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Report No. 35

Topic Number 7

History of abolition move in England

19. History of the movement for abolition of capital punishment in England.-

We may trace the history of the move for abolition in England. The number of capital offences in England in the 18th century was very large1. It is said2, that the crusade against capital punishment may, (so far as the modern period is concerned), be traced to the year 1764, when Beccaria wrote his essay on Crime and Punishment. His point of view, was2, that since man was not his own creator, he did not have the right to destroy human life, individually or collectively. Capital punishment, he said, would be justified only if the execution would prevent a revolution against a popularly established government, or was the only way to deter others from committing a crime.

1. See Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 611-659.

2. See Elizabeth Turtle The Crusade against Capital Punishment, (1961), p. 2.

20. Committee of 1750.-

In 1750, the House of Commons appointed a Committee to inquire into the state of the criminal laws with a view to their repeal or amendment. One of the recommendations which the Committee made was to replace the punishment of death for certain offences by "some other adequate punishments1". The Bill implementing the recommendations of the Committee about death penalty was introduced and passed by the House of Commons, but rejected by the House of Lords.

1. Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 399, 419, 421, 422.

21. Committee of 1770.-

In 1770, on the motion of Sir Willian Meredith in the House of Commons, a Committee was appointed to consider the criminal laws so far as they related to capital offences, and the Committee, in due course, recommended the abolition of the death penalty provided under eight statutes then in force. Of these, two may be noted. There was one statute which declared that the concealment of the birth of a bastard child by the mother constituted a presumption of the guilt of the mother having murdered the child1, (unless the mother could prove that the child was Born dead). There was also another statute in force at that time, whereunder, briefly, carrying away a woman of property against her will and marrying or defiling her was a capital offence2.

Some of the proposals were rejected by the House of Commons, including the proposals relating to the two statutes specifically mentioned above. The others were embodied in a "Penal Laws Bill", which was passed by the Commons; but was lost in the Lords by the prorogation of Parliament3.

1. Concealment of Birth of Bastards Act, 1923 (21 Jac. I, C. 27).

2. Abduction of Women Act, 1486 (3 Hen. 7, C. 2).

3. For details, see Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 427 to 445.

22. Bentham.-

Beccaria's views attracted the attention and support of Bentham. Though he agreed1 that capital punishment produced a greater impression upon the public mind than any other mode, he maintained that this was not true in the case of the worst criminals who might be much more dismayed by perpetual imprisonment.

1. For a summary of Bentham's views, see Radzinowicz Criminal History of English Law, (1948), Vol. I, pp. 389, 392, 599.

23. Romilly.-

It was, however, Sir Samual Romilly1 who started a serious campaign for abolition and devoted himself primarily to attempting to influence Parliament to pass three Bills designed to repeal the death penalty for theft.

His argument was, that if the law was much less severe, juries would be more willing to convict. He could, however, succeed in getting the death sentence abrogated only in three types of cases. The campaign was carried on by Sir James Mackintosh after Romilly's death, and in March 1819 his motion for a committee to study capital punishment was carried against the advise of Government by a majority of 19.

1. For details of Romilly's efforts, see Radzinowicz History of English Criminal Law, (1948), Vol. 1, pp. 313 to 336 and pp. 497 to 513.

24. 1819 Committee.-

Accordingly, in 1819, a Select Committee of the House of Commons was chosen to study the criminal law relating to capital punishment. That Committee1 recommended the abrogation of the death penalty for many crimes in respect of which the statutes imposing death penalty had become obsolete. A number of Acts were passed after the Report of this Committee, abolishing the death penalty for several offences.

1. For details of the 1819 Committee, see Radzinowicz History of English Criminal Law, (1948), Vol. I, pp. 526 to 566.

25. Brigh.- Ewart.-

Thereafter, there was a great campaign for the removal of death penalty for forgery. In 1834, John Bright began his attack on the death penalty, arguing that certainty of punishment was more important than severity, and contended that by practising capital punishment man was usurping a power belonging to God only. Another leader in the movement was Ewart, who became the leading advocate in the House of Commons of the abolition of capital punishment1.

1. Elizabeth Turtle Crusade against Capital Punishment, (1961), pp. 8 to 10.

26. 1833 Commission.-

In 1833, a five-member Royal Commission was appointed, which gave its report in 1836. Its conclusion, was, that the punishment of death ought to be confined to high treason, or (with some exceptions) to offences which consist in or are aggravated by acts of violence to the person or which tend to endanger human life. In 1887, a Bill was introduced in the House of Commons by Lord John Russell, for the removal of death penalty from 21 of the 37 offences which were capital when the Bill was passed. But, in the debates, there were some voices raised in favour of complete abolition of death penalty (even for murder).

