Literary Executions: Capital Punishment and American Culture, 1820–1925

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INTRODUCTION. The Cultural Rhetoric of Capital Punishment

1. For accounts of Hawthorne’s interest in The Record of Crimes, see David S. Reynolds’s Beneath the American Renaissance (New York: Random House, 1988), 23, and his Waking Giant: America in the Age of Jackson (New York: HarperCollins, 2009), 260. See also Harold Schechter’s True Crime: An American Anthology (New York: Library of America, 2008), 69. Among the twenty-three criminal biographies included in The Record of Crimes was that of Francis Knapp, whose 1830 Salem trial and execution fascinated a young Hawthorne.

2. The Record of Crimes in the United States (Buffalo: H. Faxon & Company, 1834), v. Hereafter cited in text parenthetically.

3. The Collected Writings of Walt Whitman: The Journalism, vol. 1, 1834–1846, ed. Herbert Bergman, Douglas A. Noverr, and Edward J. Recchia (New York: Peter Lang, 1998), 160. Whitman’s “Capital Punishment and Social Responsibility” was originally published in The Sun, Nov. 2, 1842.

4. Quinby, The Gallows, the Prison, and the Poor-House: A Plea for Humanity; Showing the Demands of Christianity in Behalf of the Criminal and Perishing Classes (Cincinnati: G. W. Quinby, 1856), 56–57, emphasis in original.

5. For an excellent analysis of the Tucker case, see Kristin Boudreau, “The Sweetheart of Death Row: Karla Faye Tucker and the Problem of Public Sentiment,” in The Spectacle of Death: Populist Literary Responses to American Capital Punishment (Amherst: Prometheus Books, 2006), 187–202. Austin Sarat provides a superb analysis of Last Dance, alongside other recent films featuring the death penalty, in “State Killing in Popular Culture: Responsibility and Representation in Dead Man Walking, Last Dance, and The Green Mile,” in When the State Kills (Princeton: Princeton UP, 2002), 209–46.

6. Written while the present study was near completion, Jones’s book, Against the Gallows: Antebellum American Writers and the Movement to Abolish Capital Punishment (Iowa City: Iowa UP, 2011), is valuable (among other reasons) for its rich survey of popular-but-forgotten antebellum literary works in relation to death penalty reform. My work also addresses questions of literature in relation to this reform. In fact, I published two essays on the topic prior to Jones’s work in the area (including a long overview article, “The Anti-gallows Movement in Antebellum America” in Liberty Ltd.: Civil Rights, Civil Liberties, and Literature, ed. Brook Thomas [Tübingen: Gunter Narr Verlag, 2006], 145–78), as well as a dissertation “Literary Executions” (University of California, Irvine, 2005) that concerned the subject in relation to lynching as an illicit form of capital punishment. While sharing a similar focus and some authors with Jones, my approach differs considerably by engaging a law-and-l iterature perspective and by attending to questions of literary form over the long nineteenth century (not just the antebellum period). I also analyze figures Jones does not mention or only briefly discusses. Ultimately, however, Literary Executions and Against the Gallows complement each other and, read together, illustrate the importance of reassessing American literature before 1925 in terms of the controversies surrounding capital punishment.

7. More than anything else, Reynolds’s landmark Beneath the American Renaissance has illustrated the importance of reading major American writers of the nineteenth century in relation to popular contemporaries and in terms of social movements of the day. The list is indeed long, but other influential works that focus on popular (as opposed to canonical) literature in this area include Jane Tompkins, Sensational Designs: The Cultural Work of American Fiction, 1790–1860 (Oxford: Oxford UP, 1986); Michael Denning, Mechanic Accents: Dime Novels and Working Class Culture in America (New York: Verso, 1987); and Shelley Streeby, American Sensations: Class, Empire, and the Production of Popular Culture (Berkeley and Los Angeles: U of California P, 2002). Of these authors, Reynolds is the only one to note anti-gallows reform which he briefly mentions among other “important movements,” including “naval reform, peace reform, prison reform, opposition to capital punishment, agrarianism, antidueling, education reform” (85).

8. Historian David Brion Davis first broke ground on the subject in a 1957 essay, “The Movement to Abolish Capital Punishment, 1787–1861,” American Historical Review 63:1 (1957): 23–46, and in his study Homicide in American Fiction: A Study of Social Values (Ithaca: Cornell UP, 1957), a pioneering interdisciplinary study that, as one recent critic of murder in twentieth-century American culture puts it, “allows us a first glimpse at the discursive characteristics of murder narrative: the psychiatrization of the murderer; sexuality and gender as pathology; confession, secrecy, and truth; metaphysical speculation and the mystification of mortality.” See Sara L. Knox, Murder: A Tale of Modern American Life (Durham: Duke UP, 1998), 5. Since then, however, relatively little work has been done on American literature and the death penalty, as Bruce H. Franklin notes in his important essay on the subject, “Billy Budd and Capital Punishment: A Tale of Three Centuries,” American Literature 69:2 (1997): 337–59. For more recent work linking specific literary works to death penalty debates, see John Cyril Barton, “An American Travesty: Capital Punishment & the Criminal Justice System in Dreiser’s An American Tragedy,” REAL (Research in English and American Literature), vol. 18, Law and Literature, ed. Brook Thomas (Tübingen: Gunter Narr Verlag, 2002), 357–84; John Cyril Barton, “The Anti-gallows Movement in Antebellum America,” also in REAL (2006); Paul Christian Jones, “The Politics of Poetry: The Democratic Review and the Gallows Verse of William Wordsworth and John Greenleaf Whittier,” American Periodicals 17 (2007): 1–25; Paul Christian Jones, “ ‘I put my fingers around my throat and squeezed it, to know how it feels’: Anti-gallows Sentimentalism and E. D. E. N. Southworth’s The Hidden Hand,” Legacy 25:1 (2008): 41–61; Paul Christian Jones, “ ‘That I could look . . . on my own crucifixion and bloody crowning’: Walt Whitman’s Anti-gallows Writing and the Appeal to Christian Sympathy,” Walt Whitman Quarterly Review 27 (Fall 2009): 1–27; and John Cyril Barton, “William Gilmore Simms & the Literary Aesthetics of Crime and Capital Punishment,” Law & Literature 22:2 (2010): 220–43.

9. My use of citizen-subject owes much to Etienne Balibar’s philosophical investigation of these terms in his essay “Citizen Subject,” in Who Comes after the Subject?, ed. Eduardo Cadava, Peter Conner, and Jean-Luc Nancy (New York: Routledge, 1991), 33–57. My understanding of the subject and subjectification here are influenced by Louis Althusser’s classic account of subject formation in “Ideology and Ideological State Apparatuses (Notes towards an Investigation),” in Lenin and Philosophy, and Other Essays, trans. Ben Brewster (New York: Monthly Review P, 1971), 127–86. I am not, however, suggesting an oppositional relationship between citizen and subject, as many recent critics have. As Brook Thomas reminds us in Civic Myths: “The fact that all citizens are subjects is important to stress, because a number of literary critics assume that advocates of citizenship deny it” (9). For an excellent overview of theoretical approaches toward studies of citizenship, see “Introduction: Working on/with Civic Myths,” in Brook Thomas’s Civic Myths: A Law-and-Literature Approach to Citizenship (Chapel Hill: U of North Carolina P, 2008), 1–26.

10. Cooper, An American Democrat; or, Hints on the Social and Civic Relations of the United States of America (Cooperstown: H. & E. Phinney, 1838), 9–10. Hereafter cited in text parenthetically.

11. This point, of course, almost goes without saying. I cite here only a few representative authorities. See Ian Watt, The Rise of The Novel: Studies in Defoe, Richardson, and Fielding (Berkeley and Los Angeles: U of California P, 1957); Georg Lukács, The Historical Novel, trans. Hannah Mitchell and Stanley Mitchell (Lincoln: U of Lincoln P, [1962] 1983); Frederic Jameson, The Political Unconscious: Narrative as a Socially Symbolic Act (Ithaca: Cornell UP, 1981); and Michael McKeon, The Origins of the English Novel, 1640—1740 (Baltimore: Johns Hopkins UP, 1987).

12. Kristin Boudreau, The Spectacle of Death: Populist Literary Responses to American Capital Punishment (Amherst: Prometheus Books, 2006), 23, 21.

13. Rodensky, The Crime in Mind (New York: Oxford UP, 2003), 6.

14. Ibid., 5.

15. Mailloux, Disciplinary Identities: Rhetorical Paths of English, Speech, and Composition (New York: Modern Language Association, 2006), 2.

16. Mailloux, Rhetorical Power (Ithaca: Cornell UP, 1989), xii. For further discussions of rhetorical hermeneutics, see Rhetorical Power, ix-x, 57, 15–18, 133–35, and “Interpretation and Rhetorical Hermeneutics,” in Mailloux’s Reception Histories: Rhetoric, Pragmatism, and American Cultural Politics (Ithaca: Cornell UP, 1998), 43–71.

17. “As an exercise in cultural history,” Masur writes in his introduction to Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford UP, 1989), “this book takes beliefs seriously. Ideas cannot be separated artificially from the so-called reality of society. Beliefs are themselves tangible and meaningful; thoughts are actions. Rituals, as cultural performances and dramatic representations, constitute a text that provides another window onto ideological assumptions, social relations, and collective fictions” (7).

18. See Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard UP, 1998), 37–48.

19. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674—1860 (Oxford: Oxford UP, 1993), 34.

20. See, especially, Thomas’s Cross-Examinations of Law and Literature (Cambridge: Cambridge UP, 1989), as well as his The Failed Promise of Contract and American Literature Realism (U of California P, 1997) and Civic Myths: A Law-and-Literature Approach to Citizenship. A prime example of the New Historicism, Thomas’s law-and-literature studies help to expose what Walter Benn Michaels, in The Gold Standard and the Logic of Naturalism (Berkeley: U of California P, 1987), famously describes as a unifying logic of a given age. In his most recent book, however, Thomas clarifies a misunderstanding of his work as attempting “to uncover a hidden ‘logic’ of an age.” Rather, Thomas sees his work as “provid[ing] a perspective on literary and legal history as well as aspects of U.S. culture and society that is not available when these relatively autonomous disciplines are studied alone” (Civic Myths, preface).

21. Philip English Mackey, “Historical Introduction,” in Voices against Death: American Opposition to Capital Punishment, 1787—1977 (New York: Burt Franklin, 1977), xix.

22. Ibid., Voices, xxxix.

23. Qtd. in Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard UP, 2002), 213.

24. Ibid., 215.

25. Hayne, “Shall the Jury System Be Abolished?,” North American Review 139:335 (1884): 354.

26. Qtd. in Banner 189. My discussion of the shift from the gallows to lethal electricity and gas in the administration of the death penalty draws from Banner’s excellent account. See chap. 7, “Technological Cures,” ibid., 168–207.

27. Qtd. in ibid., 198.

28. As Raymond Paternoster notes in Capital Punishment in America (New York: Lexington Books, 1991): “The first execution to take place under state authority occurred in Vermont, and not until January 20, 1864” (7).

29. Ibid., 7.

30. Masur 61.

31. Masur cites Garrison’s use of the term anti-republican in reference to the death penalty (112). The material on Garrison and the Liberator that unfolds elsewhere in my argument is drawn from my own primary-source research.

32. See chap. 6, “The Two Abolitions,” in Canuel’s The Shadow of Death: Literature, Romanticism, and the Subject of Punishment (Princeton: Princeton UP, 2007), 142–67.

33. As Banner notes, “Lydia Child proposed circulating anti-capital punishment petitions along with anti-slavery petitions, because she knew that the same people would be willing to sign both” (136–37).

34. Parker, “Crime and Its Punishment,” in Sins and Safeguards of Society, ed. Samuel B. Stewart (Boston: American Unitarian Association, 1907), 326.

35. Bovee, Christ and the Gallows; or, Reasons for the Abolition of Capital Punishment (New York: Masonic Publishing Company, 1869), 286–87.

36. Longfellow, “The Rope Walk,” lines 18, 36–38, in The Complete Poetic Works of Longfellow, vol. 2 (Boston: Houghton Mifflin, 1893), 285.

37. Qtd. in S. D. Carpenter, Logic of History: Five Hundred Political Texts; Being Concentrated Extracts of Abolitionism; Also, Results of Slavery Agitation and Emancipation, 2nd ed. (Madison: S. D. Carpenter, 1864), 69. See 66–73 of Carpenter for a collection of contemporaneous responses to Brown’s execution, including one by Horace Greeley that echoed Emerson’s famous remarks: “John Brown, dead,” Greeley asserted (and Carpenter quoted), “will live in millions of hearts. It will be easier to die in a good cause even on the gallows, since John Brown has hallowed that mode of exit from the troubles and temptations of this mortal existence” (qtd. in Carpenter 63).

38. Liberator, May 17, 1844. This edition of the Liberator also included extensive coverage and protest concerning the case of John L. Brown (not to be confused with the later John Brown of Harpers Ferry). Like his famous namesake, this Brown was also a white abolitionist; he was under sentence of death in South Carolina for aiding the escape of a fugitive female slave. One of the articles on this Brown case, titled “Man to be Hanged in America for Aiding the Escape of a Female Slave,” mixed a particular statement against Brown’s execution with a more general statement against capital punishment for any crime: “That the punishment of a human being by death, for any offence, is at all times most revolting,—that, while there are many, and they seem to be rapidly increasing, who deny the right to take away life by judicial sentence for any crime, there are others who deem it to be at least a questionable measure; but it is the opinion of this meeting [of the Glasgow Emancipation Society], that there will be few, if any, found, even under the most despotic governments, who will attempt to justify the punishing with death of John L. Brown” (Liberator, May 17). Many later reports in the Liberator chronicled or took up the anti-gallows cause more directly. For instance, an article published January 3, 1845 noted: “A meeting held at which Garrison and others resolve to petition the legislature to abolish capital punishment in this Commonwealth.” A year later, the magazine published a “notice” to commemorate “the FIRST ANNIVERSARY OF THE MASSACHUSETTS SOCIETY FOR THE ABOLITION OF CAPTIAL PUNISHMENT” (Liberator, Jan. 9, 1846). For other representative anti-gallows reports or arguments in the Liberator, see articles published in the following editions: Feb. 7, 1845; June 1, 1845; Apr. 27, 1855; and Apr. 12, 1850.

39. For a recent history of the capital punishment in the state, see Alan Rogers’s Murder and the Death Penalty in Massachusetts (Amherst: U of Massachusetts P, 2008).

40. See “Capital Punishment—an Exciting Scene in the Legislature,” New York Tribune, Feb. 28, 1843.

41. My list of New York papers that supported the anti-gallows movement is culled from Philip English Mackey’s Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776—1861 (New York: Garland, 1982).

42. The Hangman/The Prisoner’s Friend remained for some time the only periodical solely devoted to the cause. Four years after its first publication, its founder Charles Spear noted that it “is a remarkable fact that [The Prisoners’ Friend] is the only journal known in the world that is wholly devoted to the Abolition of Capital Punishment and the Reformation of the Criminal” (June 3, 1849).

43. See New York Tribune, May 17, 1845.

44. Masur 136–37.

45. Duyckinck, “Death by Hanging,” Arcturus: A Journal of Books and Opinion 3 (Jan. 1842): 98–103, 99.

46. For a discussion of the anti-gallows movement in relation to O’Sullivan and the Young America movement in literature, see Edward L. Widmer’s Young America: The Flowering of Democracy in New York City (Oxford: Oxford UP, 2000), esp. 66–83.

47. Simms in a letter of Feb. 9, 1846, to Evert Duyckinck. See Simms, The Letters of William Gilmore Simms, ed. Mary C. Simms Oliphant, Alfred Taylor Odell, and T. C. Duncan Eaves (Columbia: U of South Carolina P, 1953), 142.

48. For an account of these circumstances, see Margaret B. Moore, The Salem World of Nathaniel Hawthorne (Columbia: U of Missouri P, 1998), 111–13.

49. For a brilliant analysis of higher-law arguments concerning slavery and race relations in the nineteenth century, see Gregg D. Crane’s Race, Citizenship, and Law in American Literature (Cambridge: Cambridge UP, 2002). I adopt a similar line of argument in various moments in this book but look at higher-law appeals in terms of debate over capital punishment.

50. Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (NewYork: Oxford UP, 1997).

51. Spear, Essays on the Punishment of Death (Boston: C. Spear, 1845), 224. I am indebted to Bruce Franklin, who cites Spear on this double standard in his essay “Billy Budd and Capital Punishment.”

52. Masur 157.

53. Among other articles, in the March 4, 1846, edition of the Tribune, Fuller attacked Cheever’s stance in favor of capital punishment in a review of Cheever’s book, A Defence of the Punishment of Death (New York: Wiley and Putnam, 1846). For a brief discussion of other articles in the Tribune, see Margaret Fuller, Critic: Writings from the New-York Tribune, 1844—1846, ed. Judith Mattson Bean and Joel Myerson (New York: Columbia UP, 2000).

54. Stanton, letter to Marvin H. Bovee, in Christ and the Gallows, 175.

55. Ibid., 173–74.

56. Stanton calls capital punishment a “relic of barbarism” in her letter written for Bovee’s Christ and the Gallows. See Sumner’s and Whittier’s letters in Bovee’s book for their uses of the term (56, 286). Others who denounce the death penalty in these terms in Christ and the Gallows include C. C. Washburne, Robert Laird Collier, and Theodore Tilton. In “Death by Hanging,” Duyckinck says that “hanging is a remnant of barbarity” (99).

57. Qtd. in Bovee 174.

58. Jones makes this line of argument a focal point in Against the Gallows. In particular, see his chapters on Whitman and E. D. E. N. Southworth.

59. Spear, The Hangman (Boston: Charles Spear, 1845), 69. I am indebted to Jarrod Roark for pointing me to this material from The Hangman and The Prisoner’s Friend and helping me integrate it into my argument.

60. Spear, The Prisoner’s Friend (Boston: Charles Spear, 1845), 169.

61. Reynolds 70.

62. Poe, Edgar Allan Poe: Selected Stories (Oxford: Oxford UP, 1998), 231; Whitman, “Revenge and Requital: A Tale of a Murderer Escape,” United States Magazine and the Democratic Review 17 (July-Aug. 1845): 106; Southworth, “Thunderbolt to the Hearth,” in Old Neighborhoods and New Settlements; or, Christmas Evening Legends (Philadelphia: Hart and Carey, 1858), 88; Darrow, An Eye for an Eye, ed. R. Baird Shuman (Durham: Moore, 1969).

