CHAPTER 1
Put the scaffold on the Common,
Where the multitude can meet;
All the schools and ladies summon,
Let them all enjoy the treat.
What’s the use of being “private”?
Hanging is a righteous cause;
Men should witness what you drive at,
When you execute the laws.
Anti-gallows poem (1849), in Louis Masur, Rites of Execution
Capital punishment has played an important role in American cultural and political life ever since the inception of the United States. During the colonial period and in the early years of the Republic, “Hanging Day” and its concomitant practices—the execution sermon, the condemned’s last words or dying confession, the public spectacle of the execution itself, and official narratives or popular broadsides documenting the event—served to promote religious order and good citizenship. However, the role and place of the death penalty changed dramatically in the decades following the Revolutionary War. In the late eighteenth and early nineteenth centuries, the Enlightenment ideal of a less severe, more proportional government and the belief in the benevolence of human beings, coupled with a republican disdain for the so-called “right” of a state to take its citizens’ lives, led many prominent thinkers (as discussed in the introduction) to challenge the scope and legitimacy of capital punishment.
The reformation of penal codes and capital statutes had long been a concern in both New York and Pennsylvania (in 1794, for instance, Pennsylvania abolished the death penalty for all offenses except first-degree murder),1 but the reform movement became a topic of national interest in the nineteenth century. In the 1820s, influential lawyer and politician Edward Livingston presented landmark arguments for the abolition of capital punishment before the Louisiana state legislature, and the spirit of reform later peaked in the 1830s, 1840s, and early 1850s when social organizations such as the Societies for the Abolition of Capital Punishment of New York and Massachusetts were formed and debates about the death penalty spread across the nation. During this time, many northern and some southern states began revising capital statutes and moving executions from the public square to the enclosed, “private” space of the prison-yard. Moreover, New York, Massachusetts, and New Hampshire came close to abolishing capital punishment in the 1830s and 1840s,2 while bills calling for abolition passed or nearly passed during this time in one of the legislative houses in New Jersey, Vermont, Ohio, and Connecticut.3 In 1837, Maine passed a bill that sentenced those convicted of capital crimes to solitary confinement and made executions require an executive warrant issued by the governor one year after the pronouncement of a death sentence. The “Maine Law,” as it came to be known, helped prevent any death sentence in the state from being carried out for twenty-seven years.
By 1853, three states—Michigan in 1847, Rhode Island in 1851, and Wisconsin in 1853—abolished the death penalty; and it was largely due to the impending Civil War and the inevitable violence associated with the effort to abolish slavery, a movement with which the campaign against capital punishment was intimately connected, that death penalty abolitionism lost its momentum, not fully to return to the public spotlight until populist and progressive ideas at the turn of the twentieth century prompted a more scientific attitude toward crime and criminal behavior.
This chapter examines the anti-gallows movement in antebellum America. It analyzes legislative reports, political writings, and imaginative journalism concerning the death penalty as well as poetry and especially fiction from the period that overtly represented or responded to capital punishment. The death penalty has a discourse as rich and contentious as any in the history of the United States, and the legal, political, and literary texts I investigate were written at a time when the question of capital punishment was hotly debated and the movement for abolition was advancing its cause on many fronts. Abolitionists during this time drew on religious and political arguments to claim that capital punishment violated both human and civil rights. They also challenged arguments about deterrence, while insisting that the death penalty made juries reluctant to convict criminals of capital crimes. Among important legal and political reformers of the era were Robert Rantoul Jr., who made innovative arguments about the inappropriateness of capital punishment in a republic, and John L. O’Sullivan, a prominent New York Democrat and editor of the influential United States Magazine and Democratic Review.
Famous literary figures who contributed to the debate by publishing in O’Sullivan’s journal include Nathaniel Hawthorne, John Greenleaf Whittier, and Walt Whitman. Others, such as Henry Wadsworth Longfellow and Herman Melville, criticized the death penalty in their work, while some popular writers—notably James Fenimore Cooper, Lydia Maria Child, George Lippard, Sylvester Judd, and William Gilmore Simms (each of whose work I take up in later chapters)—interrogated the use and purpose of the gallows in their fiction. The campaign to abolish capital punishment, I conclude, should be seen as an important part of the context that helped bring about the American Renaissance. In fact, in some ways that campaign reveals as much about the democratic assumptions informing the invigoration of American literature at midcentury as the campaign to abolish slavery. I begin, however, by looking closely at an early popular American novel that portrays an execution scene and, in presenting elaborate commentary on it, sets the stage for arguments to follow. Doing so will help illustrate the first of my central aims by showing how literature could and did influence law and debates about the death penalty in the court of public opinion.
“DRAMATICK EFFECT”: LOGAN AND LIVINGSTON
The final chapter of David Brion Davis’s classic study Homicide in American Fiction (1957) provides the starting point for any inquiry into American literature and the death penalty. As its title suggests, Homicide in American Fiction attends primarily to questions about murder; but in its final chapter, Davis turns to the subject of capital punishment, claiming that “American fiction in the second quarter of the nineteenth century reveals a curious synthesis of . . . two positions: reformers who emphasized the effect of environment on moral behavior, arguing that criminals should be cured instead of being punished, and traditionalists who finally abandoned the rationalistic theory of deterrence and fell back upon a doctrine of intrinsic and absolute justice.”4 As helpful as this formulation is, it needs to be complicated. More than a “curious synthesis,” U.S. fiction written during this time responded to and participated in cultural debates over capital punishment. A case in point can be found in John Neal’s Logan: A Family (1822), a popular novel that dramatizes, with extended discussion, a public execution.
Early in volume 2 of Logan, Neal’s protagonist, Harold, witnesses the hanging of several men convicted of piracy. The executions take place on board a commercial ship as Harold travels to England. The narrator vividly portrays the hangings, describing how the condemned were “successively drawn up . . . and then let down part way, with a sudden jerk, which caused the dislocation of their necks, like the report of a pistol.”5 At the sight and sound of these acts, Harold’s “blood curdled” and his “heart turned sick, cold, cold as ice” (8). After the last of the men is hanged (one is pardoned at the last moment), Harold tells a stranger near him that he feels as if he “were a witness against these men” (9). In response, the stranger asks, “And what think you of the reprieve?” to which Harold replies: “I like that. I love mercy. I could kneel down and thank them for sparing one life. And the very sailors—see how they are affected by it! The populace too, in the boats—they are crying” (9). The sentiment of Harold’s answer prompts a firm rejoinder from the stranger: “No. You are deceived . . . That reprieve was injudicious. Punishment should be certain. Certainty does more than quantity, in penal codes, to counterbalance temptation. Were there but one man in a million pardoned, every criminal would hope that himself would be that man. Each expects the prize in a lottery. No! these people are not weeping . . . They love sensation—they love spectacles” (9, emphasis in original).
As Harold persists in his objections, the dialogue takes shape as an object lesson in Enlightenment attitudes toward hanging and the deleterious psychological effects of public executions. In the exchange, Harold represents the young romantic subject (Byron’s Childe Harold serves as a model), while the older stranger plays the role of a wise and skeptical philosopher who has thought much about the institution and practice of capital punishment. When Harold insists that the sympathy of the spectators for the condemned at an execution reflects society’s innate love of humanity and abhorrence of a justice system that inflicts death for crime, the stranger again corrects him: “The populace,” he tells Harold, “will assemble to execute a felon to day, with their own hands, and to morrow beset the throne of justice for his pardon. I have seen this, again and again. I have seen ten thousand people in tears because a handsome boy was to be executed; and I have seen the officer who brought his pardon, hooted and pelted from the ground, by a part of the same mob” (9). The stranger’s remarks on the psychology of the death penalty’s spectacle of violence occasions further commentary about its harmful effects: “There are several things to condemn in this affair,” he later says. “In the first place, all the pirates are represented as penitent, and assured of heaven. In the next place, he who is pardoned is kept in ignorance of it, till the last moment” (10, emphasis in original).
