American Legal History
-- AngelaChen - 23 Jan 2010


Please note that this is the topic page for the revised version of my old project - the original project can be found here.

In addition, just in case anyone has not already done this: if anybody is looking for statutes dating back to the colonial period, I've found that it is a very good idea to ask the law library reference librarians and especially the Special Collections Librarian, Sabrina Sondhi, for help (she has replaced Whitney Bagnall). Sabrina is the one who will give you access to the rare books which may be read in the rare book reading room, though it may take several days for them to be retrieved from storage.


Following helpful suggestions from Professor Moglen, I have substantially narrowed the scope of my previous inquiry and I intend to now focus on the following specific questions:

Did colonial Pennsylvania employ capital punishment? If so, how did Quaker pacifism accept the institution, and if not, when did the death penalty start being used?

An Introductory Note: Quakers and pacifism generally

I will not include here an extensive description of the Quakers, their prosecution in England, and the origins of their beliefs, as another student is doing a project which incorporates many elements of the above: please see MattDavisRatnerProject. However, given the central importance of Quaker pacifism to my inquiry, a very brief sketch of this aspect of Quaker beliefs is in order. George Fox, generally held to be the 'founder' of Quakerism (if one can 'found' a religion), believed firmly that all would do best living the 'peaceable life'. Specifically with regard to the death penalty, George Fox's autobiography reveals that in the year 1650, during one of his many periods of imprisonment for expressing views deemed too radical by non-Quaker Englishmen, he wrote to the English courts expressing his dim view of the imposition of death as a punishment for robbery in the case of a young woman. His personal beliefs appear to have been transposed into the general body of beliefs held by Quakers of the time - see, for instance, the Quaker Declaration of Pacifism. Due to their pacifism, Quakers refused to use go to war or indeed bear arms, and found the idea of using violence distasteful or even ungodly. This is what makes a study of the death penalty - a punishment one might see as repugnant to pacifist beliefs since it is arguably the epitome of physical force being used against a fellow human being - in a 'Quaker State' particularly interesting.

The early years

For those who would like a concise account of the historical background to the creation of colonial Pennsylvania, please see here.

The wide language in the Charter granted by King Charles II to William Penn in 1682(1) allowed Penn at least in theory a somewhat free hand in drawing up laws he desired for his nascent province (bearing in mind of course that he had to consider the interests of the people who had been resident in the area long before he arrived - the Dutch and the Indians, for instance). Penn - a devout Quaker by this point in time - aimed to establish as proprietor a system based on religious tolerance and diversity, and importantly hoped that the colony would be an 'example to the nations' of the way pacifism could be practiced(2). Thus, although the laws chosen in the end by Penn for use in Pennsylvania were not quite as open as originally planned (to illustrate, a reading of the Fundamentall Constitutions of Pennsilvania(3) shows that the Frame of Government ultimately selected(4) concentrated the power of government more closely in the hands of a few), they were still considerably more liberal than the laws of many other colonies especially considering Penn's own aristocratic background.

Note that the section of the Fundamentall Constitutions of Pennsilvania entitled 'XV Constitution'(5) gives an important example of what Penn's thoughts on capital punishment were at least with respect to one crime - observe his functionalist and religious reasoning that the death penalty should not be used to punish thieves. His suggestion for the replacement of capital punishment by hard labor in these cases was related to the views that offenders could be 'reformed' instead of simply being destroyed(6).

In trying to answer the question of whether capital punishment was used during the first years of colonial Pennsylvania, a logical place to look was the statutes of the time. The answer was, indeed, revealed in the laws set out by the aforementioned Frame of Government - this replaced the Duke of York's laws(7) which had been in operation in the area since 1676. The section entitled 'Laws Agreed Upon in England'(8) states: 'Twenty-Fifth. That the estates of capital offenders, as traitors, and murderers, shall go one third to the next of kin of the sufferer...'. This reveals that the capital crimes at the time were only two: murder and treason.

This seems to be quite consistent with the pacifist beliefs of Quakers and thus there would not seem to be much of a problem with Quakers 'accepting' the situation - assuredly, the number of crimes punishable by death in Pennsylvania at this time were far fewer than that in most other colonies (with the exception perhaps of West Jersey, another Quaker colony). But this leads to the question: given Quakers' supposed abhorrence of all violence, why did they accept any capital crimes, however few in number? One might tentatively suggest the following reasons: 1) Penn himself had held in his Frame of Government that a key aim of his in delineating the powers of government (and the law) was to 'terrify evil-doers' - a penal system not prescribing capital punishment for even murder and treason might hardly to 'terrify' prospective traitors and murderers; 2) murder and treason were explicitly reserved by the Charter for the Crown to hear (9) and thus conformity of the sentence relating these two crimes with the sentences of the laws of England may have been especially important; and 3) the simple fact that these were arguably seen as the most heinous crimes one could commit.