63. For additional discussions concerning temperance and temperance reform in nineteenth-century American literature, see in particular the collection of essays edited by David S. Reynolds and Debra J. Rosenthal, The Serpent in the Cup: Temperance in American Literature (Amherst: U of Massachusetts P, 1997). Other recent work on temperance and temperance reform in nineteenth-century American literature includes Ryan C. Cordell, “ ‘Enslaving You, Body and Soul’: The Uses of Temperance in Uncle Tom’s Cabin and ‘Anti-Tom’ Fiction,” Studies in American Fiction 36:1 (2008): 3–26; John Crowley, The White Logic: Alcoholism and Gender in American Modernist Fiction (Amherst: U of Massachusetts P, 1994); Eric Gardner, “Forgotten Manuscripts: William Jay Greenly’s Antebellum Temperance Drama,” African American Review 42:3–4 (2008): 389–406; Glenn Hendler, Public Sentiments: Structures of Feeling in Nineteenth-Century American Literature (Chapel Hill: U of North Carolina P, 2001); Robert S. Levine, “Disturbing Boundaries: Temperance, Black Elevation, and Violence in Frank J. Webb’s The Garies and Their Friends,” Prospects: An Annual Journal of American Cultural Studies 19 (1994): 349–73; George Monteiro, Stephen Crane’s Blue Badge of Courage (Baton Rouge: Louisiana State UP, 2000); Gretchen Murphy, “Enslaved Bodies: Figurative Slavery in the Temperance Fiction of Harriet Beecher Stowe and Walt Whitman,” Genre: Forms of Discourse and Culture 28 (Spring-Summer 1995): 95–118; Elaine Frantz Parsons, Manhood Lost: Fallen Drunkards, and Redeeming Women in the Nineteenth-Century United States (Baltimore: Johns Hopkins UP, 2003); Reynolds, Beneath the American Renaissance; Michael Warner, “Whitman Drunk,” in Publics and Counterpublics (New York: Zone Books, 2002); Nicholas Warner, Spirits of America: Intoxication in Nineteenth-Century American Literature (Norman: U of Oklahoma P, 1997); Susan Marjorie Zieger, Inventing the Addict: Drugs, Race, and Sexuality in Nineteenth-Century British and American Literature (Amherst: U of Massachusetts P, 2008). I am grateful to Jarrod Roark for help with this bibliography.

64. For additional discussions concerning race and slavery in nineteenth-century American literature, see in particular Eric J. Sundquist, To Wake the Nation: Race in the Making of American Literature (Cambridge, MA: Belknap-Harvard UP, 1993). See also the following works in the Cambridge Studies in American Literature and Culture Series: Gregg D. Crane, Race, Citizenship, and Law in American Literature (Cambridge: Cambridge UP, 2002); John D. Kerkering, The Poetics of National and Racial Identity in Nineteenth-Century American Literature (New York: Cambridge UP, 2009); Maurice S. Lee, Slavery, Philosophy, and American Literature, 1830—1860 (New York: Cambridge UP, 2005); Arthur Riss, Race, Slavery, and Liberalism in Nineteenth-Century American Literature (New York: Cambridge UP, 2006). Other recent work on race and slavery in nineteenth-century American literature includes Katherine Clay Bassard, “Private Interpretations: The Defense of Slavery, Nineteenth-Century Hermeneutics, and the Poetry of Frances E. W. Harper,” in There before Us: Religion and American Literature, from Emerson to Wendell Berry, ed. Roger Lundin (Grand Rapids, MI: Eerdmans, 2007); Diane N. Capitani, Truthful Pictures: Slavery Ordained by God in the Domestic, Sentimental Novel of the Nineteenth Century South (Lanham, MD: Lexington Books, 2009); Kathleen Diffley, “The Roil of Contemporary Debate: Uncovering Literature and Culture in Nineteenth-Century America,” Journal of the Midwest Modern Language Association 35:1 (2002): 88–95; Michael T. Gilmore, Slavery, Race, and Free Speech in American Literature (Chicago: U of Chicago P, 2010); John C. Inscoe, “Slavery and African Americans in the Nineteenth Century,” in High Mountains Rising: Appalachia in Time and Place, ed. Richard A. Straw and H. Tyler Blethen (Urbana: U of Illinois P, 2004); Agnieszka Soltysik Monnet, The Poetics and Politics of the American Gothic: Gender and Slavery in Nineteenth-Century American Literature (Surrey: Ashgate, 2010); and two recent dissertations: Andrea Stone, “Healthy: Medicine, Law, Literature and a Nineteenth-Century Black Rhetorics of Physicality” (Ph.D. diss., U of Toronto, 2009), and Mark F. Wood, “Crises of Authority: Honor Violence in Nineteenth-Century American Literature” (Ph.D. diss., U of Kentucky, 2006). I am grateful to Jarrod Roark for help with this bibliography.

65. See, for instance, Robert Weisberg’s discussion of “law in literature” in his seminal essay, “The Law and Literature Enterprise,” Yale Journal of Law and the Humanities 1:1 (1989): 1–67, and Robert Cover’s discussion of the legal process, especially in criminal law, as “inherently dramatic” in his essay, “The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role,” Georgia Law Review 20 (1986): 815–33. It is also important to note that critics not working directly in law and literature have called attention to the way a legal form, particularly that of a criminal trial, helps to structure, resolve, or bring to a climax the central drama of a literary work. For instance, in his analysis of Bleak House in The Novel and the Police (Berkeley and Los Angeles: U of California P, 1988), D. A. Miller argues that Dickens’s use of the criminal trial simplifies and resolves the more complicated issues the novel raises through the civil suit of Jarndyce vs. Jarndyce.

66. Attending in these ways to questions of form, the present work contributes to what Marjorie Levinson and others have termed the “New Formalism”: a movement rather than a coherent methodology positioned, as its name suggests, against the New Historicism and positing, in a variety of ways, a return to aesthetic form and its importance in cultural studies. See Levinson, “What Is New Formalism?,” PMLA 122:2 (2007): 558–69. At the same time, however, my work squarely works within the New Historicist paradigm exemplified in law-and-literature studies by Brook Thomas, Wai Chee Dimock, Gregg D. Crane, and Deak Nabers.

67. Morrow, “Capital Punishment,” in American Literature through History, vol. 1, ed. Tom Quirk and Gary Scharnhorst (New York: Scribner’s, 2006), 202.

68. Guest, Sentenced to Death: The American Novel and Capital Punishment (Jackson: UP of Mississippi, 1998), xv-xvi. See also Anne Algeo, The Courtroom as Forum (New York: P. Lang, 1996). Technically, Guest starts with McTeague (1899), an odd beginning by Guest’s own admission since this novel, unlike the others he examines, does not include an execution scene or deal with the criminal justice system or the death penalty. Concentrating on Frank Norris’s McTeague, Dreiser’s An American Tragedy, Richard Wright’s Native Son, Truman Capote’s In Cold Blood, and Norman Mailer’s Executioner’s Song, Guest sees the twentieth-century execution novel as a successor to the nineteenth-century “diagnostic biography,” his term for popular criminal biographies, confession narratives, and court transcripts that are exemplified, one might say, in The Record of Crimes in the United States, best-selling anthology of notorious criminals. Algeo, in The Courtroom as Forum, treats the same novels as Guest, save for McTeague. She claims that since the publication of An American Tragedy, a major American novel engaging the death penalty has been published roughly every fifteen years. While sharing some of Guest’s and Algeo’s concerns, my study of American literature and capital punishment over the long nineteenth century goes beyond telling “the story of a life that leads to the gallows” in order to get at how those stories contributed to an interstate campaign to abolish capital punishment.

CHAPTER 1. Anti-gallows Activism in Antebellum American Law and Literature

1. For a comprehensive history of New York’s engagement with anti-gallows activism, see Philip English Mackey’s Hanging in the Balance: The Anti—Capital Punishment Movement in New York State, 1776—1861 (New York: Garland, 1982). Mackey’s study also provides a detailed account of the anti-gallows movement in eighteenth- and early nineteenth-century Pennsylvania.

2. David Brion Davis, Homicide in American Fiction (Ithaca: Cornell UP, 1957), 296.

3. Philip English Mackey, “Historical Introduction,” in Voices against Death: American Opposition to Capital Punishment, 1787—1 977 (New York: Burt Franklin, 1977), xxii.

4. Davis 299.

5. John Neal, Logan: A Family History, 2 vols. (Philadelphia: H. C. Carey and I. Lea, 1822), 8. Hereafter cited in text parenthetically.

6. Edward Livingston, The Complete Works of Edward Livingston on Criminal Jurisprudence, vol. 1, Series in Criminology, Law Enforcement, and Social Problems (repr., Montclair, NJ: Patterson Smith, 1968), 43.

7. Ibid., 44.

8. Neal and Livingston, here, are making an argument about the spectacle of sovereign violence inflicted upon the body of the condemned long before Michel Foucault developed that argument in the opening chapters of Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Pantheon Books, 1977). It should also be noted that Livingston’s writings against the death penalty were extremely influential in France when that country experienced its own movement to abolish capital punishment, from roughly 1826 to 1831. Indeed, Livingston’s work, which was widely reviewed and discussed in French newspapers (most notably Le Globe), helped initiate the debate in that country. For a discussion of Livingston’s impact on the abolition movement in France, see Sonja Hamilton’s “La plume et le couperet: enjeux politiques et litteraires de la peine de mort autour de 1830” (Ph.D. diss., Johns Hopkins U, 2003), 71–73.

9. Livingston 45.

10. Qtd. in Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture (New York: Oxford UP, 1989), 117.

11. Ibid.

12. Neal, Wandering Recollections of a Somewhat Busy Life: An Autobiography (Boston: Roberts Brothers, 1869), 390.

13. Ibid.

14. Ibid.

15. In his “Historical Introduction,” Mackey provides a description of public executions and legislative responses to them that resonates with Neal’s account in Logan and is therefore worth quoting at length: “To many Americans in the 1820s and 1830s, the most obvious flaw in the institution of capital punishment was public executions, which, intended as a sobering and edifying ceremony, had too often turned into a disgraceful scene of commercialism, riot, and bloodlust. A scheduled hanging could be expected to draw thousands, sometimes tens of thousands, of eager viewers. Exploited by local merchants, plied with drink and excited by the prospect of a bloodcurdling event, witnesses often become unruly. Pushing and fighting were not uncommon as the victim was led to the scaffold or as the crowds surged to view the corpse. Cursing onlookers might revile the widow or tear at the scaffold and rope for souvenirs. Drunkenness and violence at times ruled the town far into the night after such a display of public justice” (xx). Following this description, Mackey writes: “Appalled by such scenes, legislators in northern states, beginning with Rhode Island in 1833, Pennsylvania in 1834, and New York, Massachusetts, and New Jersey in 1835, enacted laws calling for private hangings” (xx). In his more recent The Death Penalty: An American History (Cambridge, MA: Harvard UP, 2002), legal historian Stuart Banner notes that Connecticut, which is not mentioned by Mackey, was the first state to abolish public executions in 1830, eight years after the publication of Logan. For an excellent discussion of the movement toward private executions, see “Into the Jail Yard,” chapter 6 of Banner’s book.

16. Masur 54. For a reception history of Beccaria’s On Crimes and Punishment in eighteenth-century America, see also Paul Spurlin, “Beccaria’s Essay on Crimes and Punishments in Eighteenth-Century America,” Studies on Voltaire and the Eighteenth Century 27 (1963): 1489–1504.

17. Beccaria found the death penalty justifiable only in times of war when the imprisonment, rather than execution, of a condemned political figure jeopardized the security of the state or when the execution of a condemned citizen was “the one and only deterrent to dissuade others from committing crimes.” See Cesare Beccaria, On Crimes and Punishments, ed. David Young (Indianapolis: Hackett, 1986), 48. Hereafter cited in text parenthetically.

18. Montesquieu takes up the general question of sovereign authority in relation to civil and criminal laws in volume 1, book 6 of The Spirit of Laws (1748; English ed., 1750) He writes specifically about tyranny in book 19, in the course of which he coins the influential phrase: “All punishment which is not derived from necessity is tyrannical.” See Baron de Montesquieu, The Spirit of Laws (New York: Prometheus Books, 2002), 299. Beccaria makes this broad point the specific focus of On Crimes and Punishments. For instance, he begins chapter 2, “The Right to Punish,” with the following claim: “Every punishment which does not derive from absolute necessity, says the great Montesquieu, is tyrannical. The proposition may be made general thus: every act of authority between one man and another that does not derive from absolute necessity is tyrannical. Here, then, is the foundation of the sovereign’s right to punish crimes: the necessity of defending the depository of the public welfare against the usurpations of private individuals” (8).

19. Masur 53.

20. Ibid.

21. Benjamin Rush, Considerations on the Injustice and Impolicy of Punishing Murder by Death (Philadelphia: Carey, 1792), 18–19, emphasis in original.

22. Ibid., 19.

23. Robert Rantoul Jr. Memoirs, Speeches and Writings of Robert Rantoul, Jr., ed. Luther Hamilton (Boston: J. P. Jewett, 1854), 428. Hereafter cited in text parenthetically.

24. Rantoul’s Christian argument was popularized by Charles Spear in Essays on the Punishment of Death (Boston: Spear, 1844), a study that, by May 1845, had sold more than five thousand copies and by 1846 had gone through seven editions (Masur 136–37).

25. Hugo Adam Bedau, preface to Voices against Death: American Opposition to Capital Punishment, 1787—1977, ed. Philip English Mackey (New York: Burt Franklin, 1977), v.

26. O’Sullivan, Report in Favor of the Abolition of the Punishment of Death by Law (New York: Arno Press, 1974), 5. Hereafter cited in text parenthetically.

27. Robert D. Sampson, John L. O’Sullivan and His Times (Kent: Kent State UP, 2003), 101.

28. Livingston 201.

29. Ibid., 201–2.

30. The society soon changed its name to the New York State Society for the Abolition of Capital Punishment. The Anti-Draco, edited by O’Sullivan, was not published beyond its maiden issue of March 1844.

31. O’Sullivan, “The Gallows and the Gospel,” United States Magazine and Democratic Review 12:57 (1843): 227–36, 227. Hereafter cited in text parenthetically.

32. Mackey, “Historical Introduction,” xxiii-xxiv.

33. For Cheever’s reference to Genesis 9:6 as “the Divine Statute,” see Punishment by Death: Its Authority and Expediency (New York: John Wiley, 1849), 120. Cheever identifies the verse as the “citadel of the argument” on the first night of his debate with O’Sullivan at the Tabernacle. See “Argument in Reply to J. L. O’Sullivan, Esq.” appended to Punishment by Death, 236.

34. Cheever, The Punishment of Death, 162.

35. Cheever, A Defence of Capital Punishment (New York: Wiley and Putnam, 1846), 49.

36. See Cheever, Capital Punishment: The Argument of Rev. George B. Cheever, in Reply to J. L. O’Sullivan (New York: Saxton and Miles, 1843), 39. In the introduction to the second part of his first book, Punishment by Death: Its Authority and Expedience, Cheever directly attacked the interpretation O’Sullivan had popularized of Genesis 9:6 as prediction rather than command: “It is argued by our opponents that the statute in Genesis is simply and merely permissive, but not an injunction. But it follows, according to this construction, that God gives to any and every man the permission to kill the murderer” (120). For discussions of the O’Sullivan-Cheever debate, see Masur (147–52), Sampson (101–4), and Mackey (Hanging, 181–83).

37. Between October 1837 and April 1845, Hawthorne contributed twenty-three works to the Democratic Review (Hawthorne, Selected Letters of Nathaniel Hawthorne, ed. Joel Myerson [Columbus: Ohio UP, 2002], 139). In addition to “Egotism, or the Bosom Serpent,” Hawthorne’s “The Artist of the Beautiful” was published along with “Capital Punishment: The Proceeding of the Recent Convention of the Friends of the Abolition of the Punishment of Death” in the Democratic Review’s June 1844 issue. In August 1846, moreover, an article Hawthorne edited, “Papers of an Old Dartmoor Prisoner,” was published alongside “An Essay on the Ground and Reason of Punishment,” a featured work that attacked the death penalty and advocated for its abolition.

38. Hawthorne, “Earth’s Holocaust,” Mosses From an Old Manse (Columbus: Ohio State UP, 1974), 381. Hereafter cited in text parenthetically.

39. Hawthorne, “The New Adam and Eve,” Mosses From an Old Manse (Columbus: Ohio State UP, 1974), 247. Hereafter cited in text parenthetically.

40. Whittier, “Lines, Written on Reading Several Pamphlets Published by Clergymen against the Abolition of the Gallows,” United States Magazine and Democratic Review 11:52 (1842): 374–375, 375.

41. Whittier, “Human Sacrifice,” Democratic Review 12:59 (1843): 475–78. The poem was reprinted in Whittier’s collection, Songs of Labor and Reform. Further citations appear in text parenthetically by line number.

42. See Masur 141–50, for a discussion of a conservative Protestant response to anti-gallows reformers. For representative works by Waterbury, see The Brighten Age: A Poem (Boston: Crocker and Brewster, 1830); Advice to a Young Christian, on the Importance of Aiming at an Elevated Standard of Piety (New York: American Tract Society, 1843); and Sketches of Eloquent Preachers (New York: American Tract Society, 1864).

43. W, “Correspondence of the N. Y. Evangelist,” New York Evangelist 13:49 (Dec. 8, 1842): 192.

44. “Abolition of the Death Penalty in Massachusetts,” Liberator, March 1854, 52.

45. Ibid.

46. For Cheever’s praise of Wordsworth or use of the poet to support his work, see Punishment by Death, 157, 184, 221–22. Cheever claims, for instance, that Wordsworth “communicate[s] a power and majesty to the whole theory and practice of a just human law, of which it were a fearful thing if the state should be shorn” (157). If in Punishment by Death Cheever holds up Wordsworth as a positive literary example, in A Defense of Capital Punishment Cheever points to Dickens as a bad example, at one point lamenting how the great novelist sentimentalizes the execution scene rather than seeing it as a solemn warning: “We cannot avoid being struck with this shameful inconsistency in one who, perhaps, ranks yet as the most popular novelist of the age. No man indulges in more of this mischievous sentimentalism than Dickens” (51).

47. O’Sullivan, “Wordsworth’s Sonnets on the Punishment of Death,” United States Magazine and Democratic Review 10:45 (1842): 272–88, 272.

48. Ibid., 273.

49. Ibid., 279, emphasis in original.

50. For Whitman’s many anti-gallows writings, see The Collected Writings of Walt Whitman: The Journalism, vol. 1, 1834—1846, ed. Herbert Bergman, Douglas A. Noverr, and Edward J. Recchia (New York: Peter Lang, 1998). For an excellent discussion of Whitman’s work in this context, see Paul Christian Jones, “ ‘That I could look . . . on my own crucifixion and bloody crowning’: Walt Whitman’s Anti-gallows Writing and the Appeal to Christian Sympathy,” Walt Whitman Quarterly Review 27 (Fall 2009): 1–27.

51. Walt Whitman, “A Dialogue,” United States Magazine and Democratic Review 17:89 (1845): 360–64, 360. Hereafter cited in text parenthetically.

52. In light of the convict’s argument, it is interesting to note that, for a short time later in the nineteenth century, the state of New York did make it illegal for the press to represent or provide the details of an execution. As legal scholar Michael Madow explains: “In 1888, the New York legislature, having grown impatient with what it believed were sensationalistic news reports, made it a crime for any newspaper to publish the details of an execution. The New York press defied the ban and waged a vigorous and successful campaign for its repeal on behalf of ‘the people’s right to know’ ” (467). See Madow, “Forbidden Spectacle: Executions, the Public and the Press in Nineteenth Century New York,” Buffalo Law Review 43 (Fall 1995): 462–562.

53. Whitman, “Hurrah for Hanging!,” in The Uncollected Poetry and Prose of Walt Whitman, ed. Emory Holloway, vol. 1 (New York: Peter Smith, 1932), 108–9.

54. Lippard, The Quaker City, ed. David S. Reynolds (Amherst: U of Massachusetts P, 1995). See book 5, chapter 3 of Lippard’s novel, “Hurrah for the Gallows!,” 503–11.

55. Hawthorne, The Scarlet Letter, eds. William Charvat, Roy Harvey Pearce, Claude M. Simpson, Fredson Bowers, and Matthew J. Bruccoli (Columbus: Ohio UP, 1962).