The dramatic effect of the pardon prompts Harold to interrupt the stranger to comment on the spectacle they just witnessed: “Not the criminal only,” he says, “but the populace [will] remember it, with greater seriousness,” since the pardoned convict “has suffered all but death: —the ignominy, the anticipation, the horrour, and the pain of such a death is nothing, absolutely nothing” (11). In fact, Harold adds, the act of hanging itself was relatively uneventful and even merciful when compared to the dreadful anticipation of each execution: “I felt relieved when their necks were snapped. I expected something a thousand times more horrible—but how instantly they were motionless! Oh, there is no death so easy!” (11). Yet Harold’s sentiment perfectly illustrates the stranger’s argument against both the mode in which capital punishment is presently administered and the popular practice of issuing last-minute pardons: “Right, young man,” the stranger replies,
hence the glaring impolicy of such executions; hence too the frequency of suicide by hanging. Poor wretches! they see that the pain is momentary; all feel as you did, at the sight of the first execution. They expect to fall down, when the signal is given, and yet they find that the reality is nothing to the terrours of their own imaginations. But let me proceed. By delaying the reprieve until the last moment, for a presumptuous and idle piece of dramatick effect—they teach every man, at the gallows, to expect, even to the last moment, the very last, a reprieve. (11, emphasis in original)
The exchange between Harold and the stranger highlights some of the concerns that would come to preoccupy the anti-gallows movement in the decades preceding the Civil War: (1) the horrors and deleterious effects of public executions and staged reprieves; (2) the implication of spectators as witnesses complicitous in the act of lawful hangings; (3) the Enlightenment principle of certainty over severity (or “quantity,” as the stranger says) in punishment as a useful deterrent; (4) the base desires for violence to which public executions cater; and (5) the false pretense of forgiveness and salvation that the ritual of lethal, legal violence instills upon the criminal mind. As the dialogue in Logan continues, Harold’s response to the stranger’s argument helps to bring out this fifth and final point: “Gracious God,” he exclaims, “Hence, every man goes out of the world unprepared, in reality!” to which the stranger replies: “Yes—and hence too, the hardihood and carelessness, with which the most detestable ruffians go out of it; depriving the scene of all its terrours, making it a brutal farce, a trial of insensibility” (11). When Harold goes on to ask why the stranger should condemn the condemned’s repentance, the stranger replies that he does so not in principle but in practice, because such “penitence” is likely to be affected and insincere. “Listen to me,” he urges Harold:
Our system of punishment, reprieve, and penitence produces in every villain’s heart just this process of reasoning: —
I will indulge my mortal appetite for blood—because at the worst, if I cannot escape suspicion—cannot bribe the witnesses, nor the jury—and if my lawyer cannot get me clear by his wicked eloquence, by some flaw in the proceedings—and if I cannot get a new trial—nor escape by subornation—nor break prison—nor bribe the gaoler—nor get a pardon—nor a reprieve—nor a commutation of punishment—nor get clear by some revolution, political or moral, why, at the worst I can repent, and go to heaven, at any rate, with the whole publick opinion in my favour, and the passport of many a pious clergyman in my behalf; nay, who knows? I may have a procession, a monument, an epitaph, be interred in consecrated ground, and pass for a martyr, a martyr to what! to the inexorable cruelty of my country’s laws. —A pretty way to have those laws respected! a most effectual antidote to temptation, and profligacy, indeed!” (11–12, emphasis in original)
Logan was published in 1822, the same year Edward Livingston presented the first of his influential arguments against capital punishment before the Louisiana state legislature. A former congressman and mayor of New York forced to Louisiana by financial scandal, Livingston was elected a member of the state assembly in 1820. In 1821, he drafted a revision of the state’s criminal statutes. A year later he delivered his Report on the Plan of a Penal Code, a lengthy section of which called for the abolition of the death penalty.
Eloquently written and powerfully argued, Livingston’s Report centered on the psychological effect of public executions—like the one discussed at length in Logan. And like Neal’s stranger, Livingston found the current administration of capital punishment to be barbarous and ineffective. Livingston, however, attended to the criminal passions (notably ambition and avarice) aroused in the spectators of executions. When the “inflection of death” becomes frequent “it loses its effect,” Livingston claimed; “the people become too much familiarized with it to consider it as an example; it is changed into a spectacle, which must frequently be repeated to satisfy the ferocious taste it has formed.”6 At the same time, when executions are infrequent and “kept for great occasions, and the people are seldom treated with the gratification of seeing one of their fellow-creatures expire by the sentence of the law; a most singular effect is produced; the sufferer, whatever be his crime, becomes a hero or a saint; he is the object of public attention, curiosity, admiration, and pity.”7 In either case, Livingston argued against public hangings; and in this respect, he echoed the general arguments against such punishment in Neal’s novel, especially the claim that the condemned becomes an object of sympathy—a hero or martyr, even—in the eyes of the populace.8 “Thus the end of the law is defeated,” Livingston concluded; “the force of the example is totally lost, and the place of execution is converted into a scene of triumph for the sufferer, whose crime is wholly forgotten, while his courage, resignation, or piety, mark him as the martyr, not the guilty victim, of the laws.”9
Livingston and Neal, one from law and the other from literature, speak out against the death penalty near the beginning of a reform movement that would come to occupy a prominent place in the cultural politics of the 1830s, 1840s, and early 1850s. Indeed, as a Pennsylvania paper declared in 1844: “The subject of capital punishment is claiming much and increasing attention, not only in our own State, but in many other parts of the country.”10 Drawing on such statements, historian Louis P. Masur writes: “During the 1840s, books, pamphlets, and reports by scores of writers flooded the public with arguments against capital punishment. Ministers, editors, and lecturers better known for their devotion to other moral and social causes adopted the anti-gallows movement as their own.”11 If the anti-gallows reform movement came to fruition in the 1840s, it had its origins before then. Reflecting upon his life in an 1866 autobiography, Neal credited Logan with prompting a particular development within that reform: the movement of executions from the public square to the enclosed space of the prison yard. “I believe that the changes which have followed,” Neal wrote, “year after year, both abroad and at home, in the mode of execution, originated with my ‘Logan.’ “12
In his autobiography, Neal also identified himself as a longtime opponent of lawful death: “Upon the death-penalty, or what is called ‘capital punishment,’ ” he wrote, “I have . . . written much, and not a little to the purpose; having no belief in the wisdom of strangulation, for men, women, and children, however much they might seem to deserve it, and being fully persuaded that the worst men have most need of repentance, and that they who are unfit to live, are still more unfit to die.”13 Neal, moreover, described in that work the experience that inspired both his anti-death penalty politics and the gallows scene in Logan:
When I wrote “Logan,” after having seen two pirates, and two young men strangled by law, in the midst of a noisy, riotous crowd in Baltimore, at noonday, with the blue heavens, the green earth, and the golden sunshine testifying against their dread “taking off,” I urged our lawgivers, if they would still insist upon strangling men, women, and children, to do it within the walls of a prison, at midnight, and with the tolling of a large, ponderous bell, or the sound of cannon, like minute-guns at sea; that murderers, and ravishers, and house breakers, and thieves, and highwayman, might be startled from their sleep, and set a-thinking; or be disturbed in their midnight revels, or their unaccomplished depredations, as by a voice from the other world, filling them with dismay, or with a mysterious unutterable horror, according to their guilt, in their dread loneliness and desolation.14
Neal’s suggestion here echoes an idea for a more effective means of administering capital punishment hinted at by the stranger in Logan: “Another defect,” the stranger tells Harold, “is this; men are executed in daylight, and the mob go home, about their usual occupations . . . But let executions be conducted at night, by torch light, with tolling bells, at midnight, and what would be their sensations then!” (Logan 13). This idea, of course, was never implemented, although the argument for prohibiting public executions in Logan preceded the first actual state law of that kind by eight years.15 Even so, the anti-gallows movement in the United States has a richer, more complex history than Neal suggests—one steeped in Enlightenment philosophy and with Italian origins.
“A WAR OF THE NATION AGAINST A CITIZEN”: THE REPUBLICAN ARGUMENT AGAINST THE DEATH PENALTY
The origins of the movement to abolish capital punishment in America can be found in Cesare Beccaria’s On Crimes and Punishment, a short treatise on the reformation of criminal law first published in 1764. Upon its publication in Italy and translation throughout Europe, Beccaria’s book attracted much attention and sparked heated debates about criminal law reform and the death penalty on the European continent. Interest in Beccaria was every bit as keen in England and colonial America. The first English edition of Beccaria’s treatise was published in London in 1767 and advertised in New York in 1773. The first American editions were published in Charleston in 1777 and in Philadelphia in 1778. What is more, On Crimes and Punishment was widely cataloged by American booksellers in the 1780s, “and newspapers such as the New Haven Gazette and Connecticut Magazine serialized Beccaria for their readers.”16
Drawing upon Montesquieu’s The Spirit of Laws (1748), Beccaria argued for less severe, more proportionate punishments in criminal law and reasoned that the death penalty was neither necessary nor useful. Capital punishment was not necessary, he claimed, because in times of peace life imprisonment would sufficiently protect society from any of its dangerous members.17 Likewise, it was not useful because, while harsh, the penalty did not leave a lasting impression upon those whom it intended to deter. In Beccaria’s words, “It is not the severity of punishment that has the greatest impact on the human mind, but rather its duration, for our sensibility is more easily and surely stimulated by tiny repeated impressions than by a strong but temporary movement” (49). Thus, according to Beccaria, life imprisonment provided a more effective deterrent to crime because the punishment would be “spread out over a lifetime,” whereas “capital punishment exercises all its powers in an instant” (50). If, as Montesquieu repeatedly stated in Spirit of Laws and Beccaria reiterated in On Crimes and Punishment, any punishment that was unnecessary was “tyrannical,” then the death penalty epitomized that tyranny.18
Beccaria’s utilitarian attack on the death penalty challenged the social contract theories of Montesquieu and Rousseau. Like Rousseau, he subscribed to a theory of government in which citizens renounced part of their individual liberty in order to form a social compact. According to Beccaria, however, members of a social contract never gave the state the right to take their lives. To do so would be to contradict the underlying principle of the contract itself. “By what alleged right can men slaughter their fellows?” Beccaria asked in criticizing the all-but-universal practice of capital punishment. “Certainly not by the authority from which sovereignty and law derive. That authority is nothing but the sum of tiny portions of the individual liberty of each person; it represents the general will, which is the aggregate of private wills. Who on earth has ever willed that other men should have the liberty to kill him? How could this minimal sacrifice of the liberty of each individual ever include the sacrifice of the greatest good of all, life itself?” (48). As the repeated emphasis upon “liberty” suggests, Beccaria’s argument hinged upon the rights and individual liberties the social contract was initially created to protect. First and foremost was the right to life, “the greatest good of all.” From this line of reasoning, Beccaria concluded: “The death penalty, then, is not a right . . . but rather a war of the nation against a citizen, a campaign waged on the ground that the nation has judged the destruction of his being to be useful or necessary” (48).
