Anthony House
AP European History B
Mr. Hendricks
11 February 1999

The Abolition of Capital Punishment in Great Britain: 1770-1973

Throughout the eighteenth century, Great Britain experienced a dramatic swell in capital offenses. This swell was the result not of an increase in crime, or even of an increase in violent crime; it was the result, rather, of Parliament’s continued enlargement of the long list of offenses punishable by death. In the "illogical chaos" of British law, petty crimes such as pickpocketing were capital offenses while attempted murder remained outside the capital code (Trevelyan 348). Still, by 1770, the seeds of the capital code’s demise had been planted. It was in that year that Sir William Meredith suggested that Parliament consider "more proportionate punishments" (Gatrell 326). His proposal, predictably, fell flat, but it began the long string of events that would lead to the eventual abolition of the ‘bloody code’ of English law nearly two hundred years later. The abolition of capital punishment in Great Britain was less a result of legitimate public opinion than of the strong influence of specific groups.

From 1770 to 1819, the attack on capital punishment was, for the most part, addressed from a number of diverse standpoints; the attacks were products not of popular sentiment but of the special interests of the groups involved. The critics of this period concerned themselves more with the relationship between the capital code and British society as a whole. They addressed their contentions logically and generally supported them with empirical data. These primary critics are generally categorized into four groups: rationalists, lawyers, radicals, and evangelicals (Briggs 167).

The rationalists attacked the ineffectiveness of capital punishment, not its cruelties. They argued that it was too inflexible, it failed to deter crime, and that its "viciousness corrupted the people" (Gatrell 328). Their most compelling arguments against the death penalty were based in Locke’s theory of tabula rasa: if the human personality was simply an amalgam of the experiences projected on an individual over the course of development, it followed logically that criminal rehabilitation was inherently possible through penal reform. The death penalty as an (ineffective) deterrent would be wholly unnecessary once total rehabilitation was realized. The criminal was, by the reasoning of the rationalists, a "locus of individual pain and rights," a reflection of society and an opportunity for improvement (McGowen 669). This suggestion flew in the face of the traditional view of the criminal as a permanent threat to the well-being of society—a mindset that necessitated the hasty dispatch of said threat. The rationalists contributed more to the progression of ideas than the development of legislative penal reform. The preeminent rationalist, Sir Samuel Romilly, was startlingly vocal about his progressive beliefs, quoted as once saying, "One reason why I cannot think that death ought so carefully to be avoided among human punishments, is that I do not think death the greatest of evils" (qtd. in Gatrell 84). His progressivism, though, alienated the prosecutors and judges on whose support the success of penal reforms hinged.

The lawyers, perhaps, were always the most effective advocates of reform. Dominated by Jeremy Bentham and his utilitarianism, the lawyers advocating changes the capital code were crucial to the reforms that came during the nineteenth century. They proved "uniquely qualified to challenge the ancien régime through the axioms of justice itself" (Liebermann 235). Particularly, they agitated for a more controlled trial process and rules concerning evidence, and they energetically petitioned for mercy on behalf of the condemned. They were masters of manipulating empirical data to fit their arguments, granting credibility to the rationalists’ claims concerning the counter-productiveness of the capital code. Fundamentally, they were able to "put the old system on the defensive where it mattered most—in courtrooms rather than in private studies" (Gatrell 329).

The radicals’ opposition to the capital code was part of a larger attack on British oligarchical government and institutions. As such, their progressive agenda on capital punishment was essentially lost among their other aspirations. Their broader goals embraced parliamentary reform and dissenters’ rights, and fundamentally opposed many of the tenets of their contemporary British government. They appealed to justice as defined by neither Parliament’s judiciary nor Bentham’s utilitarianism. They, rather, based their critiques of the capital code on "commonsensical fairness" (McGowen 661). By calling attention to court cases that highlighted the oligarchical brutalities of the legal system, the radicals were able to emphasize their claim that the law should be fair in both its processes and its punishments, not only for the aristocracy, but for all Britons (Gatrell 330).

The evangelists and Quakers were latecomers to the reformers’ cause, but their contributions were, nonetheless, significant. They added an ethically high-minded approach to the criticisms of the capital code, complementing the empirical bases of the arguments made by the rationalists, lawyers, and radicals. These reformers appealed to the religious sympathies of the English public and, more importantly, Parliament. While they never gained enough widespread support to form the main body of reformers, they were able to create a more broad-based attack of the contemporary capital code, and by the 1820s, they "had substantially shifted the vocabulary of reform" (Gatrell 331). It was, in fact, the efforts of the Quakers that ushered in the second wave of reform, which ended in 1868 with the abolition of public execution.

