Part I
Early Views on Capital
Punishment: Colonial Era to Independence
MOTIVATION FOR EARLY EMIGRATION TO THE NEW
WORLD
From the first
colonial settlements until the War for Independence, numerous social,
political, economic, demographic, philosophical, and ideological changes took
place in North America that contributed to the colonists revolt. Many of these
changes also had an impact on American attitudes toward crime and punishmentincluding
capital punishment.
To understand
how these broad ecological changes eventually affected attitudes about capital
punishment, it is important to look first at the historical setting in which
the early American colonies were founded.
Beginning in
the sixteenth century, Europe experienced an unprecedented period of
innovation, growth, and expansion. Innovations in commerce, shipping, and the
transmission of information enabled Europeans to conduct long-distance maritime
trade on a large scale for the first time. At the same time, agricultural and
industrial technology led to marked increases in productivity of food and other
essential goods. As a result of these changes, the population grew rapidly, the
cost of living rose, and people began to move away from farms to live and work
in cities. This combination of factors increased the attractiveness of North
America both as a new source of raw materials and as an outlet for excess
population. For England in particular, emigration
-1-
to North
America also provided a solution to the problem of religious and political
dissenters, who had become more prevalent as the result of the new
rationalistic philosophies, religious foment, and social changes that occurred
during this period.
Not
surprisingly, then, religious beliefs strongly influenced the social and
political structure of the first permanent European holdings in eastern North
Americaincluding the capital laws. While the nature and number of offenses
designated as capital crimes varied significantly from colony to colony, a
theme common to most was their reliance on biblical scripture as justification
for their designation as capital crimes.
The capital
laws of the early colonieswhich typically included such offenses as idolatry,
adultery, bestiality, witchcraft, and blasphemyoften have been described as
harsh. Indeed, many of the laws were harsh by todays standards, but
they seem much less so when compared to those of their British homeland, which
at the time had about fifty-five capital laws. Moreover, in some settlements
such as the Massachusetts Bay Colony, where twelve offenses were capital in
1641, several of the laws seldom if ever were enforced.
The most
lenient capital laws were in Pennsylvania and West Jersey, where William Penns
Quakers sought to establish utopian societies in which people controlled
themselves out of an enlightened understanding of proper behavior rather than
because of threats of social sanction (see Document 3). In the early years of
these two colonies, murder and treason were the only capital crimes.
Conversely,
some of the harshest capital codes were in the southern colonies.
Entrepreneurial colonists such as planters in Virginia, Maryland, Georgia, and
Carolina had to maintain a large cheap labor force. They relied on indentured
workers and slaves to grow labor-intensive crops such as tobacco, sugar, and
rice. To keep these populations under control, the Slave Codes enacted during
the 1660s included a long list of behaviors that were considered crimes only if
committed by blacks. Furthermore, slaves were subjected to numerous capital
laws that did not apply to the free population ( Paternoster 1991:8). As we
shall see in later chapters, the desire to control African slaves in the
southern colonies laid a legal and cultural foundation for harsher punishments
of blacks in the Southa tradition that many scholars argue continues today.
-2-
RAPID GROWTH, INCREASED DIVERSITY, AND BRITISH
INTERVENTION LEAD TO INCREASED CAPITAL LAWS
During the
eighteenth century, the colonies grew extremely rapidly. For example, in 1680,
the population of Pennsylvania was only 4,000; within sixty years it had risen
to 80,000 and still was growing rapidly. Overall, the population of the
colonies was doubling every twenty-five years, prompting British economist
Thomas Malthus to make his famous observation about the enormous potential for
population growth in environments where resources are plentiful. High birth
rates and lower mortality accounted for much of this growth in the colonies
population, but the majority continued to come from immigration.
Equally
important, the nature of the immigrants coming to the colonies changed
remarkably between 1700 and 1775. Although there had been substantial
differences between the early settlements, each individual colony had tended to
be quite homogenous. However, instead of middle- and working-class English, the
new immigrants were paupers and convicts, Scottish, Irish, and German refugees,
and slaves from Africa.
As the colonies
grew and became more heterogeneous, common beliefs and culture that once had
provided a strong foundation for informal control of peoples behavior through
socialization and social pressure were challenged. Partly in response to these
new challenges, capital punishment laws typically were expanded. Given the
absence of a prison systemwhat few jails existed were used almost exclusively
to detain prisoners for short periods of time until they could be tried
-stricter capital laws may have been perceived as the only solution to increased
difficulties in maintaining public order and increased fears resulting from
greater social and cultural diversity.
However,
England also was partly responsible for the increase in capital laws in the
colonies. While the English Crown largely had ignored the new settlements at
first, allowing them great autonomy in creating their own societies, it never
had been pleased with their lenient laws. Now, as the colonies grew in economic
importance to England, the Crown attempted to reassert authority over them.
Expanding its own capital laws until they numbered more than two hundred by the
early nineteenth century, England also forced adoption of harsher penal codes
in several of the colonies.
-3-
INFLUENCE OF THE SCIENTIFIC REVOLUTION AND THE
ENLIGHTENMENT
At the same
time England was attempting to exert greater political influence over the
colonies, other European influencesspecifically the intellectual and
philosophical shifts of the Scientific Revolution and of the Enlightenmentslowly
were beginning to make their way to the colonies. Interestingly, these
influences would help move the colonists further away from acceptance of
British rule.
The Scientific
Revolution of the seventeenth century was based on the notion of the
superiority of reason as a guide to all knowledge and human concerns. One of
the most prominent leaders of the revolution was Englishman John Locke (
1632-1704), perhaps best known for his Two Treatises on Government (
1689) and his Essay Concerning Human Understanding ( 1690).
The
philosophies of Locke Treatisesspecifically his sanctioning of
rebellionhelped inspire the colonists to revolt. But it was his Essay,
in which Locke argued that all human knowledge and ideas were based on
sensation and experience, that provided the impetus for numerous reforms in the
American penal systemincluding education and other measures to prevent
criminal misconduct as well as attempts to rehabilitate those convicted of
crimes.
The writings of
Locke and other philosophers of the Scientific Revolution, including Newton,
Montesquieu, and Voltaire, spawned a subsequent philosophical movement in
eighteenth-century Europe known as the Enlightenment, which was characterized
by the notion of progress and a challenging of traditional Christian dogma.
During this
period, Cesare Beccaria ( 1738-1794), the jurist son of an Italian marquis,
argued that because suicide was a sin, no man had the authority to give another
the right to kill him. Further, said Beccaria, the death penalty served as an
example of barbarity, rather than a deterrent to it. As an alternative, he
argued for proportional punishments designed to deter crimesuch as a lifetime
of imprisonment and servitude as punishment for murder. Such punishments, he
said, not only served as a lastingrather than fleetingexample to others, but
were in some ways harsher than execution because of their duration, and thus
served as a better deterrent.
Beccaria book, An
Essay on Crimes and Punishments, was published in Italy in 1764, at the
height of the Enlightenment, and was a huge success throughout Europe. By 1773,
an English translation of the book was available in New York; but due to
preoccupation with the Revolutionary War, it wasnt until several years later
that Beccarias book had an impact in America. When it did, that impact was
signifi-
-4-
cant. Their
independence won, Americans were eager for political reform as they shaped the
new government and system of laws. And thus began the first real debate over
capital punishment in the United States.