Beccaria’s politically charged language, his description of capital punishment as a civil war between a nation and its citizens, must have caught the attention of his many liberal-minded American readers, for whom the state’s ultimate sanction against its people was anathema to a republican ideal of government. As Masur notes, “No less a figure than Thomas Jefferson credited Beccaria with awakening the world to the unnecessary severity of capital punishment.”19 Such an ideal was fundamental to the Founding Father’s vision of an American Republic, and Beccaria is more important to this republican ideal than he is usually credited. For instance, when once asked as president in 1806 for a list of authors whose works were essential to understanding the proper “organization of society in civil government,” Jefferson responded with only five names: Locke, Sidney, Chipman, the Federalist Papers, and Beccaria.20
Benjamin Rush was another influenced by Beccaria’s utilitarian arguments against the death penalty. The foremost physician in America during the late eighteenth century and, like Jefferson, a signer of the Declaration of Independence, Rush emerged as the first great spokesperson for the anti-gallows movement in the newly formed United States. He first aired his views on the death penalty in an essay (later published as An Enquiry into the Effects of Public Punishments upon Criminals and upon Society) he delivered on March 9, 1787, at the home of Benjamin Franklin, himself an opponent of its practice. However, it was not until 1792, a year after the Bill of Rights was ratified, that Rush published Considerations on the Injustice and Impolicy of Punishing Murder by Death, his definitive statement for the abolition of capital punishment. Clearly influenced by Beccaria (who is referenced twice in the essay), Rush contributed to the Enlightenment argument by adding that mandatory death sentences for capital convictions made juries less willing to reach guilty verdicts. He also articulated a provocative claim that the death penalty encouraged murder by those who, believing suicide a graver offense than murder, took a life in order that the state might take theirs in turn. Rush’s attack, however, centered on moral and religious objections to punishment by death—a predominant line of reasoning on both sides of the debate from the late eighteenth to the mid-nineteenth century to which we shall return. With the question of capital punishment and civil liberties before us, however, I want to consider first only the conclusion of Rush’s Considerations.
In that conclusion, Rush draws an extended comparison between monarchical and republican forms of government:
Capital punishments are the natural offsprings of monarchical governments. Kings believe that they possess their crowns by divine right; no wonder, therefore they assume the divine power of taking away human life. Kings consider their subjects as their property; no wonder, therefore, they shed their blood with as little emotion as men shed the blood of their sheep or cattle. But the principles of republican governments speak a very different language. They teach us the absurdity of the divine origin of kingly power. They approximate the extreme ranks of men to each other. They restore man to his God—to society—and to himself. They appreciate human life, and increase public and private obligations to preserve it. They consider human sacrifices as no less offensive to the sovereignty of the people, than they are to the majesty of heaven. They view the attributes of government, like the attributes of the deity, as infinitely more honoured by destroying evil by means of merciful than by exterminating punishments. The united states have adopted these peaceful and benevolent forms of government. It becomes them therefore to adopt their mild and benevolent principles.21
Associating the death penalty with monarchical rule and the right to execute with a king’s prerogative, Rush makes capital punishment antithetical to a republican government of, by, and for the people. Indeed, it would not be overstating the case to say that the birth of U.S. citizenship, for Rush, is predicated on the death of the death penalty and a repudiation of a state’s ultimate authority over the lives of its citizenry. To highlight the disparity between monarchies and republics in these terms, Rush closes his essay with a striking analogy: “An execution in a republic is like a human sacrifice in religion. It is an offering to monarchy, and to that malignant being, who has been stiled a murderer from the beginning, and who delights equally in murder, whether it be perpetrated by the cold, but vindictive arm of the law, or by the angry hand of private revenge.”22 Likening an execution in a republic to a “human sacrifice in religion,” Rush calls attention not only to the moral horror of capital punishment but also to its logic of give-and-take—a logic that, for him, is deeply problematic, since only God has legitimate power over life and death. Rush thus imagines the king, from a republican perspective, as a “malignant being” whose “delight” in murder—be it “perpetrated by the cold, but vindictive arm of the law, or by the angry hand of private revenge.” Such a contrast conflates licit and illicit forms of capital punishment, thus suggesting an inherent similarity between these two forms of homicide: a likeness the state tries to mask by building elaborate rituals and formal procedures around lawful capital punishment to distinguish it from unlawful forms of murder.
Rush’s Beccarian-based attack on capital punishment laid the foundation for what we can call the republican argument against the death penalty. Many antebellum reformers, including Livingston, would draw upon this argument. But it reached its fullest expression in the legal and political writings of Robert Rantoul Jr., a prominent lawyer and leading Democrat in Massachusetts who was the foremost opponent of the gallows in the 1830s. Rantoul grew up in a home committed to the reformation of capital punishment. Both his parents supported abolition, and his father publicly expressed his views in 1809, his first year as a member of the House of Representatives. His father represented Massachusetts in the House or the Senate for the next twenty-four years, and in 1829 he was appointed to a House judiciary committee to consider revising Massachusetts’s penal code, particularly its capital statutes. Six years later, Rantoul followed in his father’s footsteps. In 1834 he was elected to the House as a representative for Massachusetts, and the following year he chaired a committee to consider the “expediency of repealing all . . . laws” that “provide for the inflection of the punishment of death.”23 From 1835 to 1838, Rantoul delivered annual reports in favor of the abolition of capital punishment. The most famous was his 1836 Report on the Abolition of Capital Punishment. It was printed several times and “obtained a high reputation in Europe,” writes Rantoul’s nineteenth-century biographer, “being considered standard authority, and quoted as such in France, Belgium, Germany, and Italy” (429).
Rantoul begins his 1836 Report by identifying the question of capital punishment “as one of momentous importance, —deeply concerning the general welfare of society by its connection with, and influence upon the prevailing standard of moral rectitude” (436–37). This question, for Rantoul, is paramount because it involves “not only each legislator, but every member of the community [who] ought to feel a solemn interest and an individual responsibility” when weighing the “ultimate decision” over life or death (437). By emphasizing “individual responsibility” in this way, Rantoul puts the sovereign’s ultimate power in the hands of the people in whose names executions are carried out. From this position he explores the contradictions underlying a system in which a republican people put to death its people in the name of the people. To this end, he draws heavily from utilitarian and social contract theorists, defining government as “nothing but a partnership”—“a limited partnership”—created and maintained for “benevolent and philanthropic” purposes; and the United States, he contends, has accomplished these goals “more uniformly and completely, and with less unnecessary suffering or avoidable injustice, than any association of men that has ever preceded us” (439). Nonetheless, as “the work of finite human faculties,” the laws and administration of any government bear room for improvement, and Rantoul aligns his committee’s report with a “class of reasoners” who “hold the infliction of capital punishment to be one of the most obvious vices in our present mode of administering the common concerns” (439).
This preamble on the role and place of government sets up the central question that Rantoul’s Report seeks to address: “We are all of us members, they say,” Rantoul notes, “of the great partnership. Each one of us has not only an interest, but an influence, also, in its proceedings. Shall the partnership, under certain circumstances which will probably happen now and then, proceed deliberately, with much ceremony, and in cold blood, to strangle one of its partners? Has society the right to take away life?” (439). The terms in which Rantoul poses the question provides its own answer: society’s deliberate, cold-blooded act of “strangl[ing] one of its partners” reproduces the very act it often seeks to condemn. Rantoul supports this answer by elaborating two propositions of Jeffersonian democracy, the first being: “The whole object of government is negative” (439). The purpose of government, he explains, “is for the protection of property, life, and liberty. It is not for the destruction of any of them. It is not to prescribe how any one may obtain property, how long one may enjoy life, under what conditions he may remain at liberty. It was precisely to prevent the strong from controlling the weak in all these particulars, that government was instituted. It is to take care that no man . . . shall injure the person, or shorten the life of another” (439). This description of what government is and is not culminates with an image of the potential danger to which any government that encroaches upon civil liberties is susceptible: “It is not to become itself the most terrible invader of the interests it was created to protect, acting the part which the lion acted when he was made king of the beasts; nor, except where men are sunk in beastly degradation, will they permit it to usurp and monopolize all the prerogatives which elevate man above the brutes, and make him lord of the lower world” (439). By describing a government that sanctions capital punishment in terms of a “most terrible invader” of the people’s interests, a “lion” that lords over the animal kingdom, Rantoul, speaking the “language” of Rush’s republicanism, drives home the antidemocratic assumptions informing a government whose authority is founded on the death penalty.
Rantoul’s emphasis on the negative objective of government and its potential for despotism brings him to his second proposition of Jeffersonian democracy: “Government is a necessary evil” (439). In elaborating this tenet, Rantoul identifies “protection” as “the only object of society” and claims that we, as citizens, surrender “only so much liberty as it is necessary” in order to preserve “our natural rights” (440). Rantoul, in this respect, follows Montesquieu and Beccaria in invoking a social contract model of government; and, like Beccaria, he rejects the notion that “any people has entered into a compact giving unlimited powers for all possible purposes to its government” (440). Rantoul associates this particular position with Rousseau, who “supposes that in consequence of the social contract between the citizens and society, life becomes ‘a conditional grant of the State,’ to be given up whenever the State shall call for it” (440). He belittles this idea as “an obvious absurdity” and denounces Rousseau’s theory as “anti-republican and slavish” (440).
