Jean Calas, leading to a reversal of Calas’s conviction on March 9, 1765, though it was, of course, too late to do the deceased and brutally tortured Jean Calas any good.164 The horrific deaths of Jean Calas and many others led many intellectuals to take notice, bringing about societal changes to criminal justice systems and prompting much anti-death penalty advocacy.

Just as Voltaire’s advocacy shaped the public consciousness, Beccaria’s book influenced countless lawmakers throughout Europe and the Americas, producing new attitudes toward death sentences and corporal punishments alike. “An international best-seller,” Enlightenment historian Jonathan Israel explains, Beccaria’s On Crimes and Punishments was read by prominent thinkers, including Jean le Rond d’Alembert (1717–83), Anne-Robert Jacques Turgot (1727–81), Philip Mazzei (1730–1816), David Hume (1711–76), John Adams (1735–1826), and Thomas Jefferson (1743–1826).165 As a source on the German Enlightenment reports: “In six volumes entitled Mosaic Law published from 1770 to 1775, Johann David Michaelis argued that Old Testament law was not an appropriate model for European legislators.”166 “In two volumes in 1774 and 1775,” that source emphasizes, Michaelis – a professor at Göttingen – “worked his way through the Decalogue, comparing the Mosaic penal law with modern legal practice at every step in an effort to show that ancient Israelite law was unsuitable for modern Europe.”167 Michaelis opposed the death penalty for theft, and many of his proposals for penal reform “echoed” Beccaria’s “famous treatise.”168 Western societies – already skeptical of brutal executions for crimes such as forgery and theft,169 with reformers hungry for a new approach – were thus primed to receive “Beccaria’s little volume.”170 In his commentary on Beccaria’s book, Voltaire effusively praised On Crimes and Punishments, effectively publicizing it.171 So impressed were the French philosophes with Beccaria’s treatise that they invited Beccaria to come to Paris, which he did in 1766 in Alessandro Verri’s company.172 European monarchs, including Russia’s Catherine II and Prussia’s Frederick II, also were enthralled by Beccaria’s book and the ideas in it.173

1.6 The Fruits of the Enlightenment: Abolition in Tuscany, Austria, and Beyond

On Crimes and Punishments marked a major turning point in the law’s trajectory, leading to wide-ranging criminal justice reforms in Europe, the Americas, and elsewhere.174 The book, like Pietro Verri’s later-published Observations on Torture (1777), rejected the cruelty and inhumanity of torture, stimulating torture’s abolition in Denmark (1771) and Austria (1776) and leading to a prohibition in Spain (1775) on torturing those not yet convicted of crimes.175 In 1777, in a sign of the times, Sweden’s monarch, King Gustav III, decreed that no death sentences were to be carried out without his approval176 and submitted a bill to the Swedish Parliament to curtail executions in that country.177 Indeed, Beccaria’s Scandinavian disciples fueled a seismic shift in the law. As one text notes, a Danish law on the crime of murder “was plainly based on Beccaria.” The statute, it observes, “was part of a flurry of other crown initiatives, which in hindsight appeared to be the first of three short but vigorous bouts of legal, institutional, and cultural reform.” “The Danish law of 1767,” that source continues, “marked the point in Scandinavian legal history when automatically imposing the death penalty in murder cases, as stipulated under earlier customary law and then the Code Danoise of 1683, formally ended.”178 The 1767 Danish decree provided that suicidal murderers who didn’t die in the commission of their crimes would be branded, publicly whipped, and imprisoned for life at hard labor, although the law only applied to “melancholy and other dismal persons” who decided to kill “for the exclusive purpose of losing their lives.”179