56. Ibid., 37.

57. Ibid., 38.

58. Ibid., 39.

59. In Hawthorne’s Mad Scientists: Pseudoscience and Social Science in Nineteenth-Century Life and Letters (Hamden: Archon Books, 1978), Taylor Stoehr argues that Hawthorne likely drew from Charles Spear in creating Hollingsworth’s character: “Some readers have thought that [noted activist and early transcendentalist] Orestes Brownson was Hawthorne’s model,” but Stoehr sees Spear as a “likelier candidate” (227). Stoehr explores other possible models for Hollingsworth, such as “Judge John W. Edmonds, President of the Board of Inspectors at Sing Sing and founder in 1844 of the New York Prison Association” and “Reverend William Henry Channing, one of the Prison Association’s most active members,” but “only Charles Spear was as unswervingly devoted to his one career as Hollingsworth” (227–28).

60. tn “P.’s Correspondence,” Mosses from an Old Manse, vol. 2 of Hawthorne’s Works (Boston: Houghton, Mifflin, 1882), Hawthorne pays odd homage to Neal: “How slowly our literature grows up! Most of our writers of promise have come to untimely ends. There was that wild fellow, John Neal, who almost turned my boyish brain with his romances; he surely has long been dead, else he never could keep himself so quiet” (Mosses 426). For accounts of Neal’s influence on Hawthorne, see Benjamin Lease, That Wild Fellow John Neal and the American Literary Revolution (Chicago: U of Chicago P, 1972). See also Reynolds’s “Hawthorne’s Cultural Demons,” chapter 9 in Beneath the American Renaissance (Cambridge, MA: Harvard UP, 1988) for an account of Hawthorne’s interest in gallows and crime literature.

61. Melville, White Jacket; or, the World in a Man-of-War (Evanston: Northwestern UP, 2000), 292. Hereafter cited in text parenthetically.

62. Thoreau, “A Plea for John Brown,” Political Writings, ed. Nancy L. Rosenblum (Cambridge: Cambridge UP, 1996), 156.

63. Qtd. in Jones, Against the Gallows (Iowa City: U of Iowa P, 2011), 27.

64. Ibid.

65. Qtd. in Louis Ruchames, ed., A John Brown Reader (London: Abelard-Schuman, 1959), 296.

66. For a discussion of this unsent letter, see Edward Waldo Emerson and Waldo Emerson Forbes, eds., Journals of Ralph Waldo Emerson, 1856—1863 (Boston: Houghton Mifflin, 1913), 239–41.

67. Alexis de Tocqueville provides an international perspective on the anti-gallows reform movement in the second volume of Democracy in America, trans. Harvey C. Mansfield and Delba Winthrop (Chicago: U of Chicago P, 2000): “There is no country where criminal justice is administered with more kindness than in the United States. Whereas the English seem to want to preserve carefully the bloody traces of the Middle Ages in their penal legislation, the Americans have almost made the death penalty disappear from their codes. North America is, I think, the sole region on earth where for fifty years the life of not a single citizen has been taken for political offenses” (538).

CHAPTER 2. Simms, Child, and the Aesthetics of Crime and Punishment

1. Simms, Beauchampe; or, the Kentucky Tragedy; A Sequel to Charlemont (Chicago: S. A. Maxwell, 1888), 335.

2. For representative accounts of how print technology in the 1830s and 1840s led to a proliferation of crime literature, see David Ray Papke, Framing the Criminal: Crime, Cultural Work, and the Loss of Critical Perspective, 1830—1900 (Hamden: Archon Books, 1987); Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674—1860 (Oxford: Oxford UP, 1994); Karen Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard UP, 1998); and Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard UP, 2002).

3. As W. B. Gates notes, Simms’s revisions mainly consisted in dividing the 1842 two-volume edition of Beauchampe into two separate novels and adding descriptive chapter headings to each. Volume 1 was retitled Charlemont; or, the Pride of the Village; volume 2 was retitled Beauchampe; or, The Kentucky Tragedy; A Sequel to Charlemont. See Gates, “William Gilmore Simms and the Kentucky Tragedy,” American Literature 32 (May 1960): 158–66.

4. In this chapter, I examine the arguments of Leonard Bacon and, especially, George Barrell Cheever as representative of a pro-gallows ministry. Other prominent work by such figures include John McLeod, The Capital Punishment of the Murderer: An Unrepealed Ordinance of God (New York: Robert Carter, 1842), and William Patton, Capital Punishment Sustained by Reason of the Word of God (New York: Dayton and Newman, 1842), both published the same year as Simms’s first edition of Beauchampe.

5. See Cohen, particularly the introductory overview and part 1 of his study.

6. A recent edition of Cooper’s The Ways of the Hour (Amsterdam: Fredonia Books, 2002) makes this point on the book’s back cover: “The Ways of the Hour should be considered a classic in the history of the mystery novel—as it is perhaps the first novel to revolve almost entirely about a courtroom murder trial.” Other well-known novels—such as Brown’s Wieland, Scott’s The Heart of the Midlothean, and Dickens’s Bleak House—involve significant courtroom and trial scenes as a component of their plots, but Cooper’s final novel is the first (that I have found) to revolve around a capital trial from start to finish. Beginning with the investigation of an arson and double murder, The Ways of the Hour documents the behind-the-scenes lawyering and development of legal strategies, the interviewing of witnesses, and the unfolding of legal procedures, such as the process of jury selection. Moreover, the novel culminates with the drama of a courtroom trial and concludes with a verdict and the formal act of sentencing. Today, of course, this formula is often employed by writers of popular crime novels and legal thrillers, but Cooper is likely the first novelist to use it to structure an entire work.

7. A study of criminal propensity within a single family, McConnel’s novel attends to the circumstances that help to create a criminal but focuses on hereditary traits passed on from one generation to another. “The outline of the following story,” McConnel writes in the preface, “was designed to illustrate certain mental and moral laws by which characteristics are transmitted from parent to offspring—and thus to show how ‘the sins of the father are visited upon the children, even from the third and fourth generation’ ” (iii). Published the same year as The House of the Seven Gables, McConnel’s Hawthornian tale of “the sins of the father” centers around the villainous James Glenn, who murders his rival and frames his cousin Henry Glenn for the crime. See The Glenns: A Family History (New York: Scribner’s, 1851).

8. Ibid, 152.

9. Thompson, The Rangers; or, The Tory’s Daughter, vol. 1 (Boston: Benjamin B. Mussey and Company, 1851), 66.

10. My notion of the aesthetics of crime and capital punishment owes much to Joel Black’s concept of “the aesthetics of murder” and what Austin Sarat calls “the cultural life of capital punishment.” See Black, The Aesthetics of Murder: A Study in Romantic Literature and Contemporary Culture (Baltimore: Johns Hopkins UP, 1991), and Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton UP, 2001). For an inquiry into the aesthetics of capital punishment that complements mine, see the essays in “Symposium: The Art of Execution,” published in the summer issue of Law and Literature 15:2 (2003), especially Ed Morgan’s “On Art and the Death Penalty: ‘Invitation to a Beheading’ ,” 279–91. For an analysis of recent scholarship treating crime and crime fiction, see Gregg Crane’s “Reasonable Doubts: Crime and Punishment,” American Literary History 18:4 (2006): 797–813.

11. See John Caldwell Guilds’s Simms: A Literary Life (Fayetteville: U of Arkansas P, 1992) for the most recent and thorough literary biography of Simms’s life. According to Guilds, Simms published eighty-two books (112). The influential southern journals Simms edited were Magnolia; or, Southern Appalachian (1842–43), the Southern and Western Monthly Magazine and Review (1849–54), and the Southern Quarterly Review (1849–54). He was also a founding editor of The Album and the Southern Literary Gazette. For other biographical accounts of Simms, see J. V. Ridgley’s William Gilmore Simms (New York: Twayne Publishers, 1962); Jon L. Wakelyn’s The Politics of a Literary Man: William Gilmore Simms (Westport: Greenwood Press, 1973); and Charles S. Watson’s From Nationalism to Secessionism: The Changing Fiction of William Gilmore Simms (Westport: Greenwood Press, 1993). My discussion of Simms’s life draws from these sources, especially Guilds’s Simms.

12. Review by Edgar Allan Poe in Broadway Journal, Sept. 20, 1845.

13. See Guilds, Simms, 123–24. Simms, in a letter to James Lawson, claims to have lost the “Lt. Gov. by one vote, & this with 9/10ths of the Legislature in my favor.” See The Letters of William Gilmore Simms, vol. 2, ed. Mary C. Simms Oliphant, Alfred Taylor Odell, and T. C. Duncan Eaves (Columbia: U of South Carolina P, 1953), 251.

14. Modern biographies of Child—including Helene G. Baer’s The Heart Is Like Heaven: The Life of Lydia Maria Child (Philadelphia: U of Pennsylvania P, 1964); Milton Meltzer’s Tongue of Flame: The Life of Lydia Maria Child (New York: Crowell, 1965); William S. Osborne’s Lydia Maria Child (Boston: Twayne Publishing, 1980); Deborah Pickman Clifford’s Crusader for Freedom: A Life of Lydia Maria Child (Boston: Beacon Press, 1992); and Carolyn L. Karcher’s The First Woman in the Republic: A Cultural Biography of Lydia Maria Child (Durham: Duke UP, 1994)—each include a brief reference or a few sporadic ones to Child’s interest in the abolition of capital punishment. Osborne (with three separate references) and especially Karcher (with eight) have the most to say on the subject, but none of these biographers treat Child in the context of death penalty reform or examine her fiction in terms of anti-gallows thematics and activism. Karcher is the only one to comment on the fiction in this regard, noting in an endnote that “ ‘The Juryman’ is especially remarkable for its insights into the violent impulses that the partisans of capital punishment share with the criminals they would chastise” (709). I am grateful to Carolyn Karcher for pointing me to other Child stories (“Elizabeth Wilson,” “Hilda Silfverling,” and “Rosenglory”) that engage questions about crime and criminal injustice. Very little has been published on the Child stories I consider in this chapter, and nothing that discusses them (save for “The Juryman”) in relation to the anti-gallows movement in which Child participated by attacking capital punishment in her popular New York letters.

15. Spear frequently cites Child, along with Rantoul and O’Sullivan, in grounding his arguments against capital punishment. For Spear’s references to Child, see Essays on the Punishment of Death, 10th ed. (Boston: published by the author, 1845), 114, 200, 208–10.

16. Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford UP,KJ89), 122.

17. For Woodcraft as Simms’s response to Stowe, see Joseph V. Ridgley, “Woodcraft: Simms’s First Answer to Uncle Tom’s Cabin” American Literature 31:4 (1960): 421–33, and Charles S. Watson, “Simms’s Answer to Uncle Tom’s Cabin: Criticism of the South in Woodcraft,” Southern Literary Journal 9:1 (1976): 365–68.

18. Simms refers to Guy Rivers as “the first of my regular novels” in the “Dedicatory Epistle to Charles R Carroll, Esq. of South Carolina,” dated November 15, 1854, and published in the Redfield edition of the novel (New York, 1855). Technically, his novella Martin Faber (1833) can be seen as his first novel, since it was published in book form. Martin Faber, however, is significantly shorter than the works composing Simms’s Border Romances.

19. See, for instance, John Caldwell Guild’s afterword to Simms, Guy Rivers: A Tale of Georgia (Fayetteville: U of Arkansas P, 1993), 449–70, and Alexander Cowie’s “Contemporaries and Immediate Followers of Cooper, II,” in The Rise of the American Novel (New York: American Book Company, 1948), 228–46. In William Gilmore Simms, Ridgely makes the opposite point. For him, “Guy remains a literary paste-up: he is the Elizabethan avenger of the tragedy of blood, the villain hero of Bulwer, and Byron’s Cain” (47). In contrast, Ridgley claims that with “Ralph Colleton, Simms manages to be somewhat more original. He is Simms’s first portrait of a young Southern aristocrat, the prototype of a long line” (48).

20. Simms, Guy Rivers, 46. Hereafter cited in text parenthetically.

21. Burke, A Philosophical Enquiry into the Origins of Our Ideas of the Sublime and Beautiful, ed. J. T. Boulton (London: Routledge & Kegan Paul, 1958), 47. For a discussion of Burke’s example in terms of a broader cultural theory of the aesthetics of murder, see the introduction to Joel Black’s The Aesthetics of Murder.

22. Guilds, afterword to Guy Rivers, 449. In Simms, Guilds discusses Murrell as a model for the criminal gang leader in Richard Hurdis, as does Mary Ann Wimsatt in The Major Fiction of William Gilmore Simms: Cultural Traditions and Literary Form (Baton Rouge: Louisiana State UP, 1989), 97–101. In fact, Wimsatt claims that Murrell serves as model of all the villains in Simms’s Border Romances, except for Guy Rivers (121). For a detailed study of Murrell as a source for Simms, see Dianne C. Luce, “John A. Murrell and the Imaginations of Simms and Faulkner,” in William Gilmore Simms and the American Frontier, ed. John Caldwell Guilds and Caroline Collins (Athens: U of Georgia P, 1997): 237–57.

23. Those five states were Pennsylvania, New Jersey, New York, Massachusetts, and New Hampshire. See Banner 343–44, for a complete list of the dates when northern and southern states abolished public executions.

24. For a discussion of the themes and conventions of British Newgate literature, see Keith Hollingsworth, The Newgate Novel, 1830—1847: Bulver, Ainsworth, Dickens, and Thackeray (Detroit: Wayne State UP, 1963).

25. Execution sermons, trial reports, and criminal biographies often concluded with a narrative of the final days or hours of a condemned’s life, as did the Newgate novel, such as Henry Fielding’s classic in the genre, The Life and Death of Jonathan Wild, the Great (1743). See Cohen, particularly “An Overview,” 3–38, and “Saints and Sinners,” 41–80, part I of his study, for a discussion of the conventions of early American gallows literature.

26. As Rodensky puts it, “It need not be by inference from external evidence that third person narrators offer the thoughts of their characters; they can hold themselves out as representing thoughts directly. Novels invite readers to imagine that they are in the mind of the criminal. This access to the mind distinguishes fiction—and the novel in particular—from law, from history, from psychology, and even from other literary genres, like biography and drama.” See The Crime in Mind: Criminal Responsibility and the Victorian Novel (Oxford: Oxford UP, 2003), 6.

27. “Around mid-century, the popular literature of murder in America began a major reconstruction of the murderer, from common sinner [in the execution sermon] into moral alien, in response to the new understanding of human nature provoked by the Enlightenment.” Halttunen, Murder Most Foul, 35.

28. Guilds, Simms, 49. See also Kevin W. Jett, “A Seductive Plea from the Gallows: Reconsidering William Gilmore Simms’s Martin Faber,” Mississippi Quarterly 52 (1999): 559–66.

29. Simms, Martin Faber: The Story of a Criminal (Whitefish, MT: Kessinger Publishing, 2006), 2–3. Hereafter cited in text parenthetically.

30. Guilds, in the “Historical and Textual Commentary” to Martin Faber, can be seen as speaking for most critics when he notes that Simms made two significant changes to the text when revising it for the 1837 edition. The first was “the seemingly unaccountable shift in point of view—from first person to third person—which marred the final chapter of the 1833 version was corrected in the revised edition, giving the book a consistent first-person narrator throughout” (68).

31. Simms, Confession; or, The Blind Heart (New York: AMS Press, 1970), 196. Hereafter cited in text parenthetically.

32. For instance, both O’Sullivan and Cheever take up the story of Cain and Abel in their respective arguments against and for capital punishment. See O’Sullivan, Report in Favor of the Abolition of the Punishment of Death by Law (New York: Arno Press, 1974), 28–30; George Barrell Cheever, Punishment by Death: Its Authority and Expediency (New York : J. Wiley, 1849), 166–69.

33. Cheever, A Defence of Capital Punishment (New York: Wiley and Putnam, 1846), 16.

34. Ibid., 70.

35. Ibid., 166, 168.

36. Cheever, Punishment by Death, 221.

37. Ibid., 226.

38. For a discussion of Simms’s use of Shakespeare, see Edward P. Vandiver Jr., “Simms’s Border Romances and Shakespeare,” Shakespeare Quarterly 5:2 (1954): 129–39.

39. For other literary works that retell or were inspired by “The Kentucky Tragedy,” see Thomas Holley Chivers’s Conrad and Eudora (Delmare, NY: Scholar’s Facsimiles and Reprints, 1978; originally published 1834); Charles Fenno Hoffman’s Greyslaer: A Romance of the Mohawk (Gross Pointe, MI: Scholarly Press, 1868; originally published 1840); Edgar Allan Poe’s Politian, in Collected Works of Edgar Allan Poe (Cambridge, MA: Harvard UP, 1969); and Robert Penn Warren’s World Enough and Time (New York: Random House, 1950).

40. Qtd. in Davis, Homicide in American Fiction (Ithaca: Cornell UP, 1957), 230. That Poe refers to the historical Colonel Solomon Sharp as “Sharpe” (Simms added a final “e” to his characters, Sharpe and Beauchampe) suggests that he had Simms’s romance in mind when writing these remarks about the actual Beauchamp-Sharp murder case.

41. Simms, Beauchampe, 66. Hereafter cited in text parenthetically.

42. Cheever, A Defence of Capital Punishment, 29.

43. Ibid., 30.

44. For an analysis of O’Sullivan’s role in the Young America movement, see Edward L. Widmer’s Young America: The Flowering of Democracy in New York City (Oxford: Oxford UP, 1999), particularly chap. 1, “The Politics of Culture: O’Sullivan and The Democratic Review.”

45. Letters of William Gilmore Simms, vol. 2, ed. Mary Simms Oliphant, Alfred Taylor Odell, and T. C. Duncan Eaves (Columbia: U of South Carolina P, 1953), 142.

46. Simms, The Cassique of Kiawah (Fayetteville: U of Arkansas P, 2003), 69.

47. Ibid., 69–70.

48. Voltaire, Candide (Harmondsworth: Penguin, 1947), 111. For a gloss on Voltaire’s satiric use of this phrase in Candide, see Clive Emsley’s Hard Men: The English Novel and Violence since 1750 (London: Habelond and London, 2005), 150.

49. Simms, The Cassique of Kiawah, 424–25.

50. See John Caldwell Guilds’s introduction and Kevin Collins’s afterword to The Cassique of Kiawah (2003) for arguments about The Cassique of Kiawah as Simms’s greatest achievement. See also Guilds’s Simms, 229–33.

51. Child, Letters from New-York, ed. Bruce Mills (Athens: U of Georgia P, 1998), 60. Hereafter cited in text parenthetically.

52. Simms’s Beauchampe concludes similarly with a suicide pact between husband and wife. Beauchampe’s wife succeeds in killing herself, but a drugged and wounded Beauchampe is dragged to the gallows. In Simms’s novel, the criminal-hero dies before he ascends the scaffold, thus cheating the state of its victim. In the historical case, Beauchamp (note that Simms adds a final “e” to his fictionalized “Beauchampe,” as he does to “Sharpe,” to romanticize his characters and to distinguish them from their real-world counterparts) does attempt suicide in the manner Simms describes. However, the actual Beauchamp does in fact die on the gallows and not from the drug overdose and self-inflicted knife wounds that take the life of Simms’s Beauchampe, thus sparing him an ignominious death by lawful hanging.