The death penalty, for Rantoul, epitomizes this “obvious absurdity,” given that it destroys rather than punishes, thereby depriving a citizen of that essential liberty the social contract was designed to protect. Because the social contract makes sense only insofar as it protects the lives of its members, Rantoul claims that the burden of “positive proof” (443) lies with those who support capital punishment by virtue of a social contract theory. In his words, “Let there . . . be shown some reason for supposing that any sane man has of his accord bartered away his original right in his own existence” (442). According to Rantoul, such an argument presupposes a “preposterous sacrifice,” and he takes this point a step further by examining the question of society’s right to execute its condemned citizens from the perspective of Christian morality: “Not only has no man actually given up to society the right to put an end to his life, not only is no surrender of this right under a social compact ever to be implied, but no man can, under a social contract, or any other contract, give up this right to society, or to any constituent part of society, for this conclusive reason, that the right is not his to be conveyed” (443). That right, Rantoul claims, belongs only to God, the absolute sovereign who alone can take life, since he gave it. Thus, by situating an analysis of the death penalty via the social contract within a Christian paradigm, Rantoul redefines the subject positions of individuals and society as a whole. If, on the one hand, no individual has the right to relinquish life and, on the other, society has no right to take it, then any social contract under which a death sentence is enacted “would involve the one party in the guilt of suicide, and the other in the guilt of murder” (433).24
To bring the argument back round to republican politics, Rantoul later cites the opening sentence of the Massachusetts State Constitution, emphasizing its declared protections of “natural rights, and the blessings of life” (450, emphasis in original). He then shows, on the one hand, that the “celebrated instrument” in no way implies that individuals “surrender” this right and, on the other, that the state possesses no right “to take away any natural right of an individual, much less the last and dearest, or to debar him . . . from life itself.” Rantoul supports this point by referencing federal law and citing the “first article of the declaration of rights,” which protects a citizen’s “liberties” and “those natural, essential, and unalienable rights which are common to all mankind” (450). This reference to the Declaration of Rights is followed in turn by a direct invocation of the U.S. Constitution and its protections of civil liberties. The Bill of Rights, Rantoul argues, is constructed around protecting a citizen’s “unalienable right of enjoying and defending life.” That “right,” he acknowledges, “may be abridged, by the iron rule of stern necessity, when it comes in direct conflict with the same right in another, but, according to our Constitution, it can never be alienated. Let it not be said our Constitution does not forbid capital punishment; for neither does it, by that name, forbid slavery, or the whipping-post, or the pillory, or mutilation, or torture, yet all these are confessedly contrary to the spirit of the Constitution” (450).
Claims of capital punishment as barbaric and as a remnant of despotic regimes of bygone eras were common enough in the nineteenth century; but, as death penalty scholar and critic Hugo Adam Bedau suggests, Rantoul was perhaps the only abolitionist before the mid-twentieth century to argue against capital punishment on the grounds that it was inconsistent with the Constitution’s Bill of Rights.25 In his Report, this argument becomes overt when Rantoul associates the death penalty with the Eighth Amendment and its prohibition of cruel and unusual punishment: “The whipping-post and the pillory survived, for a period, the constitutional prohibition of cruel and unusual punishments. They have disappeared, and the gallows, which is more unusual than either of those barbarities had been, and infinitely more cruel and revolting, must soon follow in their train” (451). In turning from Rantoul and the 1830s to the proliferation of anti-gallows arguments in the 1840s, one finds a range of attacks deployed by political reformers and literary figures alike, for many of whom the gallows itself serves as a symbolic expression of outmoded cruelty. Rantoul, however, was the only activist from the nineteenth century who explicitly invoked an Eight Amendment argument. As the debate over capital punishment moved from the 1830s to the 1840s, it shifted from assembly halls and courtrooms to the court of public opinion. That shift was primarily orchestrated by John L. O’Sullivan, and it unfolded in the pages of his influential journal, the United States Magazine and Democratic Review.
O’SULLIVAN AND THE LITERARY POLITICS OF ABOLITIONISM
If Robert Rantoul Jr. was the leading opponent of the gallows in the 1830s, John L. O’Sullivan was the foremost advocate in the 1840s. Like Rantoul, O’Sullivan was trained as a lawyer and deeply committed to the Democratic Party; however, he came to politics as a young newspaper and periodical editor. In 1840, O’Sullivan ran for a seat in the New York State Assembly. He won, and the campaign that secured him the election was largely based on the reformation of capital punishment.
During his two years in office, O’Sullivan dedicated much of his time to enacting that reform. In 1841, he was appointed chair of a special committee to consider the expediency of abolishing the death penalty in New York. That committee exhaustively researched the subject and presented an abolition bill that, after considerable delay in the House and negative publicity by opponents, was defeated by a slim margin. O’Sullivan was convinced that the measure would pass the following year, but it failed by the same margin. O’Sullivan’s labor, however, was not wasted. It resulted in the production of his Report in Favor of the Abolition of the Punishment of Death by Law, an eloquent compendium of “the leading arguments and evidences, derived from revelation, reason, and experience, which are necessarily involved in the general discussion of the subject of Capital Punishment.”26 First published in great number for presentation before the New York state legislature on April 14, 1841, O’Sullivan’s Report was reprinted as a book for popular consumption later that year. By October, “being called for by public demand” (4), a second edition of O’Sullivan’s book was printed, and for the next twenty years it served as the standard reference in debates about the death penalty in the United States.27
The strength of O’Sullivan’s Report lies in its popular appeal as well as its reformulation and polishing of powerful arguments developed earlier by Beccaria, Rush, Livingston, and Rantoul, to name the major influences. For instance, O’Sullivan closely attends to “scriptural evidence,” first analyzed by Rush and others, to argue that the Bible condemns rather than supports capital punishment. He also points to historical precedent, showing not only that ancient Rome and Egypt experimented with periods of abolition but that abolition in contemporary Tuscany, Belgium, and even so-called despotic Russia (under Elizabeth and the Catherine II) had led to decreased rates in crime and murder. Turning to the United States, O’Sullivan claims that the drastic reduction in the number of capital statutes over recent years and the increasing reluctance of juries to convict in capital cases reflect evolving standards of morality. Such evidence, he reasons, suggests that changing the maximum punishment from death to life imprisonment would result in lower crime rates and higher rates of conviction. In addition to these arguments, O’Sullivan calls attention to the horrors of executing the innocent, emphasizing the fact that, once a death sentence is carried out, there is no way to undo it in the event of error. In this way, he synthesizes disparate arguments in favor of abolition—and he does so through a range of approaches. Partly statistical analysis and use of utilitarian and republican arguments against the death penalty, and partly moral anecdote and exegesis of biblical authority on capital punishment, the Report makes appeals to sympathy, reason, and historical example in its broad-scale assault on the gallows in America.
While deploying a range of arguments and rhetorical strategies, the Report is centered around the question of deterrence and the psychological impact of executions, a mainstay in debates about the death penalty and an argument developed at length by Livingston, from whose work O’Sullivan draws heavily. The punishment by death for murder, Livingston had argued in his introduction to the Codes of Crimes and Punishment, not only “fails in any repressive effect, but . . . promotes the crime.”28 Livingston made this point after citing a recent incident published in a Pennsylvania newspaper in which a man committed murder on the way back from witnessing a public execution. Through this example Livingston illustrates the proclivity of the human mind “to imitate that which has been strongly impressed on the senses” and warns the “lawgiver” to “mark this . . . propensity of human nature; and beware how he repeats, in his punishments, the very acts he wishes to repress, and makes them examples to follow rather than to avoid.”29
Reformulating and quoting Livingston at length (he even cites Livingston’s example from the Pennsylvania paper), O’Sullivan lays out his argument about the death penalty’s failure as a deterrent and its adverse psychological affects roughly halfway through his Report. In doing so, one gets the sense that O’Sullivan has built his book around this argument, especially as he singles it out as the “strongest objection against the punishment of death” (84) and spends considerable time working through all its implications. In fact, he condenses the multiple dimensions of the argument into a pithy statement italicized and repeated verbatim some fifteen pages later, noting that “the executioner is the indirect cause of more murders and more deaths than he ever punishes or avenges” (85, 98, emphasis in original). This statement sums up a central objection to the gallows in a memorable trope. It turns the very instrument intended to deter capital crimes into an “indirect cause” of them. Yet, as the language of the trope indicates, O’Sullivan is more interested in the executioner than the gallows itself. Highlighting the role of the executioner (instead of the gallows) calls attention to human agency, thus placing responsibility for executions not only on those who perform them but also on those who support them—especially those who defended the gallows in the face of the surging reform movement.
