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A History of Torture and Death

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This appears to be the book "A History of Capital Punishment," with additional bits about torture thrown in, potentially from another of Dr. Scott's treatises. We're still sorting it out, but you can guess at the contents, and there are a few pictures, though no footnotes.

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A History of Torture and Death


This page copyright © 2007 Olympia Press.




I. The Concept of Vengeance

IN all savage and primitive society the death penalty is purely retaliatory. Its origin lies in man's natural desire to return blow for blow, injury for injury, as expressed in the Biblical concept of an eye for an eye, a tooth for a tooth.

Blood-revenge is restricted in its conception. For practical purposes, this is an essential feature. There are numerous variations and modifications, but each extension or amplification is cumulatively dangerous. Thus, the consequences are potentially terrifying where every relative of the murdered person, whenever opportunity occurs, exacts vengeance on every relative of the murderer. In this manner arose those blood feuds which were pursued with such inhuman ferocity among certain savage tribes and in some so-called civilized countries.

The concept of blood-revenge was a marked feature of Mosaic law. From a reading of the Second Book of Samuel, it is evident that, at one time, blood-revenge combined the utmost degree of savagery with an extremely embracive familial scope, but afterwards restrictive laws were introduced with the express object of preventing an itch for the gratification of personal revenge developing into an embracive family feud. According to the laws of Israel, where homicide was committed, the murdered person's nearest relative made himself the sole arbiter of guilt. Trial there was none. The law allowed such a relative to constitute himself judge, jury and executioner all rolled into one. So far as this god-given right to vengeance was concerned, it mattered little what particular type of homicide was involved. The fact of killing was enough to justify retaliation in kind. Thus, whether accidental or purposeful, the penalty was the same.

There was, however, one way and one way only in which anyone guilty of accidental homicide might escape the consequences of this campaign of vengeance: he could seek the protection afforded by a “city of refuge”. Here and there, throughout the country, were to be found these “cities of refuge", and once within the purlieus of any one of them, proof of willful murder must be provided by the seeker of blood-revenge before he could justify his claim to exact vengeance. Thus:


“But if any man hate his neighbour, and lie in wait for him, and smite him mortally that he die, and fleeth into one of these cities: then the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die. Thine eye shall not pity him, but thou shalt put away the guilt of innocent blood from Israel, that it may go well with thee.”


The abolition of these “cities of refuge” and of all other, similar sanctuaries did not see the coincident abolition of the horrible custom of blood-revenge. It became essential, therefore, for tribes and families to take other measures for self-preservation, and these took the form of protective alliances. These compacts survived among primitive races throughout many centuries of the Christian era. Apropos of this, Dr. Thomson, in The Land and the Book, says: “These family treaties of alliance offensive and defensive, are intended to answer the same purpose that the ancient sanctuaries and 'cities of refuge' did; and they do it. When a man fleeing for life arrives among his allies, he is safe, so far as their utmost power to defend him can go; and they are to pass him on to more distant retreats if necessary. For this purpose, these compacts are extended all over the land.... Again: our friend says, in justification, that without these treaties of alliance they could not exist at all in this region of lawless Moslems, Metawelies, and Arabs. It is one of the cruel features of the lex talionis, that if the real murderer cannot be reached, the avengers of blood have a right to kill any other member of the family, then any relation, no matter how remote, and, finally, any member of this blood confederation. The weak would hence be entirely at the mercy of the strong, were it not for these alliances; and most of all—would the few Christians in Belad Besharah fall victims to the fierce non-Christian clans around them. This is their apology for such compacts, and it is difficult to convince them that this—as they believe—their only means of safety, is immoral. If you tell them that they should make the government their refuge, and appeal at once to the Pasha, they merely smile at your ignorance of the actual state of the country, and not without reason. Even in Lebanon, which the Allied Powers have undertaken to look after, I have known, not one, but many horrible tragedies. Several of my intimate acquaintances have literally been cut to pieces by the infuriated avengers of blood, and in some instances, these poor victims had no possible implication with the original murder, and only a remote connection with the clan involved in it. Were it not for these confederations, there would be no safety in such emergencies, and they do actually furnish an important check to the murderous designs of 'avengers'. I once inquired of a friend if he were not afraid to go into a certain neighbourhood where a murder had been committed by one of his confederation. 'Oh no', he replied, 'our aileh (confederation) can number twelve hundred guns, and our enemies dare not touch me; and, besides, the matter is to be made up by our paying a ransom.' This is the ordinary mode of settling such questions.”

