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Capital punishment (1855)

Plea before a Committee of the Massachusetts Legislature, March 16, 1855.

I have not been able, Mr. Chairman, to attend any of the hearings of this Committee, and therefore I cannot be said to know accurately the ground taken by those who have supported the proposition that the gallows should be retained; but I presume I know it in general, and therefore, a general reply will not wander far from the points which the committee would like to have treated. I have always found that before the House of Representatives this subject had, in fact, but two points of difficulty, and, indeed, one was of far more importance to the committee than the other. The first point is, the authority for capital punishment; and the second, the necessity or expediency of preserving it. I will say a few words on both.

In the first place, Mr. Chairman, what is the object of all punishment, in a civil community? Of course, it is not to revenge any act committed. The idea of revenge is to be separated from the idea of punishment, when we speak of capital punishment, or any other punishment, in civil society. Neither can it be said that punishment is the penalty of sin, properly speaking; that is sin in the eye of God, where an individual — a conscious, responsible individual — commits a wrong act, with a wrong motive. Society has nothing to do with motive; society punishes acts. One man, for instance, may commit [78] murder, and in reality, and in the sight of God, may not commit as much sin as another person who has merely stolen; because we all know that sin, moral guilt, is made up of two elements,--the light that the individual had, and the criminal wish that he had to violate that light. God alone can know what light a man has in his own conscience. Strictly speaking, therefore, the word punishment ought never to be used in this connection. Society does not, in fact, punish as we usually make use of that term. Punishment belongs only to that Being who can fathom the heart, and find out motives.

This is a more important principle than it at first appears from this consideration. Many men approach this subject with the idea that there is some peculiar religious responsibility connected with it. Dr. Cheever, in his work on capital punishment, has a leading train of thought to the effect that “the land is stained with blood,” in the phrase of the Old Testament, and that society has got something to do to free tile nation from the guilt of blood; but our ideas of civil government are entirely different from this. There are two objects that society has in inflicting penalties,--that is the proper word, not “punishment.” According to Lord Brougham in his letter to Lord Lyndhurst on this very topic, these objects are,--first, to prevent the individual offender from ever repeating his offence; and second, to deter others from imitating his offence. The primary object of all government is protection,--protection to persons and property. That protection is to be gained in two ways,--by taking the individual murderer, or the individual thief, and by putting him to death, or shutting him up, to prevent his recommitting his offence; and by so arranging the penalty on that man as to deter others from imitating his example. [79]

In that definition, Mr. Chairman, have I not included the whole object of penalty in the eye of civil government? You observe that this must be the whole object. For instance,--a man who undertakes to commit murder, but does not do it, is guilty of murder in the eye of God. If I load a pistol and fire it at a man, and miss him, I am a murderer in the eye of God; I am not a murderer in the eye of society. Society looks upon the act, not upon the intention or motive of the individual; and, therefore, only that Being who fathoms motives, who lets down the plummet of His infinite knowledge into the complex machinery of the human heart, and learns how much good has been resisted, how much education has been smothered,--only He can punish.

If I am right in this, the only things left are restraint of the specific individual culprit, and restraint by deter. ring imitators. That is the object of penalties. Well, then, we come to the penalty of the gallows,--the taking away of life. In the first place,--to look at it abstractly,--is it necessary in order to restrain the murderer, or to deter others from imitating him? It manifestly is not necessary in order to restrain the murderer; because society is now so settled in its arrangements, so perfectly stereotyped in its shape and form, that you can put a man between four walls and keep him there his whole life. Massachusetts can build prisons strong enough to keep a man, and enact statutes strong enough to prevent him from being pardoned out. No man will pretend before this Committee that that part of the object of penalty which would prevent the man from repeating his offence obliges you to take his life. You can shut him up just as securely in a prison as in a grave. It is not necessary, then, to restrain the criminal; nobody pretends it.

Is it necessary for the simple purpose of deterring [80] others from like offences? Will the taking of the man's life deter others from following in his steps? That is the only question that remains.

When we look at the gallows — what is it? It is the taking of human life. There are three questions which present themselves in connection with this subject: 1. Have we a right to take it? 2. Are we obliged to take it. 3. Does it do any good to take it? In other words,--the right, the obligation, and the necessity.

