Capital Punishment in America, 1611 - 1846

Aims

This project is intended to investigate the changing nature of the legal regulation of capital punishment in America between 1611 and 1846. More specifically, I would like to explore the following question: how and why did the death penalty evolve from its position as the favored sanction for a whole array of crimes - taking 1611, the year that the 'Lawes Divine, Morall and Martiall' came into use in the first permanent British settlement in America (Virginia) as our starting date - to its legal abolition for all common crimes for the first time (Michigan, 1846)(1)

One preliminary note: the bounds of my research will generally be restricted to the death penalty in the aforementioned period as it related to those other than slaves (the majority of whom were Blacks) - although the position of slaves at the time is clearly an important topic, I believe that it may be better dealt with in a separate inquiry.

Comments and criticism, as well as any information or sources, are very much welcomed and appreciated!

Introduction

Regulation of capital punishment in early America was, as one would expect, heavily influenced by its counterpart in England. However, even from the start one could note differences between the colonies, and notable divergence between the North and South in the type and range of crimes that were capitalized and later also the stance regarding abolition.

Crimes that were typically punished by death at the time were murder and treason (which were prosecuted as capital offences in every colony at least for a certain period), rape, robbery, arson and capital cases of perjury (in most colonies), while the following were only subject to the death penalty in some: adultery, sodomy, bestiality, witchcraft and blasphemy(2)).

The 'death penalty' was carried out chiefly in the form of hangings both in England and America at the time (although there were, as Banner notes, other forms of execution 'worse than death' reserved for the most abominable crimes(3)); it was the form of execution which required the least in terms of equipment and prowess. What hangings lacked in technical expertise, however, they more than made up for in ceremony.(4)

The public nature of executions facilitated many of the purposes of the death penalty, such as deterrence and retribution (explored further in 'Utilitarianism and Philosophy', below). Shifts in attitude in these respects, together with wider social changes and key developments such as the advent of prisons, may help us answer the question which this paper poses.

Influences from England and the Continent

"American criminal law...took its shape directly from English criminal law of the sixteenth, seventeenth and eighteenth centuries."(5) It is therefore difficult to understand regulations of capital punishment in early America without first having some idea of what the equivalent regulations were in England.

Leon Radzinowcz's multi-volume study of the history of English criminal law(6) devotes much attention to the death penalty and illustrates that certainly by the 18th century, capital punishment was widely prescribed for crimes ranging from murder to petty property offences. A good example of the English legislature's advocacy of harsh punishments, including the death penalty, is the Waltham Black Act of 1723 which declared a vast spectrum of crimes sanctionable by death. The then-widely read Newgate Calendar contains an extract from the Act itself and a description of the original 'Waltham Blacks' whose activities led to Parliament's hasty enactment of said legislation(7). Incidentally, the fact that the Newgate Calendar was so prevalent in English homes during the period shows the wide acceptance of capital punishment in English society at the time - this acceptance naturally carried over into early America, where the death penalty was possibility 'required' even more so than in England due to the necessity of carving out what the Colonists perceived as 'law and order' in their new territories, often with harsh methods being the most effective ones.

Although early American lawmakers were influenced strongly by English law (both common law and statute), it would be erroneous to believe that most colonies simply imported the English law on capital punishment (or indeed any English laws) wholesale into their respective colonies. For example, the Royal Charter for South Jersey (1646) did not use the death penalty at all (though this changed)(8), and petty property crimes were often punished less harshly (even if only in the North) than back in England. Especially in the early period, the law did vary from colony to colony despite cross-influencing, and the capital crimes in each reflected the purposes and needs of that specific community. Aside from coloring the adoption of the law itself in America, English practices such as the benefit of clergy also found their way across the Atlantic. As such, England's fingers touched not only the substantive laws on capital punishment in America - they also to some extent molded the actual use (or non-use) of the death penalty (benefit of clergy and other devices which gradually helped to ameliorate the perceived harshness of the death penalty - and their effect on abolition - will be discussed further in sections below).

Of course, Americans were not immune from influences from the rest of Europe. In terms of practices, the carrying out of 'simulated hangings', known throughout early modern Europe(9), came to have a significant role on this side of the Atlantic. Of possibly even greater importance was the effect that the Enlightenment in Europe had on thinking in America (with attitudes towards capital punishment being no exception) and the resulting growing criticism of the extent of the death penalty. Again, all of this will be explored further in the following sections.

Religion and the Role of Ministers

An understanding of the relationship between religion and both the prescription and use of the death penalty in early America is crucial to finding answers to the question I am investigating. A number of the nascent colonies put great emphasis on God and the Bible and this was reflected in their laws, as will be shown. As noted earlier and as I will describe in detail here, the gradual dilution of religious ideals and diverging beliefs may have been an important factor leading to abolitionist movements.

