Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-25T08:24:27.989Z Has data issue: false hasContentIssue false
  • English
  • Français

The Shadow of the Gallows: The Death Penalty and the British Labour Government, 1945–51

Published online by Cambridge University Press:  28 October 2011

Victor Bailey
Get access Rights & Permissions [Opens in a new window]

Extract

The punishment prescribed by English law for murder in the first half of the twentieth century was death. A judge had to pronounce this sentence upon a person convicted of murder, except in two special classes of cases: persons under eighteen years of age at the time of the offense and pregnant women. He had no discretion to impose any less severe sentence. While retribution survived only in a symbolic form elsewhere in the criminal law, capital punishment, as Oxford criminologist Max Grunhut maintained, was a “powerful relic of retaliation in kind.” The law still reflected the ancient concept that every murderer forfeits his life becauce he has taken another's life: “He that smiteth a man, so that he die, shall be surely put to death.”

Type
Articles
Information
Law and History Review , Volume 18 , Issue 2 , Summer 2000 , pp. 305 - 350
Copyright
Copyright © the American Society for Legal History, Inc. 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. From 1887, executions for those under eighteen were virtually abolished by use of the royal prerogative of mercy. The Children Act, 1908, formally abolished the death penalty for persons under sixteen; the Children and Young Persons Act, 1933, confirmed the existing practice of reprieve by ending capital punishment for those under eighteen. The Sentence of Death (Expectant Mothers) Act, 1931, prohibited the death sentence on a pregnant woman. In addition, by the 1922 Infanticide Act, a woman charged with the death of her “newly born”—a term undefined in the Act, and narrowly interpreted by the courts, but enlarged in 1938 to apply to the death of a child under twelve months of age—would be punished for the commission of manslaughter rather than murder. This change meant little in practice, because no woman had been executed for the murder of her baby since 1849. It simply brought law and practice into conformity. See Rose, Gordon, The Struggle for Penal Reform (London: Stevens and Sons, 1961), 202, 206Google Scholar; Hollis, Christopher, The Homicide Act (London: Victor Gollancz, 1964), 13Google Scholar; Richards, P. G., Parliament and Conscience (London: George Allen and Unwin, 1970), 37.Google Scholar

2. Grunhut, Max, “Murder and the Death Penalty in England,” Annals of the American Academy of Political and Social Science 284 (1952): 158; Exodus 21:12.CrossRefGoogle Scholar

3. This sentence did not typically mean life, of course. Of the 253 commuted death sentence cases where release was authorized between 1920 and 1948, 58 (or 23 percent) were released after less than five years' detention, 141 (or 56 percent) after less than ten years' detention, and 236 (or 93 percent) after less than sixteen years' detention. See Home Office, Capital Punishment, Cmd. 7419 (London: Her Majesty's Stationery Office, 1948), 1.

4. Forty-seven were certified insane (respited to Broadmoor); 506 were reprieved (their sentence commuted to penal servitude).

5. Twenty-three had their conviction quashed by the Court of Appeal. The figures in this paragraph are drawn from Royal Commission on Capital Punishment, 1949–1953, Cmd. 8932 (1953; reprint, London: Her Majesty's Stationery Office, 1965), 13 (table 3), 19, and 298–301 (appendix 3, table 1); Select Committee on Capital Punishment, Parliamentary Papers (P.P.), 1930–31, VI (15), Report, 14; Potter, Harry, Hanging in Judgment: Religion and the Death Penalty in England (New York: Continuum, 1993), 143Google Scholar, 243, n. 4. The death penalty was, in practice, confined to murder, except for wartime executions for treason. In addition, eighteen U.S. soldiers (over half of whom were African Americans) were executed for murder or rape (or a combination of the two) in England during the Second World War, under the Visiting Forces Act, 1942. See Lilly, J. Robert and Thomson, J. Michael, “Executing US Soldiers in England, World War II,” British Journal of Criminology 37 (1997): 262–88.CrossRefGoogle Scholar Between 1900 and 1965, the year when capital punishment for murder was suspended, 780 civilians were hanged in Britain after being convicted of murder. See Davies, Christie, “The British State and the Power of Life and Death,” in The Boundaries of the State in Modern Britain, ed. Green, S. J. D. and Whiting, R. C. (Cambridge: Cambridge University Press, 1996), 342.Google Scholar

6. News Chronicle, June 2, 1948, 2. For details of the 1938 and 1947 Criminal Justice Bills, see Bailey, Victor, Delinquency and Citizenship: Reclaiming the Young Offender, 1914–1948 (Oxford: Oxford University Press, 1987), 255–65Google Scholar, 291–302.

7. NCADP, miscellaneous publications, MSS 16B/ADP/4/4/9/1, Modern Records Centre, University of Warwick Library. The other issue on which the Lords used their delaying power was the nationalization of iron and steel. See Morgan, K. O., Labour in Power, 1945–51 (Oxford: Oxford University Press, 1985), 62, 84Google Scholar; Heuston, R. F. V., Lives of the Lord Chancellors, 1940–1970 (Oxford: Oxford University Press, 1987), 127.Google Scholar

8. The members of Parliament who have the job of delivering each party's vote in the House of Commons are known as “whips”; hence, a “whipped” vote is one in which M.P.s have no choice but to vote for their party; a free vote is when M.P.s are allowed to vote the way their conscience dictates. The free vote is generally permitted when the subject is deemed to be an issue of public morality that cuts across party lines. Any divisions are not taken as votes of confidence in the government. Almost all bills dealing with capital punishment have been put to free votes on some or all of their stages. It is arguable, however, that capital punishment rarely cut across party lines, despite the pretence that it did. For most of this century, Labour and Liberal M.P.s have typically voted against capital punishment, while Conservative M.P.s have typically voted in favor. See Davies, “Power of Life and Death,” 343.