THE EARLY ABOLITION MOVEMENT IN THE NEW
REPUBLIC
Among the first
Americans to be swayed by Beccarias arguments was Thomas Jefferson (see
Document 6). The draft bill submitted by Jefferson in 1779 to the Virginia
Legislature that proposed substituting more proportionate sentences for
previously capital offenses cited Beccaria three different times. But unlike
Beccaria, Jefferson was not in favor of complete abolition of the death
penalty. It was Benjamin Rush, a Philadelphia physician and signer of the
Declaration of Independence, who launched the first major movement against
capital punishment in the United States in 1787 with a widely read treatise
denouncing the death penalty and advocating establishment of a house of
repentance for convicted criminals. Three years later, the worlds first
penitentiary was established at the Walnut Street Jail in Philadelphia.
Rushs
influence also helped to revive the Philadelphia Society for Relieving
Distressed Prisoners, which had been organized in 1776, but was quickly
overwhelmed by the revolution. Renamed the Philadelphia Society for Alleviating
the Miseries of Public Prisons, it began its work anew in 1787 with a
membership that included Rush, Caleb Lownes, Tench Coxe, Thomas Wistar, and
other notables. Some of these reformers descendants continue to carry on their
prison reform work within the same organization, which was renamed the
Pennsylvania Prison Society in 1933 ( Sellin 1967:105).
By the end of
the eighteenth century, convinced by Rush and others that solitary repentance
was the key to reforming criminals, nearly every state legislature had adopted
the idea of the penitentiary. Indeed, in 1791, the Board of Inspectors in
Philadelphia proclaimed: The prison is no longer a scene of debauchery,
idleness, and profanity . . . but a school of reformation (in Masur 1989:88).
No state,
however, abolished capital punishment entirely. Only Pennsylvania, after
adopting degrees of murder in 1794, eliminated the death penalty for all crimes
except first degree murder. Premeditated (first degree) murder still would be
punished by death, but now a jury also had the option of convicting a defendant
of second degree (unpremeditated) homicide, which did not carry a mandatory
death sentence ( Tushnet 1994:21).
-5-
The death
penalty debate is as old as the Bibleliterally. The Bible contains numerous
and often seemingly conflicting references to capital punishmentfrom the eye
for an eye Mosaic code of the Old Testament (Document 1C) to the turn the
other cheek Christian doctrine of the New Testament (Document 1D).
From colonial
days to the present, biblical arguments have figured prominently in both sides
of the capital punishment debate in the United States. Following are just a few
of the most frequently quoted passages.
Whoso sheddeth
mans blood, by man shall his blood be shed: for in the image of God made he
man.
Source: Genesis 9:6. All of these references
are from the King James Version of the Bible ( New York: World Publishing
Company).
Thou shalt not
kill.
Source: Exodus 20:13.
And he that
killeth any man shall surely be put to death.
And he that killeth
a beast shall make it good; beast for beast. And if a man cause a blemish in
his neighbour; as he hath done, so shall it be done to him; Breach for breach,
eye for eye, tooth for tooth: as he hath caused a blemish in a man, so shall it
be done to him again.
And he that
killeth a beast, he shall restore it: and he that killeth a man, he shall be
put to death.
Source: Leviticus 24:17-21.
-6-
D. JESUS SPEAKING TO THE MULTITUDES IN THE
SERMON ON THE MOUNT
Ye have heard
that it hath been said, An eye for an eye, and a tooth for a tooth:
But I say unto
you, That ye resist not evil: but whosoever shall smite thee on thy right
cheek, turn to him the other also.
Source: Matthew 5:38-39.
Let every soul be
subject unto the higher powers. For there is no power but of God: the powers
that be are ordained of God.
Whosoever
therefore resisteth the power, resisteth the ordinance of God: and they that
resist shall receive to themselves damnation.
For rulers are
not a terror to good works, but to the evil. Wilt thou then not be afraid of
the power? do that which is good, and thou shalt have praise of the same:
For he is the
minister of God to thee for good. But if thou do that which is evil, be afraid;
for he beareth not the sword in vain: for he is the minister of God, a revenger
to execute wrath upon him that doeth evil.
Source: Romans 13:1-4
He that leadeth
into captivity shall go into captivity: he that killeth with the sword must be
killed with the sword. Here is the patience and the faith of the saints.
Source: Revelation 13:10.
The Bible not
only is an early source of controversy over capital punishment, it also is the
source of most of our nations first death penalty laws.
-7-
The capital
laws of the Massachusetts Puritans, for example, were strongly influenced by
Mosaic Code of the Old Testament. In fact, all but the last of the twelve laws
included in the Bay Colonys 1641 Body of Liberties were accompanied by the
biblical reference or references from which they were derived.
While many of
these laws seem particularly harsh, the code might be considered almost
lenient, at least in terms of the number of capital crimes, when compared to
the capital laws of the Puritans British homeland. There, about fifty-five
crimesincluding burglary, robbery, and larcenywere punishable by death at the
time ( Hook and Kahn 1989:21; Mackey 1976:xii).
Furthermore, it
appears that at least some of the twelve capital laws adopted by the
Massachusetts Bay Colony may not have been strictly adhered to. As one
historian put it, [i]f some of the laws selected from the Bible for inclusion
in the Massachusetts code proved to be impracticable, then they need not be
enforced to the hilt. They could well remain on the statute books as reminders
of the standard of conduct expected of Godly people ( Powers 1966:253).
|
94. Capitall Laws |
||
|
1. [Idolatry] |
||
|
Dut. 13.
6,10. |
If any
man after legall conviction shall have or |
P. 14. |
|
Dut. 17.
2,6. |
worship
any other god, but the lord god, he shall |
S. 1. |
|
Ex. 22.
20 |
be put to
death. |
|
|
2. [Witchcraft] |
||
|
Ex. 22.
18. |
If any
man or woeman be a witch, (that is hath or |
|
|
Lev. 20.
27. |
consulteth
with a familiar spirit, They shall be put |
S. 2. |
|
Dut. 18.
10. |
to death.
|
|
|
3. [Blasphemy] |
||
|
|
If any
man shall Blaspheme the name of god, the |
|
|
|
father,
Sonne or Holie ghost, with direct, expresse, |
|
|
Lev. 24.
15, 16. |
presumptuous
or high handed blasphemie, or shall |
S. 3. |
|
|
curse god
in the like manner, he shall be put to |
|
|
|
death. |
|
|
4. [Murder] |
||
|
|
If any
person committ any wilfull murther, which |
|
|
Ex. 21.
12. |
is
manslaughter, committed upon premeditated |
|
|
Numb. 35.
13, |
mallice,
hatred, or Crueltie, not in a mans neces- |
S. 4. |
|
14, 30,
31. |
sarie and
just defence, nor by meere casualtie |
|
|
|
against
his will, he shall be put to death. |
|
-8-
|
5. [Manslaughter] |
|||
|
Numb. 25.
20, |
If any
person slayeth an other suddaienly in his |
|
|
|
21. |
anger or
Crueltie of passion, he shall be put to |
S. 5. |
|
|
Lev. 24.
17. |
death. |
|
|
|
6. [Poisoning] |
|||
|
|
If any
person shall slay an other through guile, ei- |
|
|
|
Ex. 21.
14. |
ther by
poysoning or other such divelish practice, |
S. 6. |
|
|
|
he shall
be put to death. |
|
|
|
7. [Bestiality] |
|||
|
|
If any
man or woeman shall lye with any beaste |
|
|
|
Lev. 20.