With regard to the matter of right. If the Massachusetts Declaration of Rights is of any authority in this hall, if the first page of your Constitution is of any authority here,--then it would be hard to show where you get the power to take life. “The body politic,” says the Preamble to the Constitution, “is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people.” That is the republican theory of government; it is the theory of this country, as you know, ever since the Declaration of Independence. It is a compact between individuals to be governed in a certain form. Society, therefore, can have no rights higher than those the individual has to give to it. If you will read the Declaration of Rights of the Massachusetts Constitution, you will see that our form of government is a partnership of the individuals composing the body politic, and of course, a partnership cannot have any property except what the individual members give to it. Now an individual man has no right over his own life,--suicide is sin. If government is a compact, a partnership of rights which we individually surrender, where do you get the right to take life? The parties that make the compact have not got it, and therefore they cannot give it to the government. Your legislature, according to that Constitution, has no rights [81] except what the people have given them. The people have no right to take their own lives, and of course they cannot give you the right to take their lives. If your Constitution is correct, therefore, you have no right to take life. I do not say the Constitution is right. I know there are theories which repudiate the idea of compact, and claim that government derives its authority directly from God. Your Constitution says that government is a “compact” among the people; and a government founded on that basis cannot have the right to take life, unless the individual has the right to take his own,--unless suicide is justifiable. The reverend gentlemen who have appeared before you in opposition to the petitioners, would not allow for a moment that I have the right to commit suicide; but if I have not the right to take my own life, how can I give that right to Governor Gardner, or to a jury of twelve men?

Beccaria, Dr. Rush, and all the most eminent writers on this subject deny the right of society to take life, on the ground that it conflicts with the republican form of government. These gentlemen escape from this by throwing overboard the whole theory of American society. They say society is not a compact. They upset the Declaration of Independence and the Massachusetts Constitution, and maintain that government is derived from God; and in that way they get the idea of capital punishment from the Bible: for you cannot get it any where else,--it must be got from the Bible, if got at all. Overthrowing the Massachusetts Constitution, they erect you into a government by the ordinance of God. It is in fact the old divine right to govern, and having introduced that theory into American society, they give you the right to take life. And when they give you this right, they give it to you in a Hebrew verse of the Old Testament, which, they say, not only [82] confers the right, but actually enjoins it as an obligation, “blood for blood!”

They claim that this question lies entirely outside of the province of usual legislation. That is a very suspicious claim, to begin with. You are asked to give your support to a law which avowedly transcends your Constitution, on the ground that it belongs to the theory of Christianity. But who says this is a Christian government? It recognizes the Jew, the Mohammedan, or anybody else, as a voter and entitled to an equality of right. I do not say, gentlemen, that the spirit of Christianity does not permeate its laws; I simply say, this government does not recognize Christianity as an essential characteristic of its component parts.

You come now to the Bible. You come now to this verse of the Old Testament; and upon this verse hangs the whole theory of government, the whole theory of this legislation on capital punishment. I want you to bear in mind these observations, because it shows you that the thing claimed stands outside of the Constitution, outside of the whole theory of American government,--it is peculiar, essential, unique. We come, then, to that verse. It is an obligation, they say: “Whosoever sheddeth man's blood, by man shall his blood be shed.” Let us suppose, gentlemen, to begin with, that it is a command. We will not say that we are Christians and not Jews, and that this was addressed, in the first place, to Jews and not to Christians. Who can show that this is a command to Christians? It is a command to the Jewish nation, so far as we know. But it is contended that this command stands behind the Jewish nation, and is addressed to the whole race, represented by Noah. Suppose we waive aside our objection, and consider it as a covenant with the race, through Noah.

If this is a covenant, if it is a law of God, if it is addressed [83] to us as the law of God,--it must be obeyed, fully, entirely obeyed; no man has a right to take exceptions to it. If it is the law of God, Mr. Chairman, you and I, and this government, and every individual in it must obey it in its letter. We have no right to make changes in it. If we have a right to make changes in the law of God, how much change may we make? Change it a half; two thirds? No; the rule is, you cannot change it a tittle. It is to be obeyed; and it is to be obeyed wholly; it is to be obeyed in its full spirit, to the extent of it. Is not that proper? The opponents of capital punishment, gentlemen, are perfectly willing to obey this statute, with the gentlemen who support the gallows, if they will obey it to the letter, entirely. How long could any legislature that obeyed that command, in its full spirit, sit in any Christian country? Let us see.

In the first place, you will remark that this is but a single line of Hebrew text. If you will look into our friend Spear's book, or Dr. Cheever's book, or any book on this subject, on either side, you will find that there are as many as twelve different interpretations of it. No two of the great lights of Oriental learning and the Hebrew language have been able to agree upon an interpretation. One says that it means one thing, and another, another thing; and from Calvin and Luther down to our own day, there has been no unanimous agreement among scholars as to the meaning of this sentence. Is it not rather singular, gentlemen, that you should be asked to upset the whole theory of the American Constitution, to support a law which it is confessed transcends the American idea of the power of government, that you should be asked to take a right-one of the most doubtful ever exercised, even if it should appear to have existed in any human government — on the faith of a single line of a dead language, three thousand years old, about [84] the meaning of which no two scholars agree? If Goa meant to issue a command to last for all time,--a command which was so imperative that all governments, in all circumstances, were to be obliged to obey it,--would He not have stated it so that its meaning might be plainly understood? Some say it means “whatsoever.” Dr. Kraitsir, one of the most eminent living philologists in the world, undertook to show in his lectures, only two years ago, that it only forbids cannibalism,--the eating of men; and perhaps, on a question of language, there is no single name in all Christendom that has the weight of Dr. Kraitsir at the present moment.

