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Published online by Cambridge University Press: 21 March 2016
At the end of the eighteenth century the ‘bloody code’ was still in full force in England and Wales. There were some two hundred offences which carried the death penalty, ranging from murder to stealing goods worth five shillings from a shop. In the 1780s several hundred men, women and children were sentenced to death each year, and though rather over half were reprieved, there were still about two hundred executions. In London, condemned prisoners were confined in Newgate prison in the City, and until 1783 they were transported two miles to be hanged at Tyburn on the western outskirts of the metropolis. There were usually large crowds lining the streets, and particularly notorious criminals might expect up to thirty thousand spectators at their death. A clergyman would travel in the cart with the prisoners, his main purpose being to ensure that they died repentant, and, it was hoped, with better prospects in the next world than in the present one.
I would like to thank all those who have made helpful comments or have supplied me with copies of their own, or other relevant publications, and in particular Martin Bergman, Jeff Cox, Mary Clare Martin, David Pugsley, Martin Ryan, Michael Snape, David Taylor, Peter van Rooden, Vincent Viaene and Ulrich Volp.
1 Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford, 1994)Google Scholar; McGowen, Randall, ‘“He Beareth not the Sword in Vain”: Religion and the Criminal Law in Eighteenth-Century England,’ Eighteenth-Century Studies 21 (1987–8), 192–211 Google Scholar.
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3 Bedau, Hugo Adam, ‘The United States’, in Hodgkinson, Peter and Rutherford, Andrew, eds, Capital Punishment: Global Issues and Prospects (Winchester, 1996), 45–76 Google Scholar; Hodgkinson, Peter, ‘The United Kingdom and the European Union’, in ibid., 193–213 Google Scholar; Frankowski, Stanislaw, ‘Post Communist Europe’, in ibid., 215–41 Google Scholar.
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12 For instance, a German translation appeared in 1766 and an English translation in 1767. Overrath, Petra, Tod und Gnade: die Todesstrafe in Bayem im 19. Jahrhundert (Cologne, 2001), 251–5 Google Scholar, stresses that other writers had already prepared the ground for Beccaria.
13 Follett, Richard R., Evangelicalism, Penal Theory, and the Politics of Criminal Law Reform in England, 1808–30 (Basingstoke, 2001), 86–9, 141–2 Google Scholar, and passim.
14 Gatrell, Hanging Tree, 240, 267–72, 297, and passim.
15 ‘Report of the Capital Punishment Commission’, Parliamentary Papers, 1866, XXI, Q. 2 [Lord Cranworth, judge]; Parliamentary Debates (Lords), 5th series, 155 (1947–8), 407–9 [Lord Simon, former Home Secretary].
16 Report from the Select Committee on Capital Punishment (London, 1930), a major part of which was given to analysing statistics from abolitionist countries.
17 Bailey, William C. and Peterson, Ruth D., ‘Murder, Capital Punishment and Deterrence’, in Bedau, Hugo Adam, ed., The Death Penalty in America: Current Controversies (New York, 1997), 135–62 Google Scholar.
18 Parliamentary Debates (Lords), 5th series, 155, 481 [bishop of Truro].
19 Parliamentary Debates (Lords), 5th series, 156 (1947–8), 124 [bishop of Chichester].
20 Parliamentary Debates (Lords), 5th series, 155, 427–8 [bishop of Winchester].
21 Parliamentary Debates (Lords), 5th series, 156,124 [bishop of Chichester],
22 Report of the Capital Punishment Commission, Q 1175 [Revd John Davis, Ordinary of Newgate].
23 Ibid., Q 3261 [Revd Lord Sydney Godolphin Osborne, rector of Durweston],
24 Parliamentary Debates (Lords), 5th series, 155, 493 [Lord Chief Justice Goddard].
25 Ibid., 537 [Lord Rochester, former Liberal MP].
26 Parliamentary Debates (Lords), 5th series, 198 (1955–6), 698 [Lord Elton]; Potter, Hanging injudgment, 195–7.
27 Report of the Capital Punishment Commission, Q 1043 [Sir Fitzroy Kelly, former Attorney-General].
28 Ibid., QQ 1154–8 [Revd John Davis].
29 Ibid., Q 2498 [John Parry, barrister].
30 Parliamentary Debates (Lords), 5th series, 198 (1955–6), 594, 620, 712, 725 [Lords Rea, Wise, Darwen, Raglan].
31 Philip English Mackey, ed., Voices against Death: American Opposition to Capital Punishment, 1787–1975 (New York, 1976), 168.