History has shown the Quakers to have gained momentum in the second quarter of the nineteenth century, due largely to their use of ‘public opinion.’ They effectively maneuvered the political consciousness of public opinion, mobilizing that concept to further the cause for reform. The great irony, of course, is that their representations of public opinion were skewed versions of the popular reality. They created an awareness of public opinion "defined by the noisiest voices, not the most numerous" (Gatrell 397). They, aided by rationalist reformers such as Romilly, laid the groundwork for later opposition to the capital code based on heavily manipulated representations of public opinion. It was such a notion of "public opinion" that dominated the second wave of reform.

Those reformers that came after the second decade of the nineteenth century essentially picked up where the first wave of reform had left off. Not only did they carry the responsibility of furthering the cause of reform, though, they had to overcome the failings of the past forty years. While Romilly, Bentham, the Quakers, and others had nearly mastered the rhetoric of abolition, the practical effects of their rhetoric were unimpressive. In fact, the early 1820s witnessed triple the number of capital convictions and a twofold increase in executions over the years of the previous decade (Briggs 179). Nonetheless, these statistics show a relative increase in the number of pardons bestowed on those condemned under the capital code. This is, of course understandable within context. The severity of punishment in relation to the crime of shoplifting evoked pity, and, while the British judiciary had always been willing to bestow mercy on those convicted under the capital code of less heinous crimes, courts proved to be more open to extending mercy to more criminals from the 1820s onward (Briggs 180).

The contemporary reformers latched onto the increase in pardons, and agitated for such metered modification of the capital code. By utilizing the politically effective (if misleading) methods of determining public opinion, the reformers of the 1820s were able to drastically increase the number of pardons conferred on criminals for capital offenses throughout the decade. By the end of the decade, the number of convictions in capital cases had waned; juries "often refused to convict a man . . . if he was to be hanged for it" (Trevelyan 508). So it came to pass that falsified public opinion helped shape the general view of the capital code within the United Kingdom in the 1820s. The ‘bloody code’ soon began to collapse under its own weight and the weight of widespread disapproval for those portions considered unreasonably harsh. It was ultimately the pressure applied by reluctant jurors that effected the repeal of many of the more offensive portions of the capital code in the early 1830s. During this time, many lesser property crimes were removed from the enormous list of capital offenses (ibid.).

Still, most of the code remained intact, and public execution continued to be practiced until 1868. From the 1820s on, though, the nature of public execution in Great Britain changed slowly as various aspects of execution were changed individually. the experience of public execution became progressively less brutal with the end of decapitation in 1820 and the freeing of prisoners from their manacles prior to execution in 1824,. Prisoners were soon given the opportunity to attend a final sermon before death, and black curtains were even draped from the scaffold to prevent the crowd from seeing the dangling legs of the hanged (Gatrell 596).

The ascendance of the middle class likewise weakened the stronghold public execution previously held on British culture. Whereas the urban professional class at one point had grouped itself with the urban poor in the audience of the scaffold, their rise in societal importance coincided with their rejection of the "base spectacle of public death in the name of justice" (Gatrell 598). Without the middle class, the onlookers at hangings consisted of little more than common riff-raff—whom the government didn’t particularly want congregating in large numbers (Radzinowicz 18). Furthermore, the shift of opinion within the middle class concerning public execution trickled down into the lower classes; disdain for the scaffold came to be associated with social ascendancy. This, of course, was an indirect result of the Quakers’ successes in misrepresenting public opinion. Through its widespread acceptance by the middle class, the notion of the capital code as evil was disseminated to and accepted by both the aristocracy and the destitute alike. This created a general will against the practice of public execution that gained significant credence through the 1850s and 1860s.

Eventually, amid great praise from reformers, the scaffolds of Britain were moved within the prison walls in 1868. The last public execution, on 27 May 1868, was held outside Newgate in London. Two days later, after months of heated debate, Parliament passed the Act to Provide for the Carrying out of Capital Punishment in Prisons. The Act’s supporters in Parliament hailed its passing as "consistent with the humane legislation of the [previous] thirty years" (Gatrell 589). Historians have claimed the Act as a "landmark in the more humane treatment of criminals" (Radzinowicz x). It must, of course, be noted that the Act did less to humanize capital punishment than the reforms enacted in the previous decades. It merely moved execution from its previous position as a public spectacle into the more ‘appropriate’ confines of the prison walls. Interestingly, the timing of the Act highlights the changing role of capital punishment: after its adoption more than two months passed before another criminal was hanged. Indeed, the five executions in 1868 and the six in 1869 fit the general trend toward more and more reserved application of the capital code (ibid.).

It should also be noted that the Act of 1868 did not unify opposition to capital punishment from all sides. In fact, the utilitarians, once strong supporters of penal reform, shifted their loyalties under the guidance of John Stuart Mill. They raised their voices against the contemporary, minimalist use of the death penalty. While the number of felons multiplied, they argued, Parliament indulged in a "mania for mitigating punishments" (Gatrell 593). "We are in danger of being left without any effectual punishment," Mill said in an April 1868 speech to Parliament, going on to contend that contemporary, lax punishments were "almost an encouragement to the crime" (Mill 5). Still, despite the misgivings of the utilitarians, the Act passed, and the implementation of the death penalty moved inside.