“ Whosoever sheds man's blood, his blood shall be shed.” That is the whole sentence; “by man” is an interpolation. That is the whole literal interpretation of the words; we have got to make out the rest. Some say it is a prophecy, “Whosoever taketh the sword, shall perish by the sword;” and so of all the different meanings. I do not go into them, because it is utterly immaterial to my argument which is the best. The simple fact that the most eminent Oriental scholars have never been able to agree upon an interpretation, is enough for me. Is it not singular, I say, that so transcendent an act of legislation as “breaking into the bloody house of life,” as Shakspeare writes,--the taking of human life,--should be left to hang on a doubtful sentence, in a dead language, more than three thousand years old? Why, gentlemen, if a doctrine is of importance in the Bible, it is spread over many pages; it shines out in parable; it is put prominently forward in exhortation ; it is given in one way and then in another; first by one writer and then by another,--but here is this single sentence, nothing else; we have got to hang on this; we cannot find it anywhere else. Our Saviour says, reiterating the great [85] command, “Thou shalt not kill ;” but here is an exception, according to this theory. Get rid of this sentence, and there is no trouble anywhere else in the Bible. Now, I say, that if that was a command to control all governments, to trample under foot all circumstances, it would be natural to conclude that God would have expressed it more clearly.

But, leaving this point, to whom is this command addressed? Is it to governments? No, gentlemen, it is addressed to individuals. When God spoke to Noah, there was no government. The address was to individuals, and it was so interpreted for more than fifteen hundred years. It was addressed to each individual man; and when the Jews were organized into a nation, they found this original command, according to this interpretation, resting on each man, to kill whoever had killed his nearest relative. You know that all through the Pentateuch you have frequent references to the old right, before government existed, of each man to kill the person who had taken the life of his nearest of kin. This command then is addressed to individuals,--it is a command to the nearest of kin to kill whoever slays his relative. If this is a command of God, it is addressed to you and to me. Suppose that Mr. Rufus Choate, or some other eminent lawyer, should procure the acquittal of a murderer, and that the brother of the person murdered should seek out and shoot down the murderer; and when he is brought before the court for sentence, suppose that he should say to the judge: “ ‘ Whosoever sheddeth man's blood, by man shall his blood be shed.’ Every pulpit in Massachusetts interprets that as a command of God. I believe that it is a command of God addressed to individuals. God has never taken it back. It is addressed to me, then, just as much as to Noah; there is no time with the Almighty. He is speaking that seatence [86] now just as much as in the time of Noah. You say the jury had acquitted the man; but what are the jury to me? I know he was guilty. God's command to me is that I should kill him; I have killed him. Take my life if you dare! You are disobeying the divine commandment!” Suppose he should say this, how would you meet it? Where could you impeach his argument upon the doctrine maintained here?

That is a command addressed to every individual. There was no sheriff then; no county courts; no government; no legislation. There were but six or seven men on the face of the earth, and God promulgated a law. It was addressed to every human being, and it was to be obeyed. It is universally recognized in the Old Testament in the sense I have stated, and it was exercised in that sense for fifteen hundred years. Where is the exception, gentlemen, to that? If the gentlemen who have appeared before you against the abolition of the death penalty will stand on that statute, so will we. Let us see what sort of a government you will produce. Whenever a man has taken life, the nearest of kin of the murdered person will avenge him, according to his own idea, and government has no right to interfere. “Whosoever sheddeth man's blood, by man shall his blood be shed.” Not “whosoever means to shed;” not “whosoever maliciously sheddeth;” “sheddeth with malice aforethought, malice prepense;” --but “whosoever sheddeth.” Now we make a distinction,--we say the man who kills in hot blood, or unawares, is guilty only of manslaughter; we must have malice aforethought to constitute the crime of murder. We draw the line; in the time of Noah it was not drawn. Is this legislature ready to obey this statute, and annul the distinction between murder and manslaughter? Is it ready to make it the law of the Commonwealth, that whosoever takes [87] life, no matter how, shall be hanged by the neck until he is dead?