One of the key purposes of the Christian faith as it relates to the capital punishment was its fundamental use in bolstering the legitimacy of the death penalty. The 'Capital Laws' section of the 'Massachusetts Body of Liberties'(10) is a clear example of this - each capital crime is accompanied by one or more references to the text of the Bible. The Massachusetts Bay Colony was perhaps unique in that it was heavily driven by (or even primarily founded because of) Puritan ideals; hence the use of capital punishment for a variety of 'moral' crimes(11) until more secular views took hold. Contrast this with the much more prominent use of the death penalty for minor property crimes in the South, for a significant part motivated by the need to keep 'order' amongst a population dominated by the presence of slaves and characterized by more uneven distribution of wealth. However, though other colonies were perhaps not quite as fervently driven by religious beliefs, their early laws nonetheless reflected the paramountcy of faith, much more so then than in the present day. For instance, the Lawes Divine, Morall and Martiall of Virginia(12) is entitled with, opens with, and is interspersed throughout with religious references. The 'Almightie God' is essentially made out to be the fount of all justice, with offences such as blasphemy featuring prominently at the beginning of the text, punishable by death - this criminal code is the harshest of any in the colonies(13).

For much of the period relevant to this paper, religion also played a key role when it came to the executions themselves. Until the late 17th century, when it came to the actual 'ceremony' of hanging ministers were often in the limelight. Steelwater describes ministers in the Puritan hierarchy, for example, as "the masters of law, of innocence and guilt"(14). The writings of Cotton Mather, a minister from the Massachusetts Bay Colony who appears to have achieved significant fame, provide a good illustration of how highly prayers and sermons were regarded at the time: at the execution of one Sarah Smith, falling asleep during the prayer and sermon at her own execution ceremony was listed together with transgressions such as adultery, stealing and murdering her newborn.(15) Ministers' duties surrounding an execution were chiefly two-fold: to the public on the one hand and to the condemned convict himself on the other. To the public, their role was to strike fear into the hearts of those contemplating crime and to emphasize the virtues of Godliness. Such large gatherings of people effectively became the ministers' congregation, so as long as they remained keenly interested in what ministers had to say, public executions had a supposedly pedagogical purpose. To the convict himself (or herself), ministers often represented a last hope of salvation in this world (i.e. getting a pardon) prior to the execution day, and a last hope of 'eternal salvation' via repentance on the day itself(16).

By the late 18th century, however, crowds were becoming unmanagable both due to an increase in size and a marked lessening of deference to ministers and public officials present. Executions "took on the atmosphere of a combined market day and festival" and ministers were now invitees of the community and no longer representatives of state religion(17). Therefore although ministers continued to attend executions their role was much diminished, with the long sermons to orderly gatherings being replaced by a brief prayer. The immediate consequence of this was that both the educational and deterrent purposes of public executions were greatly diminished. In addition to this, the loss of the original sense of religious mission in the New England colonies(18) and growing moral and religious diversity(19) led to a number of moral offenses being removed from the list of capital crimes. The decay of religion led to a vacuum of 'legitimation' which utilitarianism and philosophical thought sought to fill - not always successfully. Thus we see the beginnings of a development away from universal use of the death penalty.

Utilitarianism and Philosophy

In the context of abolition of capital punishment, probably few had such a pervading force as the Italian philosopher and politician Cesare Beccaria(20). His text 'On Crimes and Punishments' (Chapter 28 of which is about the death penalty and hence relevant for current purposes) influenced society in Europe and America alike. Indeed, members of American society who appear to have been the 'abolitionists' of the time, made references to him in their own arguments and theories. Beccaria's writings on capital punishment are also remarkable due to the emphasis placed on utilitarianism. Far from couching his exposition in religious terms or saturating them with obvious expressions of sympathy towards the sentenced, he devoted a large chunk of the chapter to - in his view - practical reasons why the death penalty should be abolished for all offences except treason. Inter alia, he suggested that 1) perpetual penal servitude would be a more effective deterrent to crime, that 2) witnessing executions was not a beneficial experience for the public, and that 3) the state was not justified in carrying out capital punishment. Elaborating on each: 1) The terror of "perpetual slavery" as brought upon the convict by a long prison sentence would be more painful than sudden death and thus onlookers would be deterred from committing crime by the possibility that they too might suffer from thie fate. 2) Executions often aroused feelings of compassion mixed with scorn which detracted from the "salutary fear which the law [claimed] to inspire". 3) Argument that the state did not have authority to administer the death penalty, on grounds that if no single individual had a right to take his own life, society cannot derive a right to punish by death from the social contract (save for the special case of traitors).(21)