9. One of those condemned to death—Martin Bormann—was sentenced in absentia; Hermann Goring cheated the hangman by committing suicide. See Calvocoressi, Peter, Nuremberg: The Facts, the Law and the Consequences (New York: Macmillan, 1948)Google Scholar; Maser, Werner, Nuremberg: A Nation on Trial (New York: Scribner, 1979).Google Scholar

10. See Smith, Harold L., ed., Britain in the Second World War (Manchester: Manchester University Press, 1996), 16–18Google Scholar; Morris, Terence, Crime and Criminal Justice since 1945 (Oxford: Basil Blackwell, 1989), 34–37, 96 (table 7.2).Google Scholar For the concept of the moral panic, see Cohen, Stanley, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (London: MacGibbon and Kee, 1972).Google Scholar See also, Cohen, Stanley and Young, Jock, eds., The Manufacture of News: Social Problems, Deviance, and the Mass Media (Beverly Hills: Sage Publications, 1973).Google Scholar

11. Orwell contrasted the “domestic poisoning dramas” of the prewar era with the cause celebre of the war years, the Cleft Chin Murder, in which an American army deserter and an eighteen-year-old ex-waitress murdered a taxi driver with £8 in his pocket. “The background,” explained Orwell, “was not domesticity, but the anonymous life of the dance-halls and the false values of the American film.” See “Decline of the English Murder,” in Orwell, George, Decline of the English Murder and Other Essays (Harmonds worth: Penguin Books, 1965), 12.Google Scholar Of course, Orwell had a penchant for drawing a contrast between the ordered stability of the past and the awfulness of the present. See also Hopkins, Harry, The New Look: A Social History of the Forties and Fifties in Britain (London: Seeker and Warburg, 1963), 207–8Google Scholar; Hennessy, Peter, Never Again: Britain, 1945–51 (New York: Pantheon Books, 1994), 445–16.Google Scholar

12. Christoph, James B., Capital Punishment and British Politics (London: George Allen and Unwin, 1962), 190.Google Scholar I readily concede that a full measurement of the last point would require a broad-ranging penological and cultural analysis. I am currently preparing such a study, under the provisional title, The Rise and Demise of Rehabilitation: Punishment, Culture and Society in Modern Britain.

13. Pari. Deb., Commons, 15, Feb. 9, 1810, 366. The history of capital punishment has attracted considerable attention in recent decades. For the most important contributions, see Radzinowicz, Leon, A History of English Criminal Law and Its Administration from 1750, vols. 1–4 (London: Stevens and Sons, 1948–1968)Google Scholar; Hay, Douglas et al., eds., Albion's Fatal Tree (London: Allen Lane, 1975)Google Scholar; Thompson, E. P., Whigs and Hunters: The Origins of the Black Act (London: Allen Lane, 1975)Google Scholar; Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986)Google Scholar; Linebaugh, Peter, The London Hanged (London: Allen Lane, 1991)Google Scholar; Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994).Google Scholar See also Tuttle, Elizabeth O., The Crusade against Capital Punishment in Great Britain (London: Stevens and Sons, 1961), 3–13Google Scholar; Potter, Hanging in Judgment, chaps. 1–3; Block, B. P. and Hostettler, John, Hanging in the Balance: A History of the Abolition of Capital Punishment in Britain (Winchester: Waterside Press, 1997), chaps. 1–4.Google Scholar

14. Pari. Deb., Commons, 5, May 23, 1821, 904.

15. See Gardiner, Gerald and Curtis-Raleigh, Nigel, “The Judicial Attitude to Penal Reform,” Law Quarterly Review 65 (1949): 199–205Google Scholar; Beales, Derek, “Peel, Russell and Reform,” Historical Journal 17 (1974): 873–82CrossRefGoogle Scholar; Hilton, Boyd, “The Gallows and Mr Peel,” in History and Biography: Essays in Honour of Derek Beales, ed. Blanning, T. C. W. and Cannadine, David (Cambridge: Cambridge University Press, 1996), 88–112.CrossRefGoogle Scholar

16. See Calvert, E. Roy, The Death Penalty Enquiry (London: Victor Gollancz, 1931), 3Google Scholar; Tuttle, Crusade, 17–20; Hollis, Homicide Act, 13; Parl. Deb., Commons, 191, Apr. 21, 1868, 1049.

17. See Rose, Struggle, 27–28; Potter, Hanging in Judgment, chap. 8; Public Record Office (hereafter PRO), Home Office (hereafter HO) 45/12914/154425/9.

18. See Potter, Hanging in Judgment, 121; Block and Hostettler, Hanging in the Balance, 86–88; Spectator, Jan. 13, 1923, 46. See also Justice of the Peace, Sept. 6, 1924, 536.

19. Labour Party Conference Report, 1923 (London: Labour Party, 1923), 250; HO 45/w12914/154425/28, 31 and 32.

20. Howard Journal 1 (1924): 114; HO 45/12914/154425/57. The home secretary told the House, therefore, that the government had come to no decision on the subject: Pari. Deb., 5th ser., Commons, 170, Feb. 25, 1924, 84.

21. HO 45/19044/455787/31; Times, Mar. 25, 1924, 11; Howard Journal 1 (1925): 191.

22. Calvert, E. Roy, Capital Punishment in the Twentieth Century (London: G. P. Putnam's, 1927)Google Scholar, preface to the first edition. For Calvert, see Rose, Struggle, 203–5.

23. Foreword to Calvert, Capital Punishment, 5th ed. (1936), quoted in Jones, E. H., Fry, Margery (London: Oxford University Press, 1966), 124.Google Scholar

24. Howard Journal 2 (1927): 124; Second Annual Report of the NCADP (1926–27), 3; Pari. Deb., 5th ser., Commons, 223, Dec. 5, 1928, 1220–26; Fourth Annual Report of the NCADP (1928–29), 4. This vote was of no practical import, since the majority in favor of abolition was too small to persuade the government to give the necessary parliamentary time for the remaining stages of the bill.