15, |
or bruite
creature by Carnall Copulation, They |
S. 7. |
|
|
16. |
shall
surely be put to death. And the beast shall be |
|
|
|
|
slaine
and buried and not eaten. |
|
|
|
8. [Sodomy] |
|||
|
|
If any
man lyeth with mankinde as he lyeth with |
|
|
|
Lev. 20.
13. |
a woeman,
both of them have committed abhom- |
S. 8. |
|
|
|
ination,
they both shall surely be put to death. |
|
|
|
9. [Adultery] |
|||
|
Lev. 20.
19, |
If any
person committeth Adultery with a maried |
|
|
|
and 18,
20. |
or
espoused wife, the Adulterer and Adulteresse |
S. 9. |
|
|
Dut. 22.
23, 24. |
shall
surely be put to death. |
|
|
|
10. [Man-stealing] |
|||
|
Ex. 21.
16. |
If any
man stealeth a man or mankinde, he shall |
S. 10. |
|
|
|
surely be
put to death. |
|
|
|
11. [False Witness in Capital Cases] |
|||
|
Deut. 19.
16, |
If any
man rise up by false witnes, wittingly and |
|
|
|
18, 19. |
of
purpose to take away any mans life, he shall be |
S. 11. |
|
|
|
put to
death. |
|
|
|
12. [Conspiracy and Rebellion] |
|||
|
|
If any
man shall conspire and attempt any inva- |
|
|
|
|
sion,
insurrection, or publique rebellion against our |
|
|
|
|
commonwealth,
or shall indeavour to surprize any |
|
|
|
|
Towne or
Townes, fort or forts therein, or shall |
S.12. |
|
|
|
treacherously
and perfediouslie attempt the alter- |
|
|
|
|
ation and
subversion of our frame of politie or |
|
|
|
|
Government
fundamentallie, he shall be put to |
|
|
|
|
death. |
|
|
|
Source: The Body of Liberties,
1641. In William H. Whitmore, A Bibliographical Sketch |
|
||
-9-
DOCUMENT 3: William Penns Frame of Government
(1682)
William Penn (
1644-1718), best known as the founder of Pennsylvania, was an outspoken,
lifelong advocate of religious and civil liberty.
Much to the
dismay of his father, an admiral in the British navy who adhered to the
Anglican faith, young William was influenced by the Puritan religion at an
early age, and was expelled from Oxford for his nonconformist religious views.
Hoping to rid
him of his Puritan sympathies, Penns father sent him abroad. Young William
traveled throughout Europe for several years, studied law for a year in
England, and then went to Ireland in 1667 to manage his fathers estates. It
was there that he converted from Puritanism to the similarly despised Quaker
faith, becoming a vigorous member of the Society of Friends.
When his father
died in 1670, Penn inherited his fortune, his estates, and his position at
court. In 1681, Penn became proprietor of Pennsylvania, which was given to him
in lieu of repayment of an outstanding loan from his late father to King
Charles II. Penn, who had been persecuted both in England and Ireland for his
religious faith, took this opportunity to create an ideal Christian
commonwealthhis Holy Experiment.
Penn Frame
of Government for the new colony (also called the Great Act of 1682) was an
unusually liberal document that provided for a governor, a council, and an
assembly elected by freeholders. An accompanying series of laws provided for
religious liberty, free elections, trial by jury, and a mild penal code in
which murder and treason were the only crimes made punishable by death.
However, the
English Crown, which was never pleased with Pennsylvanias criminal code, in
1718 forced Pennsylvania to adopt a much harsher penal code that included more
than a dozen capital offenses ( Bedau 1964:6; Filler 1952).
Following is an
excerpt from Penn introduction to the Frame of Government. Although it
doesnt address the subject of capital punishment directly, it is important
because it offers good insight into Penns beliefs regarding the purpose and
function of government and laws, including capital laws.
[T]here is
hardly one Frame of Government in the World so ill designed by its first
Founders, that in good Hands would not do well enough; and Story tells us, the
best in ill ones can do nothing that is
-10-
great or good;
Witness the Jewish and Roman States. Governments, like Clocks, go
from the Motion Men give them, and as Governments are made and moved by Men, so
by them they are ruined too. Wherefore Governments rather depend upon Men, than
Men upon Governments. Let Men be good, and the Government cant be bad; if it
be ill, they will cure it. But if Men be bad, let the Government be never so
good, they will endeavour to warp and spoil it to their Turn.
I know some
say, Let us have good Laws, and no matter for the Men that execute them: But
let them consider, That though good Laws do well, good Men do better: For good
Laws may want good Men, and be abolished or evaded by ill Men; but good Men
will never want good Laws, nor suffer ill ones. Tis true, good Laws have some
Awe upon ill Ministers, but that is where they have not Power to escape or
abolish them, and the People are generally wise and good: But a loose and
depraved People (which is to the Question) love Laws and an Administration like
themselves. That therefore, which makes a good Constitution, must keep it, viz.
Men of Wisdom and Virtue, Qualities, that because they descend not with worldly
Inheritances, must be carefully propagated by a virtuous Education of Youth;
for which After-Ages will owe more to the Care and Prudence of Founders and the
successive Magistracy, than to their Parents for their private Patrimonies.
THESE
Considerations of the Weight of Government, and the nice and various Opinions
about it, made it uneasy to me to think of Publishing the ensuing Frame and
Conditional Laws, foreseeing, both the Censures they will meet with from Men of
differing Humours and Engagements, and the Occasion they may give of Discourse
beyond my Design.
BUT next to the
Power of Necessity, (which is a Solicitor that will take no Denial) this
induced me to a Complyance, that we have (with Reverence to GOD and good
Conscience to Men) to the best of our Skill, contrived and composed the FRAME
and LAWS of this Government, to the great End of all Government, viz. To
support Power in Reverence with the People, and to secure the People from the
Abuse of Power; that they may be free by their just Obedience, and the Magistrates
Honourable for their just Administration: For Liberty without Obedience is
Confusion, and Obedience without Liberty is Slavery. To carry this Evenness is
partly owing to the Constitution, and partly to the Magistracy: Where either of
these fail, Government will be subject to Convulsions; but where both are
wanting, it must be totally subverted: Then where both meet, the Government is
like to endure. Which I humbly pray and hope GOD will please to make the Lot of
this of Pensilvania. Amen.
Source: William Penn, Preface to The Frame of the
Government of the Province of Pensilvania in America, 1682 ( Philadelphia:
B. Franklin, 1740). [Early American Imprints ( New York: Readex Microprint,
1985), 11-12.]
-11-
DOCUMENT 4: New England Execution Sermon and
Condemneds Response (1686)
Although many
of those convicted of capital crimes in the early colonies actually received
punishments less than death ( Powers 1966: 275-286, 300-301), those who were
executed were killed publicly and with great religious fanfare.
The Puritan
ministers took advantage of these well-attended community events to deliver execution
sermons in which they described the condemneds crimes in great detail,
admonished him for his sins, urged him to repent, and warned the community at
large of the dangers of following in his destructive path ( Cohen 1988:148).
The sermons
usually were given both on the Sunday before the execution and on the day of
the hanging ( Cohen 1988: 147). They often were printed in pamphletsalong with
the confessions of the criminal and an account of his last words 1 -- and sold to spectators on
execution day ( Masur 1989:26).