One of the most prominent American philosophers inspired by Beccaria was Benjamin Rush, M.D., from Pennsylvania. Aside from attempting to turn the religious arguments in favor of the death penalty on their head(22), he developed utilitarian reasoning against capital punishment further in 'On the Punishment of Murder by Death' (1793).(23). Of particular noteworthiness was his recommendation for the introduction of permanent prisons. It is probably useful at this juncture to point out that Rush - like others - were influenced by the thoughts of John Locke who proposed that "human life began as a blank slate and was written on by experience" (24); hence, presumably, the possibility of salvaging human nature via positive influences in prison with the possible added benefit of 'compensating' the society which had been wronged. One of the prevailing aims of capital punishment, and one that reflected the circumstances at the start of the period which this inquiry addresses, was incapacitation. The need for a way to ensure that heinous wrongdoers did not repeat their crimes led inexorably (at least formally) to the death sentence until 1790 for the simple reason that before that year, there were no 'prisons' to speak of where offenders could be held long-term instead of simply 'in jail' pending sentencing. However, when the Walnut Street Jail was built in Philadelphia, for the first time in America offenders could be kept in theory more or less permanently incapacitated without being executed. Whether these prisons, or penitentiaries as they were sometimes called, were effective and cost-effective could be the subject of a whole separate inquiry, but the salient point here is that at last a "realistic alternative to hangings" existed(25). These developments also meant that another of the justifications which had previously been put forward for capital punishment (namely facilitation of criminals' repentance) was undermined, since wrongdoers could now repent at leisure in the penitentiaries. Given the increasing uncertainty present in the sentencing and carrying out of capital punishment due to unwillingness of juries to convict and frequent pardons (see further discussion in next section), prison may have been a more systematic and therefore effective method of punishment(26).

The discussion above has already touched on the second and perhaps most oft-touted aims of capital punishment; viz., deterrence. Much was written on the effect (or lack of) that the existence of capital punishment had on would-be criminals. As noted above, Beccaria had already expressed his views about why 'perpetual slavery' would be a better deterrent than an instantaneous death. Those such as Beccaria and Rush lauding imprisonment as a more effective deterrent than the possibility of death may have been correct: after Pennsylvania's pioneering 1786 abolition of capital punishment for 'robbery, burglary, sodomy and buggery', "two of the first robbers tried under the new statute pleaded to be tried under the old instead, preferring the chance of an acquittal or a pardon to the certainty of a long prison sentence". (27)Thus there did seem to be some success with prison sentences as an alternative to the death penalty. However, success with prisons was certainly not universal. Since those sentenced to life imprisonment had nothing left to lose, so to speak, if the death penalty were abolished, they sometimes carried out acts of desperation such as murdering their guards or attempting escape. This may have been one of the reasons why despite the agitations for reform or abolition of capital punishment, such agitations did not bear fruit in many instances and not every state hastened to adopt abolitionist measures even if their neighbors did.

In addition to these overarching changes, Steelwater notes that given the rapidly growing population, the wide usage of capital punishment would soon lead to administrative unworkability in actually implementing executions. Rush was of the opinion that 'capital punishments [were] the natural offspring of monarchical governments' - an opinion that probably resonated especially well given the not-too-distant reminder of the 'American Revolution'. Whilst Rush voiced his views in Pennsylvania, Robert Rantoul echoed elements of Beccaria and Rush in Massachusetts but added the Age of Enlightenment belief that society had the power of improvement and therefore could and must strive for its general progress(28); this again underlined the preferability of penitentiaries over executions.

Regardless of how accurate or empirically justified the arguments of abolitionists were, their active efforts and the fact that opposition to capital punishment was part of an "international phenomenon" of transformation in penal thought (a number of European countries would abolish capital punishment entirely)(29) were seminal in triggering the abolition of or at least reform of capital punishment in many (Northern) states, including Michigan, before the Civil War.

Judges, Juries et al.

As Banner states, “capital punishment…was the base point from which other kinds of punishment deviated- When the state punished serious crime, most of the methods at its disposal were variations on execution” (30). One needs to understand this in order to grasp the fact that jurors at the time did not have much choice when it came to sentencing – oftentimes the statute books mandated a stark choice between acquittal and death.

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(31). 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” (32). 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 “(33).

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)(34).

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. (35). 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]” (36).

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” (37). 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” (38). 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) (39) 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 (40)but whatever the merits of their arguments, “a rarely enforced death penalty could scarcely serve as a deterrent” (41)

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(42). Furthermore, the ‘degrees of murder’ that we are familiar with today were introduced, with 2nd degree murder punishable by imprisonment rather than death) (43). 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) (44). By 1786, Pennsylvania had abolished the death penalty for robbery, burglary, sodomy and buggery(45) and throughout the North at least, the death penalty was “removed from crime after crime”(46) and finally in Michigan, it was abolished for all common crimes in 1846.