25. See Davies, “Power of Life and Death,” 349–51; Brookshire, J. H., Clement Aulee (Manchester: Manchester University Press, 1995), 155.Google Scholar This campaign is described more fully in McHugh, John, “The Labour Party and the Parliamentary Campaign to Abolish the Military Death Penalty, 1919–1930,” Historical Journal 42 (1999): 233–49.CrossRefGoogle ScholarPubMed

26. Fourth Annual Report of the NCADP (1928–29), 5; A. Fenner Brockway to J. R. Clynes, June 28, 1929, in HO 144/19045/455787/71; Howard League executive committee meeting, July 12, 1929, Howard League Minute Books, MSS 16B/1/1, Modern Records Centre, Warwick University Library; Pari. Deb., 5th ser., Commons, 231, Oct. 30, 1929, 241–66.

27. See E. Roy Calvert to J. R. Clynes, May 12, 1931, in HO 45/15739/546977/36. Cf. Law Journal 68 (1929): 284.

28. See Calvert, Death Penalty Enquiry, 11; Hollis, Homicide Act, 14 – 15; Select Committee on Capital Punishment, P.P., 1930–31, VI (15), Report, 1–99; Koestler, Arthur, Reflections on Hanging (New York: Macmillan, 1957), 26.Google Scholar

29. Calvert, Death Penalty Enquiry, 27; Hollis, Homicide Act, 103. The abolitionist countries were Belgium, Denmark, Holland, Italy, Norway, Sweden, and Switzerland. See Calvert, Death Penalty Enquiry, 109.

30. See HO 45/17481/584763/16; HO 45/15739/546977/32. In the mid-1930s, the Labour Party Conference passed a resolution, introduced by renowned suffragist Frederick Pethick-Lawrence, that urged the next Labour government to give legislative effect to the Select Committee's recommendation for the abolition of the death penalty.

31. The Archbishop of York, “The Death Penalty,” Spectator, Jan. 25, 1935, 112; Turtle, Crusade, 49; Potter, Hanging in Judgment, chap. 11. Temple was made archbishop of Canterbury in 1942. His death in 1944 prevented his involvement in the postwar debate over the death penalty. His successor, Geoffrey Fisher, was cut from a different cloth. See also G. Gardiner to Sir John Gilmour, April 16, 1935, in HO 45/17481/584763/2IB; Lord Hewart, “The Sentence of Death. Why It Still Remains a Necessity,” News of the World, cutting in HO 45/17481/584763/27A.

32. See Parl. Deb., 5th ser., Commons, 416, Nov. 29, 1945, 1753–54.

33. Parl. Deb., 5th ser., Commons, 341, Nov. 16, 1938, 954–1012. The other abolitionists who became Labour ministers included A. V. Alexander, Aneurin Bevan, James Griffiths, F. W. Pethick-Lawrence, Emanuel Shinwell, and Joseph Westwood. See also HO 45/18066/ 677344/34.

34. Templewood, Viscount (Hoare, Samuel J. G.), The Shadow of the Gallows (London: Victor Gollancz, 1951), 10Google Scholar; Bailey, Delinquency, 143–16; Hollis, Homicide Act, 15.

35. Gallup, George H., ed., The Gallup International Public Opinion Polls: Great Britain, 1937–75 (New York: Random House, 1976), 1:11Google Scholar; Parl. Deb., Commons, 191, April 21, 1868, 1051.

36. June 13, 1942, in HO 45/21948/884452/1. For Laski, see Morgan, k. O., Labour People (Oxford: Oxford University Press, 1987), 91–100.Google Scholar

37. See Bailey, Delinquency, 287–89; HO 45/21948/884452/1.

38. Morgan, K. O., The People's Peace: British History, 1945–1990 (Oxford: Oxford University Press, 1992), 30.Google Scholar

39. HO 45/21950/884452/75 and 77. The press and penal reform lobby felt that a scheme of penal reform deserved a place in Labour's program. See Times, Mar. 12, 1946, 5 and HO 45/21951/884452/99.

40. In this task I have been helped by Gordon Rose, Elizabeth Tuttle, and James Christoph, all of whom, in the early 1960s, examined the Labour government's contribution to the movement to abolish the death penalty. See Rose, Struggle; Tuttle, Crusade; Christoph, Capital Punishment. They did so, however, before the cabinet and other official papers were available for public scrutiny. More recently, Lord Windlesham used a few of the relevant official papers in his study of penal policy making. See Windlesham, , Responses to Crime, vol. 2, Penal Policy in the Making (Oxford: Oxford University Press, 1993)Google Scholar, chap. 2. And Sir Leon Radzinowicz reviewed the lead-up to the Royal Commission on Capital Punishment, 1949–53, of which he was a member, but without any special inquiry into the main questions. See Radzinowicz, , Adventures in Criminology (London: Routledge, 1999), 245–52.Google Scholar It seems worthwhile, therefore, to return to this ground in the light of the available cabinet papers, of Home Office and Lord Chancellor's Office papers, and of the memoirs of some of the main political personalities.

41. HO 45/21951/884452/99; “Criminal Justice Bill,” memo by Home Secretary, Mar. 2, 1947, Lord President's Committee (hereafter L.P.) (47) 39, attached to Cabinet Papers (hereafter C.P.) (47) 182, June 16, 1947, PRO, Cabinet Office (hereafter CAB) 129/19. The lord chief justice, Lord Goddard (appointed by Prime Minister Attlee in January 1946), had already informed the home secretary that he and two of his fellow judges did not agree that corporal punishment should be entirely abolished. Goddard to Ede, Nov. 28, 1946, HO 45/ 21951/884452/86. The lord chancellor, Lord Jowitt, had said much the same to the attorney-general, Sir Hartley Shawcross: “I am one of these old-fashioned people who believe in corporal punishment though I would abolish the Cat. I would be very sorry to see the birch or the cane disappear.” PRO, Lord Chancellor's Office (hereafter LCO) 2/3340. The Lord President's Committee was a sub-cabinet or general purposes committee; it had referred to it questions of domestic policy not assigned to other committees. See Morrison, Herbert, Government and Parliament (Oxford: Oxford University Press, 1954).Google Scholar