In addition to
serving as a graphic reminder to the community of the wages of sin, execution
sermons also typically contained a great deal of rhetoric to justify the
execution. In seventeenth century New England, where capital crimes largely
were defined by biblical scripture (see Document 2), arguments in support of
capital punishment focused primarily on the word of God. However, both
judicial discretion and the deterrent value of capital punishment also were
sometimes mentioned by Puritan ministers as justification for the death penalty
( Cohen 1988:149-150).
Following are
excerpts from an execution sermon by Increase Mather, one of the most prominent
Puritan ministers of the day, and the last words of the condemned murderer,
James Morgan.
|
These
confessions typically were edited for the prisoner by the attending
minister ( Masur 1989:33-34). |
|
|
|
|
A.
INCREASE MATHER ADDRESSING THE CROWD
Propos. 3. The
Murderer is to be put to death by the hand of Publick Justice. And this
confirms the former Propositions concerning the greatness of this Sin. Men may
not pardon or remit the Punishment of that Sin. Among the Jews there was no
City of Refuge for a wicked or wilful
-12-
man-slayer; and
it is said in the 31 verse of this Chapter, You shall take no satisfaction for
the life of a Murderer which is guilty of death, but he shall surely be put to
death. This sin shall not be satisfyed for, with any other punishment, but the
death of the Murderer. There are some Crimes, that other punishment less than
Death may be accepted of, as a Compensation for the wrong done; either by some
Mulct or Fine on their Estates, or some other Corporal Punishment less than
death: but in case of Murder no Fine or Imprisonment, or Banishment, or
corporal punishment less than death can be accepted: You shall take no
satisfaction for the life of a murderer. And indeed Equity requires this: by
the law of Retaliation, it is meet that men should be done unto, as they have
done to others; and that as limb should go for limb, so Life for Life. But
besides that, there are two Reasons mentioned in the Scripture, why the
Murderer must be put to Death.
Reas. 1. That
so the Land where the murder is committed may be purged from the guilt of
Blood[.] For Murder is such a sin as does pollute the very Land where it is
done; not only the person that has shed blood is polluted thereby, but the
whole Land lies under Pollution until such time as Justice is done upon the
Murderer. Thus in the 33. v. of this Chapter, this is given as the Reason why
no Satisfaction might be taken for the life of a Murderer; so shall ye not
pollute the land wherein you are; for blood it defileth the land, and the land
cannot be cleansed of the blood that is shed therein, but by the blood of him
that shed it. One Murder unpunished, may bring guilt & a curse upon the
whole Land, that all the Inhabitants of the Land shall suffer for it; So that
Mercy to a Murderer is Cruelty to a People. Therefore it is said concerning the
Murderer, Thine eye shall not pity him but thou shall put away the guilt of innocent
blood from Israel, that it may go well with thee. If the Murderer be not
punished it may go ill with the Whole, all may fare the worse for it; if the
sin be not duly punished, there is a partaking in the guilt of it.
Reas. 2.
Because man is made in the Image of God. This reason is mentioned Gen. 9. 6.
Whosoever sheddeth mans blood, by man (i. e. by some man in Authority,
proceeding in an orderly way of Judicature, as the Hebrew Expositors do rightly
interpret the words) shall his blood be shed, for in the Image of God made He
him.
1. Consider
what a sinner you have bin. The Sin which you are to die for, is as red as
Scarlet; and many other sins, hath your wicked life been filled with. You have
been a stranger to me, I never saw you, I never
-13-
wicked you have
been, and you have your self confessed to the world, that you have been guilty
of Drunkenness, guilty of Cursing & Swearing, guilty of Sabbath-breaking,
guilty of Lying, guilty of secret Uncleanness; as Solomon said to Shimei, Thou
knowest the wickedness which thine own heart is privy unto: so I say to you.
And that which aggravates your Guiltiness not a little, is, That since you have
been in Prison, you have done wickedly; you have made your self drunk several
times since your Imprisonment; yea, and you have bin guilty of Lying since your
Condemnation. It was said to a dying man, Dost not thou fear God, seeing thou
art under Condenmation! Oh what a sinner have you bin! for since you have bin
under Condemnation, you have not feared God. And how have you sinned against
the Gospel? What Unbelief, what Impenitency have you bin guilty of!
Consider 2.
What Misery you have brought upon your self, on your Body, that must dye an
accursed death: you must hang between Heaven and Earth, as it were forsaken of
both, and unworthy to be in either. And what Misery have you brought upon your
poor Children! you have brought an everlasting Reproach upon them. How great
will their Shame be, when it shall be said to them, that their Father was hangd,
not for his goodness, as many in the world have bin, but for his wickedness:
not as a Martyr, but as a Malefactor, truly so! But that which is Ten Thousand
Thousand times worse than all this, is, That you have (without Repentance)
brought undoing Misery upon your poor yet precious Soul: not only Death on your
Body, but a Second Death on your never-dying Soul. It is said in the Scripture,
That Murderers shall have their part in the lake, which burns with fire and
brimstone, which is the Second Death. Rev. 21, 8. O tremble at that!
I Pray God that
I may be a Warning to you all, and that I may be the last that ever shall
suffer after this manner. in the fear of God I warn you to have a care of
taking the Lords Name in vain. Mind & have a care of that sin of
Drunkenness, for that sin leads to all manner of sins and Wickedness: (mind
& have a care of breaking the sixth Commandment, where it is said, Thou
shalt do no Murder) for when a man is in Drink, he is ready to commit all
manner of Sin, till he fill up the cup of the wrath of God, as I have done by
committing that sin of Murder. I beg of God as I am a dying man, and to appear
before the Lord within
-14-
a few minutes,
that you may take notice of what I say to you. Have a care of drunkenness,
& ill Company, and mind all good Instruction, and dont turn your back upon
the Word of God, as I have done. When I have bin at meeting, I have gone out of
the meetinghouse to commit sin & to please the lust of my flesh. Dont make
a mock at any poor object of pity, but bless God that he has not left you as he
has justly done me to commit that horrid sin of Murder. Another thing that I
have to say to you, is to have a care of that house where that wickedness was
committed, & where I have bin partly ruind by. But here I am, and know not
what will become of my poor soul which is within a few moments of eternity. I
have murder d a poor man, who had but little time to repent, and I know not
what is become of his poor soul; O that I may make use of this opportunity that
I have! O that I may make improvement of this little little time, before I go
hence and be no more. O let all mind what I am saying now I am going out of
this world. O take warning by me, and beg of God to keep you from this sin
which has bin my ruine. [His last words were] O Lord, receive my spirit, I come
unto thee O Lord, I come unto thee O Lord: I come, I come, I come
Source: Increase Mather, A Sermon Occasioned by the
Execution of a Man Found Guilty of Murder ( Boston: R. P., 1687). In Sacvan
Bercovitch, ed., Execution Sermons ( New York: AMS Press, 1994), 11-12,
30-31, 35-36.
DOCUMENT 5: The Reasons and Design of Public
Punishments (Nathan Strong, 1777)
Nearly a century
after Increase Mathers public condemnation of James Morgan (see Document 4),
execution sermons that included justifications for the death penalty still were
being given in the newly established republic.
Interestingly,
however, the nature of the execution sermon was changing to reflect the new
focus on government, the common good, and protection of liberty and property
that occurred in the decades after the American Revolution ( Cohen 1988:154,
156). Many sermons now included legal as well as religious justifications for
the execution, as evidenced by the following execution sermon by Nathan Strong,
pastor of the First Church of Hartford.