53. In thinking of Bartleby at one point, Melville’s lawyer-narrator reflects on the circumstances of the Colt case: “I remembered the tragedy of the unfortunate Adams and the still more unfortunate Colt in the solitary office of the latter; and how poor Colt, being dreadfully incensed by Adams, and imprudently permitting himself to get wildly excited, was at unawares hurried into his fatal act—an act which certainly no man could possibly deplore more than the actor himself. Often it had occurred to me in my ponderings upon the subject, that had that altercation taken place in the public street, or at a private residence, it would not have terminated as it did. It was the circumstance of being alone in a solitary office, up stairs, of a building entirely unhallowed by humanizing domestic associations—an uncarpeted office, doubtless, of a dusty, haggard sort of appearance; —this it must have been, which greatly helped to enhance the irritable desperation of the hapless Colt.” “Bartleby,” in The Piazza Tales and Other Prose Pieces, 1839–1860, ed. Harrison Hayford, Hershel Parker, and G. Thomas Tanwelle (Evanston, IL: Northwestern UP, 1987), 36.

54. See Halttunen, “The Murderer as Common Sinner” and “The Birth of Horror,” in Murder Most Foul, 7–32, 33–59.

55. Child, Fact and Fiction: A Collection of Stories (Boston: C. S. Francis & Co., 1846), 126. Hereafter cited in text parenthetically.

56. Leonard Woolsey Bacon, “Shall Punishment Be Abolished?,” New Englander and Yale Review 4:16 (1846): 563–88, 564.

57. Ibid.

58. Ibid., 565.

59. Ibid.

60. The historical Elizabeth Wilson was executed in Pennsylvania on January 3, 1876, reportedly twenty-three minutes after her pardon arrived (although it was not delivered by her brother). As Child remarks in the story’s introductory notes, the execution was still alive in the community’s memory, in part because of a popular broadside poem commemorating her death. I thank Sharon Hunter for bringing this poem to my attention.

61. Child, Autumnal Leaves: Tales and Sketches (New York: C. S. Francis & Co, 1857), 47. Hereafter cited in text parenthetically.

CHAPTER 3. Literary Executions in Cooper, Lippard, and Judd

1. George Lippard, Legends of the American Revolution, “1776”; or, Washington and His Generals (1847; rpt., Philadelphia: Leary, Stuart & Co. 1876), 221.

2. See Sarat, “To See or Not to See: On Televising Executions,” in When the State Kills (Princeton: Princeton UP, 2002), 187–208. Sarat’s argument is positioned as a response to Wendy Lessor, who also opposes capital punishment but argues against televised executions in “KQED v. Daniel Vasquez,” in Pictures at an Execution (Cambridge, MA: Harvard UP, 1993), 24–46. Both Sarat and Lessor, in their exploration of murder and the capital punishment in contemporary American culture, speak to the complexities of artistic representations of violence both within and outside the law.

3. For a recent historical study of the infamous “Kentucky Tragedy,” see Dixon D. Bruce, The Kentucky Tragedy: A Story of Conflict and Change in Antebellum America (Baton Rouge: Lousiana State UP, 2006).

4. Cheever, A Defence of Capital Punishment (New York: Wiley and Putnam, 1846), 51.

5. As Lazar Ziff writes in Literary Democracy: The Declaration of Cultural Independence in America (New York: Viking Press, 1981): “In the period 1844–1854, which saw the publication of The Scarlet Letter and Moby-Dick, George Lippard was, in all probability, American’s most widely read novelist” (94). Ziff bases this claim on sales figures and compares Lippard to Cooper, “whose books were more durably printed and bound” and who thus “may have reached a wider audience, in the home and through circulation in rental libraries, than is indicated by the sales figures alone” (94). Still, the sales of Lippard’s works, especially The Quaker City (which went through twenty-seven editions in five years), were staggering—a point that Ziff emphasizes through citing sales figures for Lippard’s best-selling novel. For accounts of Lippard’s popularity, see also David S. Reynolds’s introduction to The Quaker City; or, The Monks of Monk Hall (Amherst: U of Massachusetts P, 1995) as well as Reynolds’s edited collection of Lippard’s work, George Lippard, Prophet of Protest: Writings of an American Radical, 1822—1854 (New York: P. Lang, 1986).

6. H. Bruce Franklin makes a compelling case for Billy Budd as an anti-death penalty book in his landmark essay, “Billy Budd and Capital punishment: A Tale of Three Centuries,” American Literature 69:2 (1997): 337–59. I take up Billy Budd and Franklin’s essay in chapter 5 of this study.

7. Cooper, The Spy: A Tale of the Neutral Ground (New York: AMS, 2002), 221. Hereafter cited in text parenthetically.

8. Charles Hansford Adams, The Guardian of the Law: Authority and Identity in James Fenimore Cooper (University Park: Pennsylvania State UP 1990), 28–29. As Adams later writes, “throughout The Spy the legitimacy of civil authority is examined in terms of law. Indeed, the novel is very much about the relationship between justice and law, between principles and mere rules. The plot, of course, turns largely on legal matters. Much of the action concerns the various American efforts to bring Harvey Birch to justice, while the ‘trials’ organized by Lawton and the Cow-Boys are important elements in the novel’s structure. Similarly, Wharton’s trial is one of the pivotal events in the story. More generally, justice, both legal and extralegal, is the central issue raised in The Spy” (30).

9. See Dieter Schulz, “Revolution and the Language of Feeling in Early American Literature: James Fenimore Cooper’s The Spy,” Anglistentag 1991 Düsseldorf: Proceedings (Tübingen; Niemeyer, 1992): 160–73.

10. Ibid., 161–64.

11. For an extended discussion of the play’s influence on the novel, see Maurice Hunt, “James Fenimore Cooper’s The Spy and Shakespeare’s Measure for Measure,” Conference of College Teachers of English Studies 72 (2007): 71–79.

12. Not only does Dixon’s The Clansman employ a body swap, but it concludes with the race against the clock to prevent an execution dramatized in the novel’s penultimate chapter, “A Ride for a Life.” See The Clansman: An Historical Romance of the Ku Klux Klan (New York: A. Wessels Company, 1907).

13. Cesare Beccaria, On Crimes and Punishments, ed. David Young (Indianapolis: Hackett, 1986), 48.

14. In addition to the figures named in the text, Louis P. Masur identifies William Bradford, the Federalist attorney general under Washington, and Founding Fathers John Jay and James Madison as “opponents of capital punishment.” Like Rush, Franklin, and Jefferson, each of these influential figures “considered the death penalty morally and politically repugnant.” See Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford UP), 61–62.

15. Benjamin Rush, Considerations on the Injustice and Impolicy of Punishing Murder by Death (Philadelphia: Carey, 1792), 19.

16. Wayne Franklin uses this term in his introduction to The Spy (New York: Penguin, 1997), xxiv. In addition to Franklin’s useful discussion of André in Cooper’s novel and its historical context, for a superb cultural history of the André case in works other than Cooper’s The Spy from the Revolutionary War through the late nineteenth century, see Larry J. Reynolds’s “Patriot and Criminals, Criminal and Patriots: Representations of the Case of Major André,” South Central Review 9:1 (1992): 57–84. For historical treatments of André, see Andy Trees, “Benedict Arnold, John André, and His Three Yeoman Captors: A Sentimental Journey or American Virtue Defined,” Early American Literature 35:3 (2000): 246–73, and Robert E. Cray Jr., “Major John André and the Three Captors: Class Dynamics and Revolutionary Memory Wars in the Early Republic, 1780–1831,” Journal of the Early Republic 17:3 (1997): 371–97.

17. Bruce A. Rosenberg. “Cooper’s The Spy and the Popular Spy Novel,” American Transcendental Quarterly 7:2 (1993): 115–25, 118.

18. Cooper, Notions of the Americans: Picked Up by a Travelling Bachelor (Albany: State U of New York P, 1991), 187.

19. Ibid., 189.

20. Ibid., 437.

21. Qtd. in Jon Yorke, “The Evolving Human Rights Discourse of the Council of Europe: Renouncing the Sovereign Right of the Death Penalty,” in Against the Death Penalty: International Initiatives and Implications, ed. Jon Yorke (London: Ashgate Press, 2008), 51.

22. As Susan Manning, in a review of new scholarly editions of Notions and Red Rover, writes: “For the student of Cooper, and of American literature, the Notions of the Americans carries greater interest than the novel, despite a reception which was initially tainted by the Rover’s shortcomings. A review of September 1828 conceded that the Notions might have value as a political document, but declared acerbically that ‘as a work of amusement, it is almost as destitute of interest as the Red Rover.’ The reviewer had a point [Manning adds]. A hugely long and earnest work, the Notions labours under a minimally fictional framework in which an enlightened—and titled—European visits American in the company of an American alter ego (Cadwallader), and reports back in letters to a range of correspondents in Europe.” See Manning in Review of English Studies, n.s., 44:175 (1993): 450–52, 450.

23. Walter Benjamin, “Critique of Violence,” in Reflections: Essays, Aphorisms, Autobiographical Writings, trans. Edmund Jephcott (New York: Schocken Books, 1972), 286.

24. I bid. This, of course, is one of the central points in Jacques Derrida’s well-known critique of Benjamin’s “Critique of Violence.” See Derrida, “Force of Law: The Mystical Foundation of Authority,” Cardozo Law Review 11:5–6 (1990): 920–1045.

25. Cooper, Notions, 187.

26. Grossman, James Fenimore Cooper (Stanford: Stanford UP, 1967), 28.

27. Ringe, James Fenimore Cooper, rev. ed. (Boston: Twayne, 1988), 14.

28. Grossman 28.

29. Lippard, Legends of the American Revolution, 223.

30. The Quaker City; or, The Monks of Monk Hall, ed. David S. Reynolds (Amherst: U of Massachusetts P, 1995), 375. Hereafter cited in text parenthetically.

31. As noted in chapter 1, Michigan abolished the death penalty in 1848, followed by Rhode Island in 1851, and Wisconsin in 1853.

32. In particular, see Rantoul’s “Letters on the Death Penalty,” written to the governor of Massachusetts, in Memoirs, Speeches and Writings of Robert Rantoul, Jr., ed. Luther Hamilton (Boston: J. P. Jewett, 1854), 495–515. Rantoul’s “Letters” provide extensive analysis of murder and execution rates as well as the crimes for which individuals were condemned to death in Massachusetts and in regions, such as Tuscany, Belgium, and Russia, that had experimented with abolition. For the use of such statistics, see also Spear, Essays on the Punishment of Death (Boston: Spear, 1844), 76–87; Quinby, The Gallows, the Prison, and the Poor-House: A Plea for Humanity; Showing the Demands of Christianity in Behalf of the Criminal and Perishing Classes (Cincinnati: G. W. Quinby, 1856), 31; and O’Sullivan, Report in Favor of the Abolition of the Punishment of Death by Law (1842; New York: Arno Press, 1974), 107–10; and Charles C. Burleigh, Thoughts on the Death Penalty (Philadelphia: Merrihew and Thompson ,1845), 94–98.

33. For representative essays in early American penal reform in Pennsylvania, see the work collected in Reform of Criminal Law in Pennsylvania: Selected Enquires, 1787— 1819 (New York: Arno Press, 1972). Essays include William Bradford’s “An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania” (1793), William Roscoe’s “Observations on Penal Jurisprudence, and the Reformation of Criminals” (1819), Benjamin Rush’s “Considerations on the Injustice and Impolicy of Punishing Murder by Death” (1792), and Benjamin Rush’s “An Enquiry into the Effects of Public Punishments upon Criminals, and upon Society” (1787).

34. Neal, Logan: A Family History, vol. 2 (Philadelphia: H. C. Carey and I. Lea, 1822), 11–12.

35. In his introduction to The Quaker City, David S. Reynolds speculates that the poor Charley story influenced Melville’s Billy Budd (xxix). Melville may have been influenced by Lippard’s account of Poor Charley, but I would like to suggest, in turn, that Lippard, in making Charley a nineteen-year-old embroiled in some kind of murder plot at sea, was likely influenced by the 1842 Somers affair, which involved nineteen-year-old Philip Spenser who allegedly was planning a mutiny that led to his execution. I look closely at that the Somers affair in the context of Melville’s work and death penalty debates in chapter 5.

36. Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (New York: Random House, 1993); Dead Man Walking, Polygram Filmed Entertainment, Tim Robins, director, 1996.

37. I am indebted to Peter Caster’s insight into the peculiarity of the death sentence as a speech act in his paper, “Literary Execution in Light in August and Go Down, Moses,” presented at NEMLA, Hartford, Connecticut, March 2001.

38. For Reynolds’s use of the term shock-gothic in reference to Lippard’s work, see “Radical Sensationalism: George Lippard in His Transatlantic Contexts,” in Transatlantic Sensations, ed. Jennifer Phegley, John Cyril Barton, and Kristin Huston (Surrey: Ashgate, 2012), 77–96.

39. My discussion of the Quaker City Weekly draws from and is indebted to Shelly Streeby’s American Sensations: Class, Empire, and the Production of Popular Culture (Berkeley and Los Angeles: U of California P, 2002).

40. Qtd. in ibid., 44.

41. Ibid.

42. Lippard, The White Banner, vol. 1 (Philadelphia: George Lippard, 1851), 151. Hereafter cited in text parenthetically.

43. Given Lippard’s characterization of Hughes as a pro-gallows zealot, one would expect to find abundant evidence of Hughes’s participation in death penalty debates. However, careful examination of the Complete Works of the Most Rev. John Hughes, D.D., Archbishop of New York, ed. Lawrence Kehoe, vol. 1 (New York: American News, 1864), does not support such a strong characterization on Lippard’s part. The best evidence I have found for Hughes’s endorsement of capital punishment occurs in his “Sermon on Jubilee,” wherein he discusses the righteousness of “death as a punishment” for King David’s first son because “David sinned” (508), and in his “Sermon before Congress,” in which he speaks of humanity’s “disobedience” and “the accumulations of guilt and familiarity with depravity in the progress of time” that justify the “penalties, as marked in the book of revelation—in the book of Genesis” (546). Such references and appeals to Genesis were commonplace among Cheever and other outspoken ministers in their defense of capital punishment. In “Relation between the Civil and Religious Duties of the Catholic Citizen,” from the Complete Works of the Most Rev. John Hughes, D. D. Archbishop of New York, vol. 2, ed. Lawrence Kehoe (New York: Catholic Publication House, 1864), Hughes similarly connects positive and divine law, arguing that “to protect society, the human law must repose on the eternal basis of spiritual law, whose witness is the eye of One who penetrates into the deepest recesses of the soul. Were it not for this influence, human law would be weak and inefficient to restrain crime” (146). Of course, Lippard’s sardonic treatment of Hughes in The White Banner could have been based on public speeches or debates (planned or impromptu) for which there is no print record today. I thank Desiree Long for help with this research.

44. Masur 7.

45. One of his most popular shorter works, “Jesus and the Poor,” creates what David S. Reynolds calls “a kind of urban ‘Young Goodman Brown,’ by using supernaturalism and dream imagery to mock the pious pretensions of respectable Philadelphians.” See Lippard, George Lippard, Prophet of Protest: Writings of an American Radical, 1822–1854, ed. David S. Reynolds (New York: P. Lang, 1986), 69.

46. In chapter 3 of A Defence of Capital Punishment, Cheever complained of “the miserable slang about the gallows and the Gospel” (49). See also Masur 151–52.

47. Qtd. in Lippard, George Lippard, Prophet of Protest, 101. For Denning’s use of the term, labor aesthetic, see his chapter “Mysteries and Mechanics of the City,” in Mechanic Accents: Dime Novels and Working-Class Culture in America (New York: Verso, 1987), especially 100–102.

48. Pierson, Jamie Parker, the Fugitive (Hartford: Brocket, Fuller, and Co., 1851), 174, emphasis in original.

49. Smith, The Newsboy (New York: J. C. Derby, 1854), 93–94. A decade earlier, Smith also published an anti-gallows sonnet, “Capital Punishment” (1846), collected in The Poetical Writings of Elizabeth Oakes Smith (New York: Redfield, 1846), 121.

50. Smith, Newsboy, 362–63.

51. Lee, Merrimack; or, Life at the Loom (New York: Redfield, 1854), 22.

52. Ibid., 94.

53. Ibid., 54, emphasis in original.

54. Judd, Margaret: A Tale of the Real and Ideal, Blight and Bloom, rev. ed. (Upper Saddle River, NJ: Gregg Press, 1968), 264.

55. Ibid.

56. Judd, Margaret: A Tale of the Real and Ideal, Bright and Bloom (Boston: Mordan and Wily, 1845), 346–47. References to this (the first) edition of Margaret are hereafter cited in text parenthetically.

57. As a rule, execution sermons created sympathy for the condemned as a “common sinner,” to use Karen Halttunen’s phrase, but they did not use that sympathy (as Judd and other novelists of the 1840s and 1850s did) to criticize capital punishment. On the contrary, the execution sermon as a genre accepted the social function of the death penalty and instead focused attention on sin and the condemned’s penance and afterlife. See chapter 1, “The Murderer as Common Sinner,” in Halttunen’s Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard UP, 1998), and part I of Daniel A. Cohen’s Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture (Oxford: Oxford UP, 1993), for detailed analyses of the execution sermon as a popular literary genre.

58. Vulgar was the term contemporary critics of Margaret used to denigrate parts of the novel. For a helpful summary of Margaret’s critical reception, see “The Critics,” in Francis B. Dedmond’s biography Sylvester Judd (Boston: Twayne, 1980), 75–86.

59. [B. O. Peabody], Review of Margaret, North American Review 62 (Jan. 1846): 102–41, 137.

60. For a valuable historical account of the anti-gallows movement in Maine and Judd’s role in it, see Edward Schriver, “The Reluctant Hangman: The State of Maine and Capital Punishment,” New England Quarterly 63:2 (1990): 271–87.

61. Judd, Margaret, rev. ed., 307.

62. Ibid.

63. See Evelev’s “Picturesque Reform in the New England Village Novel, 18451867,” ESQ: A Journal of the American Renaissance 53:2 (2007): 148–83.

64. For a brief discussion of these Cooper novels as pro-gallows works, see Paul Jones, Against the Gallows (Iowa City: U of Iowa P, 2011), 29–30.

65. As Cooper puts it in the preface to The Ways of the Hour (New York: Putnam’s, 1850), “The object of this book is to draw the attention of the reader to some of the social evils that beset us; more particularly in connection with the administration of criminal justice” (iii).

66. Ibid., 192.

67. Ibid., 193.

68. Ibid.

69. Ibid, 321–22.

CHAPTER 4. Hawthorne and the Evidentiary Value of Literature

1. Hawthorne, “Hall of Fantasy,” in Pioneer: A Literary and Political Magazine, ed. J. R. Lowell and R. Carter, 1 (Feb. 1843): 53. The tale was first published in Lowell and Carter’s Pioneer, but when Hawthorne later included it in Mosses from the Old Manse, he omitted the reference to O’Sullivan.

2. As Gavin Jones (among others) explains: “In 1854, English writer and politician R. Monckton Milnes asked Nathaniel Hawthorne to select a few books he considered most characteristically American. Along with Henry David Thoreau’s Walden (1854), Hawthorne sent his friend Sylvester Judd’s Margaret . . . , even though he doubted that Milnes would be able to appreciate the novel precisely because it was so ‘intensely’ American” (449). See Jones, “The Paradise of Aesthetics: Sylvester Judd’s Margaret and Antebellum American Literature,” New England Quarterly 71:3 (1998): 449–47.

3. For a discussion of Hawthorne in relation to Cheever, see Margaret B. Moore, “Hawthorne and the Lord’s Anointed,” Studies in the American Renaissance (1988): 27–36. See also Margaret B. Moore, The Salem World of Nathaniel Hawthorne (Columbia: U of Missouri P, 2001), 111–13, and David S. Reynolds, Beneath the American Renaissance (New York: Knopf, 1988), 38, 66.