42. L.P. (47) 8th meeting, Mar. 7, 1947, CAB 132/6. In the 1930s, the birching of young offenders (to whom corporal punishment was effectively restricted) had been almost abandoned by the courts. The wartime rise in delinquency, however, led to renewed birching, at least until 1943, when a controversial case in the Hereford juvenile court again deterred courts from ordering the birch. See Rose, Struggle, 213; Pearson, Geoffrey, Hooligan: A History of Respectable Fears (London: Macmillan, 1983), 261, n. 92.CrossRefGoogle Scholar

43. Ibid. The attorney- and solicitor-general were the chief legal advisers to the executive. The attorney-general was not a member of the cabinet, but he saw all the relevant cabinet papers, and he would attend cabinet meetings to advise upon legal or constitutional issues. See Edwards, J. LI. J., The Law Officers of the Crown (London: Sweet and Maxwell, 1964), 174–75Google Scholar, and chap. 9, passim. The position of lord chancellor was something of a constitutional oddity. He participated in all three branches of government: as cabinet minister, speaker of the house of lords, and head of the judiciary. See Griffith, John, Judicial Politics since 1920 (Oxford: Basil Blackwell, 1993), 65.Google Scholar The Labour Party was congenitally distrustful of the senior judiciary and legal profession. This was only intensified by the mistrust of Lord Chancellor Jowitt by the more left-wing members of the Labour government (notably Nye Bevan). The fact that Jowitt boasted in late 1947 that he had never appointed “a member of my own Party” to be a judge corroborated the doubts about Jowitt, which had their origin in his thin socialist credentials. He generally took a detached attitude to cabinet quarrels and party political questions. See Stevens, Robert, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (Chapel Hill: University of North Carolina Press, 1978), 336–37Google Scholar, and The Independence of the Judiciary (Oxford: Oxford University Press, 1993), 78–79, 114; “Message from Britain: The Lord Chancellor's Address in Cleveland,” American Bar Association Journal 33 (1947): 1180.

44. Jowitt was persuaded that corporal punishment had a deterrent effect and that judges should have the increased power to inflict corporal punishment “in all cases involving violence, particularly where women and children are concerned.” See Jowitt to Lord Chief Justice, Mar. 7, 1947, LCO 2/3340; Jowitt to Ede, Mar. 28, 1947, HO 45/21951/884452/99. The lord chancellor's correspondence also reveals that he had doubts about other provisions of the Criminal Justice Bill concerning young offenders, believing that they were unduly lenient. Above all, he thought the middle of a crime wave was not the moment to shout from the housetops that juvenile criminals could not be whipped.

45. Shawcross had been associated with the Howard League for Penal Reform in the 1920s and had been a member of the Advisory Council on the Treatment of Offenders, the body established in August 1944 by Herbert Morrison, when home secretary, to plan postwar penal reform. See New Statesman, Feb. 21, 1975, 234–36; Bailey, Delinquency, 288. Shawcross had always opposed capital punishment, but in 1945–6, he acted as the chief British prosecutor at the Nuremberg trial. “So far as the Nazi war criminals were concerned,” Shawcross wrote many years later, “I did feel that if ever the death sentence was deserved it was in most of the Nuremberg cases.” See Shawcross, , Life Sentence: The Memoirs of Lord Shawcross (London: Constable, 1995), 130.Google Scholar The citations in this and the previous paragraph are all drawn from HO 45/21951/884452/102B. See also Shawcross to Jowitt, Apr. 16, 1947, HO 45/21951/ 884452/102B. Jowitt replied to Shawcross on Apr. 19, 1947: “On corporal and capital punishment I have no doubt you are right in saying that strong views are held in the Party. I wonder how much thought and knowledge have gone to the formation of these views?” See LCO 2/3340. In an earlier letter to Shawcross, Jowitt had spoken to the issue of the death penalty: “… it may well be true that our Party would demand the abolition of capital punishment. I think they would be unwise in so doing, particularly at the present time…. At least let us realise that if we are going to indulge in humanitarian conceptions we may expose the ordinary citizen to added peril.” See Jowitt to Shawcross, Apr. 10, 1947, LCO 2/3340.

46. C.P (47) 182, June 16, 1947, “Criminal Justice Bill,” memo by Home Secretary, CAB 129/19; minute by F. Graham-Harrison, Assistant Private Secretary to the Prime Minister, June 18, 1947, Prime Minister's Private Office (hereafter PREM) 8/739; Cabinet Minutes (hereafter CM.) (47) 55th conclusions, Cabinet meeting, June 19, 1947, CAB 128/10. At first, the cabinet was dominated by Attlee, the prime minister; Herbert Morrison, lord president and leader of the Commons; Ernest Bevin, foreign secretary; Hugh Dalton, chancellor of the exchequer; and Sir Stafford Cripps, president of the Board of Trade.

47. C.M. (47) 55th conclusions, Cabinet meeting, June 19, 1947, CAB 128/10. The prime minister was no partisan on the question of capital punishment, even though he had been involved in securing the abolition of the death penalty for military offenses (see text at note 25 above). For Attlee, I suspect, capital punishment was not a manifesto pledge, but a “policy novelty” for which he had little time. Compare Morgan, Labour People, 140.

48. Minutes of June 25 and July 1, 1947, HO 45/21959/884452/203. By July 1947, the Parliamentary Penal Reform Group, organized by the Howard League, had got 187 (mostly Labour) M.P.s to sign a memorial to the home secretary asking him to include in the Criminal Justice Bill a provision to suspend the death penalty for a five-year experimental period. In addition, a joint deputation from the League and the NCADP met Home Secretary Ede and gained the impression that he had no firm views on the subject of capital punishment. See Christoph, Capital Punishment, 36–37; Morris, Criminal Justice, 79.