The melancholy
spectacle which is soon to be exhibited, hath drawn together a vast concourse
of people, who are doubtless influenced by various motives to be spectators of
so awful a scene. Some by true se-
-15-
riousness, and
many to gratify a vain curiosity. Curiosity is but a poor motive for collecting
on such an occasionthe person who can go and look on death, merely to gratify
an idle humour, is destitute both of humanity and piety.
Such awful
exhibitions are designed that others may see and fear. -Go not to that place of
horror with elevated spirits, and gay hearts, for death is there! justice and
judgment are there! the power of government, displayed in its most awful form,
is there.
One reason why
it is necessary the unhappy person should thus die, is that others may be
fortified against temptation by the spectacle of horror, and the bitter
consequences of transgression. When you look thereon, learn the venerableness
of the state and of civil government -the sacred nature of those laws made to
protect liberty and property, and our obligations to obediencelearn that sin
is punished by infamy, distress and deaththat the man who injures his country,
and will not be restrained by considerations of duty, justice and gratitude,
must be cut off from the earth that others may be saferemember that lesser
sins, though they are not made capital by the laws of the State, lead directly
towards the same untimely end.
Source: Nathan Strong, The Reasons and Design of
Public Punishments ( Hartford, Conn.: Eben. Watson, 1777). [Early American
Imprints ( New York: Readex Microprint, 1985), 17.]
DOCUMENT 6: A Bill for Proportioning Crimes and
Punishments (Thomas Jefferson, 1779)
By 1779, the
first abolitionist rumblings with regard to capital punishment were just
beginning to make their way to America from Europe.
The European
debate over capital punishment had been instigated primarily by Cesare Beccaria
( 1738-1794), the jurist son of an Italian marquis, in his 1764 book An
Essay on Crimes and Punishments. Beccaria argued that the death penalty
served as an example of barbarity rather than a deterrent to it, because it
sanctioned the taking of human lifethe very act it was intended to deter.
As an
alternative to capital punishment, Beccaria advocated proportional punishments
designed to deter crimesuch as a lifetime of imprisonment and servitude as punishment
for murder. He argued that such punishments not only would serve as a lastingrather
than fleetingexample to others, but were in some ways harsher than execution
because of their duration, and thus served as a more effective deterrent.
-16-
On the other
side of the Atlantic, Thomas Jefferson ( 1743-1826) was among the first
Americans to be influenced by Beccarias philosophy of punishment. Although
Jefferson was not in favor of the complete abolition of capital punishment, he
appears to have been impressed by Beccarias ideas on proportioning punishments
to fit crimes.
Shortly before
becoming Governor of Virginia in 1779, and some twenty-two years before he was
inaugurated as President of the United States, Jefferson drafted A Bill for
Proportioning Crimes and Punishments in Cases Heretofore Capital for
submission to the Virginia legislature. In it, he cited Beccaria several times.
The bill
proposed the elimination of the death penalty in Virginia for all crimes except
murder and treason. For other crimes, such as manslaughter, rape, and robbery,
Jefferson advocated specific penalties such as a number of years at hard labor,
loss of land and goods, reparation, or a physical punishment based upon the
crime committed.
However, while
Beccarias philosophies eventually would gain a wide following in America
during the decades that followed, Jeffersons bill was slightly ahead of its
time. It was not adopted, and the Virginia legislature did not reform its penal
code until 1796.
Whereas it frequently
happens that wicked and dissolute men resigning themselves to the dominion of
inordinate passions, commit violations on the lives, liberties and property of
others, and, the secure enjoyment of these having principally induced men to
enter into society, government would be defective in its principal purpose
were it not to restrain such criminal acts, by inflicting due punishments on
those who perpetrate them; but it appears at the same time equally deducible
from the purposes of society that a member thereof, committing an inferior
injury, does not wholly forfiet the protection of his fellow citizens, but,
after suffering a punishment in proportion to his offence is entitled to their
protection from all greater pain, so that it becomes a duty in the legislature
to arrange in a proper scale the crimes which it may be necessary for them to
repress, and to adjust thereto a corresponding gradation of punishments.
And whereas the
reformation of offenders, tho an object worthy the attention of the laws, is
not effected at all by capital punishments, which exterminate instead of
reforming, and should be the last melancholy resource against those whose
existence is become inconsistent with the safety of their fellow citizens,
which also weaken the state by cutting off so many who, if reformed, might be
restored sound members to society, who, even under a course of correction,
might be rendered useful in various labors for the public, and would be living
and long continued spectacles to deter others from committing the like
offences.
And forasmuch
the experience of all ages and countries hath shewn
-17-
that cruel and
sanguinary laws defeat their own purpose by engaging the benevolence of mankind
to withhold prosecutions, to smother testimony, or to listen to it with bias,
when, if the punishment were only proportioned to the injury, men would feel it
their inclination as well as their duty to see the laws observed.
For rendering
crimes and punishments therefore more proportionate to each other: Be it enacted
by the General assembly that no crime shall be henceforth punished by
deprivation of life or limb except those hereinafter ordained to be so
punished.
If a man do
levy wafr against the Commonwealth or be adherent to the enemies of the
commonwealth giving to them aid or comfort in the commonwealth, or elsewhere,
and thereof be convicted of open deed, by the evidence of two sufficient
witnesses, or his own voluntary confession, the said cases, and no others,
shall be adjudged treasons which extend to the commonwealth, and the person so
convicted shall suffer death by hanging, and shall forfiet his lands and goods
to the Commonwealth.
If any person
commit Petty treason, or a husband murder his wife, a parent his child, or a
child his parent, he shall suffer death by hanging, and his body be delivered
to Anatomists to be dissected.
Whosoever
committeth murder by poisoning shall suffer death by poison.
Whosoever
committeth murder by way of duel, shall suffer death by hanging; and if he were
the challenger, his body, after death, shall be gibbetted. He who removeth it
from the gibbet shall be guilty of a misdemeanor; and the officer shall see
that it be replaced.
Whosoever shall
commit murder in any other way shall suffer death by hanging.
Source: Thomas Jefferson, A Bill for Proportioning
Crimes and Punishments in Cases Heretofore Capital ( 1779). In Julian P.
Boyd, ed., The Papers of Thomas Jefferson, Vol. 2 ( Princeton: Princeton
University Press, 1950), 492-495 (footnotes omitted).
Despite early
attempts toward penal reform that began in America shortly after the
Revolution, many executions continued to take place under circumstances that
would be considered appalling by todays standards.
The execution of
twelve-year-old Hannah Ocuish, for example, is significant because of her
extreme youth, apparent mental retardation,
-18-
and numerous
other mitigating factors that were taken into account at her trial but not
considered sufficient to spare her life.
Hannah, whose
mother was an alcoholic Pequot Indian and whose father was an unknown white
man, was abandoned when she was quite young and eventually went from foster
home to foster home.
Already well
known for stealing and harassing people in her home town of Groton,
Connecticut, Hannah was condemned for pummeling and strangling to death the
six-year-old daughter of a well-to-do New London family who had tattled on her
for stealing some strawberries a few weeks earlier. While there was no question
that Hannah had committed the murderin fact, she had confessed to ither age,
low I.Q., and disrupted family background made it questionable whether she
could be held wholly accountable for her actions. However, the judge disagreed,
saying, the sparing of you on account of your age, would, as the law says, be
of dangerous consequences to the public by holding up an idea, that children
might commit such atrocious acts with impunity (quoted in Streib 1987:75).