32 Marlene Martin, ‘The fight for Derek Bentley: A full pardon – 46 years late,’ www.nodeathpenalty.org/newaboog/bentley.html, consulted 2 April 2003.
33 Parliamentary Debates (Lords), 5th series, 198, 613–14, 656, 718 [Lords Glasgow, Teviot, Ailwyn]; Gatrell, Hanging Tree, 591–3.
34 Peter Linebaugh, The Tyburn Riot Against the Surgeons’, in Douglas Hay et al, eds, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (Harmondsworth, 1977), 65–117, 66, n. 1.
35 For discussion of the responses of those who witnessed executions, as reflected both in eye-witness accounts and literary treatments, see Thesing, William B., ed., Executions and the British Experience from the 17th to the 20th Century: a Collection of Essays (Jefferson, NC, 1990)Google Scholar; Gerould, Daniel, Guillotine: its Legend and Lore (New York, 1992)Google Scholar; Gatrell, Hanging Tree, 242-s 8 and passim.
36 Jordan, David P., The Revolutionary Career of Maximilien Robespierre (New York, 1985), 54 Google Scholar; Bailey, Victor, ‘The Shadow of the Gallows: the Death Penalty and the British Labour Government 1945–51’, Law and History Review 18 (2000), 305–49 Google Scholar; Evans, Rituals of Retribu Hon, 506; for India, information from David Taylor, formerly pro-director of the School of Oriental and African Studies, London, and a leading authority on twentieth-century Indian politics; Düsing, Abschaffung, 301, 309–10.
37 In the Lords debate of 1948, Lord Douglas of Kirtleside who, as Military Governor in Germany, had been responsible for numerous executions, declared his conversion to abolitionism. For examples of prison chaplains who rejected capital punishment because of their experience of executions, see Potter, Hanging in Judgment, 133; Megivern, James J., The Death Penalty: an Historical and Theological Survey (Mahwah, NJ, 1997), 271–5, 357–9 Google Scholar.
38 Mackey, Voices against Death, 191.
39 I am entirely in agreement here with Evans, who stresses this point in his overview of the German history: Evans, Rituals of Retribution, 873.
40 Schewardnadse, Michael, Die Todesstrafe in Europa: eine rechtsvergleichende Darstellung mit einer rechtsgeschichtlichen Einleitung (Munich, 1914), 16–17 Google Scholar; Evans, Rituals of Retribution, 132–3.
41 Wright, Gordon, Between the Guillotine and Liberty: Two Centuries of the Crime Problem in France (New York, 1983), 30–4 Google Scholar.
42 Masur, Rites of Execution, 54–76; Mackey, Philip English, Hanging in the Balance: the Anti-Capital Punishment Movement in New York State, 1776–1861 (New York, 1982), 214–17 Google Scholar.
43 Masur, Rites of Execution, 61–70.
44 Mackey, Hanging in the Balance, 64.
45 Masur, Rites of Execution, 153–4.
46 Ibid.
47 Ibid., 118–24.
48 David Brion Davis, The Movement to Abolish Capital Punishment in America, 1787–1861’, American Historical Review 63 (1957), 23–46, 41–6.
49 Paul Savey-Casard, ‘Les arguments d’ordre religieux dans les controverses sur la peine capitale en France au XIXe siècle,’ in Pena de Morte: Coloquio internacional comemorativo do centenario da abolição da pena de morte em Portugal, Universidade de Coimbra, 1967, 3 vols (Coimbra, 1970), 2: 219–27.