49. C.P. (47) 200, July 8, 1947, “Abolition of the Death Penalty,” memo by Home Secretary, CAB 129/19.

50. CM. (47) 61st conclusions, Cabinet meeting, July 15, 1947, CAB 128/10.

51. CM. (47) 84th conclusions, Cabinet meeting, Nov. 3, 1947, CAB 128/10.

52. Times, Nov. 5, 1947; Daily Telegraph, Nov. 5, 1947; Times, Nov. 27, 1947; Observer, Nov. 9, 1947, press cuttings in HO 45/21953/884452/128B. Templewood (formerly Sir Samuel Hoare) was now president of the Howard League and a publicly proclaimed abolitionist. See also Manchester Guardian, Nov. 11, 1947, press cutting in HO 45/21962/884452/ 263; “Cat and Hangman,” New Statesman, Nov. 15, 1947, 387.

53. C.P. (47) 306, Nov. 13, 1947, “Criminal Justice Bill: Capital Punishment,” memo by Home Secretary, CAB 129/22; Norman Brook minute, Nov. 14, 1947, PREM 8/739; C.P. (47) 310, Nov. 17, 1947, “Criminal Justice Bill: Capital Punishment,” memo by Secretary of State for Scotland, CAB 129/22. Norman Brook was the secretary of the cabinet. For Brook's influence, particularly through his “steering-briefs” for Attlee, see Hennessy, Peter, Cabinet (Oxford: Basil Blackwell, 1986), 18.Google Scholar In Scotland, only eight death sentences were imposed in the fifteen years between 1929 and 1944. None was carried out. This situation was largely the result of the acceptance by the Scottish courts of a doctrine of diminished or impaired responsibility, which, if established, reduced the crime from murder to culpable homicide. Thus, by the attitude of the courts, and the exercise of the prerogative, the death penalty had been virtually abolished. And during this time crimes of violence did not increase. Nonetheless, the Scottish secretary, Arthur Woodburn, still felt the government should give a lead in favor of retaining the death penalty. See also CM. (47) 89th conclusions, Cabinet meeting, Nov. 18, 1947, CAB 128/10; Norman Brook minute, Nov. 18, 1947, PREM 8/739.

54. Parl. Deb., 5th ser., Commons, 444, Nov. 27, 1947, 2150–51, 2161.

55. Ibid., 2186–89. Silverman made the obligatory abolitionist attack upon the judges, who “have always been on the side of harshness, cruelty, corporal punishment, and capital punishment,” and “have always been demonstrably wrong” (2188). For Silverman, see Hughes, Emrys, Sydney Silverman: Rebel in Parliament (London: Skilton, 1969), 90Google Scholar; Christoph, Capital Punishment, 42; Dictionary of National Biography, 1961–70 (Oxford: Oxford University Press, 1980), 941–44. Silverman was something of a thorn in the government's flesh. In October 1946, he had been a critic also of the government's foreign policy, believing it to be too pro-American. See Shinwell, Emanuel, I've Lived Through It All (London: Victor Gollancz, 1973), 188.Google Scholar

56. July 7, 1947, HO 45/21959/884452. The Gallup Poll had asked: “In this country most people convicted of murder are sentenced to death. Do you agree with this or do you think that the death penalty should be abolished?” The result was: Agree, 69 percent; Abolish, 24 percent; No opinion, 7 percent. See Gallup, ed., Public Opinion Polls, 156. Abolitionists soon realized, as Koestler remarked, “that governments only use public opinion as a shield when it is convenient to them.” When public opinion demanded reprieves, government could just as easily disregard it. See Koestler, Reflections, 164.

57. The number of indictable (or serious) offenses known to the police rose by 76 percent between 1938 and 1947. More specifically, the annual average of cases of murder (of persons aged over one year) increased from 95 between 1936 and 1939 to 121 between 1945 and 1948. Crimes of violence against the person (committed by persons aged seventeen and above) rose from 1,467 in 1938 to 2,952 in 1948, or from 4.7 to 8.9 per 100,000 population. Indictable sexual offenses known to the police rose by 54 percent between 1945 and 1950. And the daily average prison population went up from close to 13,000 in 1944 to over 17,000 in 1947. Moreover, since the prevalence of crime had not yet been politicized, it could still influence all the political parties. See Rose, Struggle, 215; Morris, Criminal Justice, 96. For the 1930s, see Bailey, Delinquency, chap. 5; Pearson, Hooligan, 46–47. For Temple-wood's lecture to the newly formed Department of Criminal Science in the School of Law, Cambridge University, see Times, Feb. 1, 1947.

58. Times, July 26, July 29, Sept. 4, Sept. 20, and Nov. 3, 1947. See also Bailey, Delinquency, 291–302; Rose, Struggle, 231; Morris, Criminal Justice, 74–77.

59. See Williams, Francis, Socialist Britain (New York: Viking Press, 1949), 80Google Scholar; Morgan, Labour People, 179, 183, 187; Fielding, Steven, Thompson, Peter, and Tiratsoo, Nick, “England Arise!” The Labour Party and Popular Politics in 1940s Britain (Manchester: Manchester University Press, 1995), 175–79, 216Google Scholar; Donoughue, Bernard and Jones, G. W., Herbert Morrison: Portrait of a Politician (London: Weidenfeld and Nicolson, 1973), 309.Google Scholar See also Alderman, R. K., “Discipline in the Parliamentary Labour Party 1945–51,” Parliamentary Affairs 18 (1965): 296–97.Google Scholar

60. Maxwell minute, July 1, 1947, HO 45/21959/884452/203; Select Committee on Capital Punishment, P.P., 1930–31, VI (15), Minutes of Evidence, 599–601 (Alexander Paterson). The department also believed, for example, that there was still no general trend of public opinion in favour of abolition.

61. Rose, Struggle, 215; Christoph, Capital Punishment, 70, n. 10; Bresler, Fenton, Reprieve. A Study of a System (London: Harrap, 1965), 75Google Scholar; Donoughue and Jones, Morrison, 310.