Do not say I am quibbling. I will show you I am not. Look in the thirty-fifth of Numbers, and you will observe that Moses makes a peculiar institution. He sets apart six “cities of refuge.” What are they for? Whoever commits murder with malice prepense, with design, is to be killed. Whoever smites a mall unawares, that he die, he has a right to fly into a city of refuge, and stay there a year and a day, or until the death of the High Priest; and provided he stays there during that period, the nearest of kin cannot kill him. “These six cities shall be a refuge, both for the children of Israel, and for the stranger, and for the sojourner among them; that every one that killeth any person unawares may flee thither.” (Num. XXXV. 15.) That was the only restraint which Moses dared to put upon the right of the nearest of kin to take the life of anybody who had killed his relative, whether he took it by design or not. The murderer, you will observe, by the fifth chapter of Numbers, is to be put to death, whether he gets to the city of refuge or not; but the man who has committed manslaughter is not to be killed, provided he stay in the city of refuge a year and a day. Now, what does that show? It shows two things,--in the first place, that, prior to Moses' making that statute in Numbers, the nearest of kin took the life of anybody who killed his relative; and in the second place, it shows, what I have stated to you, that there is no distinction in this passage between murder and manslaughter. Moses institutes a distinction, and says that if a man has committed homicide,--has killed a man unawares,--and shall go to a city of refuge, and shall stay in this city a year and a day, he is not to be punished. The two statutes interpret each other. That second statute, which makes a limitation on the first, [88] shows what the first meant, and shows that Moses thought that, according to this passage in Genesis, the blood of the murderer (whether the act were committed with malice aforethought or not) should be taken by the nearest of kin of the murdered person. Gentlemen, that is what a lawyer would call an interpretation from contemporaneous practice. Here is the practice of fifteen hundred years under that statute, and the man who commits murder, with aforethought or unawares, is to be slain by the nearest of kin of the murdered man. If that was the original command, obey it. We have only the statute of Genesis; we have no thirty-fifth chapter of Numbers, with its limitation,--that was addressed to the Jews. We have no “cities of refuge.” A man cannot go to Worcester or Salem, and stay there a year, by way of punishment, or atonement for his offence. We have not the exception; we have only the statute.

Now, gentlemen, are the reverend gentlemen willing to say that you shall annul the distinction between murder and manslaughter in the Commonwealth of Massachusetts,--that if a man kills another unintentionally, without malice, he shall be punished with death, under the covenant with Noah? If they will not, what right have they to come here and tell you to obey that statute? If that is a statute of God, what right have they to make exceptions?

Dr. Cheever avoids this dilemma, and how? He allows that this command was addressed to individuals. He allows that it cannot be obeyed by individuals now, --that it would derange all society, upset all government; and what does he say? He says, we cannot obey the statute as it was originally given; because there is such an entire change of circumstances since the time of Noah. Indeed! But Dr. Cheever can interpolate “circumstances” into the law of God; and if he can, cannot [89] we? If you are going to open a door in the statute for the great procession of circumstances in a period of nineteen centuries to pass through, can you not open it wide enough to carry the gallows out? If “circumstances” have changed so much since this command was delivered, that it is not safe for an individual to kill the murderer, perhaps they have changed so much that you and I can get rid of the gallows altogether.

Suppose you had made a statute for the Commonwealth of Massachusetts; suppose you had passed the Maine Liquor Law, and six months afterwards the authorities in some town in the Commonwealth should refuse to execute it, should make exceptions to it, and when they were remonstrated with they should say, “Yes, certainly, those were the circumstances in March, but in November they have changed, and we are going to change the statute, the legislature would undoubtedly like to have it done,” --what would you think of their reasoning?

If this is a statute at all, it is a statute until God alters it. If one man has a right to say that “circumstances” have dispensed with one half of it, another individual has a right to say that “circumstances” have dispensed with it altogether. Mr. Jefferson, you know, cut out all the parts of the New Testament to which he objected, and said of the remainder, “This is my New Testament.” There was no objection to it, except that different people might take out different parts, and there would be no New Testament left. Just so with Dr. Cheever. “Circumstances” have not dispensed with the statute, “Thou shalt worship the Lord thy God,” “Thou shalt love thy neighbor;” none of the ten commandments are dispensed with,--how is it that “circumstances” have dispensed with one half of this statute? [90]

In the third place, gentlemen, it is a singular fact, that if this be the law, “Whosoever sheddeth man's blood, by man shall his blood be shed,” it has never been obeyed. If this be the meaning of the statute, that every civil government that exists is bound to kill every human being who has taken life, it has never been obeyed. It is a strong argument against that interpretation, that practice has never conformed to it. Moses took the life of an Egyptian; God did not order him to be killed. According to this statute, Moses ought to have been killed. David killed Uriah; David was not killed. So you can find in various parts of the Old Testament, accounts of several ancient worthies who took life,--took it, too, in a way that in modern society would subject them to punishment; yet they were not punished, though, according to this statute, they ought to have been put to death.

Then look at another point. Did you ever hear of a civil government that did not locate in some portion of its arrangements the pardoning power? Did you ever hear of a government that did not give either the king, or the legislature, or the governor, or the council, or somebody, the pardoning power? If a jury shall condemn a man to death, the governor may interpose and save his life. Where does he get this power under this statute? God does not say, “Whosoever sheddeth man's blood, by man shall his blood be shed, provided the governor does not pardon him,” --that proviso is not there. If this is a statute of the most high God, you have got to obey it, obey it literally; and every man who is convicted of homicide is to be punished capitally. No considerations of mercy, no pity for his family, no consideration of darkness of mind, his want of education, ought to make him a fit subject for pardon. There is no proviso for pardon in this statute; what right, then, [91] has the Governor of Massachusetts to exercise such a power on the theory of these gentlemen?

