Author:
Henry Hattemer

Date Written:
11/2/2000

The Death Penalty in Early America

The issue capital punishment has plagued courtrooms and living rooms alike throughout American history. At odds are the fundamental values of life and justice, a choice that few desire to make, but which many are forced to make. The elimination of either life or justice seems unbearable until it is called for in a courtroom—then the population diverges. One side advocates the sanctity of life, the other the preservation of justice. Such a divide in opinion reflects the diversity and young age of America. In the period of America's history between the revolutionary war and the civil war, the status of the death penalty morphed from enthusiastic support to abolition in certain states.

Executions in the late eighteenth century were a popular public spectacle. The death penalty was a dramatic presentation that attracted a multitude of people, many of whom had traveled a great distance to witness the hanging. (Friedman 75) Hanging was the prevailing means of execution of the times—it provided the suspense and excitement needed to attract an audience, as well as the ghastly effect believed to be needed in order to deter future capital crimes. Gallows were built in public squares, and often painted black. Otherwise, the branches of notably sinister trees were employed. Crowds of thirty thousand or more were expected at high profile hangings; viewing stands had to be erected to contain the throngs. Often chaos erupted out of these bloodthirsty crowds-- a viewing stand collapsed at an execution in Cooperstown, New York, and killed two people. (Friedman 76)

The hanging of Bathsheba Spooner was particularly dark and grisly. The "dreadful scene of horror" was marked by "darkened heavens", "coruscations of lightning," and "peals of thunder." Mrs. Spooner, "carried in a chaise", was in a procession of officers, horses, and clergy. Officials shouted and women shrieked as the condemned and her "dismal coffin" advanced towards the "fatal tree". (Friedman 75)

Ministers seized the great fanfare as an opportunity to deliver "execution sermons." Such speeches recounted the sins of the criminal, reproached him for his crimes, and encouraged repentance. Inevitably, warnings to the public on the temptations and consequences of "destructive paths" were included in what usually turned out to be a round denunciation of evil. Often pamphlets of the sermon, along with information on the accused and his confession, were sold to the spectators on the day of the execution. (Vila 12) Execution sermons generally contained a good deal of rhetoric aimed towards justifying the death penalty, both Biblically and morally. Increase Mather, a prominent Puritan minister of the time, delivered a sermon, in 1686, to James Morgan, a convicted murderer. Mather explained that Morgan was to be "put to death by the hand of Publick Justice." He said that there are some crimes where "punishment less than Death may be accepted," but in the case of murder, "no Fine or Imprisonment, or Banishment, or corporal punishment less than death can be accepted." Then, turning to the condemned, Mather asked Morgan to "consider what a sinner you have bin," and pointed to Morgan's drunkenness in jail as further evidence of his wickedness. In his final remarks, Mather told Morgan that he "must hang between Heaven and Earth, as it were forsaken of both, and unworthy to be in either… O tremble at that!" (Mather 11)

Morgan used his last moments as a sort of macabre soapbox. He prayed that the execution be "a warning to you all," and cautioned the public on the effects of "the Drink" (Mather 35)

Gradually, however, public sentiment towards the hoopla associated with such open execution extravaganzas changed. Nathan Strong, in an execution sermon in 1777, told the mob that "curiosity is but a poor motive for collecting on such an occasion." Strong cited deterrence as the primary reason for hangings, "others may be fortified against temptation by the spectacle of horror." (Strong 17)

In the 1790's, the first formal reform came about. The number of crimes that constituted 'capital crimes' was decreased. Starting in Pennsylvania in 1790, the legislature abolished the death penalty for robbery, burglary, and sodomy. Further legislation in 1794 divided the crime of murder into degrees of severity. Now only premeditated murder, or murder committed in the act of another serious crime was eligible for the sentence of death. This distinction essentially allowed juries to decide whether or not the death penalty should be utilized in a particular case. Prior to the system of degrees, juries might ignore clear evidence and acquit the accused because they did not wish to implement the mandatory death sentence. In addition to dividing murder into degrees, some states gave complete discretion to juries on whether or not to employ capital punishment. (Tushnet 21)