27. 1864-1866 Commission.-

In 1864, on a move made by Ewart, a Commission on Capital Punishment was appointed. The Commission had to consider the laws under which the death penalty was imposed and the method of infliction, and to report whether any changes were desirable. It sent questionnaires regarding death penalty, to almost all countries in Europe, and to some States in the United States, and took oral evidence also. The Commissioners were unable to agree upon the expediency of abolition or retention, but they did recommend the division of murder into degrees, and concluded that death penalty should be retained only for murders in the first degree, that is to say,-

(i) murder deliberately committed with express malice afore-thought, such malice to be found as a fact by the jury, and

(ii) murder committed in or with a view to perpetration of specified felonies, namely, murder, arson, rape, burglary, robbery and piracy.

28. Public executions abolishe.- Bills for abolitio.- 1886 Committee.-

After the Report of the 1866 Commission, some proposals to divide murder were introduced, but without success1. Only, public executions were abolished, as recommended by the 1866 Commission. Bills were introduced in 1869, 1872, 1873, 1877, 1878 and 1881 without success, for the abolition of capital punishment. It is not necessary to go into details of the efforts made during these years in this connection. In 1886, a Select Committee of the House of Lords touched on the subject, but did not consider the feasibility of abolition2.

1. R.C. Report, pp. 467 and 468.

2. See Elizabeth Turtle The Crusade against Capital Punishment, (1961), p. 25.

29. So far as the 20th century is concerned, the first legislative measure to be noticed is the Children Act of 1908, which prohibited capital punishment1 for persons under 16. But this was the only noticeable achievement in the period preceding the First War. After the war a noteworthy event was the Infanticide Act, 1922, under which a woman charged with causing the death of her newly-Born child was to be punished for manslaughter instead of murder2. The most important event was the foundation of the National Council for Abolition of Death Penalty by a young man of 27, Roy Calvert, who educated the public on the subject by newspaper accounts, articles, radio broadcasts and books.

1. R.C. Report, pp. 467 and 468.

2. See Elizabeth Turtle The Crusade against Capital Punishment, (1961), p. 25.

29. So far as the 20th century is concerned, the first legislative measure to be noticed is the Children Act of 1908, which prohibited capital punishment1 for persons under 16. But this was the only noticeable achievement in the period preceding the First War. After the war a noteworthy event was the Infanticide Act, 1922, under which a woman charged with causing the death of her newly-Born child was to be punished for manslaughter instead of murder2. The most important event was the foundation of the National Council for Abolition of Death Penalty by a young man of 27, Roy Calvert, who educated the public on the subject by newspaper accounts, articles, radio broadcasts and books.

1. See now section 53(1) of the Children and Young Persons Act, 1933 (23 and 24 Geo. 5, C. 12) prohibiting capital punishment on persons under 18 years and section 16, Criminal Justice Act, 1948 (11 and 12 Geo. 6, C. 58).

2. See, now, the Infanticide Act, 1938 (1 and 2 Geo. 6, C. 36).

30. 1930 Committee and 1938 Resolution.-

Roy Calvert's book "Capital Punishment in the Twentieth Century" (1927) was the major factor in leading to the appointment of the House of Commons Select Committee on Capital Punishment (1930). The Report of that Committee (1931) stated, that capital punishment could be abolished without endangering life or property or impairing the security of society and recommended that for five years capital punishment should be abolished as an experimental measure1.

It also made a number of recommendations (to be implemented if the main recommendation to avoid death penalty was not implemented), regarding the McNaghten rules, (relating to the defence of insanity) death penalty for women and the restriction of death penalty to those who were 21 years or older. Government did not take any action on the report. Vyvyan Admas moved a resolution in November 1938, in the House of Commons, for abolition of capital punishment for an experimental period of five years, which was carried by a majority of 114 to 89. But Government did not undertake any legislation on the subject2.

1. For details regarding the Committee of 1930, see Elizabeth Turtle The Crusade Against Capital Punishment, (1961), pp. 34 to 44.

2. "As the vote was taken on a private member's motion, there was no way in the procedure of the Commons to compel Government to act on it". Elizabeth Turtle The Crusade against Capital Punishment, (1961), p. 53, foot-note 36.

31. So far as the period 1950 to 1959 is concerned, the following extract from an article1 gives an excellent account of the history of the movement for abolition of capital punishment in England.

1. Gardiner Capital Punishment in Britain, (1959) 45 American Bar Association Journal, 259.

In 1948, a clause was added to the Criminal Justice Bill, then before the House of Commons. This clause would have suspended the death penalty for five years. On any matter of importance to the Government or to the opposition the Party "Whips" are put on, obliging the members to vote in accordance with the decision of the Party. Capital punishment, however, has nearly always been regarded as outside party politics, and it has been the custom to leave any vote on the subject to the vote of all the members. On the vote on this clause, the then Labour Government advised members to vote against it, but it was carried on a free vote of the House.