II. Origin and Development of Capital Punishment as a Legal Process

IT is natural that this somewhat primitive concept of the punishment of murder and injury by a species of personal or private revenge on the part of the relatives, should devolve into an act of retribution instituted on behalf of these relatives by the governing power. In these circumstances, says Sumner, “injuries became crimes and revenge became punishment.” In its early stages, at any rate, any action by the State was purely retaliatory: it embraced no idea other than that of vengeance.

As the people begin to realize the possibilities of the exercise by the State, or in other words, by themselves as an executive body, of tins privilege of retaliatory punishment in contradistinction to the narrower one of personal blood-revenge, there opens up the prospect of preventive action in a much wider sense than is possible with any individualistically-motivated idea of vengeance. Thus they extend and develop a system of State punishment, or in other words a penal system. The people realize that in assuming the responsibility for exacting revenge by punishing any individual guilty of an offence against another member of society, they are providing self-protection against potential injury. In this way, they carry a system of revenge to its ultimate triumph: that is, consciously or unconsciously, they turn it into a system of deterrence.

Despite the formation of penal codes, it must be kept well in mind that early law-makers still looked upon the crime of murder (or, indeed, any other crime involving serious injury) as being one for which revenge was due to the sufferer or his relatives. The idea of punishment as such, and divorced from personal revenge, did not enter into the matter. It was still a case of revenge or retaliation demanded by the injured party, whose right to this revenge was recognized by the State. The real difference between this retributive action by the State and the old system of blood-revenge, lay in the fact that no longer was the nearest kinsman allowed to fulfil the triple role of judge, jury and executioner, or indeed any role at all beyond that of formulating his claim for revenge. The State took over these powers and specified what form of revenge should be exacted or what type of restitution should be made.

It is important to remember that in the early days of civilization there were no prisons. Detention as a form of punishment or deterrence was unthought of. The doctrines of lex talionis and restitution were universally upheld and applied. A system of fines was instituted. These fines varied according to the nature of the injury to be placated. Often a fine, payable to the murdered person's relatives, was a possible alternative to the punishment of death.

The Anglo-Saxons and Danes, according to Baring Gould, had an elaborate system of fines. Says this authority: “Capital punishments were sanctioned, but in all cases an opportunity was offered for the substitution of a fine. Thus, by the law of King Ina, if a thief were caught, he was sentenced to death, but his life could be redeemed by pecuniary satisfaction being made to the persons robbed. So (lie fine inflicted on a murderer was regulated according to the sum at which the life of the murdered party was valued; thus, if a man slew a freeman, he had to make compensation to the amount of 100 shillings, but for the murder of a thrall a much less sum was demanded. If a freeman slew his thrall, he paid a nominal fine to the king for a breach of the peace; but if a slave killed his master, the doctrine of blood for blood was carried into effect, as the thrall had no personal property to pay in compensation for his crime.”

It was not until the time of Henry the Second that English law began to uphold the doctrine of crime being more than a personal affair between the guilty party on the one hand and the injured party on the other, but as something to be recognized as a wrong committed against the nation. This realization was not without dangerous implications. For it opened up possibilities for persecution and tyranny on a mammoth scale. Once the State's right to exact vengeance on behalf of its citizens was accepted and approved, the way for the exercise of such tyranny and persecution was clear. This is evidenced by the manner in which subscribers to rival religions, on the ground of being guilty of heresy, were subjected to continuous and unremitting persecution. To this end, crimes were manufactured irrespective of the possibility of their commission. We have an illustration of this in the wholesale persecution of the witches in the seventeenth century. How warped the mind of a learned judge of the day could be, is evidenced in the directions to the jury, given by Sir Matthew Hale, in connection with the trial of Rose Cullender and others at Bury St. Edmunds on March 10th, 1662. The famous jurist told the jury “they had two things to enquire after. First, whether or no these children were bewitched. Secondly, whether the prisoners at the bar were guilty of it That there were such creatures as witches", continued Sir Matthew, “he made no doubt at all; for, first, the Scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime. And such hath been the judgment of this kingdom, as appears by that Act of Parliament which hath provided punishment proportionable to the quality of the offence; and desired them strictly to observe their evidence; and desired the great God of heaven to direct their hearts in this weighty thing they had in hand; for to condemn the innocent, and to let the guilty go free, were both an abomination to the Lord.”