At the center of this reform was the United States Magazine and Democratic Review, a leading antebellum journal founded and edited by O’Sullivan. In the 1840s, the Democratic Review published dozens of articles advocating the abolition of the death penalty, including feature essays devoted to the subject, reviews of important books on the topic, proceedings from anti-gallows conventions, and reports from legislative committees. O’Sullivan wrote some of these articles himself, such as “Capital Punishment” (April 1843), an extended reflection upon the cultural wars surrounding the death penalty, and “The Anti-gallows Movement” (April 1844). The latter took shape as an “Address to the Public” (430), which called citizens to action through the announcement of Anti-Draco, a new “monthly” to be published by the American Society for the Collection and Diffusion of Information in Relation to the Punishment of Death.30 O’Sullivan was the corresponding secretary of the society; its president was the famous poet William Cullen Bryant; and other committee members included Horace Greely, a well-known lecturer and the founding editor of the New York Tribune, and William H. Channing, a Unitarian clergyman with strong ties to Emerson and the transcendental movement.
O’Sullivan’s journalism in the Democratic Review did much to galvanize public opinion about the death penalty. Perhaps nothing was more stimulating than “The Gallows and the Gospel: An Appeal to Clergymen Opposing Themselves to the Abolition of the One, in the Name of the Other,” the lead article in the journal’s March 1843 issue. Aimed at a conservative Presbyterian ministry, O’Sullivan’s article attacked the opposition on its own grounds, elaborating his arguments based on “scriptural evidence” that he sketched to open his 1841 legislative Report. Religious concerns were not part of O’Sullivan’s core argument—the republican argument against the death penalty was—but a closer examination of them in the Report and “The Gallows and the Gospel” provides insight into popular concerns about the reform movement and helps to set the stage for imaginative literature that engaged the debate.
Framed as “An Appeal,” O’Sullivan’s “The Gallows and the Gospel” begins by attacking the position of clergymen who, in the name of their faith, had recently come out in defense of the death penalty. “Some of you,” O’Sullivan writes, “appear to have felt especially called upon to cast yourselves in the path of this advancing movement of opinion; to have taken the institution in question under your particular professional patronage and protection, and marshalling yourselves in organized array, as it were, around the foot of the Scaffold, have seemed ambitious to assume the function of the very Body-Guard of the Hangman.”31 Parodying a pro-gallows clergy, O’Sullivan envisions the debates surrounding capital punishment as a virtual war: on one side, reformers such as himself firing salvos at the gallows; on the other, retentionist clergymen “marshalling” themselves around the scaffold to serve as the hangman’s “Body-Guard.” With the battle lines drawn, O’Sullivan brings lay readers into the field, inviting “the large number of the undecided and indifferent, who may never have had a combined opportunity and disposition” to interrogate the death penalty through “Biblical criticism” and applied Christian ethics (228). O’Sullivan, on behalf of the abolitionists, affords readers that opportunity by presenting “an outline of the Scriptural Argument by which we refute the common objections opposed to us from the Bible” (228).
The argument O’Sullivan outlines here is essentially an elaboration of the position he asserts at the outset of his Report. That position holds that, contrary to popular opinion, the Bible condemns rather than sanctions the death penalty. O’Sullivan claims, for instance, that “the Bible contains no injunction nor sanction of the practice of capital punishment; but . . . the very reverse is most unequivocally impressed upon its pages, in their outset as in their close” (29). Rehearsing a familiar argument of Benjamin Rush and others, he reads Genesis 9:6 (“Whoso sheddeth the blood of man, by man his blood shall be shed”) as prophecy rather than command. The verse serves as a prediction or a denunciatory warning of what ultimately becomes of violent behavior, much like the proverb derived from Matthew 26:52, “He who lives by the sword dies by the sword,” or the one from Revelations 13:10, “He that leadeth into captivity shall go into captivity.” It does not, for O’Sullivan, function as a universal commandment, such as “Thou Shall Not Kill” (Exodus 20:13).
As one might expect, the sixth commandment plays a crucial role in O’Sullivan’s scriptural argument. That commandment stands “naked and sacred” in its “simplicity” and is “absolute, unequivocal, universal” (Report 22). It cannot be transformed into “Thou shall not commit murder—but mayest kill him who has committed murder” (22). To be sure, it contains “no proviso—no exception—no qualification” (22). O’Sullivan also finds evidence against capital punishment in the story of Cain and Abel, which he identifies in “The Gallows and the Gospel” as the “lesson set by the example of God himself in the case of the first murder” (233). In the Report, O’Sullivan had pushed this reading further: “Yet was death the sentence of Cain?” he asks rhetorically. “On the contrary, his doom is written that he should be ‘a fugitive and a vagabond in the earth,’ the earth ceasing to yield her strength to his tillage and a mark being set on him, ‘lest any finding him should kill him’ ” (28, emphasis in original). The proscription on taking Cain’s life, for O’Sullivan, is reinforced through God’s pronouncement: “Whoso slayeth Cain, vengeance shall be taken on him sevenfold” (28, emphasis in original).
In “The Gallows and the Gospel,” O’Sullivan adds to and complicates his biblical criticism contra time-honored traditions through a linguistic analysis of Genesis 9:6. He begins by situating the verse within its supportive context, reminding readers that it should not be interpreted “in the absolute imperative sense for which our opponents contend—and made universal and perpetual, as they interpret its intended application” (“Gallows” 299). He then attends to the linguistic construction of the verse in its original Hebrew and provides a literal translation: “Shedding blood of man in man his (or its) blood will be shed” (299). To produce the common English translation of the verse, O’Sullivan argues, three assumptions must be made—none of them “necessarily resid[ing] anywhere in the terms of the Hebrew itself” (299). Those assumptions are:
1. The participle shedding is not only made personal and masculine, but it is confined to the personal and masculine sense, in the words, “whoso sheddeth”;
2. The verb which in the original is the simple future tense, so as to be rendered in Latin effundetur and in English will be shed, must receive an imperative sense so as to be read, shall be shed; and 3. The expression which is literally in man in the original, must be made to denote agency, by selecting and assigning to the preposition employed one only of its numerous meanings, so as to be converted into “by man.” It is only after the performance of this triple process that the original Hebrew . . . becomes translated, or rather transformed, into the common English reading of our Bibles. (229)
Of these three assumptions, O’Sullivan focuses on the second. The third is important because it denotes human agency and limits the traditional application of the verse, for in the original Hebrew the object pronoun (him or its) could be granting permission to put to death beasts—not men—who kill men. But the second assumption goes to the heart of the matter: should Genesis 9:6 be read as an injunction and thereby given “imperative force” (299); or should it be interpreted as simply declarative of some “denunciatory future”? (230). Through this rigorous analysis of the mode and mood of the Hebrew verb shophaich (i.e., shedding/will shed/may shed), O’Sullivan examines what today we would call the performative force of the biblical verse in question. To do so, however, is not merely to engage in an academic exercise in splitting theoretical hairs; rather, it cuts to the quick of the issue by questioning the biblical authority upon which many prominent defenders of the gallows had staked their claims.
For O’Sullivan, as for his opposition, much hinged upon how Genesis 9:6 (and its operative verb) was interpreted, and O’Sullivan linked his interpretation to what I have called the republican argument against the death penalty. In a powerful analogy challenging the performative force often granted to Genesis 9:6, O’Sullivan links his biblical criticism to this political argument: “To give it [shophaich] the imperative sense,” he argues, “and then to claim our obedience as a command is not only to beg the whole question, but even impiously to clothe in the garb of a divine authority that which is the mere imposture of human assumption. In the present application of it, it may not unfairly be compared to an act of forging a sovereign’s signet to a death warrant” (230). Likening traditional interpretations of Genesis 9:6 as divine injunction to “the forging of a sovereign’s signet to the death warrant,” O’Sullivan brings the question of politics into his scriptural analysis, charging his opponents with “impiously” dressing up a mere “human assumption” in the garb of “divine authority” to serve their own position.
In his spirited assault on traditional interpretations of Genesis 9:6, O’Sullivan certainly had in mind Reverend George Barrell Cheever, a prominent Presbyterian minister and the foremost defender of the gallows who had recently authored Punishment by Death: Its Authority and Expediency (1842). In that book—what one death penalty historian has called “the most famous and influential defense of the gallows in American history”32—Cheever unequivocally champions capital punishment, building his argument primarily around an appeal to divine authority invested Genesis 9:6. Cheever devoted several chapters to interpreting the biblical passage, what he calls in the introduction to Punishment by Death “the Divine Statute” and elsewhere the “citadel of the argument, commanding and sweeping the whole subject.”33 Echoing the language O’Sullivan used to denounce such interpretations of Genesis 9:6 as “impiously . . . cloth[ing] in the garb of a divine authority that which is the mere imposture of human assumption,” Cheever saw the biblical verse as an “ordinance confer[red] directly from God upon the civil majesty the power of the sword, the power of life and death,” thus “cloth[ing] the administration of righteous law with a divine authority.”34 But it was not just the recent publication of Punishment by Death that would have prompted O’Sullivan to think of Cheever in writing “The Gallows and the Gospel” (an alliterative phrasing that Cheever denounced as “miserable slang”).35 A month before “The Gallows and the Gospel” was published, O’Sullivan had publicly debated Cheever in New York City on the question, “Ought Capital Punishment to Be Abolished?”36 The debates, which were held at the Broadway Tabernacle on January 27, February 3, and February 17, were well attended and generated much press and further coverage for some time to come.
