Aims

One can look to Massachusetts for an example of the procedure provided to capital defendants in the 17th century. With respect to murder, a good account is given by Rogers(4). To sum up briefly: capital procedure at trial incorporated elements of English law such as provisions of the Magna Carta (emphasizing judgment by peers and due process) as well local “laws and useage”. Judges also attempted to provide “discretionary justice” to mitigate the imperfections of the law. Moreover, two important steps in 1648 were the recognition of legal practitioners by the legislature and a right to attorney once trial commenced. However, even given all this, said procedure in practice still only afforded limited rights to him or her – Samuel Guile’s 1675 rape trial, in Massachusetts itself, “lasted only so long as was necessary to read “the Indictment & evidences” to the jury, which promptly convicted him” (5). Procedure in other colonies may have been more perfunctory: one defendant was “convicted and sentenced to death, and only then was he asked whether he had anything to say “(6).

Given the harsh nature of the law, several institutions were put in place to make it milder and two illustrations can be given here. One can see that these institutions were later expanded beyond their originally intended scope – so much so that they became part of the arsenal of pro-abolitionists in attacking what they perceived as the inefficacy of the death penalty.

The first of these was ‘benefit of clergy’. Taken from English law, it was intended to allow clergymen to use their status as a bar to prosecution in the common courts (as opposed to ecclesiastical courts) – for efficiency purposes, this came to be done by requiring the defendant to prove that he could read. This may have been a useful indicator in early times, but as time went on laymen began to learn how to read. Thus, ‘benefit of clergy’ was extended to laypeople and soon the literacy test farce was abolished altogether – ‘benefit of clergy’ became a system of leniency for first time offenders for the less serious crimes (some of which nevertheless formally invoked the death penalty, especially in the South)(7).

Another device used to mitigate the severity of the law was clemency. A large number of those sentenced to death never in fact reached the gallows. Whether or not an offender would be pardoned depended on many circumstances, all of which ultimately were decided by the governors who had sole discretion regarding clemency. Connections in high places (to the governors themselves or to the judges, for instance), mildness of the offence or lack of prior criminal record were all relevant factors. Importantly, clemency also provided a method of correcting legal errors at trial since unlike in modern times there was no criminal appeal system in the 17th and 18th centuries. (8). Of particular note were the ‘last minute pardons’ given to offenders who were already standing upon the platform waiting to be executed. These pardons were mostly kept secret from everyone except for the government officials – the stated purpose of this practice was to achieve the effect of a real execution (the severity of the law serving as a deterrent and the creation of angst) and also showcase the “kindness of the individuals administering [the law]” (9).

Given the above institutions, one can see how many of the reasons for having the death penalty no longer held water. The possibility (and proliferation of) pardons, particularly last-minute pardons, raised the expectations of the condemned, “thereby causing them to be too cavalier during their final days” (10). Thus, the goal of encouraging penitence (recall that the death penalty was meant to stimulate repentance during the criminals’ last days) was much diminished, and of course where a pardon was granted, the aim of incapacitation via execution was not met. Similarly, after benefit of clergy became almost a ‘carte blanche’ for first-time offenders to obtain reprieves, the goal of deterrence must have been substantially frustrated since potential criminals could take comfort in the fact that they were ‘immune’ for first-time offences.

There had emerged yet another problem: “the difficulty…of convicting persons who are guilty” (11). Because we have seen that juries often had to either acquit or find someone guilty with the consequence of putting him or her to death, they became unwilling to convict even a clearly guilty person when they did not think that the crime or individual deserved capital punishment. In addition, whilst the development of more stringent due process for capital defendants later on (in Massachusetts at any rate) (12) may have been good for said defendants, it probably resulted in even fewer people being ultimately convicted. Those in favour of retention postulated that this factor actually militated in favour of the death penalty (13)but whatever the merits of their arguments, “a rarely enforced death penalty could scarcely serve as a deterrent” (14)

The result of all this in many cases was reform and abolition. For instance, jury discretion was introduced to make capital punishment optional for some crimes which had previously been punishable only by death(15). Furthermore, the ‘degrees of murder’ that we are familiar with today were introduced, with 2nd degree murder punishable by imprisonment rather than death) (16). Finally, several states abolished the death penalty for crimes such as adultery and incest and substituted ‘symbolic executions’ in its place such as in Massachusetts, requiring the offender to sit for an hour with the hangman’s noose around his neck (followed by whipping) (17). By 1786, Pennsylvania had abolished the death penalty for robbery, burglary, sodomy and buggery(18) and throughout the North at least, the death penalty was “removed from crime after crime”(19) and finally in Michigan, it was abolished for all common crimes in 1846.

Notes

4 : Rogers, pg 2

5 : Banner, pg 16

6 , 14 : Ibid.

7 : Banner, pg 62-63

8 : Banner, pg 56

9 : Banner, pg 69

10 : Banner, pg 79

11 : Rush, pg 2

12 : Rogers, pg 41; see also Mass. Declaration of Rights 1780 in source table

13 : See the bottom of Banner, pg 115

15 : Bedau, pg 28

16 : Banner, pg 98

17 : Banner, pg 65

18 : Banner, pg 97

19 : Banner, pg 112

Increasing overall wealth of society led to more ‘respectable’ people who started to take notice of sensibilities which had formerly been relegated to the rich upper class. An important development of this “genteel sensibility was an aversion to the sight of death” )(21) and a concurrent feeling of contempt for those who still wished to witness death in a public forum. A prominent advocate of abolishing executions in general was Edward Livingston(22). Amongst other things he argued that seeing executions had the effect of encouraging 'depravity' on the part of the public(23). Charles Spear(24) seems to have had similar views: “Those who become witnesses of sanguinary punishments only want for provocations of poverty or anger to perpetrate the same crime for which the capital offender is punished”.(25) As a consequence of these changing tastes and perceptions, states began abolishing public executions and transplanting them into the prison yard (thus, even though Livingston’s aim of banning executions outright was not achieved, the ‘main act’ of capital punishment – i.e. the public hangings – was whittled away), with Connecticut being the first state to do so in 1830. Several other states followed suit. Another result that arose from increased wealth was that governments were now able to realistically sustain long-term prisons with all their collateral costs (including feeding, housing, clothing prisoners etc.)

In his Commentaries, Blackstone expressed his opinion that it would “do honor to the English law, to compare it with the shocking apparatus of death…in the criminal codes of almost every other nation in Europe” (26). By the end of the 18th century, those in favour of banning capital punishment in America were similarly beginning to compare America with England and saw abolition as a “mark of the new nation’s progress”(27). They saw the retention of the death penalty especially for lesser felonies as a mark of barbarism of earlier times. The role of sympathy was changing too in the late 18th century: whilst the crowd watching at executions had always felt sympathy for those soon to be hanged, it was only now that spectators would “translate their sympathy for the condemned prisoners into opposition to capital punishment generally” (28).

Notes

20 : See for example the account published in 1826, Mass. – Banner, pg 150

21 , 24 : Banner, pg 153

22 : 1764-1836

23 : Livingston, pg 61

25 : Spear, pg 66

26 : Bedau, pg 4

27 : “How few are the capital crimes, known to the laws of the United States…compared with those, known to the laws of England!” – James Wilson. See Banner, pg 99

28 : Banner, pg 30

• Mass_Declaration_of_Rights_1780.pdf: Massachusetts Declaration of Rights (1780)

• Livingston_report_penal_code.pdf: Livingston, Report on the Penal Code (1822)

• Spear_Essays_on_the_punishment_of_death.pdf: Spear, Essays on the Punishment of Death (1845)