Capital Punishment in America, 1607 - 1846

Aims

This project is intended to investigate the changing nature of the legal regulation of capital punishment in America between 1607 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 the year of the first permanent British settlement in America - 1607 - 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 have written below an outline of how the project may be shaped, and included some issues which I think may be worth further exploration.

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 Northern and the Southern colonies in the type and range of crimes that were capitalized and later, the attitude towards abolition.

The 'death penalty' was carried out chiefly in the form of hanging 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 heinous crimes(2)); 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.(3)

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

• The early adoption and modification of English capital punishment offences; similarities and differences vis-à-vis early America
• How Americans perceived themselves as compared to Europe on the subject of the death penalty, and how this perception helped shape the regulation of capital punishment in America
• Changes in thinking and philosophy inspired by trends from across the Atlantic

Religion and the Role of Ministers

• How faith led to the law; shifting relations between the law and the Bible
• Justification for the death penalty in the Bible,
• Public executions as religious events with Ministers playing a key role; how this changed as penitence began to be seen as a private matter rather than one best administered by public institutions
• Evolving and diversifying ideas of religion and dilution of religious sense of purpose that permeated the origins of many colonies (e.g. Mass.)

Utilitarianism and Philosophy

• Cesare Beccaria's pervading influence
• The rise of abolition in America and the thinkers behind it (e.g. Rush, Livingston, Jefferson)
• Fading utility of capital punishment as a widely applied sentence; subsequent narrowing of range of crimes for which death penalty was prescribed
• Changing view of human nature and the importance of scientific development
• Growing population meant that death penalty was a less viable option; the crucial importance of the introduction of prisons (where offenders could be held long-term instead of simply in 'jail' pending sentencing)
• A brief note on differences in the North and the South

Judges, Juries et al.

• Juries unwilling to convict those who they believed did not deserve to die, even if they were clearly guilty according to the letter of the law - undermined efficacy of the law
• Judges also increasingly likely to avoid imposing death penalties, by virtue of finding 'errors in due process'
• Clemency and benefit of clergy
• Development of 'fake punishments' and repercussions

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
• '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

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 : Banner, pg 70

3 : "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', pg 450.

Hangings were similarly popular amongst all classes in America, at least to begin with.