4. Hawthorne, Mosses from an Old Manse (Columbus: Ohio State UP, 1974), 393. Hereafter cited in text parenthetically.

5. Hawthorne, The American Notebooks (Columbus: Ohio State UP, 1972), 237.

6. Qtd. in Edward B. Hungerford’s “Hawthorne Gossips about Salem,” New England Quarterly 6 (Sept. 1933): 445–69. Incidentally, the victim Hawthorne refers to did not die from his wounds.

7. Qtd. in ibid., 455.

8. Welsh, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore: Johns Hopkins UP, 1992), 17.

9. Ibid., 17, 24.

10. Hawthorne, The House of the Seven Gables (Columbus: Ohio State UP, 1965), 8. Hereafter cited in text parenthetically.

11. For a helpful discussion of the metaphor of the “chain” in law and literature, see Brook Thomas’s American Literary Realism and the Failed Promise of Contract (Berkeley and Los Angeles: U of California P, 1997), 147–48. See also Thomas, New Historicism and Other Old Fashion Topics (Princeton: Princeton UP, 1991), 93–94; and Thomas, “Ineluctable though Even: On Experimental Historical Narratives,” Common Knowledge 5:3 (1996): 163–88.

12. My discussion of the White murder and its relation to Hawthorne draws from Brook Thomas’s “The House of the Seven Gables: Hawthorne’s Legal Story,” in Cross-Examinations of Law and Literature (Cambridge: Cambridge UP, 1987), 45–70. However, whereas Thomas addresses parallels of structure or “plot” in the White murder case and Hawthorne’s novel, I offer a comparative analysis of The House of the Seven Gables and Daniel Webster’s summation in the Frank Knapp murder trial. For literary critics who briefly discuss the White murder in relation to Hawthorne, see F. O. Matthiessen, The American Renaissance: Art and Expression in the Age of Emerson and Whitman (London: Oxford UP, 1941), 214–15, and Reynolds, Beneath the American Renaissance, 250–52. Reynolds also suggests that the White murder case serves as a source for Poe’s “Tell-Tale Heart” (231). For a discussion of the White murder case in the context of popular crime literature, see Karen Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard UP, 1998), 60–62, 120–23.

13. Qtd. in Howard A. Bradley and James A. Winans, Daniel Webster and the Salem Murder (Columbia: Artcraft Press, 1956), 8.

14. Webster’s summation, for instance, is anthologized in Ephraim London’s The World of Law and Literature; A Treasury of Great Writing about and in the Law, Short Stories, Plays, Essays, Accounts, Letters, Opinions, Pleas, Transcripts of Testimony; from Biblical Times to the Present (New York: Simon and Schuster, 1960), 406–39.

15. Noted lawyer and statesmen, Samuel McCall, qtd. in Bradley and Winans 219. See “Summation in the Trial of John Francis Knapp for the Murder of Joseph White,” in London, 406–39.

16. Near the end of Hawthorne’s “Mr. Higginbotham’s Catastrophe,” written shortly after the Knapp trial, a young niece of the supposedly murdered Mr. Higginbotham defends Dominicus Pike, the young man who started rumors of her uncle’s death. Young Miss Higginbotham’s plea for mercy quells an outraged community determined to teach Dominicus a painful lesson for the mischief caused by his gossip. At the end of her speech, the tale’s narrator comments, “Daniel Webster never spoke nor looked so like an angel as Miss Higginbotham, while defending [Dominicus] from the wrathful populace at Parker’s Falls.” See “Mr. Higginbotham’s Catastrophe,” in Twice Told Tales (Columbus: Ohio State UP, 1974), 116. Based on this (ironic) allusion to Webster’s skills in forensic oratory, Hungerford has speculated that Hawthorne drew the image from Webster’s closing argument in the Knapp trial, an event Hawthorne likely attended (460–61).

17. Hawthorne, “Mr. Higginbotham’s Catastrophe,” 116.

18. Daniel Webster, “Summation in the Trial of John Francis Knapp for the Murder of Joseph White,” in London 410. References to Webster hereafter cited in text parenthetically.

19. Qtd. in Bradley and Winans, 70.

20. Ibid.

21. Qtd. in James R. Mellow, Nathaniel Hawthorne in His Times (Boston: Houghton Mifflin, 1980), 25.

22. The narrator of Lee’s Merrimack; or, Life at the Loom (New York: Redfield, 1854) identifies herself as a reader of Hawthorne: “I have read Hawthorne’s ‘Tales’ more times than he had ‘told’ them” (147).

23. Hawthorne, The American Notebooks, 310. The journal entry I cite is undated but included just after one dated October 13, 1851, and just before another dated October 22, 1851.

24. Robert Sullivan, The Disappearance of Dr. Parkman (Boston: Little, Brown, 1971), 63. My account of the Webster murder case draws from Sullivan’s study as well as Brook Thomas’s Cross-Examinations of Law and Literature, 202–6. For accounts of the Webster case in the context of popular print culture, see also Halttunen 126–132, 272–276. See Simon Schama, “Death of a Harvard Man,” in Dead Certainties: Unwarranted Speculations (New York: Vintage, 1992), for an historical account in novel form of the Parkman murder case.

25. Qtd. in Classics in Murder: True Stories of Infamous Crime as Told by Famous Crime Writers, ed. Robert Meadley (New York: Ungar, 1986), 284.

26. The defense challenged this evidence through the expert testimony of Dr. William Morton, a physician renowned for discovering anesthesia, who said it would be impossible to identify for whom these teeth were made because of the extensive fire damage they withstood while in the furnace. Despite Morton’s testimony, the preponderance of circumstantial evidence against Webster was bolstered through statements by prominent witnesses for the state, such as Oliver Wendell Holmes, who testified: “I am familiar with the appearance of Dr. Parkman’s form, and I saw nothing dissimilar” in the discovered remains (qtd. in Sullivan 89). In terms of probative value, Holmes’s testimony was not particularly compelling, but it shows how evidence gains authority because of the stature of expert witnesses.

27. Sullivan 144.

28. Ibid., 172.

29. Member of the Legal Profession, A Statement of Reasons Showing the Illegality of That Verdict upon Which Sentence Has Been Pronounced against John W. Webster for the Alleged Murder of George Parkman (New York: Stringer & Townsend, 1850), 22.

30. Qtd. in Sullivan 169.

31. For witness testimony that Parkman was seen walking the streets of Boston after he was allegedly murdered, see Stone 158–63.

32. In his Report (New York: Arno Press, 1974), O’Sullivan claims: “There have been cases in which men have been hung on the most positive testimony to identity, (aided by many suspicious circumstances,) by persons familiar with their appearance, which have afterward proved grievous mistakes, growing out of remarkable personal resemblances” (188–89).

33. Ibid., 116–17, emphasis in original.

34. Spear, Essays on the Punishment of Death (Boston: C. Spear, 1845), 107–21.

35. Quinby, The Gallows, the Prison, and the Poor-House: A Plea for Humanity; Showing the Demands of Christianity in Behalf of the Criminal and Perishing Classes (Cincinnati: G. W. Quinby, 1856), 58–59, emphasis in original.

36. Ibid., 59.

37. Quod, “Harry Black, a Story of Circumstantial Evidence, Founded on Fact,” Democratic Review 11:53 (1842): 508–28.

38. Ibid., 527.

39. See both Mayo, “The Captain’s Story,” Democratic Review 18:94 (1846): 305–11, and Mayo’s collection, Romance Dust from the Historic Placer (New York: Putnam, 1851), 34–54.

40. Mayo, “The Captain’s Story,” in Romance Dust from the Historic Placer, 34. Hereafter cited in text parenthetically.

41. Alice Gray [pseud. Julia A. Matthews], “The Red Cloak; or, Murder at the Roadside Inn,” Lily Huson; or, Early Struggles ‘Midst Continual Hope: A Tale of Humble Life (New York: H. Long and Brother, 1851), 286–301.

42. Ibid., 286.

43. Qtd. in James W. Stone, Report of the Trial of Prof. John W. Webster Indicted for the Murder of Dr. George Parkman (Boston: Phillips & Sampson, 1850), 277. Hereafter cited in text parenthetically.

44. Welsh 17, 24.

45. For a discussion of photography and its legal uses in nineteenth-century American courtrooms, see Jennifer L. Mnookin, “The Image of Truth: Photographic Evidence and the Power of Analogy,” Yale Journal of the Humanities 10:1 (1998): 1–74. Photography and the daguerreotype have long interested critics of The House of the Seven Gables. For two excellent recent discussions, see Alan Trachtenberg, “Seeing and Believing: Hawthorne’s Reflections on the Daguerreotype in The House of the Seven Gables,” American Literary History 9:3 (1997): 460–81, and Susan S. Williams, “The Aspiring Purpose of an Ambitious Demagogue: Portraiture and The House of the Seven Gables,” Nineteenth-Century Literature 49:2 (1994): 221–44.

46. The first critic to treat Jaffrey Pyncheon’s death as a murder was Alfred H. Marks in his 1956 essay, “Who Killed Judge Pyncheon? The Role of the Imagination in The House of the Seven Gables,” PMLA 17 (1956): 355–69. According to Marks, the evidence suggests that Clifford is responsible for the judge’s death insofar as his ghostly apparition startled the judge and induced the heart attack that killed him. More recently, Clara B. Cox has made a case for Holgrave as the judge’s murderer in “ ‘Who Killed Judge Pyncheon?’ The Scene of the Crime Revisited,” Studies in American Fiction 16:1 (1988): 99–103. Challenging Marks’s theory, she fingers Holgrave for the crime for several reasons. To begin with, not only was Holgrave in the house at the time of the judge’s death but, as a descendant of Matthew Maule, he had good reason to see dead the present-day Pyncheon, who most resembles the Puritan forebear who led the crusade against his forefather. Moreover, whereas Clifford and Hepzibah, like Holgrave, had the opportunity to commit the crime as well as their own motive for seeing Judge Pyncheon dead, only Holgrave, Cox argues, possessed the means of precipitating the judge’s death as it occurred. He knew of the Pyncheons’ predisposition to apoplexy, and this fact, along with his own skills in mesmerism, could enable him to place the judge in a hypnotic state conducive to producing a heart attack.

Cox’s argument is even more compelling if we consider evidence that she does not: namely, Holgrave’s curious explanation to Phoebe about why he had taken the photograph of the dead judge: “As a point of evidence that may be useful to Clifford,” Holgrave explains, “and also as a memorial valuable to myself,—for, Phoebe, there are hereditary reasons that connect me strangely with that man’s fate,—I used the means at my disposal to preserve this pictorial record of Judge Pyncheon’s death” (Seven Gables 303). Holgrave never makes it clear how this evidence “may be useful to Clifford,” but as a “memorial valuable” to himself, coupled with a cryptic admission that his own past is “strangely” connected with the dead man’s “fate,” his statement suggests his own ill will toward the judge—evidence that could be used against him. Moreover, as material evidence, the picture not only places Holgrave at a potential crime scene but could be interpreted as Holgrave’s self-conscious effort to create evidence—a manipulation of circumstances similar to the act with which Holgrave charges the judge in the death of old Jaffrey.

In addition to Marks and Cox, Paul J. Emmett has entertained the question, “Who Killed Judge Pyncheon?” For Emmett, the most likely suspect is neither Clifford nor Holgrave but rather Hepzibah. See Emmett, “The Murder of Judge Pyncheon: Confusion and Suggestion in The House of the Seven Gables,” Journal of Evolutionary Psychology 24 (2003): 189–95.

47. Arendt, The Human Condition (Chicago: U of Chicago P, 1958), 183.

48. Ibid., 237.

49. Ibid.

50. In his excellent study, Devils and Rebels: The Making of Hawthorne’s Damned Politics (Ann Arbor: U of Michigan P, 2008), Larry J. Reynolds “posits that a Christian pacifism, not unlike that of the Quakers, serves as the foundation of [Hawthorne’s] politics . . .” (xvi). If Reynolds is correct (as I believe he is), then the vindictive violence of The House of the Seven Gables’ “Governor Pyncheon” chapter is all the more conspicuous. Drawing from Jacques Derrida’s analysis of “that dangerous supplement” in Of Grammatology, trans. Gayatri Chakravorty Spivak (Baltimore: Johns Hopkins UP, 1974), I argue here that the violence expressed through Judge Pyncheon’s death supplements or undercuts the novel’s principle message of reconciliation and forgiveness.

51. That the judge’s death takes shape as if it were an execution has been suggested by more than one critic. Walter Benn Michaels, in his monumental The Gold Standard and the Logic of Naturalism: American Literature at the Turn of the Century (Berkeley and Los Angeles: U of California P, 1987), has characterized the mean-spirited joy with which Hawthorne celebrates the judge’s sudden demise as an “execution,” whereas Marks, in his seminal essay, “Who Killed Judge Pyncheon?” charges Hawthorne with killing the judge and argues: “No murder was ever planned so calculatedly as was Judge Pyncheon’s demise in this novel” (355). Michaels, in The Gold Standard, characterizes the judge’s death more directly as an “execution,” using that term himself: “Celebrating the death—one might better call it the execution—of Judge Pyncheon, the romance joins the witch hunt, the attempt to imagine an escape from capitalism, defending the self against possession, property against appropriation, and choosing death over life (101, emphasis added).

52. Hawthorne, The Scarlet Letter (Columbus: Ohio UP, 1962), 43.

53. For the most comprehensive account of Hawthorne’s firing and Upham’s involvement in it, see Stephen Nissenbaum, “The Firing of Nathaniel Hawthorne,” Essex Institute Historical Collections 144 (April 1978): 57–86. For a representative account, see also Moore, The Salem World of Nathaniel Hawthorne, 185–97.

54. Hawthorne, The Scarlet Letter, 48.

55. Banner, The Death Penalty: An American History (Cambridge, MA: Harvard UP, 2002), 65.

56. Hawthorne, The Blithedale Romance (Columbus: Ohio State UP, 1962), 214.

57. Ibid.

58. Hawthorne, The Marble Faun (Columbus: Ohio State UP, 1968), 168.

59. Ibid., 170.

60. Ferguson, Law and Letters in American Culture (Cambridge, MA: Harvard UP, 1984), 240.

61. Noting the chapter’s fame today and popularity during its own time, biographer James Mellow calls it “a high point in the book and a great set piece in nineteenth-century American writing” (361).

62. Hawthorne, The Blithedale Romance, 241.

63. Stewart, Death Sentences: Styles of Dying in British Fiction (Cambridge, MA: Harvard UP, 1984), 15.

64. See Edward L. Widmer, Young America: The Flowering of Democracy in New York City (Oxford: Oxford UP, 2000), esp. 66–83.

65. David Brion Davis articulates this argument in his classic study, Homicide in American Fiction, 1798–1860: A Study in Social Values (Ithaca: Cornell UP, 1957): “Although advocates of capital punishment usually began their argument by citing Old Testament authority and by denying historical progress, the legal profession found a more persuasive doctrine in a new philosophy of justice. In 1843, George Barrell Cheever spoke of ‘intrinsic justice’ and of ‘moral necessity,’ which required that murderers be punished invariably with death” (296–97).

66. Hawthorne, “Chiefly about War Matters,” Atlantic Monthly, July 1862, 54.

67. Ibid.

68. Ibid.

CHAPTER 5. Melville, MacKenzie, and Military Executions

1. Melville, Battle-Pieces and Aspects of War, ed. Hennig Cohen (New York: Thomas Yoseloff, 1963), 35.

2. Despite Christological references (e.g., “the cut on the crown” and “the streaming beard”), Melville’s Brown is more of a trope (“meteor of the war”) than the eulogized or sentimental figure variously depicted by Thoreau, Whittier, and Emerson in the depictions of Brown I discussed to end chapter 4. For a discussion of Melville’s representation of Brown alongside those of Thoreau and Whitman, see Kent Ljungquist, “Meteor of the War: Melville, Thoreau, and Whitman Respond to John Brown,” American Literature 61:4 (1998): 674–80.

3. Robert I. Alotta, Civil War Justice: Union Army Executions under Lincoln (Ship-pensburg, PA: White Mane, 1989), x. For a list of the 167 known soldiers known to be executed during the war, see the appendix to Alotta’s study.

4. Melville, Typee: A Peep at Polynesian Life (Evanston, IL: Northwestern UP, 1968), 125.

5. Ibid.

6. Ibid.

7. Ibid.

8. My understanding of MacKenzie’s life and career is indebted to Philip James McFarland, Sea Dangers: The Affair of the Somers (New York: Schocken, 1985), which presents the most thorough biographical treatment of MacKenzie. See also Barbara Ryan’s “Alexander Slidell Mackenzie,” in American Travel Writers, 1776–1864, ed. James J. Schramer and Donald Ross (Detroit: Gale, 1997), 224–30.

9. The Somers affair, especially in Melville scholarship of the 1940s and 50s, is a recognized source for White-Jacket and especially Billy Budd. It has also served (often briefly) as a point of reference for numerous critics. Brook Thomas is virtually the only literary critic to examine MacKenzie’s actual writings in relation to Melville’s work. However, whereas Thomas looks at MacKenzie’s North American Review “Ship” essay as well as his “Defence in the Case of the Somers’ Mutiny,” I examine Melville in relation to MacKenzie’s two travel narratives, A Year in Spain: By a Young American (Boston: Hilliard, Gray, Little and Wilkins) and Spain Revisited (London: Richard Bentley, 1836), in addition to MacKenzie’s essay, “The Navy,” North American Review 30:67 (1830): 360–89.

10. Philip English Mackey, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776–1861 (New York: Garland, 1982), 172.

11. Stuart Banner’s otherwise superb and comprehensive The Death Penalty: An American History (Cambridge, MA: Harvard UP, 2002) largely overlooks the significance of capital punishment in a Civil War context, noting “the movement to abolish the death penalty tailed off in the late 1850s, as sectional controversy and slavery crowded out other issues, and the movement virtually ceased during the Civil War” (134). Similarly, Louis Masur’s excellent intellectual history Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (Oxford: Oxford UP, 1991) says nothing about the widespread military executions during the war, whereas Daniel A. Cohen’s Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674–1860 (Oxford: Oxford UP, 1994) and Karen Halttunen’s Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard UP, 1998) end before the Civil War begins. Paul Jones’s Against the Gallows (Iowa City: U of Iowa P, 2011) follows this pattern by examining literature in relation to death penalty reform before the Civil War.

12. My understanding of civil liberties in the context of the Civil War owes much to Brook Thomas’s Civic Myths: A Law-and-Literature Approach to Citizenship (Chapel Hill: U of North Carolina P, 2008), although Thomas’s work does not focus on Melville. My treatment of Melville’s work in this context draws from Stanton Garner, The Civil War World of Herman Melville (Lawrence: UP of Kansas, 1993), Deak Nabers, Victory of Law: the Fourteenth Amendment, the Civil War, and American Literature, 1852–1867 (Baltimore: Johns Hopkins UP, 2006), Michael T. Gilmore, The War on Words: Slavery, Race, and Free Speech in American Literature (Chicago: U of Chicago P, 2010), and Gregory Jay, “Douglass, Melville, and the Lynching of Billy Budd,” in Frederick Douglass and Herman Melville: Essays in Relation, ed. Robert S. Levine and Samuel Otter (Chapel Hill: U of North Carolina P, 2008), 369–95.

13. Michael Paul Rogin connects Melville’s participation in a mutiny on the Lucy Ann, an act for which he was imprisoned in Tahiti in 1842, with news of the Somers affair. See Rogin, Subversive Genealogy: The Politics and Art of Herman Melville (Berkeley and Los Angeles: U of California P), 84. See also Hershel Parker, Herman Melville: A Biography, 1819–1851 (Baltimore: Johns Hopkins UP, 2005), 264.