You perceive the force of my argument, gentlemen of the Committee. The upholders of capital punishment say that inside of this book there is a command to keep up the gallows. We respectfully reply: Take the statute in this book; construe it as you would any other law, and obey it,--and if you will obey it in that way, we are willing the government shall try the experiment. But we are not willing that anybody should take out as much as he pleases, and leave the rest as binding upon us. If this is a law of God, “Whosoever sheddeth man's blood, by man shall his blood be shed,” --if that is the whole of it,--you have no right to give Governor Gardner the pardoning power, because God does not recognize that power. There was an old lawyer who used to say that he could make a flaw in any statute large enough to drive a coach through. How large a flaw must you make in this statute before you can get modern government under it? If it is a statute, it means all I have said; if it is not a statute, it means nothing. You are to choose between one horn of the dilemma or another. If you want a government based on Noah, take it; but don't throw it in our faces when we undertake to erect a government on the principles of modern experience, that we are disobeying a divine command in its full letter and spirit. Do not throw it in our faces for a single item, and then refuse to conform to it when it goes against yourselves. Then, again, if this verse is a binding statute, all the verses are. Here is the covenant with Noah, and this is one of the articles of that covenant, “But flesh, with the life thereof, which is the blood thereof, shall ye not eat.” (Gen. IX. 4.) This has always been interpreted to prescribe a certain [92] method of killing meat to be eaten. Even at this day, the Jews of the city of New York will not buy meat in the common markets of the city, because they think it transcends that command,--that it is not properly blooded. They obey that law to the very letter. Did you ever hear of a Christian, who comes here with the sixth verse of this chapter written all over him, and maintains that God commands you to hang,--did you ever know that he made any particular inquiries in the market as to whether he was obeying the fourth verse? No, gentlemen, he is a Jew as to the gallows; he is a Christian as to his pork.

But that fourth verse is a more important one than the sixth, after all. If you turn over to that chapter in Acts, where the Apostles give their general directions to Christians, you will see that they reiterate the fourth verse: “For it seemed good to the Holy Ghost, and to us, to lay upon you no greater burden than these necessary things: that ye abstain from meats offered to idols, and from blood, and from things strangled,” etc. (Acts XV. 28, 29.) That command of the fourth verse has been reiterated, but not the sixth. The Apostle did not say, when they were making that general law for all Christendom, “It seemed good to the Holy Ghost and to us to command you that you obey this statute: ‘Whosoever sheddeth man's blood, by man shall his blood be shed.’ ” They were yet to be particular how their meat was killed; that has been reiterated, but no Christian obeys it; but this sixth verse has never been reiterated, yet it is so important, according to these gentlemen, that if you should dare to disobey it, the Commonwealth would go to pieces! If this is a covenant, one part is just as obligatory as another; yet you would obey the sixth verse, and set at nought the fourth! Suppose the Supreme Court should say of a [93] law passed by this legislature, “It is all Constitutional we admit; but we shall obey one half of it, and not the other.” Suppose an individual should say so,--what should you think of it?

What results from these considerations? Why, this results,--that nobody can obey that statute at the present moment, and no civil government does; and the government that should undertake to do it for one hour, would be hurled into oblivion the next, by the aroused indignation of the nineteenth century. Constitute yourselves a government; make no distinction between manslaughter and murder; declare that the individual shall have the right to take the life of the person who kills his nearest relative; give the governor no right to pardon,--and see how long such a government would stand. And yet I contend that no man who interprets that statute. by the common rules of evidence and contemporary practice, can find any of the merciful provisions of modern government in it. I have shown you what that statute was, as practised for fifteen hundred years; and Moses himself did not dare to say that the nearest of kin should not kill the man who had committed manslaughter. He instituted “cities of refuge,” where the individual offender should be safe; but if he left the city, he was liable to be killed. I contend, gentlemen, that in this issue between the parties, it is we who are upholding the Old Testament, not those who defend the gallows. We say, God did not mean to prescribe a law for civil government in all time,--that was not his object; or, if he did, this was permissive merely, you may take life, if you wish to.

This is my proposition, gentlemen: Grant that to be a statute; if it is a statute, interpret it like any other statute; and when you have done that, then we will say [94] these gentlemen are sincere and consistent, if they sup. port and obey it. But until they do, we are not willing to have them interpolate as much as they choose into it, and then require us to obey it. If you will show me a man who rigidly obeys the other verses of the covenant, then I will show you a man who really supports the gallows because he thinks the sixth verse commands it; but until you do, I shall think the opponents of the abolition of the death penalty are influenced by other motives than those which appear.

Now, gentlemen, I shall leave this subject in a moment; but allow me to say to you, that this statute is represented as a warrant from Almighty God, commanding all governments, for all time, to inflict the penalty of death upon every man who takes life. There is only this single verse, in language of an uncertain tenor, and it has all the difficulties about it I have named. I ask you, in all sincerity, if any county sheriff would hang one man on a writ as ambiguous as that? You know he would not; and yet governments are to hang to all time, and thousands are to die, upon the authority of a statute so uncertain in its meaning that no sheriff would hang an individual man on a precept so equivocal, and so much surrounded with difficulties! If men are to come here and propound it as a statute sounding down to us from Sinai, and before Sinai, then it is a statute that we must put our hands on our lips, and our lips in the dust, and obey to the letter. We have no right to reject one word and take the next; there is no trifling to be done with it.