The House of Lords, while intimating that they would not have opposed a clause restricting the death penalty to the worst grades or degree of murder, rejected the clause. On the return of the Bill to the House of Commons that House substituted a clause limiting capital punishment to certain specified types of murder, but the House of Lords thereupon also rejected that clause. The Government then abandoned the clause, but appointed a strong Royal Commission,-not to advise whether capital punishment should be retained or abolished, but to advise whether it should be limited or modified, and if so how.

The Royal Commission sat for four years, heard innumerable witnesses and themselves visited Norway, Sweden, Denmark, Belgium, Holland and the United States to hear further evidence in those countries. In 1955 they reported. They said in their Report that "whether the death penalty is used or not, and whether executions are frequent or not, both death penalty States and abolition States show rates which suggest that these are conditioned by other factors than the death penalty". And their general conclusion was as follows:-

"The general conclusion which we have reached is, that there is no clear evidence in any of the figures we have examined that the abolition of capital punishment has led to an increase in the homicide rates or that its reintroduction has led to a fall".

They recommended that the death penalty should be left to the jury to decide in each case. They added, with reference to this proposal, " .its disadvantages may be thought to outweigh its merits. If this view were to prevail, the conclusion to our mind would be inescapable that in this country a stage has been reached where little more can be done effectively to limit the liability to suffer the death penalty, and that the real issue is now whether capital punishment should be retained or abolished."

The Report of the Royal Commission led to a much wider knowledge in this country of the relevant facts and to an increase in the demand for the abolition of capital punishment. Many people here had not realised before that outside British territory the only civilised countries in Western world which retain capital punishment are France, Spain and some of the United States and that all other countries regard the imposition of death as a form of punishment both unnecessary as a deterrent and an anachronistic barbarity. Nor had they realised that the universal experience of abolition countries had been that the abolition of capital punishment does not in fact result in any increase in the homicide rate.

The Death Penalty (Abolition) Bill

In February 1956, a resolution calling on the Government to introduce forthwith legislation for the abolition or suspension of capital punishment was, carried in the House of Commons. When, in March, a private member introduced a Bill in the House of Commons to abolish capital punishment, the Conservative Government, in accordance with precedent, left the matter to a free vote of the House, while strongly advising the House, which had a Conservative majority, to vote against the Bill. The Bill was nevertheless carried on each of its three readings, and in July went to the House of Lords, which rejected the Bill on its second reading.

Those who voted in favour on the second reading, however, included four of the judicial members of the House of Lords, the two archbishops and eight out of the nine bishops present; and it became clear that so many leading citizens of repute strongly felt that some change in the law must be made that the Government introduced its own Bill, which became the Homicide Act, 1957, which was passed into law, contrary to precedent, by means of the Conservative Party "Whips". It was a compromise.

32. English Act of 1965.-

Subsequent history of abolition in England is well-known, and need not be given in detail. On the 4th December, 1964, the Murder (Abolition of Death Penalty) Act, Bill was introduced by Mr. Sydney Silverman; after a long discussion the Bill was passed by both the Houses. It received the Royal assent on the 8th November, 1965. Under the Act1, no person shall suffer death for murder, and a person convicted of murder shall be sentenced to imprisonment for life2; where the person convicted of murder appears to the court to have been under the age of eighteen years at the time when the offence was committed, he is to be sentenced to be "detained during Her Majesty's pleasure", and if so sentenced, he is liable to be detained in such place and under such conditions as the Secretary of State may direct3.

1. The Murder (Abolition of Death Penalty) Act, 1965 (Chapter 71).

2. Section 1(1).

3. Section 1(6), amending section 53 of the Children and Young Persons Act, 1933 (Ch 12).

33. On sentencing any person convicted of murder to imprisonment for life, the court may, at the same time, declare the period which it recommends to the Secretary of State as the minimum period which (in its view) should elapse before the Secretary of State may order the release of that person on licence under section 27 of Prison Act 1952, etc.1.

1. Section 1(2).

34. The Act1 also provides, that a person convicted of murder shall not be released on licence under section 27 of the Prison Act, 1952, etc., unless the Secretary of State has, prior to such release, consulted the Lord Chief Justice of England or the Lord Justice General, as the case may be, together with the trial judge if available2.

1. The Murder (Abolition of Death Penalty) Act, 1965 (Ch 71).

2. Section 2.

35. The Act shall continue in force until the 31st July, 1970, and shall then expire, unless Parliament by affirmative resolutions of both Houses otherwise determines. Upon the expiration of the Act, the law existing immediately prior to the passing of this Act shall, so far as it is repealed or amended by the Act, again operate as if the Act had not been passed, and as if the said repeals and amendments had not been enacted1.

There are certain other detailed provisions, which are not relevant for the present purpose.

1. Section 4.



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