14. MacKenzie, “The Navy,” 361.

15. “The Brig Somers,” Scientific American 2:16 (1847): 125.

16. Qtd. in Hayford, ed., The Somers Mutiny Affair (Englewood Cliffs: Prentice Hall, 1959), 75. Further references to sources from this text hereafter cited in text parenthetically.

17. New York Tribune, Dec. 22, 1842.

18. For representative accounts of how print technology in the 1830s and 1840s led to a proliferation of crime literature, see David Ray Papke, Framing the Criminal: Crime, Cultural Work, and the Loss of Critical Perspective, 1830–1900 (Hamden: Archon Books, 1987); Cohen; Halttunen; and Banner.

19. Liberator, Jan. 27, 1843.

20. Mackey, Hanging in the Balance, 173.

21. See chapter 2, note 40, for Melville’s reference in “Bartleby” to the Colt murder.

22. For an account of the Tribune’s anti-gallows activism, see Mackey, Hanging in the Balance, 152–53, 173–76, 191–94.

23. New York Tribune, Dec. 22, 1842.

24. New York Tribune, Dec. 31, 1842.

25. Philip English Mackey, Voices against Death: American Opposition to Capital Punishment, 1787–1977 (New York: Burt Franklin, 1977), 111.

26. Merton M. Sealts has identified Greeley’s Hints of Reform as a source in his “Check List” (Nos. 81, 234) in Melville’s Reading (Columbia: U of South Carolina P, 1988), 61.

27. In addition to Greeley’s Proceedings of the Court of Inquiry Appointed to Inquire into the Intended Mutiny on Board the United States Brig of War Somers . . . , Reported for “The New-York Tribune” (New York: Greeley & McElrath, 1843), see Proceedings of the Naval Court Martial in the Case of Alexander Slidell MacKenzie . . . , to Which Is Annexed an Elaborate Review, by James Fennimore [sic] Cooper (New York: Henry G. Langley, 1844), and MacKenzie’s own Case of the Somers’ Mutiny (New York: Tribune Office, 1843).

28. Melville, White Jacket; or, The World in a Man-of-War (Evanston, IL: Northwestern UP, 1990), 293. Hereafter cited in text parenthetically.

29. Banner 54.

30. Ibid.

31. Hawthorne, The Scarlet Letter (Columbus: Ohio State UP, 1962), 49.

32. Glenn, “The Naval Reform Campaign against Flogging: A Case Study in Changing Attitudes toward Corporal Punishment, 1830–1850,” American Quarterly 35 (1983): 408–25, 409. See also H. Edward Stessel, “Melville’s White-Jacket: A Case against the ‘Cat,’ ” Clio 13 (1983): 37–55.

33. Greeley, Hints toward Reforms in Lectures, Addresses, and Other Writings (New York: Harper and Brothers, 1850), 334, 335, emphasis in original.

34. For representative accounts of Melville’s criticism of slavery in White-Jacket, see Priscilla Allen Zirker, “Evidence of the Slavery Dilemma in White-Jacket,” American Quarterly 18 (1966): 477–92; Keith Huntress, “ ‘Guinea’ of White-Jacket and Chief Justice Shaw,” American Literature: A Journal of Literary History, Criticism, and Bibliography 43:4 (1972): 639–41; Carolyn Karcher, Shadow over the Promised Land: Slavery, Race, and Violence in Melville’s America (Baton Rouge: Louisiana State UP, 1980); Thomas, Cross Examinations in Law and Literature (Cambridge: Cambridge UP, 1987), 149, 161; and Samuel Otter, “ ‘Race’ in Typee and White-Jacket,” in The Cambridge Companion to Herman Melville, ed. Robert S. Levine (Cambridge: Cambridge UP, 1998), 12–36.

35. Thomas, Civic Myths, 92. My discussion in what follows owes much to Thomas’s analysis of the ship-of-state trope in both Cross-Examinations and Civic Myths. Whereas Thomas in Cross-Examinations examines the trope in Melville’s work (particularly White-Jacket) and antebellum culture at large, in Civic Myths he traces it from the Somers case through Lincoln’s and Sumner’s writings during the Civil War. Drawing from both these works, I link Melville’s and MacKenzie’s use of the trope to a Civil War context that informed theories of military authority under the Lincoln administration.

36. Whitman, Complete Poetry and Collected Prose (New York: New York UP, 1963), 467.

37. Longfellow, “The Building of the Ship,” in Works, vol. 1, ed. Samuel Longfellow (Boston: Houghton Mifflin, 1886), 225.

38. Thomas, Civic Myths, 92.

39. In addition to both Thomas’s Cross-Examinations (151–55) and Civic Myths (9295), for a discussion of the importance of MacKenzie’s work in the shaping of Longfellow’s poem, see Hans-Joachim Lang and Fritz Fleischman, “ ‘All This Beauty, All This Grace’: Longfellow’s ‘The Building of the Ship’ and Alexander MacKenzie’s ‘Ship,’ ” New England Quarterly 54 (1981): 104–18.

40. Thomas, Civic Myths, 103–17.

41. MacKenzie, “The Navy,” 361.

42. See Jean-Jacques Rousseau, On The Social Contract, in The Basic Political Writings, trans. Donald A. Cress (Indianapolis: Hackett, 1987), esp. 147–48, for Rousseau’s political theory of the “general will.”

43. For a detailed account of Melville’s attendance at the Mannings’ execution, see Charlotte H. Lindgren’s “The Trial and Execution of the Mannings,” Melville Society Extracts 123 (July 2002): 5–9. The Mannings’ execution is also briefly discussed by Jay Leyda, The Melville Long: A Documentary Life of Herman Melville, 1819–1891 (New York: Harcourt & Brace, 1951), 330–31.

44. Qtd. in Lindgren 7.

45. Ibid.

46. Pere Gifra-Adroher, Between History and Romance: Travel Writing on Spain in the Early Nineteenth-Century United States (London: Farleigh Dickinson UP, 2000), 96.

47. MacKenzie, A Year in Spain: By a Young American, vol. 1 (London: John Murray, 1830), 337. Hereafter cited in text parenthetically.

48. Qtd. in McFarland 7. Irving’s review of A Year in Spain was published in the Quarterly Review 44 (Feb. 1831): 319–42.

49. Duyckinck, “Death by Hanging,” Arcturus: A Journal of Books and Opinion 3 (Jan. 1842): 98–103, 99–100. Six months earlier, Duyckinck had published another article on the subject: “The City Article: Capital Punishment,” Arcturus 8 (July 1841): 115–22. See Mackey, Hanging in the Balance, 152–53, for Duyckinck’s promotion of the anti-gallows cause.

50. As McFarland, quoting from a letter Longfellow had written to MacKenzie, characterizes Longfellow’s decision not to attend the execution: “The young scholar was quarrelling with himself every day, so he said, ‘for not having seen more bullfights—and sometimes fret myself into a fever for not having been hard-hearted enough to see the tragedies of the Plaza de Cebaba’: those hangings of two robbers that [MacKenzie] had witnessed in Madrid and described so vividly” (23).

51. Mackenzie, Spain Revisited, vol. 1 (New York: Harper & Brothers, 1836), 364.

52. Ibid., 359.

53. Ibid., 357.

54. MacKenzie, Case of the Somers’ Mutiny: Defense of Alexander MacKenzie, Commander of the U.S. Brig Somers, before the Court Martial Held at the Navy Yard, Brooklyn (New York: Tribune Office, 1843), 30.

55. Thomas, Cross-Examinations, 208.

56. Sumner, “The Mutiny on the Somers,” North American Review 57:120 (1843): 195. Hereafter cited in text parenthetically.

57. For the article to which Sumner alludes here, see “The Case of the Somers,” Law Reporter 6, ed. Peleg W. Chandler (Boston: Bradbury, Soden, and Co., 1844): 1–13.

58. Sumner, “Against Capital Punishment,” Letter to a Committee of the Massachusetts Legislature, Feb. 12, 1855, in The Works of Charles Sumner, vol. 3 (Boston: Lee and Sheard, 1871), 526.

59. In a letter dated May 22, 1868, published in Marvin H. Bovee’s Christ and the Gallows; or, Reasons for the Abolition of Capital Punishment (New York: Masonic Publishing Company, 1869), Longfellow provided a brief statement in support of abolishing capital punishment, noting “I am, and have been for many years, an opponent of capital punishment.” Longfellow concluded the letter by “[w]ishing [Bovee] complete success in effacing the death penalty from all the statute books of our country” (287).

60. Sumner, “Rights of Sovereignty and Rights of War: Two Sources of Power against the Rebellion,” in The Works of Charles Sumner, vol. 7 (Boston: Lee and Sheard, 1872), 24.

61. Ibid., 34.

62. Ibid., 52.

63. Thomas, Civic Myths, 92–94.

64. “Appendix Two: Descriptive List of Soldiers Executed,” in Alotta’s Civil War Justice, 202–9. Unless otherwise noted, my reference to Civil War executions draws from the data provided in Alotta’s appendix.

65. Qtd. in Brian McGinty, Lincoln and the Court (Cambridge, MA: Harvard UP, 2009), 186.

66. Nabers 21.

67. Banner, for instance, notes that “the movement to abolish the death penalty tailed off in the late 1850s, as sectional controversy and slavery crowded out other issues, and then the movement virtually ceased during the Civil War” (134). See also David Brion Davis, “The Movement to Abolish Capital Punishment in America, 1787–1861,” American Historical Review 63:1 (1957): 44–46. Historian Mackey also notes that the Mexican-American War attributed to the demise of the anti-gallows movement: “The reasons were many,” Mackey writes in reference to the movement’s loss of momentum, “but the paramount problem was the Mexican War and the factionalism and sectionalism it fostered” (Voices xxvii). Haines in Against Capital Punishment: The Anti-Death Penalty Movement in America, 1972–1994 (Oxford: Oxford UP, 1996), similarly argues that the “anti-death penalty movement began to lose its momentum during the late 1840s, due largely to the distracting effects of the Mexican War and to growing North-South tensions over slavery” (9).

68. Bovee v.

69. Ibid., vii-viii.

70. Stedman, “The Gallows in America,” Putnam’s Magazine 13 (Feb. 1869): 225–35, 227. H. Bruce Franklin has connected Stedman to Melville and the writing of Billy Budd: “Stedman met Melville in 1888. On October 20, 1888, Melville returned books lent to him by Stedman with a letter in which he wrote, ‘And your own book in many of its views has proved either corroborative or suggestive to me.’ In 1890 Stedman arranged a dinner for Melville at the Author’s Club, one of the few recognitions of the author in his later years. Stedman’s son Arthur became a good friend of Melville in the last two years of the writer’s life and after Melville’s death worked with Elizabeth Melville in reissuing four of his books” (358). See Franklin, “Billy Budd and Capital Punishment: A Tale of Three Centuries,” American Literature 69:2 (1997): 337–59.

71. Stedman 232.

72. Banner 169–76.

73. Stedman 227.

74. “Is Death Painful?,” Putnam’s Magazine 15 (Mar. 1870): 311–18; “Hanging as One of the Fine Arts,” Appleton’s Journal of Literature, Science and Art, Dec. 3, 1870, 670–71, 670. I draw upon this example from Appleton’s, and the one following from Harper’s, in the introduction I coauthored to Transatlantic Sensations. See John Cyril Barton and Jennifer Phegley, “Introduction: An Age of Sensation . . . Across the Atlantic,” in Transatlantic Sensations (Surrey: Ashgate Press, 2012), 1–22.

75. “The Guillotine,” Harper’s New Monthly Magazine, July 1872, 186–87, 187.

76. “Nebulae,” Galaxy 15:5 (1873): 721–24, 721.

77. Nadal, “The Rationale of the Opposition to Capital Punishment,” North American Review 116:283 (1873): 140–50, 140.

78. Ibid.

79. Ibid., 145. Prescient in this regard, Nadal’s argument here prefigures Jacques Derrida’s influential deconstruction of law/justice and the undecidability of the “just” decision. Derrida, in an oft-cited example, speaks of a judge merely enforcing the law as a “calculating machine” that does not “ensure justice but mere conformity to the law”; see Derrida, “Force of Law: ‘The Mystical Foundation of Authority,’ ” Cardozo Law Review 11:5–6 (1990): 920–1045, 961. Nadal a century earlier criticizes the role of a governor in a capital case who acts as a “mere executive machine.” In Nadal’s words: “It will not do to say that the governor is a mere executive machine, that his function is not a judicial one, and that his only business is to see the sentence of the law properly carried out.” This aspect of judicial review is one of the disturbing “things” Nadal finds wrong in the “absent-minded, mechanical manner” in which “we go on hanging people” (Nadal 140, 143).

80. Wilkerson v. Utah, 99 U.S. 130 (1873).

81. Philips, “The Death Penalty,” North American Review 133:301 (1881): 550–60.

82. Cheever, “The Death Penalty,” North American Review 133:301 (1881): 534–41, 535.

83. Hand, “The Death Penalty,” North American Review 133:301 (1881): 541–50, 541.

84. Ibid., 542.

85. Mackey, Voices, 141.

86. Franklin 338. Franklin also discusses Curtis’s campaign in the context of Billy Budd and offers an excellent analysis of “the battle of the currents” over electrocution as a proposed method of lawful death as Melville was writing Billy Budd. In addition to Banner’s The Death Penalty, see also Elizabeth Barnes, “Communicable Violence and the Problem of Capital Punishment in New England, 1830–1890,” Modern Language Studies 30:1 (2000): 7–26, for an insightful discussion of the emergence of the electric chair in late nineteenth-century American culture.

87. Franklin 338.

88. These two competing schools of thought emerged, first, with E. L. Grant Watson’s seminal essay “Melville’s Testament of Acceptance,” New England Quarterly 6:2 (1933): 319–37, and Phil Withim’s influential response, “Billy Budd: Testament of Resistance,” Modern Language Quarterly 20:2 (1959): 115–27. Also known respectively as “straight” and “ironic” readings, these approaches have directly influenced dozens of essays and books—too numerous to cite here—and indirectly affected many more dealing with Billy Budd and how one interprets Vere’s argument for Billy’s execution as well as the hanging scene itself.

89. Charles Roberts Anderson first argued for the importance of the Somers affair as a source in “The Genesis of Billy Budd,” American Literature 12 (Nov. 1940): 328–46. Additional evidence is discussed in Arvin Newton, “A Note on the Background of Billy Budd,” American Literature 20 (Mar. 1948): 51–55. Other early essays in which the Somers plays a prominent role include Edward H. Rosenberry, “The Problem of Billy Budd,” PLMA 80:5 (1965): 489–98; Norman Holmes Pearson, “Billy Budd: The King’s Yarn,” American Quarterly 3:2 (1951): 99–114; David Ketterer, “Some Co-ordinates in Billy Budd,” Journal of American Studies 3:2 (1969): 221–37; Richard Harter Fogle, “Billy Budd: The Order of the Fall,” Nineteenth-Century Fiction 15:3 (1960): 189–205; Roland A. Duerksen, “The Deep Quandary in Billy Budd,” New England Quarterly 41:1 (Mar. 1968): 51–66; C. B. Ives, “Billy Budd and the Articles of War,” American Literature 34:1 (1962): 31–39. Since the mid-1960s, only a handful of critics have worked closely with the Somers as a source for Billy Budd. For instance, see Rogin 288–316; Thomas, Cross-Examinations, 152–55, 206–14; Caleb Crain, American Sympathy: Men, Friendship, and Literature in the New Nation (New Haven: Yale UP, 2001), 258–62; and Wyn Kelly, “Tender Kinswoman: Gail Hamilton and Gendered Justice in Billy Budd,” in Melville & Women, ed. Elizabeth A. Schultz and Heskill Springer (Kent, Ohio: Kent State UP, 2006), 98–117.

90. In their introduction to the authoritative edition of Billy Budd (Chicago: U of Chicago P, 1962), Harrison Hayford and Merton M. Sealts Jr. argue: “The commonly accepted view that the Somers mutiny case was in effect the ‘source’ of Billy Budd must be modified. The assumption has been, in general, that when Melville set out to write the story he adapted his central characters and situations from those involved in the events aboard the American brig-of-war.” Summarizing the case and its influence on Billy Budd’s trial scene and “Tom Tight” from John Marr and Other Sailors, Hayford and Sealts acknowledge “obvious similarities in the two cases” but also point to “obvious differences,” emphasizing the latter (28). “Freed from what has seemed a sufficient ‘source’ in the Somers mutiny case,” they conclude, “scholars may now reassess the importance of the case relative to that of such literary parallels as those pointed out by McElderry and by Richard Gollin in Douglass Jerrold’s Black-Ey d Susan and The Mutiny at the Nore and Marryat’s The King’s Own—parallels far closer to Billy himself as a character and to this original situation than anything in the Somers case. Scholars may also be encouraged to look for new parallels and sources. In literature, for example, the naval novels of Cooper offer a surprising number of affinities, in characters, situations, and themes, as well as in particulars of style and phrasing. His Two Admirals and Wing-and-Wing are especially suggestive, the former having a naval officer not unlike Captain Vere, the latter having a setting in Nelson’s fleet in the Mediterranean waters and containing navel trial scenes and a hanging at the yardarm” (30). These works (and others) may have influenced Melville’s writing of Billy Budd, but it is important to keep in mind that the Somers affair, unlike these other (possible) sources, is explicitly invoked.

91. See Robert K. Wallace, “Billy Budd and the Haymarket Hangings,” American Literature 47:1 (1975): 108–13; Sanford E. Marovitz, “Melville among the Realists: W. D. Howells and the Writing of Billy Budd,” American Literary Realism 34:1 (2001): 29–46; and Larry J. Reynolds, “Billy Budd and American Labour Unrest: The Case for Striking Back,” in New Essays on Billy Budd, ed. Donald Yannella (Cambridge: Cambridge UP, 2002), 21–47.

92. “Speculative” is Michael T. Gilmore’s term for his provocative reading of Billy Budd in the context of Civil War and (post-)Reconstruction politics in “Speak, Man! Billy Budd in the Crucible of Reconstruction,” American Literary History 21:3 (2009): 492–517. As Gilmore describes his approach: “What follows is a speculative reading of Billy Budd in light of the historical currents shaping the culture after Reconstruction. The interpretation can only be speculative because Melville goes to great lengths to efface his own context, and because assertions of certainty would violate the tale’s investment in the unsaid and the provisional. Caution is further enjoined by the absence of hard evidence about Melville’s politics in this period. About this thinking on post-Reconstruction concordat, there are hints but nothing definitive” (499). Gregory Jay, whose work Gilmore admiringly cites (492, 513–14), offers an equally rich and suggestive reading of Billy Budd in terms of lynching and post-Reconstruction race relations. See Jay, “Douglass, Melville, and the Lynching of Billy Budd,” in Frederick Douglass and Herman Melville: Essays in Relation, ed. Robert S. Levine and Samuel Otter (Chapel Hill: U of North Carolina P, 2008), 369–95. Jay begins his essay by posing what at first seems a preposterous question: “Was Billy Budd lynched?” (369). Stantan Garner, on whose work my understanding of Melville and the Civil War most heavily draws, has produced a masterwork in such speculative criticism through his well-documented The Civil War World of Herman Melville.