The belief in the mythical and apocryphal crime of witchcraft was bad enough in itself; the means that were adopted to prove the practice of the crime by those charged with it, were even worse. Witch-finders, as they were called, were prevalent in every European country, including Britain, and their methods, upheld and justified by the judges and theologians of the day, were of a character to make what passed for justice stink to high heaven. The following account, culled from the commentary, attributed to Voltaire, appended to the 1799 edition of Beccaria's Essay, is sufficiently revealing.

“In the year 1748, in the bishopric of Wurtsburg, an old woman was convicted of witchcraft and burnt. This was an extraordinary phenomenon in the present century. But how incredible it seems, that a people, who boasted of their reformation, and of having trampled superstition under their feet, and who flattered themselves that they had brought their reason to perfection; is it not wonderful, I say, that such a people should have believed in witchcraft; should have burnt old women accused of this crime, and that above a hundred years after the pretended reformation of their reason? In the year 1652, a country woman, named Michelle Chaudron, of the little territory of Geneva, met the Devil on her way from the city. The Devil gave her a kiss, received her homage, and imprinted on her upper lip, and on her right breast, the mark which he is wont to bestow upon his favourites. This seal of the Devil is a little sign upon the skin, which renders it insensible, as we are assured by all the demonographical civilians of those times. The Devil ordered Michelle Chaudron to bewitch two young girls. She obeyed her master punctually. The parents of the two girls accused her of dealing with the Devil. The girls being confronted with the criminal, declared, that they felt a continual prickling in some parts of their bodies, and that they were possessed. Physicians were called, at least men that passed for physicians in those days. They visited the girls. They sought for the seal of the Devil on the body of Michelle, which seal is called, in the verbal process, the Satanical mark. Into one of these marks they plunged a long needle, which was already no small torture. Blood issued from the wound, and Michelle, testified by her cries that the part was not insensible. The judges, not finding sufficient proof that Michelle Chaudron was a witch, ordered her to be tortured, which infallibly produced the proof they wanted. The poor wretch, overcome by torment, confessed, at last, every thing they desired. The physicians sought again for the Satanical mark, and found it in a little black spot on one of her thighs. Into this, they plunged their needle. The poor creature, exhausted and almost expiring with the pain of the torture, was insensible to the needle, and did not cry out She was instantly condemned to be burnt; but the world beginning at this time to be a little more civilized, she was previously strangled. At this period, every tribunal in Europe resounded with such judgments, and fire and faggot were universally employed against witchcraft as well as heresy.”

III. Aims of Capital Punishment

WITH the transference of homicide from its ancient status as a mere personal affair between two parties, or the respective relatives of these two parties, into a question of the State dealing out justice, the whole aspect of criminal law changed. What had been no more than the regulation and limitation of private quarrels, became a system of State-dispensed justice that eliminated altogether the feud element Moreover, the people as a whole became concerned in what had hitherto been looked upon as personal quarrels between individuals, and quickly the position developed until the interests of those immediately affected by the crimes became of little importance compared with the concern of society as a body in criminal prophylaxis. The State, having adopted the role of avenger, evolved a scheme of dispensing justice, according to its lights, in which the views and interests of the three parties concerned—criminal, victim, and the State;—played their parts in inverse order, the State occupying a role of outstanding importance.

In this way, there was evolved a penal system featuring three clearly defined aims, to wit: (a) the prevention of a repetition of the offence by the murderer, and its imitation by another person or persons; (b) the provision of a punishment befitting the crime, in accordance with the ancient theory of lex talionis, and (c) the indemnification of the deity, of society, and of the relatives of the murdered person by a specifically devised form of atonement. These various objectives were, it was contended, achievable in one way and one way only, by the judgment of death.

As deterrence ranked higher and higher in importance, the State extended the range of capital punishment by adding crime after crime to the list of offences for which it was deemed to be a fitting penalty. The original demand of an eye for an eye developed into a claim for the culprit's life to satisfy the theft of a shilling or the cutting down of a tree. Torture before, and degradation after, were added to the punishment of death. No means was deemed too foul, too savage, or too inhuman, if it were thought to prove an effective deterrent. Not until well towards the close of-die eighteenth century was it realized that this doctrine was unjustifiable. Blackstone, the great English jurist, writing on this very point, said: “For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws.”

Penological reform started with the repeal of torture as an additional punishment; and continued with the repeal of capital punishment for petty crimes, eventually leaving murder as the most outstanding of the few crimes involving the death penalty. Murder, it is contended, ranks as the crime for which society must demand the judgment of death; this demand, it is held, is in accord with justice; with necessity, as envisaged in the safety of the public; and with the policy of atonement.