States also ended the dramatic executions. People countered the deterrence argument with claims that public executions desensitized the masses to death and glorified the "manliness" of the condemned. (Tushnet 21) The upper and middle classes now considered public executions to be "revolting." These changes in social thinking were in sync with the trend of backlash towards corporal punishment. Whipping, branding, and stocks were abolished (first by Massachusetts in 1804), and prisons were built. (Friedman 75) The number of pardons and commutations increased over time. Soon one quarter of condemned prisoners in Virginia were pardoned or had the sentence commuted, and over half of condemned prisoners in New York won some sort of mercy. Often the prisoners had to leave the state or join the military. Simultaneously, the courts began honoring pleas of mitigating circumstances—demands for mercy based on age, insanity, and self defense. (Gorecki 87)

The decrease in the number of capital offenses, the trend away from corporal punishment, and the dichotomization of murder all comprised the path from the public execution for theft to the private execution for murder. Such a move was clearly a sign of changing public views on morals and values such as human life, human dignity, and justice.

The movement to abolish the death penalty in America is marked by a long series of advances and retreats. In the late eighteenth century, several influential members of society gathered at the home of Benjamin Franklin to hear a speech by Benjamin Rush, a physician and signatory of the Declaration of Independence. Rush, inspired by the Italian enlightenment thinker Beccaria, advocated the abolition of "brutal, improper use of state power", namely capital punishment. (Costanzo 8) Beccaria claimed that the death penalty violated the social contract, and was therefore unjust. He maintains that the social contract was created to protect people, and did not grant to the state the right to execute a member of the society. Beccaria's opinions had a profound effect on the early American intellectuals because he was the first abolitionist who did not rely on Biblical argumentation. Rush, taking up Beccaria's cause in the United States, pointed out that the death penalty led to acquittals by juries who did not approve of execution, and countered the deterrence arguments by citing heat-of-the-moment murders. (Tushnet 20) Thomas Jefferson is quoted as saying "I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me."

The ranks of the abolitionists grew, encompassing a wide range of people. Abolitionists had grand visions for the betterment of humanity and for the preservation of human dignity. Lawmakers, government officials, religious leaders, educators, journalists, and "men of letters" flooded legislators with petitions. Anti-gallows societies emerged, using oral addresses, sermons, treatises, pamphlets, poems, novels, and articles to spread disdain for the death penalty. (Gorecki 84) Such organizations were bolstered by the tides of religious revival, social reform, and romanticism that were sweeping the country. Printing technology aided in the dissemination of information, and feverish essays flew back and forth in magazines, pamphlets, and newspapers. (Vila 34) Despite the efforts of the influential thinkers, uniform cultural reform happened slowly. The diversity of the population interfered with immediate overarching policy changes; the south-west-north divisions compounded by the arrival of new immigrants created a chaotic setting for such a serious issue. (Gorecki 86)

Robert Rantoul, leader of the Massachusetts anti-gallows movement, reported on the abolition of capital punishment in 1836.

Has society the right to take away life? … Protection being the only object of society, it follows that we surrender to it, for the purpose of preserving our natural rights as nearly unimpaired as conflicting claims will in the nature of things admit, only so much liberty as it is necessary should be relinquished to that end. To give up more, by the division of a hair, would be to counteract so far the very endeavor we are making when we are forming the social compact to secure the full enjoyment of our natural rights.

Rantoul was another intellectual inspired by the Italian enlightenment. His argumentation is based upon the social contract that the people maintain with the government—thinking originated by Beccaria.

Soon, states, led by Pennsylvania in 1834, started banning formally public executions. (Costanzo 9) By 1845 every state in New England and the Mid-Atlantic region had abolished public executions. Michigan was the first to entirely abolish the death penalty in 1846. Five other states followed suit, but three of those five (Iowa, Maine, Colorado) soon reinstated capital punishment. Rhode Island, Wisconsin, and Michigan abolished the death penalty in 1846, 1852, and 1853 respectively, and never repealed it. (Gorecki 6)

Revolutionary thinking by Beccaria motivated American scholars to push for abolition. Early American's diversity proved to be an obstacle to expediency, but eventually, abolition occurred through decreasing the number of capital offenses, eliminating public executions, and abolishing mandatory sentencing.

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