As Enlightenment ideas captured the attention of rulers (Russian Empress Catherine II’s 1767 Nakaz, instructions to a commission charged with preparing a new code of laws, was based largely on Montesquieu’s and Beccaria’s writings),180 legal reforms came to Europe and the Americas, although some of them were only temporal in nature. In 1786, Grand Duke Leopold of Tuscany adopted a Tuscan penal code, known as the Codice Leopoldino, that eliminated the death penalty and other severe corporal punishments such as branding and mutilation, while retaining the punishments of exile, hard labor, public shaming in the stocks, and whipping.181 And in 1787, the same year Dr. Benjamin Rush – a signer of the Declaration of Independence – declared that the death penalty was “an improper punishment for any crime,”182 Holy Roman Emperor Joseph II, Leopold’s brother, went almost as far, abolishing Austria’s death penalty save for crimes of revolt against the state.183 Emperor Joseph II, through secret decrees issued in 1781 and 1783, had ordered that every case involving the death penalty be submitted to him personally, and in fact only one execution – in 1786 – took place before his 1787 decision to reject capital punishment.184 That execution, of nobleman Franz Zahlheim, a convicted murderer, was publicly carried out on March 10, 1786 by way of hot pincers and breaking on the wheel.185

Abolition – what some referred to as the Beccarian experiment – did not last long in Austria and Tuscany, and in time the death penalty returned. “This abolitionist period was short,” Robert Fico of the Ministry of Justice of Slovakia later wrote, “because soon after Joseph’s death, Emperor Franz II issued a decree in 1796 by which the death penalty was restored.”186 Leopold’s son, Franz II, had succeeded Leopold after his death in 1792, and capital punishment was brought back in Austria for high treason in 1796 before other crimes were also made punishable by death in an 1803 penal code.187 Napoléon – the Corsica-born French emperor and military dictator who reigned over Italian lands – also restored Tuscany’s death penalty following the period of abolition in that locale.188 The death penalty was officially reinstated in Tuscany in 1790, but no executions occurred there for a total of twenty-five years (i.e. from 1774 to 1799). After two executions (one in Pisa and one in Florence) took place in 1830, another long period of de facto abolition ensued and, following the death penalty’s disuse, Tuscany outlawed executions again by statute in 1847 (before capital punishment was briefly restored in 1852 only to be abolished a third time in 1860 after the union of Tuscany to the Kingdom of Italy).189 Tuscany’s initial abolition of capital punishment for murder in 1786 – a first – is still commemorated, with Rome’s Colosseum – in a tradition started by the Community of Sant’Egidio – illuminated whenever a country or state abolishes the death penalty and on November 30 of each year on what is billed as “Cities for Life Day.”190

Especially given their collective Enlightenment origins, the anti-torture and anti-death penalty movements should be studied together. In civil law countries, torture was once expressly authorized by judges and legal codes. For example, in Empress Maria Theresa’s penal code of 1768, the Constitutio Criminalis Theresiana, methods of torture such as flogging, the legscrew, the thumbscrew, and stretching on the rack were authorized. The Constitutio Criminalis Theresiana, in fact, contained graphic depictions of such devices and methods of torture.191 Austria only abolished torture in January 1776, with her privy councillor, Josef von Sonnenfels, writing a memorandum in the early 1770s as the law – and views on torture – morphed there. Sonnenfels believed that torture should be abolished as “superfluous for condemnation, because someone who is suspected can be punished without being brought to confession.”192 In England, torture – while still ordered by monarchs from time to time – had long been prohibited by the common law. In an essay published in the Harvard Law Review in 1897, A. L. Lowell explained that “the illegality of torture in England has been a subject of boasting among Englishmen for more than five centuries.”193 Sir Thomas Smith proudly asserted in his De Republica Anglorum (1565, published 1583) that “torment or question which is used by the order of the civill lawe and custome of other countries to put a malefactor to excessive paine, to make him confesse him selfe, or of his fellowes or complices, is not used in England, it is taken for servile.”194

England’s common law approach thus diverged in material ways from civil law systems. Unlike English law, civil law jurisdictions set up an elaborate system that regulated the use of judicial torture, replete with half proofs, quarter proofs, eighth proofs, and maniacal devices of torture.195 As one description notes how that system operated: “A judgment of culpability required either the testimony of two eyewitnesses or a spontaneous confession. In the absence of such full proof, a judge was authorized to attempt to extract a confession through the use of torture upon the presentation of circumstantial evidence which amounted to half proof.” As law professor Matthew Lippman explains: “Such half proof consisted of one eyewitness or other evidence amounting to probable cause that the accused had committed the crime. In the absence of an eyewitness, probable cause was determined by a strict formula in which each ‘indicia’ of evidence was assigned a score.” “In aggregate,” he emphasizes, “the circumstantial evidence was required to total half proof.” In giving a specific example, Lippman observes of the old civil law approach: “[F]ollowing a robbery, an individual might be apprehended with a bloody knife and a large cache of money. Each of the latter indicia would be a quarter proof, and together they would equal half proof. As a result, the judge was authorized to order that the individual be subjected to interrogation under torture.”196 The goal: to obtain a confession.