Changes in the law and the reaction of the Quakers

By the second decade of the 18th century, it seemed that the law relating to capital punishment in colonial Pennsylvania had changed significantly. A look through the 'Statutes at Large of Pennsylvania' shows that by 1718, there had been put in place 'An Act for the Advancement of Justice, and More Certain Administration Thereof'(10) which increased the number of crimes punishable by death from 2 to 12. How did the Quakers accept this expansion of the range of capital punishment, given their pacifist ideals? One possible answer, as will be elaborated upon below, is that some accepted it due to necessity, whilst others had ceased to view pacifism as an uncompromisable element.

The Act for the Advancement of Justice actually had its origins in an appeal to the Crown by convicted murderers Hugh Pugh and Lazarus Thomas on May 8, 1718 (11). They protested against their conviction on the grounds, inter alia, that 'Eight of the petty Jury who found them Guilty, were Quakers, or Reputed Quakers, & were Qualified no otherwise than by an affirmation or Declaration...' - this refers to the refusal of the Quakers to take oaths (due to their religious beliefs) to qualify as jurors. In the end, the verdict was of the jury was sustained, but the case provoked legislative debate ultimately leading to the Act mentioned above(12).

This piece of legislation (passed on May 31, 1718) allowed an affirmation taken by a Quaker 'be accounted and deemed in the law to have the full effect of an oath in any case whatsoever in this province'. Moreover, the legislation also noted the fact that criminals were taking advantage of the clement penal laws of the area, hence the self-explanatory title of the Act. As the Act suggests, by this time it was quite clear that the lenient penal system was failing to curb the excesses of offenders in Pennsylvania. A letter from William Penn to the Council just before 1700 (13) described in severe terms the state of disorder the colony was falling into, and indeed encouraged action 'to suppress forbidden trade and piracy, and also the growth of vice and Loosness; till some severer Laws be made agt them'.

The problem of disorder may have been compounded by the fact that the influx of immigrants with differing religious beliefs and origins was increasing - quite apart from the fact that many of them may have viewed the pacifism of the Quakers with indifference or even contempt, a larger population naturally meant the increase in propensity of crime. Furthermore, though the Quakers had never started off in number as the predominant part of the population, at the beginning they at least had powerful control over the politics of the region. As diversity of the population increased, however, and the percentage of Quakers diminished even further (the Quakers themselves suffering internal conflicts such as the Keithian schism(14)), the Quakers would have found it much more difficult to have their way with respect to any laws, including of course the laws on capital crimes.

After Penn returned to England in 1684, the people were virtually left to 'govern themselves' (15). In the years following, there were numerous conflicts with the Crown (the new monarchs, Williams and Mary, were far less close to Penn than the former King James II was: though they did maintain a level of respect for Penn, they had no patience with the pacifist views of the Quakers). (16). In fact, the Crown briefly took back control of Pennsylvania between the years 1693-1695 and Penn was forced to play a complicated political game appeasing entitites in England on the one hand and the inhabitants of Pennsylvania on the other (many of whom had grown independent and no longer looked to Penn for guidance).

Thus, it is arguable that Penn (and indeed any governing forces in Pennsylvania) now had to pay much more attention to the wishes of those in England, particularly because of conflicts with the Lords of Trade, failings of various governors of Pennsylvania to maintain a judicious compromise between interests, and other political wranglings as revealed in Minutes of the Provincial Council and the Papers of William Penn (17).

All this is relevant to the present inquiry because it leads to the following possible answer (as suggested above) that some Quakers simply felt it unavoidable to demonstrate a greater acceptance of English laws (thus including English laws on capital punishment), in the narrow purpose in exchange for recognition of the affirmation taken by Quakers as a legitimate alternative to the oath taken by others, and in a wider purpose as an instrument of compromise with those back in England. Certainly, the tone adopted in the Act seemed to be conciliatory with regards to how English law was to be viewed in the colony: see for example the emphasis on the 'birthright' of British subjects to the English common law at the very start of the Act and the implicit concession that offenders were flouting the law due, amongst other things, to the statutes on capital crimes having 'not been hitherto fully extended to this province'.