In fact, we get a literary rendition of the O’Sullivan-Cheever debate from the pen of Nathaniel Hawthorne—a former classmate of Cheever’s at Bowdoin College and a close friend of O’Sullivan, as well as a contributor of more than twenty works to the Democratic Review, including “Egotism, or the Bosom Serpent,” which was published alongside of “The Gallows and the Gospel” in the March 1843 issue of the magazine.37 The allusion to the O’Sullivan-Cheever debate occurs in a pivotal moment in “Earth’s Holocaust,” Hawthorne’s 1844 tale that recounts its narrator’s journey to the American Midwest to witness the immolation of all the world’s “worn-out trumpery,” its “condemned rubbish.”38 Midway through the tale, following the successive destruction of signs of rank and social prestige, liquors and tea, articles of high fashions, and instruments of war, the body of reformers responsible for maintaining the great bonfire—this “Earth’s Holocaust”—t urns its attention to instruments of capital punishment: “old implements of cruelty—those horrible monsters of mechanism—those inventions which it seemed to demand something worse than man’s natural heart to contrive, and which had lurked in the dusky nooks of ancient prisons, the subject of terror-stricken legends” (392).
Halters, headsmen’s axes, and the guillotine are among the instruments of death thrown into the fire, but the imminent destruction of the gallows generates the most interest from the crowd, even sparking a debate between two men likely drawn from Cheever and O’Sullivan respectively: “Stay, my brethren!” cries a defender of capital punishment as the gallows is about to be thrust into the fire. “You are misled by a false philanthropy!—you know not what you do. The gallows is a heaven-oriented instrument! Bear it back, then, reverently, and set it up in its old place; else the world will fall to speedy ruin and desolation!” (393). In response to these assertions, “a leader in the reform” commands his brethren: “Onward, onward! . . . Into the flames with the accursed instrument of man’s bloody policy! How can human law inculcate benevolence and love, while it persists in setting up the gallows as its chief symbol! One heave more, good friends, and the world will be redeemed from its greatest error!” (393). The gallows is finally pushed into the fire, and this act appears to be a good thing, as Hawthorne’s narrator had moments earlier applauded the destruction of halters, axes, and the guillotine, commenting that their immolation “was sufficient to convince mankind of the long and deadly error of human law” (392). Yet one cannot say for certain that this radical reform will benefit society, since the tale slips unmistakably into parody as marriage certificates, written constitutions of all kinds, works of literature, and even the Bible later become fuel to feed the reformers’ fire.
While it might be a stretch to call “Earth’s Holocaust” abolitionist in orientation, one could say that about Hawthorne’s “The New Adam and Eve,” a story first published just one month before O’Sullivan’s “The Gallows and the Gospel” in the February 1843 issue of the Democratic Review. In that story, Hawthorne imagines the return of the world’s primogenitors after the “Day of Doom has burst upon the globe, and swept away the whole race of men.”39 Roughly midway through the tale, the “New” Adam and Eve are depicted as they enter a prison and wander through its bleak corridors and narrow cells. The novelty of Adam and Eve’s experience provides Hawthorne’s narrator with the opportunity to comment generally on the sad state of crime and punishment with which the recently deceased world was plagued, but nothing within the prison provokes strong reaction from either Adam and Eve or the narrator. All of that changes, however, when, “passing from the interior of the prison into the space within its outward wall, Adam pauses beneath a structure of the simplest contrivance, yet altogether unaccountable to him” (255). This structure, we are told, “consists merely of two upright posts, supporting a transverse beam, from which dangles a cord” (255). The menacing object that Adam finds “altogether unaccountable” is, of course, the gallows, and its foreboding presence elicits the following exchange between Adam and Eve:
“Eve, Eve!” cries Adam, shuddering with a nameless horror. “What can this thing be?”
“I know not,” answers Eve; “but, Adam, my heart is sick! There seems to be no more sky,—no more sunshine!” (255)
Without knowledge of the world of sin to which the gallows belongs, neither Adam nor Eve can place “this thing” within an interpretive frame. Nonetheless, intuition into the instrument’s cruel design sends a “nameless horror” through Adam and affects Eve with heartache and a momentary sense of despair.
Adam and Eve’s response prompts the narrator to justify the couple’s reaction:
Well might Adam shudder and poor Eve be sick at heart; for this mysterious object was the type of mankind’s whole system, in regard to the great difficulties which God had given to be solved—a system of fear and vengeance, never successful, yet followed to the last. Here, on the morning when the final summons came, a criminal—one criminal, where none were guiltless—had died upon the gallows. (255)
This authorial intrusion serves not only to endorse Adam and Eve’s moral response but to raise questions about the institution of capital punishment, “a system,” the narrator asserts, “of fear and vengeance, never successful, yet followed to the last.” Such a description calls attention to negative effects of the death penalty (i.e., “fear” and “vengeance”), and these attributes are given dramatic expression through the example of that “final summons” when “a criminal—one criminal, where none were guiltless—had died upon the gallows.” By shifting midsentence from the indefinite “a criminal” to the definite “one criminal,” the narrator at once suggests the finality of all executions and the singularity of this one, while the emphasis upon the universal guilt of humanity undercuts the position of moral superiority from which a society typically justifies the death penalty. Yet this tale, like “Earth’s Holocaust,” presents a complicated stance toward capital punishment, and one not wholly consistent with the politics of abolition, as I argue in chapter 4.
In addition to Hawthorne, other prominent literary figures of the day wrote anti-gallows work for the Democratic Review. Four months before the publication of “The New Adam and Eve,” John Greenleaf Whittier published “Lines, Written on Reading Several Pamphlets Published by Clergymen against the Abolition of the Gallows” in the October 1842 issue of the journal. Through an appeal to sympathy and compassion, and by situating the gallows at the tail end of a history of torture and cruelty inflicted by men in the name of God, Whittier indicts the practice of capital punishment in contemporary America, asking those of “milder faith” near the poem’s end: “Will ye become the Druids of our time? / Set up your scaffold-alters in our land, / And, consecrators of Law’s darkest crime, / Urge to its loathsome work the Hangman’s hand?”40 By linking the current administration of the death penalty to an ancient, barbaric past, Whittier strove to show that capital punishment was incompatible with democratic principles and civil liberties. He extended this line of argument in a second anti-gallows poem, “The Human Sacrifice,” published seven months later in the May 1843 issue of the Democratic Review. The poem was written expressly for the anti-gallows cause and specifically, as its introductory headnote explains, in response to a clergyman’s “warm eulogy upon the gallows” recently published in some of the nation’s “leading sectarian papers.” 41
The writer of that letter was almost certainly Reverend Jared Bell Waterbury, author of numerous hymns and poems who also was an active participant in an anti-anti-gallows movement led by orthodox Protestant ministers such as Cheever, Albert Baldwin Dod, Leonard Bacon, and Waterbury himself.42 Signed “W,” the open letter to editors of periodicals such as the New York Evangelist described the minister’s conversation with the condemned before his execution as well as his witnessing of the hanging itself; it concluded with a political message, warning that “the effort made by many to do away capital punishment, if successful, would prove disastrous in the extreme.”43 A decade later, Waterbury took his pro-gallows campaign to the Massachusetts legislature, where he joined other ministers—including a somewhat reluctant Lyman Beecher (father of Harriet Beecher Stowe)—in defending capital punishment in a debate with anti-gallows activists, including Mrs. Catherine S. Brown (a Garrisonian), Reverend Charles Spear, Reverend Theodore Parker, Wendell Phillips, and William Lloyd Garrison. Arguing against the “radicalism” of his opponents, Waterbury began by grounding his conservative position in American Puritan origins: “I belong to the conservative class, and am supposed to fear changes. It is dangerous to uproot an institution that was planted by our Puritan fathers. Yet I find you solicited to uproot a long-existing law.”44 Taking a page from Cheever’s famous defense, Waterbury underscored the centrality of Genesis 9:6 as the framework for any civil government and defended his position from challenges raised by Parker, Spear, and Phillips. Beecher hesitantly joined forces with Waterbury, approving the conservative wisdom of his colleague’s argument and questioning the “facts to warrant such a change,” although acknowledging his willingness to experiment with abolition if—and only if—the reformers’ “facts” prove true. “If not,” Beecher added, “I will thank God that we get rid of their views.”45
Anticipating the terms of this debate yet responding directly to W’s letter in the New York Evangelist and elsewhere, Whittier’s “Human Sacrifice” sought to humanize the condemned murderer against the cold and cruel process of capital punishment. Sentimental and symbolic, the poem revolves around the central figure of the gallows and explores the thoughts of two individuals intimately connected to it: the condemned, confined to his cell, waiting death in an hour’s time; and the minister who presides over the ceremony, “Blessing with solemn text and word / The gallows-drop and strangling cord” (62–63). The minister’s blessing here sanctions what Whittier’s speaker on two occasions calls “the crime of Law” (65, 105), a denigrating description of capital punishment that resonates with the central image figured in the poem’s title—“Human Sacrifice”—which itself calls to mind a key component in the republican argument against the death penalty articulated fifty years earlier in Benjamin Rush’s provocative claim, “An execution in a republic is like a human sacrifice in religion.”