62. Fry, S. Margery, “The Criminal Justice Bill,” Political Quarterly 19 (1948): 115–16.CrossRefGoogle Scholar For more on Ede, see Francis Williams, “Chuter Ede,” Spectator, Oct. 1, 1948, 423–24, and Nothing So Strange (London: Cassell, 1970), 233; Morgan, Labour in Power, 54–55; Jefferys, Kevin, ed., Labour and the Wartime Coalition: From the Diary of James Chuter Ede, 1941–1945 (London: Historians' Press, 1987), 8–9.Google Scholar Ede revised his views on capital punishment in the 1950s when serious doubts were raised about the conviction of Timothy Evans, who was executed on Ede's watch. Ede began to campaign for abolition of the death penalty and for a posthumous free pardon for Evans. See Jefferys, Labour and the Wartime Coalition, 15–16.

63. Norman Brook's minute of Nov. 18, 1947, PREM 8/739, indicated that not more than five cabinet ministers would vote for abolition, while ten or eleven supported the view that the time was not opportune to abolish the death penalty. But as for the Parliamentary Labour Party, one should not underestimate the pro-hanging views of many of the trade union or working class M.P.s, who made up some 38 percent of all Labour M.P.s.

64. Christoph, Capital Punishment, 42. The twenty-two abolitionists (led by Silverman) who met in the Commons also agreed to confine the change to the crime of murder (rather than all existing capital offenses) and to advocate as an alternative to hanging the usual sentence of life imprisonment. Between the Second Reading and the Report Stage, the various extra-parliamentary bodies (including the police and prison officers' associations and the NCADP) were busy canvassing M.P.s. See Christoph, Capital Punishment, 42–44. Some abolitionists were by now less optimistic about the outcome. In January 1948, Margery Fry told Professor Kinberg: “I'm very much afraid we are going to be defeated. A tremendous rise in crime … has made people jumpy and vindictive.” Quoted in Jones, Margery Fry, 220.

65. C.M. (48) 27th conclusions, Cabinet meeting, Apr. 8, 1948, CAB 128/12; Norman Brook minute, Mar. 19, 1948, PREM 8/739. At a stormy meeting of ministers outside the cabinet, many objected strongly to the abandonment of the free vote. See Windlesham, Responses to Crime, 60.

66. Griffiths to Attlee, Apr. 14, 1948, PREM 8/739; Donoughue and Jones, Morrison, 430. The abolitionist cause was probably further weakened by a series of shocking murders in the months prior to the vote, including the murder of a police constable, all of which were given banner headlines in the press. See Christoph, Capital Punishment, 45.

67. Parl. Deb., 5th ser., Commons, 449, 986, Apr. 14, 1948, 986. The amendment had been tabled by an all-party list of sponsors.

68. Ibid., 1017 (Hogg), 1066 (Elwyn Jones). And see 1015 (John Paton, Labour M.P., and former secretary of the NCADP), 1093 (Reginald Paget, Labour M.P.). See also Elwyn-Jones, Lord, In My Time: An Autobiography (London: Weidenfeld and Nicolson, 1983)Google Scholar, chap. 10. Note, finally, that Davies, Christie, Permissive Britain: Social Change in the Sixties and Seventies (London: Pitman, 1975), 36–41Google Scholar, used the 1948 debates to argue that the “causalist” arguments concerning deterrence and the possibility of error, which he felt were dominant by the 1950s and 1960s, were by no means as important in the “moralistic” 1940s.

69. New Statesman, Apr. 24, 1948, 326.

70. The other two cabinet ministers (Arthur Creech Jones and Philip Noel-Baker) were abroad. The nine ministers who voted for retention were Attlee, Morrison, Bevin, Ede, Arthur Woodburn (Scottish secretary), A. V. Alexander (minister of defence), George Isaacs (minister of labour), George Tomlinson (minister of education), and Tom Williams (minister of agriculture). Six of them were from working-class backgrounds. Two other cabinet ministers, Lords Jowitt and Addison, were in favor of retention, but they could not vote in the Commons.

71. Mass-Observation Archive, TC 72, Box 1, File E; Times, Apr. 16, 1948; Christoph, Capital Punishment, 51; Morgan, Labour in Power, 62. According to James Callaghan, a junior minister at the time, he and the following government members abstained on April 14: Arthur Blenkinsop (parliamentary secretary at the Ministry of Pensions), George Buchanan (minister of pensions), Evan Durbin (parliamentary secretary at the Ministry of Works), Geoffrey de Freitas (undersecretary of state for the Air Ministry), and John Wheatley (lord advocate). Callaghan said that he abstained “as I could not vote as I would like to” (i.e., for abolition). He is quoted in Morgan, K. O., Callaghan: A Life (Oxford: Oxford University Press, 1997), 85.Google Scholar Sir Stafford Cripps was thought to have organized the passive resistance of the more than forty ministers (though Callaghan makes no mention of Cripps's influence). Margery Fry was particularly pleased that none of the law officers had voted for retention. Jones, Margery Fry, 220.

72. Parl. Deb., 5th ser., Lords, 155, April 28, 1948, 546; Daily Telegraph, Jun. 7, 1948.

73. Parl. Deb., 5th ser., Lords, 156, Jun. 1, 1948, 32.

74. See C.M. (48) 28th conclusion, Cabinet meeting, Apr. 15, 1948, CAB 128/12. The cabinet also decided that they should review at an early date “the existing powers of courts to impose the death penalty in the British Zone of Germany, in British Colonial territories, and in the Armed Forces of the Crown.” See also the home secretary's statement on the prerogative of mercy in capital cases in the Commons, Apr. 16, 1948, and Ede's letter to the lord chief justice, Apr. 19, in HO 45/21958/884452/202A. Ede's announcement that he intended to advise His Majesty to commute every death sentence by conditional pardon to a sentence of penal servitude for life was eventually deemed to be unconstitutional, since the home secretary was assuming a dispensing power that Parliament had taken from the executive in James II's reign. Ede was required to make another statement to the House on June 10, 1948. See CM. (48) 37th conclusions, Cabinet meeting, June 8, 1948, CAB 128/12.