Despite the English common law’s longstanding prohibition of torture, English monarchs – asserting the “divine right of kings” – had also notoriously authorized the torture of their subjects.197 Abusive English monarchs, intent on consolidating their power and quashing dissent, disloyalty, or plots against them, thus ordered warders of the Tower of London (the Beefeaters) to use torture devices such as the rack (to stretch the victim’s body, eventually dislocating and pulling limbs from their sockets), the “scavenger’s daughter” (which compressed, rather than stretched, the body), and manacles (iron handcuffs worn around the wrists, with the prisoner suspended by them with his feet off the floor, often for long periods of time).198 As historian John Langbein writes in Torture: A Collection: “In Renaissance times the English produced a celebratory literature denouncing the use of torture in Continental legal systems and extolling its absence in England. In truth, however, the English did experiment with using torture to investigate crime, primarily treason, in the Tudor-Stuart period.” “In at least eighty-one cases during the century 1540 from 1640,” he writes, “the Privy Council issued warrants authorizing investigation under torture.”199

Although the death penalty and torture were seen as separate pillars of centuries-old legal systems, the Enlightenment – and the ideas and humanity it inspired – fueled much collective advocacy against capital punishment and torture in whatever form those practices took. In time, torture – as Jamal Barnes writes in A Genealogy of the Torture Taboo (2017) – became “a practice associated with ‘old’, ‘barbaric’ customs that had no place in a modern ‘civilised’ society.” Cruel and torturous punishments likewise came under attack. After England was condemned at a conference in London in 1871 for still making use of the “cat o’ nine tails,” a whip made of cord or leather with nine knotted thongs that was used to inflict painful corporal punishment, a barrister wrote the following year: “before long, society will demand that the cat shall take its place in the Tower, side by side with the thumb-screw, the pincers, the rack, and the other instruments of legal or illegal punishment and torture in ages gone by.”200 In prior times, inflicting severe pain on the body was consequently seen as an appropriate use of state and judicial power.

Not only were the stocks and the pillory, along with ear cropping, still in use in the seventeenth and eighteenth centuries, but many other barbaric punishments were used too, especially for certain categories of offenders. For example, Black men accused of rape, if not lynched or executed, might be castrated following a conviction (a punishment prohibited for white men), and pilloried or whipped.201 In eighteenth-century Virginia, an enslaved person “convicted of an attempt to ravish” a white woman was punishable by castration.202 “Between 1889 and 1918 alone,” Professor Bennett Capers writes, showing how the prior practices shaped nineteenth- and twentieth-century lynchings, “white mobs lynched on average more than a hundred blacks a year, and this extralegal violence was often accompanied by castration.”203 Other offenders (e.g. for slander) were sometimes sentenced to have their tongues cut out, bored, or mutilated in some fashion.204 Along with devices of torture, such as the thumbscrew, the rack, and the body-compressing “scavenger’s daughter,”205 whipping posts and ducking or “cucking” stools could be found in many places, including in public squares or by bodies of water.206 As one history of England notes of common corporal punishments: “The stocks, pillory, and whipping-post were three different implements of punishment, but, as was the case at Wallingford, Berkshire, they were sometimes allied and combined. The stocks secured the feet, the pillory ‘held in durance vile’ the head and the hands, while the whipping-post imprisoned the hands only by clamps on the sides of the post.”207