Indeed, Henry
Channing, who delivered Hannahs execution sermon, took the opportunity to send
a warning to the youngsters in the audience, along with the usual admonition of
the condemned.
To you the
present scene speaks in striking language, teaching you the value of a parents
tender care.Think not that crimes are peculiar to the complexion of the
prisoner, and that ours is pure from these stains. Surely an idea so illiberal
and contracted cannot find a place in the breast of a generous youth.Know, my
brothers, that that casket, notwithstanding its colour, contains an
immortal soul, a Jewel of inestimable value; which, polished by divine grace,
would shine in yonder world with a glorious lustre: while the Jewel in a
brighter casket, being left in its natural state, would be blackness and
darkness forever.
There behold,
my young brethren, the fate of one, who, with a mind not below the common
level, has been left unrestrained to the guidance of guilty passions and a
corrupt heart.Have you virtuous and affectionate parents who, with anxious
concern, endeavour to instruct you in those principles which are necessary to
secure you from infamy like this? Can you refuse them an unreserved obedience
and the returns of grateful affection? -- Can you wish to add one pang to those
which a parents heart has already felt on your account? -- Think, O
heart-rending thought! think what would be their feelings, if they whom their
souls love should for their over-much wickedness be made, as this unhappy
criminal, a public spectacle of infamy and guilt.Could there be any sorrow
like unto this sorrow? -- Spare, O spare a parents aching heart
-19-
and let there
be no cause to look forward to a scene which cannot be borne even in thought.
Hear, my brother, the instruction of
thy father, and forsake not the law of thy mother: for they shall be an
ornament of grace unto thy head and chains about thy neck. Enter not into the
path of the wicked, and go not in the way of evil men. Avoid it, pass not by
it, turn from it, and pass away: for they sleep not except they have done
mischief; and their sleep is taken away, unless they cause some to fall. For
they eat the bread of wickedness and drink the wine of violence. But the path
of the just is as the shining light, that shineth more and more unto the
perfect day. Early chuse this path of wisdom, and your own experience will
prove that the ways of wisdom are ways of pleasantness, and that all her
paths are peace. Great indeed will be your peace when a dying Parent shall
pronounce you an obedient and affectionate child; and those lips which had not
instructed you in vain, shall close with commending you in the quivering
accents of death, to that Being in whom the fatherless findeth mercy.
May he hear and be well pleased with this last effort of parental love: and
repay your respectful obedience and sincere affection into your own bosoms. And
may God in his infinite goodness, grant, that when you shall take the places of
your fathers, you may never have cause to feel the unutterable pangs of that parents
heart, who has a son that is a grief to his father, and bitterness to her
that bare him.
Source: Henry Channing, God Admonishing His People
of Their Duty as Parents and Masters, second edition ( New York: T. Green,
1786). [Early American Imprints ( New York: Readex Microprint, 1985), 23-25.]
DOCUMENT 8: An Enquiry into the Effects of
Public Punishments Upon Criminals and Upon Society (Benjamin Rush, 1787)
While European
philosophers of the Enlightenment such as Cesare Beccaria were responsible for
planting the first seeds of abolitionist sentiment in America, it was a
Philadelphia physician, Benjamin Rush ( 1745-1813), who is credited with
launching the first major movement against capital punishment in the United
States.
Rush, a signer
of the Declaration of Independence, is perhaps best known for his work An
Enquiry into the Effects of Public Punishments Upon Criminals and Upon Society,
which he initially delivered as a speech at the home of Benjamin Franklin and
subsequently published as a treatise.
Rushs treatise
was prompted by the passage six months earlier of
-20-
Pennsylvanias
Act of 1786. The act, known as the wheelbarrow law, made many crimes that
once were punishable by death, such as robbery, burglary, and sodomy, now
punishable by a certain number of years at hard, public labortypically in the
streets of Philadelphia and neighboring towns.
The goal of the
laws was to reform the criminal through hard work and public humiliation and to
deter others from committing similar crimes. However, within a very short time,
it became clear to Rush and many others that the new laws were failing far
short of this goal and even might be contributing to the further corruption of
the offenders they were meant to reform ( Masur 1989:79).
In his
treatise, which has been called Americas first reasoned argument stressing
the impolicy and injustice of the death penalty for murder ( Schwed 1983:11),
Rush denounced both the death penalty and the new laws, calling instead for the
establishment of a house of repentance, or penitentiary.
The treatise
was widely publicized and highly controversial, earning Rush a strong following
among advocates of abolition and prison reform. As a result, the Philadelphia
Society for Alleviating the Miseries of Public Prisons was founded soon after,
and in 1789, the wheelbarrow law was repealed. In 1790, the worlds first
penitentiary was established at the Walnut Street Jail in Philadelphia.
I have said
nothing upon the manner of inflicting death as a punishment for crimes, because
I consider it as an improper punishment for any crime. Even Murder
itself is propagated by the punishment of death for murder. Of this we have a
remarkable proof in Italy. The Duke of Tuscany, soon after the publication of
the Marquis of Beccarias excellent treatise upon this subject, abolished death
as a punishment for murder. A gentleman, who resided five years at Pisa,
informed me, that only five murders had been perpetrated in his dominions in
twenty years. The same gentleman added, that after his residence in Tuscany, he
spent three months in Rome, where death is still the punishment of murder, and
where executions, according to Doctor Moore, are conducted with peculiar
circumstances of public parade. During this short period, there were sixty
murders committed in the precincts of that city. It is remarkable, the manners,
principles, and religion, of the inhabitants of Tuscany and Rome, are exactly
the same. The abolition of death alone, as a punishment for murder, produced
this difference in the moral character of the two nations.
I suspect the
attachment to death, as a punishment for murder, in the minds otherwise
enlightened, upon the subject of capital punishments, arises from a false
interpretation of a passage contained in the old testament, and that is, he
that sheds the blood of man, by man shall his blood be shed. This has been
supposed to imply, that blood could only
-21-
be expiated by
blood. But I am disposed to believe, with a late commentator [Rev. William
Turner] upon this text of scripture, that it is rather a prediction,
than a law. The language of it is simply, that such will be the
depravity and folly of man, that murder, in every age, shall beget murder.
Laws, therefore, which inflict death for murder, are, in my opinion, as
unchristian as those which justify or tolerate revenge; for the obligations of
christianity upon individuals, to promote repentance, to forgive injuries, and
to discharge the duties of universal benevolence, are equally binding upon
states.
The power over
human life, is the solitary prerogative of HIM who gave it. Human laws,
therefore, rise in rebellion against this prerogative, when they transfer it to
human hands.
If society can
be secured from violence, by confining the murderer, so as to prevent a
repetition of his crime, the end of extirpation will be answered. In
confinement, he may be reformedand if this should prove impracticable, he may
be restrained for a term of years, that will probably be coeval with his life.
There was a time,
when the punishment of captives with death or servitude, and the indiscriminate
destruction of peaceable husbandmen, women and children, were thought to be
essential to the success of war, and the safety of states. But experience has
taught us, that this is not the case. And in proportion as humanity has
triumphed over these maxims of false policy, wars have been less frequent and
terrible, and nations have enjoyed longer intervals of internal tranquility.
The virtues are all parts of a circle. Whatever is humane, is wisewhatever is
wise, is just -and whatever is wise, just, and humane, will be found to be the
true interest of states, whether criminals or foreign enemies are the objects
of their legislation.
