Capital Punishment in Theory and Practice
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While there was unanimity that convicted criminals should be punished, there were marked differences about why and how this should be done. The purpose of punishment or, more accurately, of the balance of punishment, was much disputed. Three different elements need to be distinguished: the retributive, the deterrent and the reformative. The idea of retribution is perhaps the oldest, but it would be misleading to see it simply as a ‘primitive’ attitude, diminishing in importance over time. The idea that punishment expresses ‘society’s’ disapproval of crime and is the means whereby the criminal repays his debt to society for the crime that he or she has committed was a powerful and continuing one. As James Fitzjames Stephen put it, ‘the sentence of law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax’.1 A second consideration was the deterrent effect of punishment. The sight of a corpse dangling at the rope’s end or the knowledge that a long prison sentence was the fate of the nineteenth-century criminal was intended to deter the ordinary citizen from straying into criminal behaviour. The theatre of the gallows in the eighteenth century was seen to be a means whereby ordinary men and women could be made vividly aware of the consequences of criminal behaviour and thereby deterred from committing such acts by the ‘aweful’ consequences displayed before their eyes. The idea that punishment should deter persisted: ‘hard labour, hard fare and a hard bed’ was the late nineteenth-century formula. Thirdly, and increasingly from the late eighteenth century onwards, the reformative aspect of punishment was advocated. Whether through revelation or rationality, prisoners were to be transformed by the experience of prison.
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Notes and References
- 1.Cited in D. Garland, Punishment and Modern Society: A Study in Social Theory, Oxford University Press, 1991, p. 58.Google Scholar
- 2.W. Cobbett, Twelve Sermons, 1823, p. 154, cited in H. Potter, Hanging in Judgment: Religion and the Death Penalty in England, London, SCM Press, 1993, p. 54.Google Scholar
- 5.Samuel Moody, The Impartial Justice of Divine Administration, London, 1736, p. 7 cited in R. McGowen, ‘The Body and Punishment in Eighteenth-Century England’, Journal of Modern History, vol. 59, 1987, pp. 651–79, at p. 662. In an age when gangrene and septicaemia were incurable and amputations more common, such imagery had considerable resonance.Google Scholar
- 8.T. A. Green, Verdicts According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, University of Chicago Press, 1985; J. H. Langbein, ‘Shaping the Criminal Trial: a view from the Ryder’, University of Chicago Law Review, vol. 50, 1983, pp. 1–136. Those pleading benefit of clergy had to read the opening verse of psalm 51: ‘Have mercy upon me, O God, according to thy loving kindness: according unto the multitude of thy tender mercies blot out my transgressions.’ The reading test was abandoned as the result of legislation in 1706 and offences were deemed to be clergyable or not.CrossRefGoogle Scholar
- 9.Ibid. See also J. M. Beattie, Crime and the Courts in England 1660–1800, Oxford University Press, 1986, esp. pp. 141–6.Google Scholar
- 19.R. McGowen, ‘The Image of Justice and Reform of the Criminal Law in early nineteenth-century England’, Buffalo Law Review, vol. 32, 1983, pp. 89–125.Google Scholar
- 31.J. F. Stephen, ‘Capital Punishments’, Fraser’s Magazine, vol. 69, 1864, pp. 753– 72, at p. 753.Google Scholar