75. See Mass-Observation Archive, File No. 2996, Capital Punishment Survey, Supplement No. 1, p. 14: “Results of the Three Surveys on the Experimental Abolition of the Death Penalty.” This table was reproduced in England, L. R., “Capital Punishment and Open-Ended Questions,” Public Opinion Quarterly 12 (1948): 413 (table 1).CrossRefGoogle Scholar These figures are in marked contrast to the Gallup poll of November 1938, when 45 percent chose abolition. See the text at note 56 above.

76. See Daily Express, Apr. 29, 1948, 1; Gallup, ed., Public Opinion Polls, 174; Daily Telegraph, May 28, 1948, 1; Mass-Observation Archive, File No. 2996, Capital Punishment Survey, and File No. 3001, Three Surveys on Capital Punishment; Christoph, Capital Punishment, 43–44, 53–57. The British Gallup Poll was founded in 1937. For most surveys, Gallup Poll findings were based on samples of 1,000 interviews conducted in some 100 sampling points. Its poll findings were at this date published in the News Chronicle. The Mass-Observation survey interviewed over 6,000 people aged sixteen and over throughout England, Wales, and Scotland and used an “openend” question (“How do you feel about the death penalty for murder being given up for 5 years?”), which allowed scope for spontaneous expressions of opinions. For more on M-O, see Calder, Angus, “Mass-Observation 1937–1949,” in Essays on the History of British Sociological Research, ed. Bulmer, Martin (Cambridge: Cambridge University Press, 1985), 121–36.CrossRefGoogle Scholar

77. Mass-Observation Archive, File No. 2996, Capital Punishment Survey, 9.

78. Mass-Observation Archive, TC 72, Capital Punishment Survey, Box 1, File B, May 1948 (“Mass Observation and Opinion Polls”), emphasis in the original. M-O's finding gained confirmation in August 1948 when Gallup asked the question: “What do you think is the main reason for sentencing a murderer to death—because he deserves it, or because it will stop other people committing murders?” The result was: Desert, 45 percent; Stop others, 43 percent; Don't know, 12 percent. See Gallup, ed., Public Opinion Polls, 180.

79. Jowitt to Goddard, Apr. 19, 1948; Goddard to Jowitt, Apr. 20, 1948, LCO 2/3340. Surprisingly, the Daily Mail, a retentionist paper, advised the House of Lords not to reject the abolitionist clause. Hollis, Homicide Act, 17. Other responses to the free vote were more predictable. The Police Chronicle warned that British policemen would now need to be armed; the chairman of the Prison Officers' Association vowed to press for compensation for dependents of officers killed in prison as a result of abolition. See Christoph, Capital Punishment, 52. And Winston Churchill, Opposition leader, denounced the cabinet for having left “this grave decision on Capital Punishment to the casual vote of the most unrepresentative and irresponsible House of Commons that ever sat at Westminster.” Speech of April 21, 1948, to the Annual Conference of Conservative Women, quoted in Gilbert, Martin, Winston S. Churchill (Boston; Houghton Mifflin, 1988), 8:400–401.Google Scholar

80. Parl. Deb., 5th ser., Lords, 155, Apr. 28, 1948, 545–46. See also Parl. Deb., 5th ser., Lords, Apr. 27, 1948, 396–99. A few years later, Jowitt told the House of Lords that when the Criminal Justice Bill came before the House, “I was one of those who took the view and, I say quite frankly advised behind the scenes, that we should insist upon the retention of capital punishment.” Parl. Deb., 5th ser., Lords, 185, Dec. 16, 1953, 149–50. According to Lord Longford, Jowitt thought the secret of advocacy was to find the worst thing an opponent could say about your case and say it yourself. In the Lords, moreover, “he seemed to identify himself emotionally with the huge Conservative majority.” See Pakenham, Frank, Earl of Longford, Five Lives (London: Hutchinson, 1964), 81.Google Scholar Jowitt was also said to be a poor advocate when he knew he had a difficult position. See Heuston, Lives, 70, 98, 115; Shawcross, Life Sentence, 65.

81. Parl. Deb., 5th ser., Lords, 155, April 27, 1948, 430–31. In the later debate, Oaksey concluded his speech by declaring, “It is all wrong to say that punishment has nothing to do with retribution. There are certain cases which shock the conscience of every ordinary man.” Parl. Deb., 5th ser., Lords, 157, July 20, 1948, 1047–48. See also Stevens, Law and Politics, 360–61.

82. Ibid., 490–94. Goddard also said that the twenty King's Bench judges were all in favor of retaining the death penalty. In late June, however, he had to admit that he had been in error; two judges had since told him that they supported the proposal to suspend the death penalty for five years. See Times, July 1, 1948; Bresler, Fenton, Lord Goddard: A Biography of Rayner Goddard, Lord Chief Justice of England (London: Harrap, 1977), 184Google Scholar and note. Goddard later tabled an amendment to the Criminal Justice Bill that would have limited the abolition of corporal punishment to the cat o' nine tails. Whipping with a birch rod would have remained. The amendment carried in a thinly attended House of Lords by twenty-nine to seventeen. In the Commons, the amendment was rejected, and the Lords gave way. See Parl. Deb., 5th ser., Lords, 156, June 2, 1948, 191–215.

A month after his appointment as lord chief justice, in the case of Harry John McBain, Goddard had signaled his response to the postwar crime wave. “In the state of crime in this country the time has now come when sentences must be severe, and where a prisoner appeals against sentence this Court will not shrink from increasing the sentence if it thinks it right to do so.” Criminal Appeals Report 31 (1946): 115. Goddard retired in 1958 and died in 1971. His death prompted one of his severest critics, Bernard Levin, to declare that “Goddard's influence on the cause of penal reform was almost unrelievedly malign.” Times, June 8, 1971. And see Levin, , “Brother Savage,” Spectator, 16 May 1958, 629.Google Scholar See also Shetreet, Shimon, Judges on Trial (Amsterdam: North-Holland Publishing, 1976)Google Scholar; Stevens, Law and Politics, 362.