While Whittier’s anti-gallows poems may have been occasioned by remarks from pro-gallows clergymen, their publication in the Democratic Review served another end. To the disappointment of O’Sullivan and the delight of Cheever, the great British poet William Wordsworth had recently published a series of sonnets in support of the death penalty.46 In the March 1842 Democratic Review, O’Sullivan laid the groundwork for a counterattack in a featured essay titled “Wordsworth’s Sonnets on the Punishment of Death.” He began the essay by expressing sad regret that the “great English master” had written “in justification and support of the practice of Capital Punishment,” which O’Sullivan described as “one of the most hideous and horrible barbarisms yet lingering to disgrace the statute-books of modern civilization.”47 O’Sullivan acknowledged that, because of “the strongly conservative cast of his mind and political opinions,” one could not expect Wordsworth to come out in favor of abolition. “Yet,” he continued, “to behold him take to the sacred lyre, and attune its chords to the harsh creaking of the scaffold and the clanking of the victim’s chains, seems almost a profanation and a sacrilege—as though a harp of heaven were transported from its proper sphere and its congenial themes, to be struck by some impious hand to the foul and hideous harmonies of hell.”48
Following these introductory remarks, O’Sullivan cites in full Wordsworth’s fourteen “Sonnets on the Punishment of Death” and offers a stanza-by-stanza critique of them. In doing so, he does not focus on the tone and meter of Wordsworth’s verse, as one might expect given his metaphor of the “sacred lyre” and his description of the “harsh creaking of the scaffold and the clanking of the victim’s chains” to which the sonnets are tuned. Rather, he attends primarily to the political assumptions informing Wordsworth’s position, exposing the false premises he finds in the sonnets and providing counterarguments to them. For instance, when Wordsworth’s speaker celebrates the gallows as an instrument of deterrence, O’Sullivan references empirical evidence suggesting the contrary and, again, evokes the executioner as “the indirect cause of a far greater number [of murders] than he has ever punished or avenged.”49 Near the end of the essay, O’Sullivan employs a different strategy by citing in full an anti-gallows poem by Lydia Huntley Sigourney. By quoting Sigourney’s “The Execution,” O’Sullivan attempts to displace Wordsworth’s “Sonnets” with imagery and poetic language that argue for abolition—an act realized, for O’Sullivan, in Whittier’s poems subsequently published in the Democratic Review.
In November 1845, Walt Whitman joined the conversation in the Democratic Review with “A Dialogue,” an imaginative essay that stages a debate between a condemned murderer and society on the eve of scheduled execution. Like Hawthorne’s “The New Adam and Eve,” Whitman’s “A Dialogue” is framed as a parable, thus giving literary form to the many anti-gallows editorials and reports he had published elsewhere.50 It begins by posing the following question: “What would be thought of a man who, having an ill humor in his blood, should strive to cure himself by only cutting off the festers, the outward signs of it, as they appeared upon the surface?”51 Starting off in this way enables Whitman to foreground questions about social complicity and responsibility for criminal acts; the “man” represents society as a whole, whereas the “festers” signify criminals who are, in turn, “outward signs” of a diseased social body or body politic. As Whitman explains: “Put criminals for festers and society for the diseased man, and you may get the spirit of that part of our laws which expects to abolish wrongdoing by sheer terror—by cutting off the wicked, and taking no heed of the causes of the wickedness” (360). Following this short preamble, Whitman proceeds with the dialogue, which adopts and revises the criminal conversation narrative—a popular form of crime literature since the seventeenth century—by staging an exchange between “the imposing majesty of the people speaking on the one side, a pallid, shivering convict on the other” (360).
The convict initiates the discussion by admitting to have committed a “wrong . . . in an evil hour” when “a kind of frenzy came over me, and I struck my neighbor a heavy blow, which killed him” (360). Summarizing the convict’s crime in this manner emphasizes murder as an act typically perpetrated in a heat of passion and committed by a person much different in mind and disposition from the one now awaiting execution. To the convict’s admission of guilt, society flatly responds that “you must be killed in return” (361). When the convict then asks, “Is there no plan by which I can benefit my fellow-creatures, even at the risk of my own life?” society again replies tersely in the negative: “None . . . you must be strangled—choked to death. If your passions are so ungovernable that people are in danger from them, we shall hang you” (361). To this response the condemned asks “Why?” suggesting that incarceration in a strong prison would protect society from him and that he would gladly work while in prison to defray the expense of housing him there. Once again, society gives its blunt response of “No,” adding this time that “we shall strangle you; your crime deserves it” (361), to which the “murderer” (as Whitman now refers to him) asks: “Have you, then, committed no crimes?” (361)
Putting society on the defensive enables Whitman’s murderer to implicate “the people” in the production of crime. The dialogue now shifts to a discussion of a variety of crimes that, in society’s words, have not “come within the clutches of any statute,” but nonetheless lead daily to the ruination and even death of many (361). This inadvertent admission of guilt provides the convict the opportunity not only to comment generally on social responsibility, thereby implicating society in the cause of crimes, such as the one for which he himself is to be executed, but also to expose a double standard in a theory of justice, which holds that an individual, when sinned against, should forgive, while society ought to withhold forgiveness and exact payment in kind for murder. When the convict argues this latter point and asks why should not the people, like the individual, be guided by the principle of forgiveness, society responds: “The case is different . . . We are a community—you are but a single individual. You should forgive your enemies” (361). The condemned then poses a rhetorical question, which he answers by way of analogy:
“And are you not ashamed,” asks the culprit, “to forget that as a community which you expect me to remember as a man? When the town clock goes wrong, shall each little private watch be abased for failing to keep the true time? What are communities but congregated individuals? And if you, in the potential force of your high position, deliberatively set examples of retribution, how dare you look to me for self-denial, forgiveness, and the meekest and most difficult virtues?” (361)
The convict’s comparison of the “town clock” to “each little private watch” is telling. It suggests that the internal watches (or alarm clocks) of each private citizen are set according to the town clock, which is held up as a model. Therefore, when society sets the example of retribution when a murder is committed, how can the people expect an individual, when provoked or enraged, to act according to a different and higher standard? The convict reinforces this point by saying that he killed simply because his “blood was up” (361), even though he knew the lawful penalty for such a crime would be death.
With society now squarely on the defensive, the convict mounts an assault upon the death penalty, deploying a series of questions that “the people” cannot answer satisfactorily. Through Whitman’s Socratic dialogue (with the murderer playing Socrates’ part), readers of the Democratic Review are thus left with a clear sense of the moral horrors and contradictions of a justice system that not only condemns lethal violence by using such violence itself but hypocritically demands forgiveness from its private citizens for acts it deems unforgivable. Near the end of “A Dialogue,” the conversation takes a contentious turn when the issue of the death penalty’s spectacle of violence is broached. Both the convict and society agree that the spectacle of an execution is “degrading and anti-humanizing” (362), and the people congratulate themselves on the passage of recent laws making executions in many states “private.” The convict, however, points out that executions are still public in many states and, more importantly, that so-called private executions are by no means “private” when “everybody reads newspapers, and every newspaper seeks for graphic accounts of these executions,” so that “such things can never be private” (362). Continuing in this vein, the convict accuses newspapers and various print media of carrying out, as it were, literary executions: pictorial depictions of lawful death that make the act present and palpable in the mind’s eye. Thus, he disabuses the people of the notion that executions have become private and less visible in society. In fact, the convict argues precisely the opposite point, using press coverage of political acts in Congress as a heuristic analogue for executions dramatized literarily for the tens of thousands of newspaper readers:
What a small portion of your citizens are eye-witnesses of things done in Congress; yet they are surely not private, for not a word officially spoken in the Halls of the Capitol, but is through the press made as public as if every American’s ear were within hearing distance of the speaker’s mouth. The whole spectacle of these . . . executions is more faithfully seen, and more deliberately dwelt upon, through the printed narratives, than if people beheld it with their bodily eyes, and then no more. Print preserves it. It passes from hand to hand, and even boys and girls are imbued with its spirit and horrid essence. Your legislators have forbidden public executions; they must go farther. They must forbid the relation of them by tongue, letter, or picture; for your physical sight is not the only avenue through which the subtle virus will reach you. Nor is the effect lessened because it is more covert and more widely diffused. Rather, indeed, the reverse. As things are, the masses take it for granted that the system and its results are right. (362–63)
By advocating restrictions upon the press and its coverage of executions, Whitman’s convict pushes the argument forbidding the representation of lawful executions further than Whitman himself would take it.52 After all, in publishing “A Dialogue” Whitman participates in the very discursive activity against which his convict speaks. And Whitman, the journalist, did go on to publish other such pieces, including a bitterly sarcastic article, “Hurrah for Hanging!,” in the March 23 issue of the Brooklyn Daily Eagle (1846). That article, Whitman writes in the piece, was occasioned by “the butcher[ing] of five human beings last week in Cayuga co., in this state—as we have already published the dark and dreadful narrative.” He went on to conclude the Daily Eagle report by ironically urging readers to “let the law keep up with the murderer, and see who will get the victory at last.”53 Yet Whitman’s political agitation did not stop there. He also promoted the discussion of reports concerning capital punishment in the meetings and social activism of the Brooklyn Association for the Abolition of the Death Penalty, an organization Whitman cofounded in 1846.
Nonetheless, the point Whitman’s sympathetic convict makes is an important one: the so-called privatization of lawful hangings in no way diminishes the psychological impact they may have upon society. Indeed, the proliferation of “printed narratives” (“A Dialogue” 362) of executions occurred in large part because the actual spectacle of lawful violence had moved behind prison walls and had therefore become much less visible. For this reason, and because of the unprecedented debates about capital punishment in the decades preceding the Civil War, one could follow the convict and say that executions in the 1840s and early 1850s had never before been so public.