93. Lieutenant H. D. Smith, “The Mutiny on the Somers,” American Magazine 8 (June 1888): 109–14, 109.

94. Anderson was the first to claim that Melville had read and was influenced by Smith and Hamilton in his 1940 American Literature essay, “The Genesis of Billy Budd.” Other earlier critics, such as Leon Howard in Herman Melville: A Biography (Berkeley and Los Angeles: U of California P, 1951), 352, and Robert Penn Warren, ed., in Selected Poetry of Herman Melville (New York: Random House, 1967), 82–83, speculate about Melville’s use of these two sources. In Melville’s Sources (Evanston: Northwestern UP, 1987), Mary Bercaw Edwards identifies both Smith and Hamilton as sources for Billy Budd (54, 86, 120).

95. Smith 109.

96. Ibid., 112.

97. Alotta 4.

98. Ibid.

99. Smith 112.

100. Ibid., 113.

101. Hamilton, “The Murder of Philip Spencer,” Cosmopolitan 7 (June–Aug. 1889): 133–40, 248–55, 345–54, 133.

102. Ibid., 134.

103. Ibid., 249, 250.

104. Kelly 102.

105. Melville, Billy Budd, ed. Hayford and Sealts, 114. Hereafter cited in text parenthetically.

106. See the editors’ note for leaf 282 of Billy Budd, 183.

107. Rogin 7.

108. Ibid., 297.

109. Jones, Against the Gallows: Antebellum Writers and the Movement to Abolish Capital Punishment (Iowa City: U of Iowa P, 2011), 23.

110. Moreover, Shaw’s own dilemma may have been very different from how Jones imagines it. Shaw could have easily been personally against the death penalty but felt compelled to comply with capital laws, just as he personally was against slavery but felt obliged to uphold the Fugitive Slave Act in his rulings. In fact, the dilemma Shaw faced when ruling on fugitive slave cases is a central point of what Robert Cover calls the “moral-formal dilemma” in his classic study, Justice Accused (New Haven: Yale UP, 1975).

111. In particular, see the conclusion to Franklin’s essay, 353–54.

112. See the discussion of “The Judicial ‘Can’t,’ ” in Cover 119–23.

113. Qtd. in ibid., 119–20.

114. See Nabers 30–32.

115. Melville, Battle-Pieces, 169–70.

116. Ibid., 254.

117. Franklin 350.

118. Lincoln, Lincoln Speeches and Writings, 1859–65, ed. Don E. Fehrenbacher, vol. 2 (New York: Library of America, 1989), 250.

119. Garner 301.

120. Ibid., 308.

121. Ibid.

122. See Hayford and Sealts’s “Editor’s Introduction: Growth of the Manuscript” to Billy Budd for a discussion of the relationship between “Billy in the Darbies” and what would become Billy Budd; see also their introduction for a discussion of the older “apparently guilty as charged” speaker of the ballad and the younger, “innocent” protagonist of the narrative (2).

123. Emerson, Life and Letters of Charles Russell Lowell (Boston: Houghton Mifflin, 1907), 451.

124. Emerson explains the circumstances and tacit approval of Lowell’s unlawful act: “It not being warranted by the Army Regulations for a subordinate officer to call a ‘Drumhead Court-martial’ and execute its sentence, except in case of emergency, when too far away to communicate with his superiors, and Colonel Lowell being in daily communication with headquarters at Washington, he expected, on reporting the matter that afternoon, to receive at least a severe reprimand. On the contrary, no mention was made of it at all. The fact probably was that General Augur, and Mr. Stanton, who would naturally be consulted in such a case, were both pleased at Colonel Lowell’s action, for if the case had been referred to Washington, the President would probably have pardoned the man, who was young and infatuated of a Southern girl; but they could not commend Colonel Lowell for going beyond the authority of the regulations, therefore deemed silence the best means of expressing their approval” (451).

125. See Hayford and Sealts’s “Editor’s Introduction: Growth of the Manuscript,” 1–12, for a discussion of the various stages in Melville’s composition of Billy Budd and Melville’s preoccupation with Vere’s character in later stages of revision.

126. Melville, “The Martyr,” in Battle-Pieces, 130. In an editorial note to this line, Hennig Cohen explains: “Lincoln’s office and his personality caused him to be affectionately known as ‘Father Abraham’ (e.g., in the Union recruiting song, ‘We Are Coming Father Abr’am’ by James Sloan Gibbons), echoing the phrase used by Christ in speaking of the Old Testament patriarch (Luke 16:30),” 266. For an extended discussion of Lincoln as national father figure, see William C. Davis’s Lincoln’s Men: How President Lincoln Became Father to an Army and a Nation (New York: Free Press, 1999), esp. chap. 9, “Where Are You Now, Father Abraham?” For a fascinating discussion of Lincoln as a figure in collective memory following the Civil War, see Barry Schwartz’s Lincoln and the Forge of National Memory (Chicago: U of Chicago P, 2000), especially part 1 of his study, “Nineteenth Century: Symbolizing Nationhood.”

127. Melville’s note to “The Frenzy in the Wake,” in Battle-Pieces, 260.

CHAPTER 6. Capital Punishment and the Criminal Justice System in Dreiser’s An American Tragedy

1. “Nigger Jeff,” of course, is no Billy Budd in terms of the complexity of its composition and reception history. But as Donald Pizer notes, Dreiser did produce “three major versions” of the story from the time he covered an 1893 Missouri lynching as a young reporter for the St. Louis Republic to the story’s publication in Free and Other Stories (1918). See Pizer, “Theodore Dreiser’s ‘Nigger Jeff’: The Development of an Aesthetic,” American Literature 41:3 (1969): 332. Dreiser’s “Nigger Jeff” was first published in Ainslee’s Magazine in 1901 and later revised for inclusion in his collection Free and Other Stories. “A Victim of Justice,” Dreiser’s first version of the story, was written in the 1890s, whereas a later version, “The Lynching of Nigger Jeff,” served as a basis for the Ainslee publication. My references are to the 1918 version of “Nigger Jeff” published in Free and Other Stories (New York: Modern Library, 1918). See Pizer’s “Theodore Dreiser’s ‘Nigger Jeff’: The Development of an Aesthetic” for a discussion of the complex genesis of Dreiser’s lynching story.

2. For a provocative exploration of Billy Budd in the context of racial lynching, see Gregory Jay, “Douglass, Melville, and the Lynching of Billy Budd,” in Frederick Douglass and Herman Melville: Essays in Relation, ed. Robert S. Levine and Samuel Otter (Chapel Hill: U of North Carolina P, 2008), 369–95.

3. Dreiser, “Nigger Jeff,” 85. Hereafter cited in text parenthetically.

4. See Richard Lingeman, Theodore Dreiser: At the Gates of the City, 1871–1907 (New York: Putnam, 1986), 218.

5. The texts making up Ida B. Wells’s antilynching campaign provide the most comprehensive attack of lynching reports and apologies in the popular press. See Wells, Southern Horrors and Other Writing: The Anti-lynching Campaign of Ida B. Wells, 1892–1900, ed. Jacqueline Jones Royster (Boston: Bedford Books, 1997). By the time Dreiser began writing early versions of his lynching story in 1893, Wells had already published the first of her antilynching pamphlets, Southern Horrors: Lynch Law in All Its Phases (1892), which was followed by A Red Record: Tabulated Statistics and Alleged Causes of Lynchings in the United States (1895). A chief strategy in Wells’s campaign, as in Dreiser’s story, was to dramatize accounts of lethal mob violence as a form of antilynching protest.

6. Nadal, “The Rationale of the Opposition to Capital Punishment,” North American Review 116:283 (1873):138–50, 140, 145.

7. Gerber, “Society Should Ask Forgiveness,” in Theodore Dreiser (New York: Twayne, 1964), 148.

8. “If an outraged people, justly infuriated, and impatient of the slow processes of the courts, should assert their inherent sovereignty, which the law after all was merely intended to embody, and should choose, in obedience to the higher law, to set aside, temporarily, the ordinary judicial procedure, it would serve as a warning and an example to the vicious elements of the community, of the swift and terrible punishment which would fall, like the judgment of God, upon any one who laid sacrilegious hands upon white womanhood.” This proposition in support of lynching, although situated (and ironized) within the free-indirect discourse of Chesnutt’s narrative, comes from the perspective of Major Carteret and his entourage of “White Supremacists” at the Morning Chronicle. While Carteret uses his newspaper to disseminate racist propaganda throughout the novel, the preceding proposition is especially insidious in that it is later published in the paper as a means to incite the “people” of Wellington to form a lynch mob. In addition, references to the “people” here and elsewhere are particularly ironic given that two-thirds of the community of Wellington is black. See Chestnutt, The Marrow of Tradition, ed. Eric J. Sundquist (New York: Penguin, 1993), 186. For an analysis of Chesnutt’s novel in these terms, see John Cyril Barton, “The Necessity of an Example: Chesnutt’s The Marrow of Tradition and the Ohio Anti-lynching Campaign,” Arizona Quarterly 67:4 (2011): 27–58.

9. F. O. Matthiessen literally refers to An American Tragedy as a “documentary novel,” while Robert Penn Warren claims that “An American Tragedy can be taken as a document, both personal and historical.” See Matthiessen, “Of Crime and Punishment” [1950], in Theodore Dreiser (Connecticut: Greenwood P, 1973), 191, and Warren, Homage to Theodore Dreiser (New York: Random House, 1971), 141. For more recent discussions of An American Tragedy as “documentary” or as a social document, see Donald Pizer, The Novels of Theodore Dreiser (Minneapolis: U of Minnesota P, 1976), and Shelley Fisher Fishkin, From Fact to Fiction: Journalism & Imaginative Writing in America (Baltimore: Johns Hopkins UP, 1985).

10. My play on tragedy and travesty owes much to Sally Day Trigg, who writes about An American Tragedy as a “travesty” of justice. “The trial [Dreiser] describes,” she concludes, “is a travesty. The men who direct the proceedings are adversaries focused more on victory and political prizes than on truth. The jury, primed by sensational press accounts, is the epitome of partiality, basing their judgments on biases, emotions, and public opinion. And the defendant is a mechanism, construed by the forces of society and by his own nature and lacking the free will assumed by the law.” See Trigg, “Theodore Dreiser and the Criminal Justice System in An American Tragedy,” Studies in the Novel 22:4 (1990): 429–40, 438.

11. See Laski’s trilogy on this subject: Studies in the Problem of Sovereignty (New Haven: Yale UP, 1917), Authority in the Modern State (New Haven: Yale UP, 1919), and Foundations of Sovereignty and Other Essays (New York: Harcourt, Brace, 1921). In particular, see “Responsibility of the State in England,” in Foundations, which elaborates the concept of “state-responsibility.” This article first appeared in the Harvard Law Review 32:5 (1919): 447–72. In the context of international politics, it is interesting to note that the Brookings Institute in Washington, D.C., has drawn an explicit link between sovereignty and responsibility in its study, Sovereignty as Responsibility: Crises Management in Africa (Washington, DC: Brookings Institution, 1996).

12. Dreiser, An American Tragedy (New York: New American Library, 1964), 640. Hereafter cited in text parenthetically.

13. Sarat, “Narratives of Violence in Capital Trials,” Law & Society Review 27:1 (1993): 23. My point here differs slightly from the discussion of legal violence in Sarat’s essay. Sarat “focuses on the representation of violence in capital trials and the ways lawyers use linguistic structures to represent different kinds of violence.” In particular, he argues that legal violence, like violence outside the law, “must be put into language, and it must be put into language in a way that reassures us that law’s violence is different from and preferable to the violence it is used to punish and deter” (23).

14. Trigg 433.

15. Ibid.

16. Dan-Cohen, “Responsibility and the Boundaries of the Self,” Harvard Law Review 105 (1992): 950–1003, 966. My use of these terms is suggestive rather than restrictive. Dan-Cohen himself acknowledges that these “analogies are imprecise,” especially the comparison of a “total self” to a “motion picture.” He writes: “If the analogy between the total self and a motion picture were accurate, a total self would be simply the series of momentary selves put together sequentially. This is not quite what I have in mind, however. Instead, think of the total self as a single composite picture that incorporates all the momentary selves” (966).

17. Ibid., 961.

18. The famous opening paragraph to Oliver Wendell Holmes’s The Common Law (1881; Cambridge, MA: Harvard UP, 2009) nicely sums up key principles of American legal realism: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics” (3). For helpful studies of American legal realism, see Wilfrid E. Rumble, American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca: Cornell UP, 1968), and Wouter de Been, Legal Realism Regained: Saving Realism from Critical Acclaim (Stanford: Stanford Law Books, 2008).

19. Darrow, Debate Resolved: That Capital Punishment Is a Wise Public Policy (New York: League for Public Discussion, 1924), 32.

20. As one of Dreiser’s recent biographers notes: “Dreiser had followed the Leopold-Loeb trial closely in 1924 while he was writing the Tragedy, though he was more interested in the psychology of the murderers than in Darrow’s tactics” (Lingeman 288). For a discussion that examines the extent to which Dreiser was influenced by Darrow’s rhetorical strategies in arguing the Leopold and Loeb case, see David Guest, “Theodore Dreiser’s An American Tragedy: Resistance, Normalization, and Deterrence,” in Sentenced to Death: The American Novel and Capital Punishment (Jackson: UP of Mississippi, 1998), 45–74.

21. Darrow, Debate Resolved, 19. Hereafter cited in text parenthetically.

22. Darrow, Attorney for the Damned, ed. Arthur Weinberg (New York: Simon and Schuster, 1957), 25.

23. Ibid., 56.

24. Ibid., 24.

25. See Lecture III in J. L. Austin, How to Do Things with Words, ed. J. O. Urmson and Marina Sbisà (Cambridge, MA: Harvard UP, 1962), 25–38.

26. “Death,” Petrey writes, “the ultimate non-conventional event, eradicates all possibility of participation in collective procedures. Again, however, it isn’t obvious that we should demarcate certain deaths from a jury’s classically performative ‘We find the defendant guilty’ and a judge’s equally classic ‘I sentence you to be hanged by the neck until dead.’ Such utterances possess their illocutionary force solely through the conventions codified in Rule A. 1 [of Austin’s How to Do Things with Words], but it’s still silly to cut them off from the non-conventional death that follows them. Like war, death is such an overpowering physical reality that it seems obscene to compare it to the conventional reality underlying speech-act theory. Yet like a declaration of war, a condemnation to death is a speech act that can’t be convincingly separated from the events it authorizes. Illocutionary force, a purely conventional creation, is not a reality if we oppose that real and the conventional. Yet illocutionary force is eminently a force; the conventional creations of collective interaction dominate the lived experience of every one of the interaction’s participants.” See Petrey, Speech Acts and Literary Theory (New York: Routledge, 1990), 18–19.

27. “HOW NOT TO DO IT” refers, of course, to Dickens’s famous parody of the Circumlocution Office in Little Dorrit (Oxford: Oxford UP, 1982), 145–65. That Dickens initially planned to title the novel Nobody’s Fault suggests an affinity with Dreiser’s deferral of responsibility in the institutional structures of society. And as J. Hillis Miller has argued regarding the novel’s working title, to say that something is nobody’s fault “is another way of saying it is everybody’s fault, that the sad state of the world is the result of a collective human crime or selfishness, hypocrisy, weakness of will or sham.” See J. Hillis Miller, “Dickens’s Darkest Novel,” in Dickens: Dombey and Son and Little Dorrit, ed. Alan Shelston (London: Macmillan Publishers, 1985), 160. My comparison of Dreiser to Dickens in this regard, however, is merely suggestive. For unlike Dickens’s satire, Dreiser’s parody does not so much exaggerate legal language as it appropriates its official voice and style by situating it within the (ironizing) discourse of the novel. Compare, for instance, the passive construction of the death sentence pronounced upon Clyde to the one given to Nicola Sacco and Bartolomeo Vanzetti in the famous capital trial of 1927: “Nicola Sacco . . . Bartolomeo Vanzetti, it is ordered by the court that you suffer the punishment of death by the passage of a current of electricity through your body within the week beginning on Sunday, the tenth day of July, in the year of Our Lord, one thousand nine hundred and twenty-seven. This is the sentence of the law.” Qtd. in Howard Florence, “Shall the State Take Human Life?,” American Review of Reviews 75 (June 1927): 613–16, 613.

28. While Clyde’s affluent relatives ultimately refuse to provide financial assistance beyond the defense at the trial, the narrator alludes to the influential role money plays—or would have played, in Clyde’s case—from the perspective of Samuel and Gilbert Griffiths, Clyde’s wealthy uncle and cousin: “For as Mr. Griffiths and his son well knew . . . there were criminal lawyers deeply versed in the abstrusities and tricks of the criminal law. And any of them—no doubt—for a sufficient retainer, and irrespective of the primary look of a situation of this kind, might be induced to undertake such a defense. And, no doubt, via change of venue, motions, appeals, etc., they might and no doubt would be able to delay and eventually effect an ultimate verdict of something less than death, if such were the wishes of the head of this very important family” (588–89). For a discussion that focuses on the influential role of money in Clyde’s trial, see Guest’s “Theodore Dreiser’s An American Tragedy: Resistance, Normalization, and Deterrence.”

29. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, MA: MIT Press, [1922] 1985), 5.

30. As St. Jean, quoting Dreiser, argues, “Clyde himself doubts whether he is responsible: ‘And the thought that, after all, he had not really killed her. No, no. Thank God for that. He had not. And yet (stepping up on the near-by bank and shaking the water from his clothes) had he? Or had he not?’ (AT, 494). Clyde’s own wonder is a linguistic expression of irresolvable tension, of différance, and yet the overwhelming question obtrudes itself: is he guilty? This is precisely the question that book 3 concerns itself with: a massive search for the ‘truth’ which leads to the trial and the jury’s verdict” (13). See Shawn St. Jean, “Social Deconstruction and An American Tragedy,” Dreiser Studies 28 (Spring 1997): 3–24, 13.

31. Derrida, “Force of Law: The Mystical Foundation of Authority,” Cardozo Law Review 11:5–6 (1990): 920–1045, 961.

32. Ibid.

33. What Dreiser’s representation adds to this familiar argument is a systemic image of the “death house” as a veritable torture chamber, a structure whose overall design—its arrangement of cells so that they all face one another—ensures that each inmate vicariously experiences the deaths of those executed before him. “Presumably an improvement over an older and worse death house,” the narrator tells us, “[this one] was divided lengthwise by a broad passage, along which, on the ground floor, were twelve cells, six on a side and eight by ten each and facing each other” (American Tragedy 759). The parallel arrangement of the cells so that each one faces others inverts the model of the Panopticon that Michel Foucault employs as the crowning example of his theory of power relations in modern society. That is, instead of preventing prisoners from seeing one another in order to force them to internalize the gaze of authority, the structure of the “death house” enables each prisoner to see, hear, and witness the suffering of others, as well as a condemned man’s final procession toward the door at the center of the structure which leads directly to the execution room. And even the hidden or invisible moment of execution is made visible to others on death row by the dimming of the prison lights (773).