Gentlemen, we have now dismissed the subject of obligation. It is unnecessary to say,,after this, that I do not believe in the obligation. If society can get permission to take life from this text, it is the most that it can [95] get; it is no command, no continuing command. But, mark you, even that permission your Constitution does not allow you to use! Your Constitution does not even recognize it as a permission; because, if it is, it is a per. mission to commit suicide. You have got to upset the American idea of government before you can even exercise it as a permission. Mr. Rantoul, in one of his exceedingly able reports on this subject, fourteen years ago, placed this before the legislature in the most unanswerable light. You must argue down the American idea of government before you can put down the argument which forbids the taking of human life. There is great difficulty here. You have got to ignore the American theory and American history. You have got to say of that Declaration of Rights, “It is a lie! There is something deeper than compact. We do not sit under a compact. We sit under an arrangement which God limits,--the height and depth and breadth of which He has defined, not the Constitution.” This is not the republican theory of government, gentlemen; but I have no quarrel with it,--it may be so. But you sit here under the Constitution of Massachusetts, and if that Constitution is right, you have got no powers except what the people give you. When, gentlemen, did the law recognize that I have the right to take my own life? Never. Then, under your idea of compact, you have no right to take my life. If your Constitution is a sound, logical instrument, the very first statute that hung a man on the gallows was a violation of the Constitution of Massachusetts; for it undertook to assume over that man's life a power which he did not himself possess, and which he could not, therefore, delegate to the State; and the Constitution says that the government could have no right except what that man gave it,--“The body politic is formed by a voluntary association of individuals; [96] it is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people.” Now, will any man undertake to show me how any government founded upon that as its cornerstone can claim the right to take life, unless the individual has a right to take his own life,--unless suicide be justifiable? The defenders of the gallows all feel the necessity of meeting this objection, and they uniformly do it by rejecting the idea of compact. They claim that government is something else,--that you get your rights somewhere else than from a compact. Dr. Cheever and other writers on the same side undertake to say that this idea of compact is all a mistake; that it was derived from the French infidelity of the eighteenth century. They ignore it entirely, and they have a right to, for they are only writing books. But you cannot; for you are sitting here as a legislature, and must respect the Constitution you have sworn to support.

Let us look at another argument of Dr. Cheever. He says society gets the right to take life as the individual gets the right of self-defence. What is the principle of the law.? The principle of the law is this: If a man is going to take your life, you have no right to take his immediately; you must retreat to the wall. The rule of the common law says: You must retreat until you can retreat no farther; and then, when you must either die or kill him, you may kill him; but if you kill him at once, without retreating as far as you can, you are guilty of manslaughter. Now, if Dr. Cheever is going to get the right from this principle just alluded to, then society is bound to show, not that taking life is a good thing, but that it is an absolutely necessary thing. Society is bound to show that, in conformity with this rule, she has retreated to the wall,--that is, done everything she could before taking the life of the murderer. Society has got [97] to show, if Dr. Cheever's theory is correct, that, like the individual, before she raised her hand, she retreated as far as she could,--she ran and hid herself, got out of the way, and when she could do nothing else, then she took the life of the individual. But now, how is it? Who are the men that are hung? Are they the rich, the educated, the men that are cared for by society? No, that is not the class that supplies the harvest for the gallows. The harvest of the gallows is reaped from the poor, the ignorant, the friendless,--the men who, in the touching language of Charles Lamb, “are never brought up, but dragged up;” who never knew what it was to have a mother, to have education, moral restraint. They have been left on the highways, vicious, drunken, neglected. Society cast them off. She never extended over them a single gentle care; but the first time this crop of human passion, the growth of which she never checked, manifests itself,--the first time that ill-regulated being puts forth his hand to do an act of violence, society puts forth her hand to his throat, and strangles him! Has society done her duty? Could the intelligence, the moral sense, and the religion of Massachusetts go up and stand by the side of that poor unfortunate negro who was the last man executed in this Commonwealth, and say that they had done their duty by him? He had passed his life in scenes of vice; he had never known what it was to have a human being speak to him in a tone of sympathy. Had society done her duty? Had she retreated to the wall? He never landed in our city but the harpies of licentiousness and drink beset him, and the churches never rose up in their majesty to forbid it. Steeped to the lips in vice for thirty years, when society found him guilty of an act of violence, the natural result of such a life, did society take him and say, “God gave this man to me an innocent [98] soul, and I have let him grow up into this monster, and now I will take him and restrain him; I will throw around him moral influences, and see if I cannot make a human being of him?” Did society retreat to the wall? Did she try to save that man? No; she inflicted on him the severest punishment,--she took away his life. “Society is an instrument of good,” said one of your members a few days ago. Then she is bound to educate the man thrown into her hands.