CAPITAL PUNISHMENT AND CLASSIC AMERICAN LITERATURE
More public than ever before, the great debates over the death penalty in the nineteenth century have, until recently, been largely forgotten by scholars of American literature. Yet a case can be made that the controversy surrounding capital punishment should be seen as a crucial part of the context for the flowering of the “American Renaissance” in the early 1850s. Whitman, of course, was a crucial figure in that movement, and if, as David S. Reynolds has suggested, Whitman’s 1846 article “Hurrah for Hanging!” was likely influenced by “Hurrah for the Gallows!” (Quaker xxxi), a sardonic chapter lampooning capital punishment in George Lippard’s The Quaker City54 (1845), then the debates about capital punishment themselves lie “beneath” the American Renaissance and constitute some of the roots that led to the invigoration of American literature at midcentury.
In fact, these debates have left an indelible imprint on many works by classic American Renaissance writers. There is, for instance, the famous opening of Nathaniel Hawthorne’s The Scarlet Letter (1850), which stages the scene of capital punishment even though an execution itself does not occur. Drawing upon the dramaturgy of the death penalty, the novel begins with the image of “The Prison Door,” out of which Hester Prynne emerges like a “condemned criminal” coming “forth to his doom.”55 Readers are then told that the crowd gathered to witness Hester’s punishment “betokened nothing short of the anticipated execution of some noted culprit, on whom the sentence of a legal tribunal had but confirmed the verdict of public sentiment.”56 And just before the punishment commences, some of the spectators push their way forward as if to be “nearest to the scaffold at an execution.”57 Even the dialogue among these spectators concerns the place and purpose of capital punishment: “This woman has brought shame upon us all and ought to die,” a matronly woman declares. “Is there not law for it? Truly there is, both in the Scripture and the statute-book.” In response, a man from the crowd asks, “is there no virtue in woman, save what springs from a wholesome fear of the gallows?”58
Hester, of course, is not executed; neither she nor the crowd expects such a punishment to occur. Nonetheless, her presence upon the scaffold around which the community gathers plays off and becomes part of the cultural ritual of capital punishment that is dramatized in many popular antebellum novels, stories, and works of creative nonfiction—the subject of my next two chapters. Such literature was influenced by, and likely influenced, the anti-gallows writings of reformers like Rantoul, O’Sullivan, and Charles Spear, the founding editor of Massachusetts’s The Hangman and The Prisoner’s Friend, periodicals dedicated to the abolition of capital punishment. Hawthorne, for one, probably knew the writings of Spear, a tireless prison reformer who may have inspired the character of Hollingsworth in Hawthorne’s The Blithedale Romance,59 and he certainly knew those of O’Sullivan and Rantoul. O’Sullivan, of course, was a close friend of Hawthorne’s (whose children knew him as “Uncle John,” their godfather), whereas Rantoul served as an attorney for the defense in Salem’s famous 1830 Joseph Knapp murder trial, an important source Hawthorne drew upon when writing The House of the Seven Gables (1851). What is more, Hawthorne himself was an voracious reader of gallows literature and criminal reports like the Record of Crimes in the United States, and while an undergraduate at Bowdoin College he devoured novels by John Neal, the author of Logan whose execution scene and dialogue I began this chapter by analyzing.60
Published the same year as Hawthorne’s The Scarlet Letter, Herman Melville’s White Jacket; or, the World in a Man-of-War (1850) contains one of the most overtly dramatic enactments of a death “sentence” as such in antebellum literature. The scene takes place in chapter 70, “Monthly Muster Round the Capstan,” and offers an intersubjective response to the death sentence as a linguistic act. In it White Jacket, Melville’s principled yet good-natured narrator, describes an event singular but hardly exceptional in the world of a man-of-war: the reading of the Articles of War, the U.S. Navy’s code of prohibitions and punishments. Melville stages the gravity of the monthly muster, “rendered even terrible,” White-Jacket says, “by the reading of the Articles of War by the captain’s clerk before the assembled ship’s company, who, in testimony of their enforced reverence for the code, stand bareheaded till the last sentence is pronounced.”61 White-Jacket continues:
To a mere amateur reader the quiet perusal of these Articles of War would be attended with some nervous emotions. Imagine, then, what my feelings must have been, when, with my hat deferentially in my hand, I stood before my lord and master, Captain Claret, and heard these Articles read as the law and gospel, the infallible, unappealable, dispensation and code, whereby I lived, and moved, and had my being on board of the United States Ship Neversink.
Of some twenty offences—made penal—that a seaman may commit, and which are specified in this code, thirteen are punishable by death.
“Shall suffer death!” This was the burden of nearly every Article read by the captain’s clerk; for he seemed to have been instructed to omit the longer Articles, and only present those which were brief and to the point.
“Shall suffer death!” The repeated announcement falls on your ear like the intermitting discharge of artillery. After it has been repeated again and again, you listen to the reader as he deliberately begins a new paragraph; you hear him reciting the involved, but comprehensive and clear arrangement of the sentence, detailing all possible particulars of the offence described, and you breathlessly await, whether that clause also is going to be concluded by the discharge of the terrible minute-gun. When, lo! it again booms on your ear—shall suffer death! No reservations, no contingencies; not the remotest promise of pardon or reprieve; not a glimpse of commutation of the sentence; all hope and consolation is shut out—shall suffer death! (292–93, emphasis in original)
The passage begins with marked solemnity, as White Jacket notes how each sailor’s subjectivity is constituted through the Articles of War, a document “read as the law and gospel, the infallible, unappealable, dispensation and code, whereby I lived, and moved, and had my being on board of the United States Ship Neversink.” The passage also starts off matter-of-factly, stating the number of penal offenses under military law and specifying that thirteen of the twenty are “punishable by death.” It then shifts dramatically in tone and perspective as White Jacket cites the operative phrase of these thirteen statutes, “Shall suffer death!,” and provides his subjective response to it. Moving from the first-person, past tense to the second-person, present tense, Melville puts readers in the position of the sailors (the potentially condemned) upon whose ears the death sentence falls “like the intermitting discharge of artillery,” and to whom they (“you”) “listen to the reader as he deliberately begins a new paragraph,” which ends with the same terrible injunction, “shall suffer death!” Within the scene, the “reader” (i.e., captain’s clerk) plays the role of executioner, his reading taking shape as a carefully delivered performance to maximize fear and promote terror. Indeed, White-Jacket tells us the reader seems even “to have been instructed to omit the longer Articles, and only present those which were brief and to the point.” Again, particularly to the point is the Articles’ operative phrase. Exclamatory and italicized throughout, the repeated “shall suffer death!” embodies the letter of the law and, within the context of the chapter, functions as a leitmotif or poetic refrain pronounced eight times over the course of three pages. To each iteration, White-Jacket responds with ironic commentary that dialogizes the monologic letter of the law, exposing its tyranny and opening it up to criticism and ridicule.
In addition to influencing the work of Melville, Hawthorne, Whitman, and Whittier, the debate over capital punishment affected both Emerson and Thoreau. Holding a theory of individual rights and the state very close to Rantoul’s and using the motto of O’Sullivan’s Democratic Review to start his famous essay on civil disobedience, Thoreau made his own argument against hanging as a deterrent to crime in “A Plea for John Brown” (1859). In that speech, which was delivered on several occasions in the weeks following the raid upon Harper’s Ferry, Thoreau turned the imminent execution of John Brown into a call for continued and even violent disobedience to laws supporting slavery. He also deified Brown, transforming him into a martyr as well as an executioner of a higher law. Near the end of the plea, Thoreau went so far as to say, “Some eighteen hundred years ago Christ was crucified; this morning, perchance, Captain Brown was hung. These are two ends of a chain which is not without its links.”62
As Paul Jones has recently shown, the anti-gallows movement was an important cause for Emerson. In articulating his notion of the “believer,” Emerson defined such an individual as “poet, saint, democrat, theocrat, free-trader, no-church, no capital punishment, idealist.”63 In the 1850s, as the crises over slavery came to a head, Emerson pronounced the “abolition of capital punishment,” along with “emancipation” and efforts “to abolish kingcraft, feudalism, black-letter monopoly” as essential to what he called the “marked ethical quality” of the “American idea.”64 Like Thoreau, he saw this idealism personified in the (misguided) heroism of John Brown, whose impending death sentence would, Emerson infamously declared in a widely quoted speech, make “the gallows as glorious as the Cross.”65 Connecting the evils of slavery and capital punishment in public speech, Emerson would privately explore their interconnections in an unsent letter he wrote to Governor Wise protesting Brown’s execution and defending the condemned as a mad idealist.66
Considerable energy has been devoted—and rightly so, as I suggested in my introduction—to revising our understanding of the American Renaissance in terms of race and the campaign to abolish slavery. In this opening chapter, I have laid the groundwork for understanding the American Renaissance in terms of that “other” antebellum abolition movement, a movement still unfulfilled in a country that once was a worldwide leader in a campaign to keep the state from exercising the power to curtail the most important civil liberty of all—life.67 In the chapters that follow, I build upon this foundation through close attention to literature in relation to the death penalty and the national campaign for its abolition from the 1830s through the first quarter of the twentieth century.