Wealth, Class, and Public Opinion

As noted above, attending public executions was in the beginning seen as a salutary activity for people from all sectors and classes, particularly whilst religious beliefs still held sway over the masses and ministers played a pronounced role in the ceremony. However, by the start of the 19th century, elites and also the middle class began to distinguish themselves from what they now viewed as the ‘mobs’ who gathered at these executions (recall that crowds at executions were getting much less reverential and increasingly rowdy)(47).

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” )(48) 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(49). Amongst other things he argued that seeing executions had the effect of encouraging 'depravity' on the part of the public(50). Charles Spear(51) 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”.(52) 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” (53). 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”(54). 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” (55).

Potential sources:

• Banner_The_Death_Penalty.pdf: Banner, The Death Penalty (2002)

• Bedau_Titlepage.pdf: Bedau, The Death Penalty in America (1968)

• Kronenwetter_Title_Page.pdf: Kronenwetter, Capital Punishment: A Reference Handbook (1993)

• Rogers_Title_Page.pdf: Rogers, Murder and the Death Penalty in Massachusetts (2008)

• Steelwater_Title_Page.pdf: Steelwater, The Hangman's Knot (2003)

• Beccaria_Title_Page.pdf: Chapter 28 from Beccaria, On Crimes and Punishments and Other Writings (first published 1764), edited by Richard Bellamy

• Newgate_Calendar_Volume_2.pdf: Newgate Calendar, Volume 2

• Capital_Laws.pdf: Extract from the 'Massachusetts Body of Liberties' (1641)

• Lawes_Divine,_Morall_and_Martiall.pdf: Lawes Divine, Morall and Martiall, Virginia (1611)

• Rush_On_Punishment_of_Murder_by_Death.pdf: Rush, On the Punishment of Murder by Death, 1792

• Rantoul__report_on_the_abolition_of_capital_punishment.pdf: Rantoul, Report on the Abolition of Capital Punishment, 1836

• Thackeray_Going_To_See_A_Man_Hanged.pdf: William Makepeace Thackeray, Going to See a Man Hanged (1840) - part of a collection of his works

• Mather_Pillars_of_Salt_1699.pdf: Mather, Pillars of Salt Chapter XI (1699)

• 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)

Notes

1 : Note that the abolition of capital punishment for all common crimes in Michigan did not lead others to follow suit. The death penalty has had a turbulent history between 1846 and the present, but that material is beyond the scope of this inquiry

2 : Kronenwetter, pg 13

3 : Banner, pg 70

4 : "Forty thousand persons, of all ranks and degrees...give up their natural quiet night's rest in order to partake of this...which is more exciting than...any other amusement they can have" - William Thackeray, 'Going to See a Man Hanged', see source table. Hangings were similarly popular amongst all classes in America, at least to begin with.

5 : Bedau, pg 1

6 : Radzinowicz, A History of English Criminal Law and its Administration from 1750

7 : Newgate Calendar, Volume 2, pg 172

8 , 53 : Bedau, pg 4

9 : Bedau, pg 65

10 : See Capital Laws in source table

11 : Blasphemy, idolatry, adultery etc.

12 : See Lawes Divine, Morall and Martiall in source table

13 : Kronenwetter, pg 72

14 : Steelwater, pg 39

15 : Mather, XI

16 : For an account of execution day proceedings, including a description of ministers' place therein, see Banner, Chapter 2

17 : Steelwater, pg 47

18 : Banner, pg 6

19 : Steelwater, pg 41

20 : Cesare, Marquis of Beccaria-Bonesana (1738-1794), commonly known as Cesare Beccaria

21 : See Beccaria, Chapter 28 in source table

22 : "The punishment of murder by death is contrary to divine revelation", Rush pg 3

23 : See 'On the Punishment of Murder by Death' in source table

24 : Steelwater, pg 58

25 : Bedau, pg 21

26 : Banner, pg 110

27 , 45 : Banner, pg 97

28 : See Rogers, pg 81 and Rantoul, pg 460

29 : Banner, pg 89

30 : Banner, pg 54

31 : Rogers, pg 2

32 : Banner, pg 16

33 , 41 : Ibid.

34 : Banner, pg 62-63

35 : Banner, pg 56

36 : Banner, pg 69

37 : Banner, pg 79

38 : Rush, pg 2

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

40 : See the bottom of Banner, pg 115

42 : Bedau, pg 28

43 : Banner, pg 98

44 : Banner, pg 65

46 : Banner, pg 112

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

48 , 51 : Banner, pg 153

49 : 1764-1836

50 : Livingston, pg 61

52 : Spear, pg 66

54 : “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

55 : Banner, pg 30