This is a very broad theory, that society gets the right to hang, as the individual gets the right to defend himself. Suppose she does; there are certain principles which limit this right, to which she is bound. Besides, when society has got the man completely in her power, what is she to do with him? Suppose a man attacks me to-day; according to Dr. Cheever, I have the right to take his life. But the law says: “No; if you can restrain him, you must do so, and not kill him.” Society has got the murderer within four walls; he never can do any more harm. You can put him in a jail from whence he can never escape; where he can never see the face of his kind again. Has society any need to take that man's life to protect herself? Has she retreated to the wall? If society has only the right that the individual has, she has no right to inflict the penalty of death, because she can effectually restrain the individual from ever again committing his offence. Suppose a man should attempt to kill me in the street, and I should take his life, and when I was brought before Chief-Justice Shaw, and asked how I killed him, I should say: “I overcame him; I threw him on the sidewalk; I bound him hand and foot; and then I killed him,” --would that be justifiable? No, I should be imprisoned for manslaughter. Society takes the murderer; she shuts him up in jail; she keeps him ninety days, or longer; she tries him before [99] twelve men; and then, having him utterly, irremediably in her power, she hangs him; and then she turns round and tells you, “I have only the right of the individual;” and the common law retorts upon her: “You had no right to take that man's life; you might have restrained him, if you would, and you had no right to kill him.”

As I said at the beginning, there are two objects of penalty,--first, to restrain the offender from repeating his offence; and second, to deter other people from imitating it. Now, if the object be simply to prevent the individual from repeating the offence, he cannot repeat it if he is shut up in prison. You can keep him there; you can deny to the governor the power to pardon such persons. You can declare, as O'Sullivan proposes, that such persons shall not be pardoned except by the two-thirds vote of three successive legislatures. You can keep them in prison, if you choose. Nobody can say that a million of men and women, with one poor, hapless man in chains, are so afraid of him that they are obliged to take his life in order to prevent the offence. No, gentlemen, nobody pretends it. The only claim now is, that it is necessary, in order to prevent other men from repeating it.

Here is another point. If this idea of hanging men, for example, is correct, then why do you not make your executions as public as possible? Why do you not hang men at the centre of the Common? Our fathers did it. They hung their people under the great tree. They hung them for example, and of course they wished everybody to see it. They hung men upon the Neck, and crowds went out to see it. If example is the object, the sight of punishment would seem to be essential to its full effect. Why, Homer tells us, two thousand years ago, that a thing seen has double the weight of a thing heard. [100] Everybody knows that a child will recollect what he sees ten times as well as what he hears. You know that in old times (not to make a laugh of it), in Connecticut, they used to take the children to the line of the town, and there give them a whipping, in order that they might remember the bounds of their township by that spot. Now, there are fourteen States in the Union that have made executions private, and in England they are private. Only a few men — some twenty or thirty or fifty--are allowed to witness them. Mark you, the whole claim of the value of executions now lies in their example; yet it is found that out of one hundred and sixty-seven persons executed in England within a certain limit of time, one hundred and sixty-four had witnessed executions! All the crimes of the world have been found at the foot of the gallows. O'Sullivan has recorded six or eight cases of persons who left the gallows to go home and commit the same offence, in the same way. In consequence of these executions, a sort of mania for killing arises. You know how it has been in other cases,--what a mania there was at one time for shooting Louis Phillippe, and at another for intruding on Queen Victoria. It takes possession of people. Society has learned that to witness executions develops a certain instinct for blood which is dangerous; and so, in many countries, the government does not permit it.

There is another singular thing about this punishment. Here is an ordinance of God, of the sublimest authority in the universe (according to the upholders of capital punishment), commanding us to execute our fellow-men; and yet, in all civilized society, Mr. Chairman, the man who executes that law — the hangmanis not esteemed fit for decent society. In Spain, the man who has hung another runs out of the city in disgrace, and if he were to appear again, the mob would tear him [101] in pieces. To call a man a hangman is the greatest insult you can cast upon him.

Dr. Beecher (interrupting).--I suppose that is because he has touched sin and been polluted.

Mr. Phillips.--But the mob does not pelt the clergy-. man who takes the man's hand only the moment before he is executed! [This retort excited great merriment, the audience loudly applauding.]

No, Mr. Chairman, it is a very remarkable circumstance that in all time the man who did his duty in obeying this statute has been infamous.

Then here is another very important fact. That statute--one line of which, according to these gentlemen, has sufficient vitality to cover all space and time — is so horrid you cannot permit the world to look at it. It demoralizes society. The reason given for hiding the gallows was, that its influence was demoralizing; it was found to be the universal testimony that executions were great promoters of crime. The London police never had so much to do as when there was an execution. If example is the object, why certainly the example of the actual thing at the moment ought to have prevented people from committing the same offence. Yet you remember the very remarkable case of the widow of a forger in London, who begged her husband's body of the executioner and took it home; and the police, suspecting the parties, entered the house and found forged notes concealed in the very mouth of the corpse! The wife and the other parties were engaged in the same crime, and to conceal it, put into the mouth of the corpse the evidence of their guilt! And such cases are not at all uncommon, though this one may be most remarkable in its circumstances. This was the reason why executions were made private.