One alternative answer to the question of how Quakers 'accepted' the institution of capital punishment which we haven not addressed so far: perhaps it was the case that the law relating to capital crimes became harsher as written 'on the books' but in practice was not carried out to the degree set out by the text of the laws, particularly since we may see from the Pugh and Thomas case that Quakers sat on the juries sentencing those accused of capital crimes (or indeed in this case made up the majority of the jury). If this were in fact the truth, one might see how the Quakers could ostensibly accept the death penalty as a formal institution yet maintain their pacifism in practice. A reading of the cases in Pennsylvania up to the year 1700 shows only one instance of the death penalty actually being inflicted on an offender. However, a quick scan of the Minutes of the Provincial Council of Pennsylvania(18) shows that juries seemed to show scant hesitation in sentencing people to death for murder in the ensuing years. The fact that the Quakers sitting on the Pugh and Thomas case in 1718 were quite happy to sentence the two convicts to death shows, as suggested earlier, that at least some Quakers were no longer as adherent to pure pacifism as a part of their faith as founder George Fox may have been. Unfortunately I have been unable to locate accessible, comprehensive court records from the period after 1700 onwards (hence my use of the Minutes of the Provincial Council as a substitute) - this may be a profitable line of further exploration if anyone else should be interested in pursuing the inquiry, vis-a-vis how often and for which crimes the death penalty was used in practice, or how often convicted offenders were pardoned or were able to avail themselves of the benefit of clergy (which was retained in the 1718 Act)(19).

Finally, although the resignation of many prominent Quakers from the Assembly in 1755 was not in protest against the death penalty but instead in protest against the raising of armed forces to wage war against the Indians as a violation of their pacifist views, the fact that they essentially lost - or gave up - real control of Assembly would have meant that the law on capital punishment (or anything else) would not any longer be predominantly shaped by Quaker pacifist beliefs. Thus, after this period any Quakers opposing the death penalty would no longer be able to challenge or usurp it as directly or easily, at least via legislative means.

Sources in PDF form (for other sources which are already on the web, I have created links directly from words in the text above)


1 : See Charter to William Penn

2 : See Bronner, pg 12

3 : See Fundamentall Constitutions of Pennsilvania

4 : See pg 91, Frame of Government

5 : Pg 294, Fundamentall Constitutions of Pennsilvania

6 : 'Considering the little reformation this severity brings' - XV Constitution

7 : See 'Duke of York Laws'

8 : Pg 99, Frame of Government

9 : Pg 83, Charter to William Penn

10 : See 1718 Act - this was retrieved from Volume III of the Statutes at Large. The entire collection is in 18 volumes available via request in the Columbia Law Library

11 : See Appeal of Pugh and Thomas

12 : See pg 243-244 of 'Appeals to the Privy Council from the American Plantations' - the whole book is available from the Columbia Law Library (offsite storage)

13 : See Letter from William Penn

14 : George Keith was a Scottish Quaker - he and his followers called themselves 'the Christian Quakers' and were deeply unpopular with other Quakers - see pg 147 of Bronner

15 : See pg 88 of Bronner, Chapter 6

16 : See pg 155 of Bronner, Chapter 8

17 : Both of which are available in the cellar of the Columbia Law Library, in multiple volumes

18 : Available in multiple volumes from Butler Library, Columbia University

19 : see pg 106-107, 1718 Act


Webs Webs

Attachments Attachments

  Attachment Action Size Date Who Comment
pdf 1718_Act.pdf props, move 3657.0 K 24 Jan 2010 - 02:23 AngelaChen 1718 Act
pdf Appeal_of_Pugh_and_Thomas.pdf props, move 869.7 K 24 Jan 2010 - 02:20 AngelaChen Appeal of Pugh and Thomas
pdf Appeals_to_the_Privy_Council_from_the_American_Plantations.pdf props, move 857.9 K 24 Jan 2010 - 00:28 AngelaChen Extract - Appeals to the Privy Council from the American Plantations
pdf Bronner_Chapter_1.pdf props, move 3388.6 K 24 Jan 2010 - 03:27 AngelaChen Bronner, William Penn's 'Holy Experiment' (1962) - Chapter 1
pdf Bronner_Chapter_6.pdf props, move 4540.3 K 24 Jan 2010 - 03:28 AngelaChen Bronner, William Penn's 'Holy Experiment' (1962) - Chapter 6
pdf Bronner_Chapter_8.pdf props, move 3910.0 K 24 Jan 2010 - 03:29 AngelaChen Bronner, William Penn's 'Holy Experiment' (1962) - Chapter 8
pdf Charter_to_William_Penn.pdf props, move 450.8 K 24 Jan 2010 - 00:20 AngelaChen Charter to William Penn
pdf Duke_of_York_Laws.pdf props, move 2983.9 K 24 Jan 2010 - 03:06 AngelaChen Duke of York Laws
pdf Frame_of_Government.pdf props, move 699.8 K 24 Jan 2010 - 00:25 AngelaChen Frame of Government
pdf Letter_from_William_Penn.pdf props, move 415.4 K 24 Jan 2010 - 00:29 AngelaChen Letter from William Penn
r5 - 07 Sep 2011 - 00:10:37 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM