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63 CHAPTER TWO O’Sullivan and Cheever’s Death Penalty Debate, 1835–1842, and “The Highest Interests of Humanity” • T he first stage of the New York death penalty debates began in 1835, when Governor William Learned Marcy, perhaps recalling the complexities of the death penalty cases he adjudicated while serving on the New York Supreme Court from 1829 to 1831, appointed a committee to prepare a report on the effects of public hangings.1 On 8 April 1835, the “select committee to whom was referred the resolution directing inquiry into the propriety of abolishing public executions” presented its findings to the senate of the state of New York. Listed simply as “Report, No. 79,” the committee’s opening two paragraphs offer a powerful indictment of capital punishment that merits quoting at length: In the early and more barbarous eras of civil government, punishments were vindictive; justice was untempered with mercy. Severity was deemed essential, not only in retaliation for crime, but as an example to deter from its repetition. Terror was the agent of the law; and its administrators , arbitrary in power, attempted to restrain mankind by fear, rather than to reform them by the inculcation of just, humane, and rational 64 Chapter Two principles. Not only was the nature of punishments vindictive, but the modes of inflicting them corresponded less with the character of the crimes than with the spirit of the laws. . . . Culprits were impaled alive; mutilated; broken upon the wheel; their bodies transfixed to the gallows and left bleaching in the wind; or their mangled remains inhumanely exposed to public gaze. But in every age and country in which barbarous punishments and exhibitions have prevailed, they have been found to produce contrary results from those which were designed. Instead of proving salutary as examples to deter from the commission of crime, their tendency has been to harden and brutalize the feelings of the populace, to familiarize them with scenes of blood, to excite disgust instead of terror or respect for the laws, and to increase offences both in number and enormity.2 The members of the committee that produced “Report, No. 79” are not listed, so we have no idea of the identity of the authors of this passage. We do know, however, that by 1832 the lengthy death penalty abolitionist passages of Edward Livingston’s monumental Louisiana “Codes” had been published throughout the Northeast and that by 1835 he was corresponding with movers and shakers around the nation, including many New York legislators, whom he was urging to pursue abolition. It is therefore likely that the anonymous “Report, No. 79” was based at least in part on Livingston’s ideas. Regardless of this unanswered question concerning the document’s authorship, “Report, No. 79” captures nicely the rhetoric of the rationalist wing of the antebellum attack on capital punishment. For example, the first three sentences of paragraph one portray a stark contrast between a world that is “barbarous,” “vindictive,” and “untempered with mercy,” and that is ruled through “severity,” “retaliation,” and “terror,” and a different, better world governed by “just, humane, and rational principles.” The notion that the world may be “just, humane, and rational” clearly evokes the modernizing promises of the Enlightenment , which, as I argued in chapter 4 of volume 1, provided death penalty abolitionists with a flexible toolbox for arguing against executions. Consider the 1822 Report on the Penitentiary System in the United States, one of the period’s many important studies of crime and punishment, which observed that “during the 18th century a new and illustrious era broke upon the world. A combination of enlightened philosophers, united by the ties of genius, zeal, and humanity, lifted the curtain which had so long The Death Penalty Debate of 1835–1842 65 concealed the horrors and abuses of different existing criminal codes.” Passing into its second century, and supposedly elevated in both spirit and practical application by the Revolution’s reason-loving Founders, some antebellum death penalty abolitionists assumed the Enlightenment would save lives by helping to end the “barbarous,” “vindictive,” and “untempered ” violence of hangings. For these inheritors of the Revolutionary Enlightenment, republicanism would vanquish monarchy, truth would trump terror, modernity would eclipse tradition, reform would defeat vengeance—and so the death penalty would be abolished by the noble sons (and some daughters, too) of what Joel Barlow called the Empire of Reason.3 No silly dreaming by philanthropists, by 1835 it was commonly accepted that the eighteenth-century’s “new...

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