The abolition of capital punishment

173 Pages·2017·12.64 MB·English

PPoorrttllaanndd SSttaattee UUnniivveerrssiittyy
PPDDXXSScchhoollaarr
Dissertations and Theses Dissertations and Theses
5-1973
TThhee aabboolliittiioonn ooff ccaappiittaall ppuunniisshhmmeenntt:: aa ccoommppaarraattiivvee
ssttuuddyy
Michael L. Call
Portland State University
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Call, Michael L., "The abolition of capital punishment: a comparative study" (1973). Dissertations and
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I
(
AN ABSTRACT OF THE THESIS OF Michael L. Call for the Master
of in History presented May 15, 1973.
Art~
Title: The. Abolition of Capital Punishment; a Comparative
Study.
BY MEMBERS OF THE THESIS COMMITTEE:
APP~OVED
Charles M. White, Ch~irman
j.
1
Bernhard Fedde
The thesis is a comparative study of two campaigns
_,-.r .
capital punishment. it is an
,w~ged ~gainst Specifical~y,
examination of the public arguments and legislative action
which "transpired in Oregon and Great Britain when their
respective legislatures considered and then approved laws
to abolish the penalty of death for the crime of murder-
Oregon in 1963 and Britain in 1965.
Primary sources for the study included the public
transcripts of legislative debates as well as minutes of
committee meetings and hearings. For Oregon the legisla
tive records consist for the most part of committee
minutes which summarize discussiohs and of tape recorded
J :
!'
testimony at public hearings. The study also utilized
Parliame·ntary Deha·tes which record verbatim addresses on
the floor of the House of Commons and the House of Lords as
well as committee actions.
The debates in Britain in December, 1964, when
b~gan
the new Labor Government.provided time for consideration of
a private Member's bill on abolition--the.Murder (Abolition
of Death Penalty) Bill. Action by the House of Commons did
not.conclude until the following July in part because the
I
bill l?ecame embroiled in a partisan, pr.ocedural contest.
Final discussion by the Lords followed in July and October.
In the contest was of shorter duration, from
Or~gon lasti~g
the of the session in January, 1963 until May of
b~ginning
the same year. Though actual time spent .in the abo
Or~gon
lition law was much less than in the bill
E~gland, Or~gon
also became mired in legislative procedure.
The Cfebates exhibited a concern for several issues by
proponents and opponents of abolition. Fdremost
amo~g
those issues which touched both discussions was the argu
ment over the deterrent value of capital punishment. Abo
litionists maintained that the death penalty had no
de~er­
rent effect in murder; but the issue was never clearly re
solved in favor of one side or the other. Two other a!gu
ments app.earing prominently in each debate were the alter
native which should replace capital punishment and the pub
lic's opinion about abolition. Though it was· not really
an argl)inent on the principle involved, the alternative
~
nevertheless drew substantial comment and became a focus
of procedural contests over the abolition bills.· Also pub
lic opinion, although a major concern in and Bri
Or~gon
tain, took a different.turn as an issue in each discussion;
1 ·
in the worried more over presenting the
Or~gon l~gislators
voters with a lucidly stated ballot measure than with the
actual of popular opinion for or abolition
stre~gth ~gainst
as in· In either case, of this argu
E~gland. th~ ~alidity
ment is questionable.·
. There we.re also a!guments employed which were pecu
liar tn each debate such as the of the Homicide
anomalie~
Act in Britain and the' impact of the death penalty on the
lower socio-economic classes in But fundamentally,
Or~gon.
the same werie heard in each debate, even
a~uments tho~gh
these a!guments went unexamined and unsupported by appro
priate data.
-"""V--
--1
~
"
THE ABOLITION OF CAPITAL PUNISHMENT;
A COMPARATIVE STUDY
,
_
I
by
MICHAEL L. CALL
A thesis submitted in partial fulfillment of the
requirements for the degree of
MASTER OF ARTS
in
HISTORY
Portland State University
1973
..... i!r"'"'"' .... -II' ... .,. ...... "" ... ,,
;.--=·
TABLE OF CONTENTS
\
PAGE
CHAPTER
ii
I HISTORICAL. EXAMPLES·OF THE USE AN.D . . . .
ABOLITION OF THE DEATH PENALTY
• • 1
'I
. . . . . .
II THE DEBATE IN ENGLAND: COMMONS • 35
11 . . .
The Murder Bill on Second Readi~g . 35
. . . . . . i'
The Murder Bill in Committee 58
Report of t.h e. M. u.r d.e r .B .i l.l a.n d. T. h..i rd. . . .
t
Readi~g 75
. . . . . . t
III THE DEBATE IN ENGLAND: LORDS . 85
•
l
. . . . .
IV THE DEBATE IN OREGON: SENATE •• • 110 i
. . . . . . i
v THE DEBATE IN OREGON: HOUSE· . • 134 1
VI CONCLUSION . . . . . . . . . . . . . . . i~~
• • 158
. . . . . . . . . . . . . . .