I have taken no
notice of perpetual banishment, as a legal punishment, as I consider it the
next in degree, in folly and cruelty, to the punishment of death. If the
receptacle for criminals, which has been proposed, is erected in a remote
part of the state, it will act with the same force upon the feelings of the
human heart, as perpetual banishment. Exile, when perpetual, by destroying one
of the most powerful principles of action in man, viz. the love of kindred, and
country, deprives us of all the advantages, which might be derived from it, in the
business of reformation. While certain passions are weakened, this noble
passion is strengthened by age; hence, by preserving this passion alive, we
furnish a principle, which, in time, may become an overmatch for those vicious
habits, which separated criminals from their friends, and from society.
Notwithstanding
this testimony against the punishment of death and perpetual banishment, I
cannot help adding, that there is more mercy to the criminal, and less injury
done to society, by both of them, than by public infamy and pain,
without them. . . .
-22-
I shall
conclude this enquiry by observing, that the same false religion and
philosophy, which once kindled the fire on the altar of persecution, now doom
the criminal to public ignominy and death. In proportion as the principles of
philosophy and christianity are understood, they will agree in extinguishing
the one, and destroying the other. If these principles continue to extend their
influence upon government, as they have done for some years past, I cannot help
entertaining a hope, that the time is not very distant, when the gallows, the
pillory, the stocks, the whipping-post, and the wheel-barrow (the usual engines
of public punishments) will be connected with the history of the rack, and the
stake, as marks of the barbarity of ages and countries, and as melancholy
proofs of the feeble operation of reason, and religion, upon the human mind.
Source: Benjamin Rush, An Enquiry into the Effects
of Public Punishments Upon Criminals and Upon Society ( Philadelphia:
Joseph James, 1787). [ New York: Readex Microprint, 1985, 15-18.]
When Americas
founding fathers drafted the Constitution, their main concern was to preserve
the new democracy and protect against future tyranny by ensuring separation of
power between the executive, legislative, and judicial branches of government.
However, soon
after the Constitution was ratified by the states, its framers realized that by
focusing so heavily on these objectives, they had neglected to provide written
assurances to protect the rights of individual citizens against possible abuses
by the new federal government. This, therefore, is the goal of the first ten
amendments to the Constitution, also known as the Bill of Rights, adopted
December 15, 1791.
Three of these
amendmentsalong with the Fourteenth Amendment, added in 1868 (Document 23) --
later would figure in numerous constitutional challenges to the death penalty:
the Fifth Amendment (Document 9A), for its assurance that no person shall be
compelled to testify against himself and also for its clause ensuring due
process of law in a capital trial; the Sixth Amendment (Document 9B), for its
promise of an impartial jury in all criminal prosecutions; and the Eighth
Amendment (Document 9C), for its assurances against cruel and unusual
punishments.
The Eighth
Amendment has been particularly important in death penalty cases. Although
capital punishment undoubtedly was in use
-23-
and was not
considered cruel and unusual punishment when this amendment was added to the
Constitution in 1791, modern-day abolitionists have claimed that evolving
standards of decency have rendered the death penalty unconstitutional.
No person shall
be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia, when in actual service in time of war or
public danger; nor shall any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use,
without just compensation.
In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his defense.
Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Source: Constitution of the United States.
DOCUMENT 10: An Enquiry How Far the Punishment
of Death Is Necessary in Pennsylvania (William Bradford, 1793)
By 1793, the
abolition and penal reform movement instigated by Benjamin Rush and his
followers had gained considerable momentum in Pennsylvania.
-24-
The movement
progressed even further when William Bradford, attorney general of Pennsylvania
who later would become attorney general for the United States, investigated the
possibility of reducing the number of capital crimes in the state. In his
report, Bradford became one of the first to define the distinction between
first- and seconddegree murder and to argue for the abolition of capital
punishment for all crimes except first-degree murder and treason. He also
strongly supported early childhood education as a means of preventing later criminal
behavior, and spoke favorably of the states new prison system.
In 1794, due in
large part to the continuous efforts of Bradford and Rush, the Pennsylvania
legislature abolished the death penalty for all crimes except first-degree
murder. New York in 1796 was the first state to follow Pennsylvanias example,
retaining the death penalty only for murder and treason. Virginia, which in
1785 had rejected Thomas Jeffersons proposal to reduce its number of capital
crimes, was among a number of other states that adopted similar reforms during
the next two decades. And as they did so, each statewith the lofty goals of
reforming criminalsbegan constructing its own prisons and penitentiaries (
Mackey 1976:xvi-xvii; Masur 1989:86-87; Schwed 1983:11-12).
IT being
established, That the only object of human punishments is the prevention of
crimes, it necessarily follows, that when a criminal is put to death, it is not
to revenge the wrongs of society, or of any individualit is not to recall
past time and to undo what is already done: but merely to prevent the offender
from repeating the crime, and to deter others from its commission, by the
terror of the punishment. If, therefore, these two objects can be obtained by
any penalty short of death, to take away life, in such case, seems to be an
authorised act of power. . . .
Murder, in its
highest degree, has generally been punished with death, and it is for
deliberate assassination, if in any case, that this punishment will be
justifiable and useful. Existence is the first blessing of Heaven, because all
others depend upon it. Its protection is the great object of civil society and
governments are bound to adopt every measure which is, in any degree, essential
to its preservation. The life of the deliberate assassin can be of little worth
to society, and it were better that ten such atrocious criminals should suffer
the penalty of the present system, than that one worthy citizen should perish
by its abolition. The crime imports extreme depravity and it admits of no
reparation. . . .
But while I
speak thus of deliberate assassination, there are other kinds of murder to
which these observations do not apply: and in which, as the killing is in a
great measure the result of accident, it is impossible the
-25-
severity of the
punishment can have any effect. The laws seem, in such cases, to punish the act
more than the intention: and, because society has unfortunately lost one
citizen, the executioner is suffered to deprive it of another.
In common
understanding the crime of murder includes the circumstance of premeditation.
In the laws of William Penn, the technical phrase malice aforethought,
was avoided; and wilful and premeditated murder is the crime which was
declared to be capital. Yet murder, in judicial construction, is a term so
broad and comprehensive in its meaning as to embrace many acts of homicide,
where the killing is neither wilful nor premeditated. A. shooteth at the
poultry of B. and, by accident, killeth a man; if his intention was to steal
the poultry it will be murder: but if done wantonly it will be barely
man-slaughter. Again, A parker found a boy stealing wood in his masters
ground: he bound him to his horses tail and beat him. The horse took fright,
run away and killed the boy. This was held to be murder. In the latter case
there was no design to kill; in the former not the least intention to do any
bodily harm.
I am sensible
how delicate a step it is to break in upon the definition of crimes formed by
the accumulated care of ages; but, when we consider how different, in their
degree of guilt, these offences are from the horrid crime of deliberate
assassination, it is difficult to suppress a wish, that some distinctions were
made in favor of homicides which do not announce extreme depravity. . . .
IT is from the
ignorance, wretchedness or corrupted manners of a people that crimes proceed.
In a country where these do not prevail moderate punishments, strictly
enforced, will be a curb as effectual as the greatest severity.
A mitigation of
punishment ought, therefore, to be accompanied, as far as possible, by a diffusion
of knowledge and a strict execution of the laws. The former not only
contributes to enlighten, but to meliorate the manners and improve the
happiness of a people.