The Enlightenment ultimately brought much penal reform, although the traditions surrounding punishments, including bodily ones, took a concerted effort to dislodge. “The corporal punishments were, apart from the death penalty, all sorts of mutilations, flogging and branding,” Jos Monballyu writes in Six Centuries of Criminal Law: History of Criminal Law in the Southern Netherlands and Belgium (1400–2000).208 “In the first third of the 1700s,” another legal commentator, Carl Ludwig von Bar, explains of mutilation, reflecting how corporal punishments then remained a gruesome reality, “cutting off the hand (in certain cases) is the only remaining punishment of this character.”209 In his book, A History of Continental Criminal Law, von Bar referred to maiming punishments and nonmaiming corporal punishments – the former listed as “slitting or piercing the tongue; cutting off the lips; cutting off the nose; cutting or burning off the hand,” and the latter as branding, flogging, the carcan, and the pillory. The carcan was “an iron collar which was clasped around the offender’s neck and, by means of an attached chain, served to secure him to a wall or post.”210 In Medieval and colonial times, many shaming and humiliating punishments – from the branding iron and the pillory to flogging or “birching,” hitting a person’s bare back or buttocks with a bundle of leafless twigs – were employed, adding brutality to societies, even ones ostensibly considering themselves enlightened or civilized.211

Although the Magna Charta (1215) began to unravel the idea of “the divine right of kings,” only the landscape-changing English Bill of Rights (1689) – as The Encyclopedia of Civil Liberties in America (2015) puts it – “signaled the end of the most serious conflicts over the appropriate use of executive power.” Countless abuses of power took place before and after the Glorious Revolution of 1688–89 and they are, in fact, still ubiquitous throughout the world, although they often take different forms today. But the English Bill of Rights made crystal clear that kings were not all powerful, could not dissolve Parliament on a whim, and proclaimed in hortatory words “[t]hat excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.” In setting forth the English people’s self-declared rights and liberties, the English Bill of Rights addressed longstanding and specific grievances, such as “[e]xtravagant bail,” that Parliament had identified as of public concern. Among other things, the English Declaration of Rights, which led to the adoption of the English Bill of Rights, recited that “excessive bail hath been required of persons” committed in criminal cases “to elude the benefit of the laws made for the liberty of the subjects”; “excessive fines have been imposed”; and “illegal and cruel punishments inflicted.”

The “bloody” or sanguinary system of punishment still reigned supreme, including in England and France, before Enlightenment thought matured. Between 1760 and 1762, for example, almost half of the fifty-three death sentences imposed by the Parlement of Aix-en-Provence called for breaking on the wheel – an incredibly torturous way to die.212 But Enlightenment texts ultimately drove a change in attitudes and opened the world’s eyes to the barbarity of then-existing punishments. The writings of Montesquieu, Beccaria, John Howard, and others led to the creation of the penitentiary system and transformed the way lawmakers thought about the death penalty and corporal punishments. That, in turn, ushered in real reform, although naturally practices varied and attitudes ebbed and flowed depending on the particular locale. When executions took place, they were carried out within weeks or months of the offender’s sentencing – in stark contrast to the often decades-long delays associated with modern-day executions.213 And methods of execution evolved, with a move away from breaking on the wheel, drawing and quartering, and burning at the stake. “[T]he Enlightenment,” scholar William Schabas observes, “reflected a growing concern with brutal methods of execution and a desire that any superfluous suffering be eliminated.”214 “Many characterize the abolition of bodily punishments as an attempt to make the act of punishment more humane and consistent with the ideals of the Enlightenment,” Matthew Pate and Laurie Gould explain in Corporal Punishment around the World (2012), taking note of the law’s gradual transformation.215

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  • The Death Penalty
  • John Bessler, University of Baltimore
  • Book: The Death Penalty's Denial of Fundamental Human Rights
  • Online publication: 01 December 2022
  • Chapter DOI:
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  • The Death Penalty
  • John Bessler, University of Baltimore
  • Book: The Death Penalty's Denial of Fundamental Human Rights
  • Online publication: 01 December 2022
  • Chapter DOI:
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  • The Death Penalty
  • John Bessler, University of Baltimore
  • Book: The Death Penalty's Denial of Fundamental Human Rights
  • Online publication: 01 December 2022
  • Chapter DOI:
Available formats