BI~LIOGRAP~Y 165
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CHAPTER I
HISTORICAL EXAMPLES OF THE USE AND
ABOtITION OF THE DEATH PENALTY
The o!ganized movements the world to re
thro~ghout
scind the penalty of death as a means of criminal punish
ment is a recent phenomenon when compared to the penalty's
long-time use. Expressed in the ancient concept of lex
talionis, the death penalty had one of its earliest delin
eations in the Code of Hammurabi (c. 1750 B.C.), which
1
specifies death for twenty-five different offences. What
is today considered a serious but non-capital crime--bri-
gandage--was, under the Code, punishable by death.
R~ceiv­
ing stolen was also classified as a capital of
~roperty
f
~­ fence, as was the crime of arson.2 In simi~ar fashion, the
t
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l
i Hebrews were also given to prolific use of capital p~nish­
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! ment,. emplo.ying it those who committed a.dultery or
~gainst
t
a host of other offences. In contrast to the Babylonian
strictures, however, Mosaic law occup1ed itself more with
religious crimes, death for idolatry, blasphemy
prescr~bi~g
lJohn M.P. Smith, The· Origin and History of Hebr·ew
Law (Chicago: University of Chicago Press, 1961), pp. 183-
222.
2 '\ .
John L. Beatty and Oliver A. Johnson, Heritage of.
Western,Civilizati9n: Selected Readings (Englewood Clifjs,
New Jersey: Prentice-Hall, 1966), pp. 7-13.
- ,...........-----
2
and sabbath-breaki~g. 3
'
Not every ancient civilization the death penalty
u~ed
extensively or even in the same way. The Assyrians, al
though influenced by the Code of Hammurabi, specify
di~
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deatli as a punishment; them mutilation was a more com
amo~g
1 ·
mon punishment.4 The Hittite· empire was also restrained in
its use of the death penalty, it in only of
applyi~g eigh~
fences. Murder, the one crime for which modern states most
often retain the capital penalty, was in Hittite society
punishable by a fine~ 5 Still, these facts do not mean that
Hittite, or even Assyrian, society was lenient in regard to
criminal punishment. Secondary such·as flaying,
penaltie~
castration and impalement must have often had the same ef
fect as the death penalty in the end, since the subject
criminal probably died from infections caused by such treat-
ment.
In tribal Greece, with its tradition of "self-help" ·
on the part of the tribal group, the clan enforced the law
of homicide, taking its vengeance in kind on the supposed
slayer of its kin. The possibility of feuds in such
~ases
was great, especially when the accused sought the protec
tion of his relatives. ·As· a result, other means were tried
3neut. 13:6-10; Lev. 24;16; Num. 15:32-35.
'4smith, pp. 223-243.
5
smith, pp. 247-274.
.,...,
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3
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to curb the effects of the inter-tribal warfare.
dam~gi~g I
Arbitration by public leaµers and blood-money. appear to ~
have been attempted alternatives to death in instances of
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homicide.
I
By contrast, the Romans made t.r eason and murder capi-
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.
tal crimes. By automatically murder a capital of-
maki~g
fence, they hoped~to·reduce the incidence of tribal feuds.6
In addition to murder and treason, death fell on those
guilty of _perjury, publishing libels and
insulti~g so~gs,
arson, and making disturbances in the city at n~ght. 7 .Even
so, the death penalty was rarely imposed on citizens and
was abolished alt~gether in 299 B.C. in.what may be one of
the earliest "abolition" moves in the history of the move
ment. 8
In early England the Britons employed a form of capi l
!
I
q
tal its origin is not clear. Bressler
pun~shment, tho~gh
writes· that in Britain, after the departure of the Roman I
l~gions, !
There were still no wrjtten laws or at least
'
none that have survived. We know that capital
punishment existed, but it was not the modern
form, where the·State metes out death to those
6smith, pp. 247-274,
7John Laurence, A Histor"f of Capita1_Punishment (New
York: The Ci.tadel Press, 1960 , p. 3.
t ·
8
For a discussion of the Roman debate 6n abolition,
see William McAllen Green, "An Ancient Debate on Capital
Punishment," Capital Punishment, ed. Thorsten SelliJ;>. (New
York: Harper and Row, 1967), pp. ·46-54.
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4
who have offended against it. The State was weak
and did not meddle in such affairs as ju,stice.9
Though society in. Britain lacked the means of estab
ea~ly
lishing feasible alter~atives to deal with serious criminal
ity, the death sentence existed in a form appropriate to
the time. A person accused· of treason, cowardice in battle
or religious transgressions would be sentenced, if he
failed adequately to answer his accuser, to outlawry and not
death, though the two were essentially the same. The of- '
ficial decree was somethin akin to caput gerat lupinum or,
"Let him be treated as the head of a wolf."10 It was then
the and the duty of every man to pursue the outlaw,
r~ght
,ravage his land, burn his house and to slay him like a wild
beast. As Maitland quipped, "Outlawry was the capital
punishment of a rude age."
Still, in cases of murder, outlawry was not common.
The the death the of
A~glo-Saxons ju~ged pena~ty, worki~g
lex talionis and the blood-feud, or vengeance extracted by
the victim's family, as being too costly in mi_litary terms,
.especially by the end of the eighth century and the Danish
invasions. Thus the Saxon kings insti-tuted a system of
"worth-money" or wergild for freemen, and manbot or worth
money for slaves. If a person were killed, the slayer
9Fenton S. Bressler; Re·prieve (London:. Geo!ge Harrap
and Co., Ltd., 1965), p. 16.
10
Bressler, p. 17.
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