Recent trends, generally speaking, are in the direction of a realization that punishment is justifiable only on the grounds of deterrence. Charles Bradlaugh's contention that “punishment which is mere revenge is itself a crime” is incontrovertible. All the same, these concepts are mainly idealistic. Retaliation still ranks high in the average man's notion of justice; the revenge motif is still embodied in penal law, and-therefore cannot be dismissed as wholly unimportant, or considered to be a completely negligible factor in present-day criminology.

In any modernistic consideration of crime, as a result of concentration on the problem of the murderer, the case for the victim's relatives is in danger of playing a minor role or of being overlooked altogether. In twentieth-century penology the question of deterrence on the one hand and of reformation on the other are apt to override and eclipse all other considerations. In particular the original aim of capital punishment is totally lost sight of. Any examination, along historical principles, of this original aim and of the State's mandate gives rise to the question of how far has modern society departed from this basic mandate in neglecting to carry out the principle of lex talionis? Or to put it another way, how far are the relatives of the murderer's victim justified in considering they have a right to demand, as their just due, vengeance in the form of a life for a life? It must ever be remembered that whatever arguments may be advanced by humanitarians and those versed in penological science, with regard to the objects of punishment, from the specific viewpoint of the injured parties, vengeance is all important, ousting and drowning in its clamorous insistence every other objective; and, because of this, with some justification, the claim is urgable that in the making of this concession and that, particularly in relation to the question of responsibility, the sex and the age of the criminal, and other factors (that to the injured parties have little or no weight), all of which involve, either partially or wholly, a rescinding of the vengeance motif, the State is guilty of failing to carry out its obligations to the victim's relatives. On the other hand, arising out of this argument is the question of how far is the State justified in asking or compelling a disinterested body of officials to act, in the most cold-blooded way possible, as dispensers of a form of vengeance that is out of tune with civilization as now constituted but is called for by these relatives of the victim and such other members of society as support the principle of lex talionis? Although the original right and privilege (now lost sight of) granted to the murdered person's nearest relative to act as judge, jury, and executioner, cannot be tolerated in the modern State, there would appear to be something in the contention, conceivably presentable, that, in a State which upholds capital punishment, the office of executioner should be the privilege, or rank as the duty, of the relative who is insistent in demanding that such a form of retribution be carried out.

In consequence of the elimination of vengeance (as an ideological concept at any rate) from punishment, these points of view have received little or no attention, but in considering the problems concerned in the reform of the existing system of capital punishment they merit careful examination, especially in relation to the system of granting reprieves. In any event, the claims of the victim's relatives would appear to underline the need for the fullest publicity being given to the reasons why reprieves are granted. It may well be, however, that adequate consideration of these very points might do much towards bringing about a changed outlook on the part of these injured relatives. The question of what would you feel like if your wife, or husband, or sister, et al., happened to be the murderer's victim?—a question so triumphantly propounded by the upholder of capital punishment to the abolitionist—is a tacit admission of the validity of a cry for vengeance which, in these days (and this is the crux of the matter), is, and can be, rarely satisfied. In any modern State where, with the full approval of society (apparently even of those who are insistent in the demand for capital punishment being retained and the old principle of lex talionis being applied), only a few murderers of specific and selected types are punished or punishable, and where homicide in many of its commonest forms is not even a criminal offence, the illogicality of any argument in favour of the death penalty based on the vengeance motif must be apparent to the individual of mature intelligence. When this illogicality is generally and fully realized, and when it is also realized that the certainty of punishment in the form of a protracted indeterminate term of imprisonment is far more desirable than the risk of the murderer going free, the whole multifaceted problem will appear in a different light. As matters now stand, for the very reasons already given, the injured relatives are, sometimes completely and more often partially, dissatisfied with the treatment which the murderer receives at the hands of the State.

Mixed up with all tins is the fearful responsibility of the State for the crimes it elects to punish (see Chapter VII), a responsibility it cannot evade by a mere matter of terminology. There is a possibility that some day it will be realized how futile is the effort to abolish a crime by a method, of which the outstanding feature, despite every attempt at justification and every form of apologia, is that its basic character is precisely the same as the crime itself. Little more than a century ago, the pickpockets, while a thousand of their fellow-citizens gazed at the spectacle of a thief swinging on the gallows, took the opportunity to ply their craft; to-day, while the government, to the accompaniment of the hurrahs of its supporters, kills off this type of murderer and that, a dozen other types emulate the act of the State, and under one name and another, kill with comparative impunity. “What is truth?” said Pontius Pilate, and would not wait for an answer. And had Pontius Pilate lived to-day, well might he have asked, “What is murder?”