The celebrated Beccaria
is of opinion, that no government has a right to punish its subjects unless it
has previously taken care to instruct them in the knowledge of the laws and the
duties of public and private life. The strong mind of William Penn
grasped at both these objects, and provisions to secure them were interwoven
with his system of punishments. The laws enjoined all parents and guardians to
instruct the children under their care so as to enable them to write and read
the scriptures by the time they attained to twelve years of age: and directed,
that a copy of the laws (at that time few, simple and concise) should be used
as a school book. Similar provisions were introduced into the laws of Con-
-26-
necticut, and
the Select Men are directed to see that none suffer so much barbarism in their
families as to want such learning and instruction. The children were to be taught
the laws against capital offences, as those at Rome were accustomed to commit the
twelve tables to memory. These were regulations in the pure spirit of a
republic, which, considering the youth as the property of the state, does not
permit a parent to bring up his children in ignorance and vice.
The policy of
the Eastern states, in the establishment of public schools, aided by the
convenient size and incorporation of their townships, deserves attention
and imitation. It is, doubtless, in a great measure, owing to the diffusion of
knowledge which these produce, that executions have been so rare in New
England; and, for the same reason, they are comparatively few in Scotland.
Early education prevents more crimes than the severity of the criminal code.
The
constitution of Pennsylvania contemplates this great object and directs, That Schools
shall be established, by law, throughout this state. Although there are real
difficulties which oppose themselves to the perfect execution of the
plan, yet, the advantages of it are so manifest that an enlightened Legislator
will, no doubt, cheerfully encounter, and, in the end, be able to surmount
them.
SecondlyLaws which prescribe hard labor as
a punishment should be strictly executed. The criminals ought, as far as
possible, to be collected in one place, easily accessible to those who have the
inspection of it. When they are together their management will be less
expensive, more systematic and beneficialTheir treatment ought to be such as
to make their confinement an actual punishment, and the rememberance of
it a terror in future. The labor, in most cases, should be real hard
laborthe food, though wholesome, should be coarsethe confinement
sufficiently long to break down a disposition to viceand the salutary
rigor of perfect solitude, invariably inflicted on the greater offenders.
Escapes should be industriously guarded againstpardons should be rarely, very
rarely, granted, and the punishment of those who are guilty of a second
offence should be sufficiently severe.
The reformation
of offenders is declared to be one of the objects of the Legislature in
reducing the punishmentBut time, and, in some cases, much time, must be
allowed for this. It is easy to counterfeit contrition; but it is impossible to
have faith in the sudden conversion of an old offender.
On these hints
I mean not to enlargebut they point to objects of great importance, which may
deserve attention whenever a further reform is attempted.
The conclusion
to which we are led, by this enquiry, seems to be, that in all cases (except
those of high treason and murder) the punishment of death may be safely
abolished, and milder penalties advantageously
-27-
introducedSuch
a system of punishments, aided and enforced in the manner I have mentioned,
will not only have an auspicious influence on the character, morals, and
happiness of the people, but may hasten the period, when, in the progress of
civilization, the punishment of death shall cease to be necessary; and the
Legislature of Pennsylvania, putting the key-stone to the arch, may triumph in
the completion of their benevolent work.
Source: William Bradford, An Enquiry How Far the
Punishment of Death Is Necessary in Pennsylvania ( Philadelphia: Dobson,
1793). [Early American Imprints ( New York: Readex Microprint, 1985), 6-7, 35,
37-38, 43-46(footnotes omitted).]
DOCUMENT 11: An Account of the Alteration and
Present State of the Penal Laws of Pennsylvania (Caleb Lownes, 1794)
Four years
after the establishment of the first penitentiary at the Walnut Street Jail in
Philadelphia (see Document 8), Caleb Lownes, one of the penitentiarys
inspectors, wrote a progress report on the reformed prison titled An Account
of the Alteration and Present State of the Penal Laws in Pennsylvania.
Lownes was a
Quaker merchant who long had worked toward prison reform and the abolition of
capital punishment. Like his contemporary Benjamin Rush, he believed that
solitary confinement was the key to reforming the criminal mind. The theory was
that removal of the often negative stimulation of the outside world would make
the criminal better able to contemplate his actions and thus see the error of
his ways ( Masur 1989:81-82, 86).
In his report,
Lownes appeared confident that the newly reformed prison was a great successbeneficial
both to the prisoner and to the community. He reported that recidivism was low
among pardoned offenders, crime was down on the city streets and highways
outside of town, and when crimes were committed, juries no longer were
reluctant to convict, as they often had been when punishments were considered
too harsh. Hence, at least in Lownes opinion, it seemed that Philadelphia was
on the right track toward penal reform.
How little
effect the former system of punishments had in preventing of crimes, is too
well known to need any explanation at present. We are now to examine, whether
any beneficial consequences have followed the alteration that has taken place
in the treatment of the convicts.
It is not more
than two years that the new regulations have had their
-28-
full operation,
although the law which authorised them, was passed some time before. But in
that short time, the effects which have flowed from them, have been remarked
with much satisfaction by the citizens at large, as well as by those whose
situation offered superior opportunities for observing them. These effects
proceed, either from a real reformation taking place in the minds of the
prisoners, or from a terror of the consequences which they know will attend a
second confinement.
During their
continuance in prison, they learn many things which operate as a check upon the
commission of new crimes. They learn the difficulty of evading justice; and
that, as the laws are now mild, they will be strictly put in execution. They
now see that juries are not unwilling to convict, and that pardons are not
granted till they discover some appearances of amendment. The penalty, though
not severe, is attended with many unpleasant circumstances, and many of them
deem the constant return of the same labour and of coarse fare, as more
intolerable, than a sharp, but momentary punishment. They know that a second
conviction would consign them to the solitary cells and deprive them of the
most distant hopes of pardon. These cells are an object of real terror
to them all, and those who have experienced confinement in them, discover by
their subsequent conduct, how strong an impression it has made on their minds.
They know that mercy abused, will not be repeated, and neither change of name
nor disguise, will enable them to escape the vigilant attention with which they
are examined. These reflections, or reflections like these, have had their
weight: for out of near 200 persons who at different times have been
recommended to, and pardoned by the governor, only four have been returned:
three from Philadelphia, re-convicted of larceny, and one from a neighouring
county. As several of those, thus discharged, were old offenders, there was
some reason to fear, that they would not long behave as honest citizens. But,
if they have returned to their old courses, they have chosen to run the risk
of being hanged in other states, rather than encounter the certainty of
being confined in the penitentiary cells of this. We may therefore conclude,
that the plan adopted has had a good effect on these; for it is a fact well
known, that many of them were heretofore frequently at the bar of public
justice, and had often received the punishment of their crimes under the former
laws.
Our streets now
meet with no interruption from those characters that formerly rendered it
dangerous to walk out of an evening. Our roads in the vicinity of the city, so
constantly infested with robbers, are seldom disturbed by those dangerous
characters. The few instances that have occurred of the latter, last fall, were
soon stopped. The perpetrators proved to be strangers, quartered near the city,
on their way to the westward.
Our houses,
stores, and vessels, so perpetually disturbed and robbed
-29-
no longer
experience those alarming evils. We lay down in peacewe sleep in security.
Source: Caleb Lownes, An Account of the Alteration
and Present State of the Penal Laws of Pennsylvania ( Lexington, Mass.: J.
Bradford, 1794). [Early American Imprints ( New York: Readex Microprint, 1985),
18-19.]
30-