50 Evans, Rituals of Retribution, 275, 282, 329; Suter, Stefan, Guillotine oder Zuchthaus: die Abschaffung der Todesstrafe in der Schweiz (Basel, 1997), 17–44 Google Scholar; Schewardnadse, Todesstrafe, 19–43; P. Cornil, ‘La Peine de mort en Belgique’, in Pena de Morte, 1: 143–51.
51 Report of Capital Punishment Commission, 47–5 8; see also in this volume Michael Snape, ‘British Army Chaplains and Capital Courts-Martial in the First World War’, 3 S7–68.
52 Evans, Rituals of Retributíon, 271–3, for all three quotes.
53 Potter, Hanging in Judgment, 39; Isichei, Elizabeth, Victorian Quakers (London, 1970), 206, 250–1 Google Scholar; Capital Punishment Commission, QQ 2498, 2680. Capital punishment was a popular subject at Nonconformist debating societies in the mid-Victorian years. At their first debate, in 1875, the Young Men’s Improvement Society at Clifton Road Congregational Church, Brighton, voted for abolition. See Caplan, N., ‘Young Men in the Church,’ Transactions of the Congregational Historical Society 21 (1972), 102–5, 102 Google Scholar.
54 Mackey, Voices against Death, xxxii-iii.
55 Sang, Julie Le Quang, La Loi et le bourreau. La peine de mort en débats (1870–1985) (Paris, 2001), 39–113 Google Scholar.
56 Christoph, James B., Capital Punishment and British Politics: the British Movement to Abolish the Death Penalty, 1945–57 (London, 1962), 30–5 Google Scholar.
57 Evans, Rituals of Retribution, 456–7. In 1908 when the French Chamber of de Puties rejected an abolitionist motion by 330 votes to 201, the Socialists were all in the minority. Le Quang Sang, Loi et bourreau, 111.
58 See McLeod, Hugh, ‘Religion in the British and German Labour Movements: a Comparison’, Bulletin of the Society for the Study of Labour History 50 (1986), 25–36 Google Scholar.
59 Bailey, ‘Shadow of the Gallows’, 313–18; Potter, Hanging in Judgment, 140–1.
60 For Sweden see Bergman, Martin, Dödsstraffet, kyrkan och staten i Sverige fran 1700-Tal till 1700-Tal (Lund, 1996)Google Scholar, English summary, 203.
61 Mackey, Voices against Death, xxxii-vi.
62 Mrs Lewis Donaldson, Christ and Capital Punishment (London, n.d.).
63 Evans, Rituals of Retribution, 624–50, 899, 915–16.
64 Diising, Abschaffung, 250, 257–60, 279, 293, 294–5.
65 Bailey, ‘Shadow of the Gallows’.
66 Hodgkinson and Rutherford, Capital Punishment, 204–6.
67 Phoebe C. Ellsworth and Samuel R. Gross, ‘Hardening of the Attitudes: American Views on the Death Penalty,’ in Bedau, ed., Death Penalty, 90–115, 108–9; Christoph, Capital Punishment and British Politics, 96–192,4–7; for typical perceptions by a leading Labour politician of the supporters of capital and corporal punishment, see Jenkins, Roy, A Life at the Centre (London, 1991), 180, 199–201, 397–8 Google Scholar.
68 Potter, Hanging in Judgment, 153–203.
69 Megivern, Death Penalty, 282–98.
70 Potter, Hanging in Judgment, 202; Ellsworth and Gross, ‘Hardening of the Attitudes’, 96.
71 Evans, Rituals of Retribution, 805–71; Hodgkinson, Capital Punishment, 206–8,215–41.
72 Ibid., 45–76. The literature on the restoration of capital punishment in the USA is vast. See especially the volumes edited by Hugo Adam Bedau and entitled The Death Penalty in America, of which the first edition appeared in 1964. and the most recent in 1997. An excellent study of the opposition is Herbert Haines, H., Against Capital Punishment: the Anti-Death Penalty Movement in America, 1972–1994 (New York, 1996)Google Scholar.