I. Murder Defined

ALTHOUGH every murder necessarily constitutes a case of homicide, every case of homicide does not necessarily constitute murder. The distinction is important. An act of homicide is the killing of one human being by another, irrespective of how or why the killing is done. It will be seen, therefore, that homicide includes manslaughter, infanticide, and every form of judicial, excusable, or justifiable killing, as well as murder. Homicide may be lawful or unlawful, and it may be committed with or without what, in English law, is termed “malice aforethought”. To constitute murder, it must be: (a) an unlawful homicidal act, and (b) it must be committed with “malice aforethought”.

An unlawful homicidal act is any unjustifiable or inexcusable act which results in death. It may be an unlawful act done with the express and deliberate intention of causing death; it may be that death results from the omission to carry out a duty or to perform some essential act, irrespective of whether or not there is intent to cause injury or death; or it may be that by the performance of some unlawful act, death accidentally results. Death caused in any of these ways is homicide; moreover, it is unlawful homicide, but it is not necessarily murder.

Lawful homicide may be either of two kinds: it may be excusable, or it may be justifiable. To be excusable, an act of killing must be one committed while doing a lawful act, in a way which is accidental or through misfortune. To be justifiable, an act of killing must be one committed in a lawful manner, in the course of one's duty, in self-defence, or in defence of some other person or persons.

Manslaughter has one point of similarity with murder, it is unlawful homicide. The only difference—an important difference—is that the one is without, and the other with, ”malice aforethought”. In any trial for unlawful homicide, therefore, the interpretation of these portentous words “malice aforethought", may make all the difference between infliction of the death penalty and a term of imprisonment.

What, then, is the meaning of the term “malice aforethought”? The question, admittedly, is a difficult one, as in order to determine the presence or otherwise of malice at the time when the homicidal act was committed, it is necessary to ascertain what was the state of the prisoner's mind, so far as intent was concerned, immediately before or at that exact time. If (according to the circumstances of the case in question) the members of the jury are satisfied that the accused (immediately before, at the time of, or during the commission of the homicidal act, whether this act was premeditated or not), intended to kill another person or persons, then he is guilty of murder; if they are satisfied that he was fully aware that the act would or might result in death, then, too, is he guilty of murder; if they are satisfied that his purpose was the commission of a felony, then again should the verdict be one of murder; or, if they are satisfied there was any intention of forcibly opposing a police officer in the discharge of his duty, again is a case of murder clearly established.

The position is further confused by the question of provocation. Proof of provocation may turn a charge of murder into one of manslaughter. Any one of many kinds of culpable homicide committed at a moment when the killer is in such a state of passion or justifiable anger that every vestige of self-control is lost, may be held to result from provocation. A moment's reflection will enable one to visualize the enormous possibilities of this question of provocation, and how a skilled counsel may well exploit it in the interests of his client. How can one expect the members of the average jury to distinguish between the genuine, overmastering passion of one who unintentionally kills on the one hand, and the simulated passion of one who deliberately plans his crime on the other?

Considering the tremendous difficulties inherent in the establishment of “malice aforethought” and of recognizing true provocation, well might Lord Simonds in the House of Lords debate on the Criminal Justice Bill (July 20, 1948), say: “Recently, I was a member of your Lordships' House when, on appeal, we considered the question of how far the crime of murder may be reduced to manslaughter by provocation. And even those words which have for six hundred years and more been part of the charge of murder, the words 'malice aforethought', from time to time have received a varying interpretation to satisfy the changing conditions and the changing conscience of the people.”

Moreover, the question of differentiating between accident and murder is not without its difficulties. There are cases of death by poison where no one can prove beyond any possibility of doubt whether the lethal drug was self-administered, taken by accident, or deliberately administered by another person. Who is to say whether a person who has been run over and killed was pushed from the crowded pavement in front of a fast-moving automobile, or made a suicidal jump? Who is to say whether or not the driver of a fast car deliberately ran down someone whose death is deemed to be accidental? How is it possible to be certain that one who is drowned at sea was not murdered by the sole survivor of a supposed accident?