83. Parl. Deb., 5th ser., Lords, 155, April 27, 1948, 426.

84. Ibid., 427.

85. Ibid., 415–18.

86. Ibid., 156, June 2, 1948, 102 and following. The Lords had not divided in April on the bill's Second Reading. The twenty-eight supporters of the Silverman clause included twenty-two Labour peers, three Conservative peers, and three others. The total number voting was large by upper chamber standards, pointing to the role of “backwoodsmen,” or Conservative peers who come out only on emotive occasions. See Bromhead, P. A., The House of Lords and Contemporary Politics, 1911–1957 (London: Routledge and Paul, 1958), 47 and 218, n. 2.Google Scholar

87. News Chronicle, June 4, 1948. See also Times, June 3, 1948, 5; minute of S. Hoare, Assistant Under Secretary of State, June 2, 1948, HO 45/21962/884452.

88. C.M. (48) 35th conclusion, Cabinet meeting, June 3, 1948, CAB 128/12; Daily Telegraph, June 4, 1948, 1; Daily Herald, June 5, 1948, 1.

89. C.M. (48) 35th conclusion, Cabinet meeting, June 3, 1948, CAB 128/12.

90. Shawcross, Life Sentence, 168. The Daily Mirror, June 7, 1948, 5, wrongly stated that Cripps and Bevan were pressing the cabinet to stand by the original decision of the Commons.

91. See News Chronicle, June 10, 1948, 1. Morrison urged acceptance for tactical reasons. It was much better to fight the House of Lords over the bill for steel nationalization than over capital punishment.

92. Maxwell minute, June 29, 1948, HO 45/21962/884452.

93. Parl. Deb., 5th ser., Commons, 453, July 15, 1948, 1442. A second amendment—to suspend capital punishment for five years but to leave it to the home secretary to order when the period would begin—was pressed by Labour M.P. Anthony Greenwood. Even Sydney Silverman opposed the amendment on the grounds that it would place too great a burden on the home secretary's shoulders. The amendment was defeated.

94. Shawcross to Jowitt, July 19, 1948; Jowitt to Shawcross, July 21, 1948, in LCO 2/3341.

95. Parl. Deb., 5th ser., Lords, 157, July 20, 1948, 1055, 1070.

96. Cf. the discussion of the 1957 Homicide Act in Christie, “Power of Life and Death,” 365–67.

97. Norman Brook minute, July 21, 1948, PREM 8/739; C.M. (48) 53d conclusions, Cabinet meeting, July 22, 1948, CAB 128/13; Parl. Deb., 5th ser., Commons, 454, July 22, 1948, 707–11, 750; Mass-Observation Archive, TC 72, Box 1, File E. In the event, Attorney-General Shawcross did vote with the government, for which Attlee thanked him. See Shawcross, Life Sentence, 169.

98. See C.P. (48) 252, Nov. 3, 1948, CAB 129/30; C.M. (48) 74th conclusions, Cabinet meeting, Nov. 18, 1948, CAB 128/13; Brook minute, Nov. 6, 1948, PREM 8/739. The appointment of a royal commission took abolitionists by surprise. The NCADP no longer existed, so the Howard League had to take over. See Jones, Margery Fry, 225.

99. Times, Nov. 19, 1948, 5; Nov. 20, 1948, 3.

100. Royal Commission on Capital Punishment, 1949–1953, Cmd. 8932 (1953; reprint, London: Her Majesty's Stationery Office, 1965). See also Hollis, Homicide Act, chaps. 2–3.

101. The Homicide Act abolished the death penalty for all murders except those done in course of furtherance of theft, by shooting or explosion, in resisting arrest or escaping from custody, murder of a police officer, and of a prison officer by a prisoner, and for repeated murders. The penalty for all other murders was life imprisonment.

102. See Block and Hostettler, Hanging in the Balance, chaps. 17–19; “Murder (Abolition of Death Penalty) Bill,” Parl. Deb., 5th ser., Commons, 704, Dec. 21, 1964, 870. The vote on Second Reading was Ayes 355, Noes 170. See also “Murder (Abolition of Death Penalty),” Parl. Deb., 5th ser., Commons, 793, Dec. 16, 1969, 1148. The vote on the motion, That the Murder (Abolition of Death Penalty) Act 1965 shall not expire, was Ayes 343, Noes 185. After 1969, the death penalty remained for treason, mutiny, and certain other offenses specified in the Armed Forces Act, 1966. However, by virtue of the Crime and Disorder Act 1998, s. 36, and the Human Rights Act 1998, s. 21(5)—following the signing by the prime minister of the Sixth Protocol of the European Convention on Human Rights—the death penalty, whether for military or for civilian offenses, is now abolished completely. Article 2 of the Convention permits a state to reintroduce the death penalty in wartime.

103. See The Press and Its Readers: A Report Prepared by Mass-Observation for the Advertising Service Guild (London: Art and Technics, 1949), 81–84. Editorially opposed to the suspension of the death penalty were the Daily Telegraph, Daily Mail, Daily Express, and Daily Graphic. As the report also made clear, however, the press “has had little opinion-forming influence on this issue.” With the single exception of the Daily Worker, the Communist Party newspaper, “the majority of readers of every paper are against suspension” (82, emphasis in original).

104. Times, April 14, 1948, 5.

105. Daily Mirror, June 11, 1948, 2. The fact that a reprise of the 1948 events was enacted in 1956, when a Conservative administration confronted the same issue, suggests that it was the character of capital punishment as much as the party handling the issue that influenced these events. See Nicolson, Nigel, People and Parliament (1958; reprint, Westport: Greenwood Publishing Group, 1974), 86.Google Scholar

106. This is not to imply that postwar debate was sharply polarized on every issue of penal reform. The Conservative Party continued to understand juvenile crime, for example, in progressive ways. See Youth Astray (London: Conservative Political Centre, 1946). This report recommended the abolition of whipping for boys under fourteen and of imprisonment for persons under seventeen. See also Bailey, Delinquency, 290.

107. Parl. Deb., 5th ser., Lords, 155, April 27, 1948, 428.