Capital Punishment in America, 1611 - 1846

Aims and updates

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.

I am beginning to expand on the issues in the outline of my paper below.

I am currently in the process of looking for more primary sources (I have tracked some down but I'm still trying to locate them in various libraries or alternatively online) - I'm also still digesting the sources I have already. 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)

Wealth, Class, and Public Opinion

• More wealth led to ability to support institutions such as penitentiaries
• Diverging tastes between classes, upper classes began to view public executions as unseemly
• Changing role of sympathy - though sympathy had always been present (see Banner pg 29), it now came to the forefront
• 'Gradual abolition of death penalty for lesser crimes was increasingly understood as a mark of the new nation's progress' (Banner), public began to view the imposition of capital punishment for minor crimes as 'barbaric'
• Development of abolitionist movement may have been due to the efforts of a small group of determined upper-class persons (Banner) (the 1844 New Hampshire referendum, where the public voted resoundingly against abolishing the death penalty, shows that at least in some states public opinion did not reflect the agitations of that group)?

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)

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 : 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 : Banner, pg 97

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

29 : Banner, pg 89

30 : Banner, pg 54