Turning to infanticide, the possibilities of the murder of newly-born babies are tremendous. It is well known to the medical profession, and to many lay persons of both sexes, that every year numerous newly-born infants are found dead in circumstances which are highly suspicious. Even in cases where there are indications that the mother has deliberately brought about the death of her newly-born child, the provisions of the Infanticide Acts of 1922 and 1938 make the charge one of manslaughter and not murder, with the chances of the term of imprisonment being a relatively short one.

II. The Gradation of Murder

ALTHOUGH there are many types of murderer and many varieties of murder, this particular offence rarely ranks, as a professional crime, carried out by professional criminals, in a professional manner. It may be described as, par excellence, the crime of the amateur. Most murderers only commit the crime once. It may, with grim facetiousness, be said mat the reason for this is that it is one of the few offences where the culprit, if caught, is rarely given an opportunity to repeat his crime; but it is doubtful if the motive which leads most people to commit murder is ever likely to arise again. Moreover, the truth of the statement that few murderers have a second chance is equally dubious, for the cogent reason that a considerable proportion of murderers are never caught.

It is important that this amateur aspect of murder should be kept well in mind, as it is also important to recognize that, because of the many and varied causes of, or motives for, murder, some discrimination in the treatment of the murderer should be conceded. Here we touch upon one of the disadvantages of a penalty which, whatever may be the ultimate practical application of it, recognizes at the outset and in its judgment, no differentiation in the crime, and in many cases subjects the culprit to untold agony of mind through this very lack of differentiation.

In America, whatever may be the drawbacks and disadvantages of the system employed, the need for differentiation in the matter of court procedure has been admitted. The U.S.A. courts recognize degrees of murder. The verdict may be one of three, to wit: murder in the first degree, murder in the second degree, or manslaughter. The first-named is the only verdict carrying a capital sentence. Any unlawful homicide, in order to constitute murder in the first degree, must, with certain exceptions, have been deliberate and premeditated. These exceptions are where murder (i.e. unlawful homicide) is committed in the course of some other felony: as, for instance, when a burglar kills someone in perpetrating the crime or in making his escape; in connection with something involving imminent danger to others; through the deliberate burning of a dwelling-house or other building, automobile, ship, etc., with the full knowledge that it contains a living person; or as a result of the deliberate wrecking of a railway train, or other vehicle. Where any act of unlawful homicide is not deliberate or premeditated, and is unaccidental, it ranks as murder in the second degree, and as such is not subject to the death penalty. Manslaughter, a very embracing term, includes all other forms of unlawful homicide.

In England, the subject of grading has been considered on more than one occasion. The Royal Commission on Capital Punishment, in their Report, published in 1866, suggested that first and second degrees of murder should be recognized, with the death penalty restricted to the first degree, i.e. murder that is premeditated or deliberate. In the years which followed, various Bills for the grading of murder were introduced into Parliament, but all were withdrawn, mainly because of the practical difficulties in the way of putting into effect that which, in theory, would appear to have many advantages. For at whatever stage the grading is introduced, these difficulties are apparent. To leave the matter in the hands of the judge would not only throw a tremendous responsibility upon the shoulders of one person, but it could lead to grave injustice in any case where prejudice might conceivably enter into the matter. To leave the decision to members of the jury would, in the majority of instances, mean a “second degree” verdict, a point which was emphasized as long ago as 1878, in a House of Commons debate, by Sir Joseph Pease, who said: “As soon as the crime of murder was divided into two degrees it would be found that juries would lean to convict for the crime of the second degree, and the office of the hangman would gradually be almost unknown.” Apart from this, it is questionable whether the members of the average jury are competent to undertake so difficult and complicated a matter, involving as it does the onerous task of deciding the degree of blame attached to the accused, and it may be taken as certain that if given this task, without at the same time some radical alteration in the selection of jurors, there would be grotesque unfairness and possibly grave miscarriages of justice.

The Select Committee of 1930 decided against grading, on the ground that at present it is impracticable, and there the matter remained until, in 1948, the House of Commons, following the rejection of the clause in the Criminal Justice Bill to abolish capital punishment for an experimental five-year period, proposed a system of classification with the object of restricting the death penalty to types of murder where the fear of its infliction would have a distinctly deterrent effect upon potential murderers. The scheme was not intended, it was said, to constitute a system of grading in the American sense, its expressed object being confined to the question of deterrence and nothing else. However, the difficulties in the practical application of the proposed methods of carrying out this scheme were so obvious and so apparently insurmountable that, after lengthy debates in both Houses, nothing further was done.

In 1949 at the first public sitting of the Royal Commission on Capital Punishment, the Home Office presented the case against the grading of...

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