Few major developments were made for almost sixty years after the ‘imprisonment’ of the death penalty. The first years of the twentieth century saw a small but significant increase in the number of prisoners killed annually, followed quickly by another wave of humanitarian reforms. In 1907 and 1908, separate Acts were passed encouraging the favorable treatment of young offenders, first time offenders, and others who showed no signs of "hardened criminal habits" (Trevelyan 582). 1922 witnessed Parliamentary recognition of infanticide as a crime distinct from that of murder, and the Sentence of Death Act of 1931 forbade the pronouncement of death on expectant mothers. In 1930, the Committee of the House of Commons on Capital Punishment suggested the eventual abolition of capital punishment. Over the next seven years, more than five separate bills abolishing the capital code were proposed, each sponsored by a private Member of Parliament. None progressed further than the first reading (Radzinowicz 28).

By the advent of World War II, Parliamentary opinion had begun to turn against the death penalty. In 1938, an incomplete House of Commons voted in favor of a resolution exploring the possible abolition of capital punishment, but the vote did not translate into any action. However, two years later, "under the stress of war, Parliament extended capital punishment," reversing the nearly two-century-long trend toward reform (Radzinowicz 29). The extension applied mainly to crimes of treason and espionage, understandable considering the domestic situation in the late 1930s and early 1940s.

Just as the onset of World War II helped strengthen capital punishment in the United Kingdom for the first time in nearly two hundred years, the Allied victory precipitated its rapid decline. In the aftermath of the Second World War came a new, extremely potent wave of human rights consciousness and international cooperation. This period saw the implementation of a "European regional system of human rights" (Schabas 219). The formation of the United Nations in 1945 and its adoption of the Universal Declaration of Human Rights in 1948 were clear indicators of the relatively new notion of international law (13). Of more practical importance, the European Convention On Human Rights, adopted in 1950, strengthened the link between international human rights policies and British domestic law.

It was the regional humanitarians who had the greatest impact on the abolition movement after the Second World War. Working through international treaties such as the European Convention and organizations such as the European Commission and the European Court of Human Rights, abolitionists throughout Europe were able to pool their strengths. Their British peers, meanwhile, were able to agitate for similar reforms through Parliament. Such reforms were, admittedly, barely a necessity, since capital punishment was all but nonexistent in most western European nations, including Great Britain. Still, the first call for abolition under international law didn’t come until 1961, when the Consultative Assembly of the Council of Europe suggested the abolition of capital punishment in all member nations. The resolution failed, but three years later Great Britain acted independently, abolishing the death penalty temporarily in 1964, vowing to review the decision within ten years. In 1973 the House of Commons reaffirmed the 1964 Act, concluding that capital punishment "must now be seen to be inhuman and degrading" (qtd. in Schabas 239). Thus, capital punishment came to an end in the United Kingdom: not with a bang, but with a whimper.

The final abandonment of the capital code, two centuries after Meredith’s initial questioning of the "illogical chaos" of capital punishment in Britain, was even less the result of public opinion than the decisions of the nineteenth century. In general, the British people looked favorably on capital punishment, mindful of the recent executions of Nazi war criminals. It was the high-minded international institutions of reform that were finally able to effect the complete elimination of the death penalty. The same institutions are still at work in Europe today, and similar organizations exist in the Americas and inter-continentally. From the rational attacks of the eighteenth century and the utilitarian attacks of the nineteenth century through the rights-based attacks of the twentieth century, the attack of the capital code in Great Britain shifted bases throughout history as political and social ideologies evolved. Many of the arguments against Britains capital code are still heard today in the United States. Such arguments are worth careful consideration as we approach the dawn of the twenty-first century with our own ‘bloody code’ still looming over us.

Works Consulted

Briggs, Asa. A Social History of England. New York: Viking P, 1983.

Gatrell, V. A. C. The Hanging Tree: Execution and the English People 1770-1868. Oxford, Eng.: Oxford UP, 1994.

Liebermann, D. The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain. Cambridge, Eng.: Cambridge UP, 1989

McGowen, R. "The Body and Punishment in Eighteenth-Century England." Journal of Modern History. 59 (December 1987). 651-679.

Mill, John Stuart. (1868). Speech in Favor of Capital Punishment. (http://ethics.acusd.edu/Mill.html). (22 January 1999).

Radzinowicz, L. and Turner, J.W.C., eds. Penal Reform in England. London: MacMillan, 1946.

Schabas, William A. The Abolition of the Death Penalty in International Law. 2^nd ed. Cambridge, Eng.: Cambridge UP, 1997. 219-260.

Trevelyan, George Macaulay. English Social History. New York: Logman’s, Green, and Co., 1942.

United Nations General Assembly. (10 December 1948). Universal Declaration of Human Rights. (http://www.amnesty.org//aboutai/udhr.htm). (27 January 1999).