73 Marquart, James W., Ekland-Olson, Sheldon and Sorensen, Jonathan R., The Rope, the Chair and the Needle: Capital Punishment in Texas, 1923–1990 (Austin, TX, 1994)Google Scholar.
74 Haines, Against the Death Penalty, 104–6; Megivern, Death Penalty, 357–78; Des Moines Register, 26 January, 2 March, 5 March 1995.1 am very grateful to Martin Ryan of the Iowa Civil Liberties Union for sending me copies of newspaper articles on the attempts to restore the death penalty in Iowa between 1995 and 1997. These suggested that whereas Catholic, ‘mainline’ Protestant and Jewish opponents of the death penalty were very active and vocal, those churches which supported the death penalty generally saw it as a low-prioriry issue.
75 Sarat, Austin, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ, 2001), 33–59 Google Scholar; Rosenberg, Tina, ‘The deadliest DA’, in Bedau, , ed., Death Penalty, 319–32, 321 Google Scholar.
76 H. Wayne House, ‘The New Testament and Moral Arguments for Capital Punishment’, in Bedau, ed., Death Penalty, 415–28.
77 Gorringe, Timothy, God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation (Cambridge, 1996)CrossRefGoogle Scholar.
78 McGowen, Randall, ‘The Changing Face of God’s Justice: the Debate over Divine and Human Justice in Eighteenth-Century England,’ Criminal Justice History 9 (1988), 63–98 Google Scholar.
79 Speech by Quaker peer, Lord Darwen, Parliamentary Debates (Lords), 5th series, 198 (1955–6), 725.
80 Megivern, Death Penalty, provides an overview of the range of Christian teaching from the Fathers to the present day.
81 Documenten Nederlandse Hervormde Kerk, 1945–55 (The Hague, 1956), 8–13.
82 Oldfield, Josiah, The Penalty of Death, or The Problem of Capital Punishment (London, 1901), xii–xxi Google Scholar.
83 Potter, Hanging in Judgment, 135–7, 172, 178; Christoph, Capital Punishment, 167, n. 64.
84 Megivern, Death Penalty, 354–5, 376–8.
85 Report from the Select Committee on Capital Punishment, par. 284.-97. They argued that the whole spirit of the Gospel favours reclamation rather than retribution.
86 I wish to thank the Trustees of the Mass Observation Archive, University of Sussex, for permission to read and quote from documents in the archive.
87 Christoph, Capital Punishment, 116–23.
88 See above, n. 69.
89 Megivern, Death Penalty, 229–39.
90 Marquart, Ekland-Olson and Sorensen, The Rope, the Chair and the Needle, 17–24,191.
91 This statement was made by a fifty-six-year-old housewife, Chesterfield, Church of England. Other examples are those of a fifty-year-old woman, receptionist, Greenock, Church of Scotland, who said: ‘In the Bible it says a life for a life’; a thirty-three-year-old man, upholsterer, Coventry, non-church-goer, who said: ‘It is a just punishment and people should be made to pay for their crimes.’ All references from the Mass Observation Archive, University of Sussex Library, TC72/4.
92 For example, a forty-two-year-old man, a solicitor from Rugby, non-church-goer, said: ‘I’ve always felt it was a disgusting state of affairs’; a forty-four-year-old Roman Catholic man, an electrical engineer from Salford, said: ‘It’s cruel and uncivilised – it’s barbaric’; a French polisher from Eccles, non-church-goer, forty-one, commented: ‘Barbaric and out of date’; a forty-seven-year-old woman typist from Huyton, Nonconformist, stated: ‘I’ve always been against taking life in any shape or form’: ibid.
93 Potter, Hanging in Judgment, 133.
94 Richards, Peter G., Parliament and Conscience (London, 1970), 182–4 Google Scholar.