34. A full list of articles and books invoking Eighth Amendment arguments against capital punishment during the early twentieth century well exceeds the scope of a brief endnote. I list here only three examples that echo quite closely Dreiser’s point about the “thousand” deaths the condemned is to endure before suffering his own. In “State Manslaughter,” Harper’s Weekly 48 (Feb. 6, 1904): 196–98, William Dean Howells argued: “State homicide seems more barbarous and abominable than any but that most exceptional private murder, since it adds the anguish of foreknowledge to the victims doom” and that those condemned die “a thousand deaths in view of the death they are doomed to” (qtd. in Mackey 154–55). In a 1921 article ironically titled “Making Death Easy,” a journalist for Overland claimed: “The ante-mortem fears of the condemned will prove to be as bad as a thousand deaths before the final and physical termination” (31). And in her 1927 article, “Our Jungle Passions,” Collier’s 80 (Oct. 8, 1927), popular novelist Kathleen Norris suggested that “often the condemned man fluctuates between the decrees of life and death for years. His hopes are raised and dashed, and raised and dashed with a measure of cruelty that sickens even the most casual reader” (qtd. in Mackey 185). For Howells’s and Norris’s articles, see Voices against Death: American Opposition to Capital Punishment, 1789–1975, ed. Philip English Mackey (New York: Burt Franklin, 1976): 150–55, 180–89. For “Making Death Easy,” see Laurentine Figura, Overland 77 (April 1921): 30–33. For a comprehensive discussion of the Eighth Amendment in legal discourse on the death penalty, see Barry Latzer, Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment (Boston: Butterworth-Heinemann, 1998).

35. Bower, Legal Homicide: Death as Punishment in America, 1864–1982 (Boston: Northeastern UP, 1984), 57. See also my discussion of Raymond Paternoster’s analysis of the shift from local to state-sanctioned executions in the introduction.

36. Qtd. in Jack Salzman, Theodore Dreiser: The Critical Reception (New York: David Lewis, 1972), 456. Darrow’s review, “Touching a Terrible Tragedy,” was published in the New York Evening Post Literary Review, Jan. 16, 1926, 1–2.

37. V. L. O. Chittick, “The Work of Ten Years,” Sunday Oregonian, Jan. 24, 1926. Qtd. in Salzman, 61. In total, Salzman’s book contains thirty-one reviews of An American Tragedy.

38. See “ ‘American Tragedy’ Essay Contest,” Publishers’ Weekly 3 (1926): 1338.

39. Qtd. in Philip Gerber, “ ‘A Beautiful Legal Problem’: Albert Lévitt on An American Tragedy,” Papers on Language and Literature 27:2 (1991): 214–42, 218. Hereafter cited in text parenthetically. Gerber’s essay contextualizes Lévitt’s essay and the publisher’s context, printing the essay in full.

40. My point, however, is not simply to criticize the contradictory logic of Lévitt’s position. Instead, I want to suggest that the conflicting perspectives embedded in his argument, if not in Dreiser’s novel as well, are indicative of the competing theories of social complicity and criminal responsibility that preoccupied late nineteenth- and early twentieth-century American writers. “The Blue Hotel” (1898), Stephen Crane’s tale of frontier violence and murder, perhaps best illustrates such competing attitudes in the dialogue with which the story concludes. Several months after the “Swede,” the immigrant traveler from New York, is killed in a bar-room altercation by a local gambler of the Nebraskan community in which the Swede as well as the Easterner and cowboy are lodging, the narrative closes with the following exchange about their collective responsibility in the Swede’s death: “We are all in it!” the Easterner exclaims to the cowboy, and passage thus ensues:

“This poor gambler isn’t even a noun. He is a kind of adverb. Every sin is the result of a collaboration. We, five of us, have collaborated in the murder of this Swede. Usually there are from a dozen to forty women really involved in every murder, but in this case it seems to be only five men—you, I, Johnie, old Scully; and that fool of an unfortunate gambler came merely as a culmination, the apex of human movement, and gets all the punishment.”

The cowboy, injured and rebellious, cried out blindly into this fog of mysterious theory: “Well, I didn’t do anythin’, did I?”

By ending the story on this note, Crane plays the Easterner’s progressive notion of social complicity off the cowboy’s uncertain denial of his own involvement in the events that led to the Swede’s murder. See Crane, Great Short Works of Stephen Crane (New York: Harper & Row, 1968), 354.

41. “Sister Carrie,” Petrey argues, “juxtaposes two irreconcilable styles, intersperses a series of oleaginous moral meditations among passages of straightforward prose narration with no perceptible moral content. Analyzing the stylistic qualities which distinguish the two forms from each other consistently reveals the same hierarchy. Narration’s unpretentious dignity exposes philosophizing as the verbiage of nullity. The basic hypothesis of this essay is that the text of Sister Carrie is so structured that its moral passages stand as formal parodies of the language of sentimentality” (102). See “The Language of Realism, the Language of False Consciousness: A Reading of Sister Carrie,” Novel 10:2 (1977): 101–13.

42. See Cover, Justice Accused (New Haven: Yale UP, 1975).

43. My juxtaposition of Cover and Derrida perhaps requires further qualification. While acknowledging the legal constraints governing a judicial decision, Derrida in “Force of Law” is more concerned with a concept of “justice,” which for him is above or outside human law. For this reason, Derrida speaks of the situation of a judge who, in order to decide justly, must not simply apply the law mechanically (which may be lawful but not just), but must determine just what the law means (i.e., “reinterpret” it) and then decide whether the unique case in question can justly be judged according to the letter of the law, which necessarily is expressed in generalities (e.g., “one should never cross through a red light” or “murder is always a capital offense”). For Derrida, rendering such a judgment can be a difficult and perhaps interminable task. Whereas Derrida focuses on the incommensurability between the generality of the law and the singularity of an individual case, Cover concentrates on the moral-formal dilemma a judge may encounter when ruling on a law with which he or she personally (i.e., morally) disagrees.

44. Qtd. in Robert E. Elias, Letters of Theodore Dreiser, vol. 2 (Philadelphia: U of Pennsylvania P, 1959), 458.

45. McWilliams, “Innocent Criminal or Criminal Innocence: The Trial in American Fiction,” in Law and American Literature: A Collection of Essays, ed. Carl S. Smith, John P. McWilliams Jr., and Maxwell Bloomfield (New York: Knopf, 1982), 45–124.

46. Although Dreiser based An American Tragedy on several actual murder cases, his central reliance on New York vs. Gillette is well documented. For instance, see Pizer, The Novels of Theodore Dreiser, and Algeo, The Courtroom as Forum. Unlike An American Tragedy, in which Roberta’s drowning is precipitated when Clyde “accidentally” and “unconsciously” strikes Roberta with a camera, Chester Gillette repeatedly (and supposedly intentionally) struck Billie Brown, an eighteen-year-old secretary whom he had impregnated, with a tennis racket before she fell unconsciously into the water. By emphasizing Clyde’s state of mind and substituting a camera (a likely object to have on the boating excursion) for a tennis racket as the murder weapon, Dreiser equivocates Clyde’s moral responsibility.

47. Kaplan, The Social Construction of American Realism (Chicago: U of Chicago P, 1988), 1.

48. For a useful discussion of the criminal conversation narrative in the context of popular gallows literature, see Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674–1860 (Oxford: Oxford UP, 1993), 3–34.

49. Darrow, An Eye for an Eye, ed. R. Baird Shuman (Durham: Moore, 1969), 58–59. Hereafter cited in text parenthetically.

50. Warren, Homage to Theodore Dreiser (New York: Random House, 1971), 138.

51. Oliver Wendell Holmes Jr., for example, begins The Common Law (1881) by articulating such a principle: “The life of the law has not been logic. It has been experience.” See Holmes, The Common Law (Boston: Little, Brown, 1881), 1.

52. See Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard UP, 1998), 7–59.

EPILOGUE. “The Death Penalty in Literature”

1. Hall, Common Sense and Capital Punishment (London: Howard League for Penal Reform, 1924), 2, emphasis in original.

2. Ibid., 9.

3. Iowa abolished the death penalty in 1872, before Italy, Norway, and Austria did and just two years after Holland, the first modern European nation to do so. Maine followed suit in 1876, and Colorado would become the sixth U.S. state to abolish capital punishment before the turn of the twentieth century. The nine U.S. states to outlaw the practice between 1907 and 1917 were Kansas in 1907; Minnesota in 1911; Washington in 1913; North Dakota, South Dakota, Oregon, and Tennessee in 1915; Arizona in 1916; and Missouri in 1917. Of those states, all but Maine, Minnesota, and North Dakota have since reinstated the death penalty. See Banner, “Legislative Abolition,” in The Death Penalty: An American History (Cambridge, MA: Harvard UP, 2002). 219–23.

4. Schabas, The Abolition of the Death Penalty in International Law (Cambridge: Cambridge UP, 2002), 5–6.

5. Founded by Anthony Trollope and printed in both London and New York, the Fortnightly Review was among the most influential transatlantic literary journals in the early twentieth century, having published the poetry of Algernon Charles Swinburne, Dante Gabriel Rossetti, and William Morris in the late nineteenth century and the work of major twentieth-century figures, including James Joyce, William Butler Yeats, and Ezra Pound.

6. Lloyd, “The Death Penalty in Literature,” Fortnightly Review 121 (New York: Leonard Scott Publication Co., 1927): 259, emphasis in original.

7. Qtd. in ibid., 259–60.

8. Ibid., 256.

9. See Thackeray, The Book of Snobs; and, Sketches and Travels in London (London: Smith, Elder & Co, 1869), 374–89. Courvoisier, a valet, who murdered his employer Lord William Russell, was put to death in what was one of the most sensational executions in the nineteenth century. In addition to Thackeray, the Courvoisier execution inspired the anti-gallows writing of Dickens, who criticized the mob in the first of four famous letters he would write in opposition to capital punishment. “I did not see one token in the immense crowd; at the windows, in the streets, on the house-tops, anywhere; of any one emotion suitable to the occasion. No sorrow, no salutary terror, no abhorrence, no seriousness; nothing but ribaldry, debauchery, levity, drunkenness, and flaunting vice in fifty other shapes.” Writing of those in the crowd of “a perfectly different class” (such as himself and Thackeray), Dickens went on to comment: “I can speak with no less confidence. There were, with me, some gentlemen of education and distinction in imaginative pursuits, who had, as I had, a particular detestation of that murderer; not only for the cruel deed he had done, but for his slow and subtle treachery, and for his wicked defence. And yet, if any one among us could have saved the man (we said so, afterwards, with one accord), he would have done it. It was so loathsome, pitiful, and vile a sight, that the law appeared to be as bad as he, or worse; being very much the stronger, and shedding around it a far more dismal contagion.” Qtd. in Philip Collins, Dickens and Crime (London: Palgrave Macmillan, 1994), 226. As Collins notes, Dickens’s criticism of the Courvoisier execution, first published in London’s Daily News, concluded by advocating “the total abolition of the Punishment of Death, as a general principle, for the advantage of society, for the prevention of crime, and without the least reference to, or tenderness for any individual malefactor whatever” (qtd. in Collins 226).

10. Lloyd, “The Death Penalty in Literature,” Fortnightly Review 118 (New York: Leonard Scott Publication Co., 1925): 709–10, emphasis in original.

11. Ibid., 716.

12. Percy Bysshe Shelley, A Defense of Poetry, ed. Albert S. Cook (Boston: Ginn, 1891), 46.

13. See Gregg D. Crane’s Race, Citizenship, and Law in American Literature (Cambridge: Cambridge UP, 2002) and Robert A. Ferguson’s The Trial in American Life (Chicago: U of Chicago P, 2007).

14. Ferguson 117.

15. In addition to my work in the present volume and elsewhere, see Paul Jones’s Against the Gallows (Iowa City: U of Iowa P, 2011). Jones’s work is particularly valuable for unearthing capital punishment as a subject of debate and interest in popular antebellum literature and for his superb readings of Whitman and E. D. E. N. Southworth in light of the period’s anti-gallows movement.

16. For an argument about the exceptionalism of capital punishment in the contemporary United States, see Franklin E. Zimring, “The Peculiar Present in American Capital Punishment,” in The Contradictions of American Capital Punishment (Oxford: Oxford UP, 2003), 3–15.

17. See for instance Chad T. May, “The Romance of America: Trauma, National Identity, and the Leather-Stocking Tales,” Early American Studies: An Interdisciplinary Journal 9:1 (2011): 167–86; Donald A. Ringe, James Fenimore Cooper (Boston: Twayne, 1988), 29–30; Emily Miller Budick, Fictional and Historical Consciousness: The American Romance Tradition (New Haven: Yale UP, 1989); and Kay Seymour House, Cooper’s Americans (Columbus: Ohio State UP, 1966), 46. John P. McWilliams offers a different interpretation, seeing Bush’s illicit act as just; but he also notes the problematic nature of the hanging scene which obviously casts Bush and his deed in a negative light. See McWilliams, Political Justice in a Republic: James Fenimore Cooper’s America (Berkeley and Los Angeles: U of California P, 1972), 169–74.

18. The extralegal execution of Abiram White unfolds in chapter 32. See Cooper, The Prairie: A Tale, ed. James P. Elliot (Albany: State U of New York P, 1985), 357–64.

19. Livingston to Cooper, June 20, 1829, in Correspondence of James Fenimore Cooper, vol. 1, ed. James Fenimore Cooper (New Haven: Yale UP, 1922), 174. Hereafter cited in text parenthetically.

20. Qtd. in Harriet Beecher Stowe, The Annotated Uncle Tom’s Cabin, ed. Henry Louis Gates Jr. and Hollis Robbins (New York: W. W. Norton, 2007), xliii.

21. For representative studies that examine legal themes in Cooper or his work from a law-and-literature perspective, see, Thomas’s Cross-Examinations of Law and Literature (Cambridge: Cambridge UP, 1989); Dimock’s Residues of Justice: Literature, Law, Philosophy (Berkeley and Lose Angeles: U of California P, 1997); McWilliams’s Political Justice in a Republic; and Charles Hansford Adams’s The Guardian of the Law: Authority and Identity in James Fenimore Cooper (University Park: Pennsylvania State UP, 1990).

22. I thank Gregg D. Crane for suggesting this metaphor.

23. In addition to many legal novels by Grisham—including The Chamber (New York: Random House, 1994), which entirely revolves around the appeals process of a capital case—see Turow, Presumed Innocent (New York: Time Warner, 1987); Siegel, Actual Innocence (New York: Random House, 1999); and Gaines, A Lesson before Dying (New York: Knopf, 1993). Of course, dozens of novels and works in the “true crime” genre published over the past twenty years fit within this genre. Two earlier and now canonical novels from the twentieth century that engage the model are Truman Capote’s In Cold Blood (New York: Random House, 1965) and Norman Mailer’s The Executioner’s Song (New York: Time Warner, 1979).

24. Cooper, The Ways of the Hour (New York: Putnam’s, 1850), 321–22.

25. Hawthorne, Mosses from an Old Manse (Columbus: Ohio State UP, 1974), 393.

26. For a different take on Cooper and capital punishment, see chapter 1 of Paul Jones’s Against the Gallows, which also examines the near exchange between Livingston and Cooper. I first published on that exchange a year before Jones in my article “Cooper, Livingston, and Death-Penalty Reform,” in James Fenimore Cooper Society: Miscellaneous Papers 27 (2010): 1–6, which my analysis in this epilogue extends and develops in the broader context of a potential international anti-gallows campaign in the nineteenth century. The primary difference between Jones’s and my own argument concerns Cooper’s stance on capital punishment. Whereas Jones chiefly uses Cooper as an example of a major writer who supported the death penalty and its retention through his fiction, I argue that Cooper’s position on and in relation to capital punishment is more complicated, as evinced in my discussion of The Spy and Notions of the Americans in chapter 3 and the additional works discussed here in this epilogue. Jones and I also differ in how we treat characters in Cooper’s work. Jones assumes, for the most part, that characters who speak out for the death penalty or against the gallows are speaking for Cooper himself. In contrast, I do not take such characters as rhetorical mouthpieces or transparent reflections of the author’s politics. Instead, I assume that each character represents a perspective that needs to be negotiated in relation to other characters, none of whom can be singled out as endorsing Cooper’s authorial position. Rather, we must weigh those positions and exchanges to appreciate the competing perspectives Cooper’s fiction puts in play, so as not to reduce the complexity of Cooper’s work or introduce errors into our own assessments. For example, in making his case for Cooper’s anti-gallows politics, Jones succumbs to such an error by misquoting from Cooper’s The Ways of the Hour, attributing remarks made by Tom Dunscomb, an aristocratic and gentlemanly lawyer of the old school, to Squire Timms, a crass upstart who serves as Dunscomb’s foil and all-around opposite number. It is not “the lawyer Timms,” as Jones claims, who “rejects the ‘very common blunder of superficial philanthropists’ in asserting that society ‘punish[es] for the purposes of reformation’ and instead views punishment as a safeguard for the citizenry as it ‘keep[s] others from committing murder’ ” (Jones 30). Those remarks are actually made by Dunscomb. Likewise, it is again not “the lawyer Timms” who “laments that juries are easily swayed against conviction in death penalty cases” but rather Dunscomb who bemoans this phenomenon (Jones 31). On the contrary, Timms relishes in and exploits this supposed fact about juries—and this difference marks one of many that distinguish the two characters’ ideological positions in the novel. Thus, Timms and Dunscomb represent two perspectives that need to be played off each other, along with those of other characters and in relation to the dramatic action of The Ways of the Hour—which, as Jones himself acknowledges, can be read as an “anti-gallows plot” about the irreversible consequences of capital punishment in the case of error (Jones 32). After all, the novel’s plot hinges on a capital trial in which an innocent woman is found guilty of murder and almost put to death for a crime she did not commit. For an extended discussion of the position on negotiating character I advocate here (but in terms of a different author), see John Cyril Barton, “Howells’s Rhetoric of Realism: The Economy of Pain(t) and Social Complicity in The Rise of Silas Lapham and The Minister’s Charge,” Studies in American Fiction 29:2 (2001): 159–87.

27. Cooper, The Wing-and-Wing; or, Le Feu-follet: A Tale (New York: Putnam, 1851), 244.

28. Cooper, The Chainbearer; or, The Littlepage Manuscripts (New York: W. A. Townsend, 1860), 272.

29. Ibid., 245.

30. Cooper, The Headsman; or, The Abbaye des Vignerons (New York: D. Appleton, 1892), 230–31.

31. Ibid., 275–76.

32. Cooper, The Bravo, ed. Donald A. Ringe (New York: Twayne, 1963), 17. Hereafter cited in text parenthetically.

33. Grossman, James Fenimore Cooper (Stanford: Stanford UP, 1967), 78.

34. Cooper, A Letter to His Countrymen (New York: J. Wiley, 1834), 13.

35. Ringe 43.

36. Long, James Fenimore Cooper (New York: Continuum, 1990), 98.

37. Grossman 79.

38. Astonishingly, as Derrida notes in “Death Penalties,” in For What, Tomorrow . . . A Dialogue, trans. Jeff Fort (Stanford: Stanford UP, 2004), no major philosopher has systematically critiqued the death penalty. For Derrida, this oversight is one of “the most significant and the most stupefying—also the most stupefied—facts about the history of Western philosophy: never, to my knowledge, has any philosopher as a philosopher, in his or her own strictly and systematically philosophical discourse, never has any philosophy as such contested the legitimacy of the death penalty. From Plato to Hegel, from Rousseau to Kant (who was undoubtedly the most rigorous of them all), they expressly, each in his own way, and sometimes not without much hand-wringing (Rousseau), took a stand for the death penalty.” See Derrida and Elisabeth Roudinesco, For What, Tomorrow, 146, emphasis in original.

39. Locke, The Second Treatise on Government, ed. C. B. Macpherson (Indianapolis: Hackett, 1980), 8.

40. Rousseau, On the Social Contract; Discourse on the Origin of Inequality; Discourse on Political Economy, ed. Donald A. Cress (Indianapolis: Hackett, 1983), 35.

41. Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as the Science of Right, trans. W. Hastie (Edinburgh: T. & T. Clark, 1887), 198.