Let me cite high authority on this point. Six or seven [102] years ago Lord Brougham addressed a letter to Lord Lyndhurst. Lord Lyndhurst had said that one of the principal reasons for resorting to capital punishment was the necessity of deterring others by punishing the criminal severely. Lord Brougham replies: “You, sir, and myself have been well acquainted with criminal jurisprudence and the execution of criminal law in England. I appeal to you, and to every member of the profession familiar with criminal law, whether the idea of deterring others from committing offences by punishing the offender severely, is not found, in practice, to be utterly unsound. It has no such effect whatever.”

Lord Brougham goes on to say: “It may be that I am Quixotic, but if government has no other way of protecting society against the repetition of offences except by punishing the offender severely, then government is a failure. ... In my opinion,” he adds, “the only protection government has is this: Take possession of the offender, and subject him to moral restraint. Make your jail a moral hospital; make the man over again, if you can,--and in that way you protect society from that man henceforth. Take the rest of the community and educate them, and in that way you protect society from them, and in no other.” I am not quoting a morbid philanthropist or a mere sentimentalist, but a cool, hard lawyer, who, after many years of practice and ample opportunities for observation, comes to the conclusion that the gallows, and penal legislation of all kinds, if it has no other object than the example of punishment, is a failure, and that there is no remedy but education. As Bulwer has well said: “Society has erected the gallows at the end of the lane, instead of guide-posts and direction-boards at the beginning.”

There is, therefore, gentlemen, no reason, either on the ground of keeping the offender from repeating his [103] offence, or in the influence of the example, for the gallows; there is no necessity for it. Experience proves that there is not.

Gentlemen, I would not weary you with details; but take Rantoul's reports, and you will find my statement fully confirmed. It is proved by English history that just so fast as you take the death-penalty from a crime, the crime diminishes. Experience is all that way, and not the other. I hold that you cannot oblige us to show that taking away the gallows is better than to keep it. It is acknowledged that as regards the prevention of crime the gallows is a failure. You do not prevent crime by hanging the criminal,--it increases. Attorney-General Austin asked the legislature, in a report made, I think, in 1843, to give up capital punishment, because it did not restrain murder. Remember, this is Attorney-General Austin,--a man not suspected of any exceeding humanity, a man who did not look at this subject from any sentimental point of view, but simply as a lawyer. Here is what he said:--

Whether the punishment of death should be abolished in any of the few cases to which it is now applied [the capital penalty of robbery and burglary had been done away with in 1839] has often been a subject of legislative inquiry. It does not belong to me to enter upon an argument that is nearly exhausted; but I deem it within my province in this connection respectfully to submit to the legislature that, in the present state of society, it is no longer an abstract question, whether capital punishment is right, but whether it be practicable; and that there is good reason to believe that punishment for crime would more certainly follow its commission if the legislature should further abrogate the penalty of death. As the law now stands in this respect, its efficiency is mostly in its threatenings; but the terror of a trial is diminishing, and the culprit finds his impunity in the severity which it denounces.


Now, gentlemen, if you cannot execute a law, it is manifest that it better not be on the statute-book. This is just what they found in England. For instance, the law used to be that a man should be hung for stealing a shilling. That was thought too hard, and the sum was raised to forty shillings; but under this law, no jury could be found to convict,--they would find some way to evade the statute. Thus, in one case, a man was taken up for stealing a watch which cost ten or fifteen pounds. The man had undoubtedly stolen it; it was proved against him. The jury brought him in guilty of stealing the watch, and found that the watch was worth thirty-nine shillings, eleven pence. The watch-maker said, “Why, the very fashion of that watch was worth five pounds.” “Perhaps it was,” said the jury, “but we don't hang a man for five pounds.” Afterwards they raised the amount to five pounds; then the jury brought the accused in guilty of stealing four pounds, nineteen shillings, eleven pence,--always keeping one penny behind the hanging limit. Of course it was perjury, but the jury would not convict of the crimes of stealing and forgery, when the penalty was death. The legislature said, The man who forges shall be hung,--but men forged every day, and every hour of the day; and the bankers of London, with millions of pounds resting on the fidelity of an autograph, went before the legislature and said, “Be kind enough to pass a statute against forgery that shall not inflict the punishment of death.” It was found that a man charged with forgery was certain to be acquitted; the witnesses quibbled, the juries quibbled, the prosecuting officer quibbled, until no man was ever hung for forgery. Then the bankers of London (one thousand of them) went before the legislature, and said, “Your gallows is no protection to us; be kind enough to take it away!” [105]

Gentlemen, for one hundred years, the progress of all legislation has been to throw away these extreme penalties; and in proportion as it has done so, crime has diminished. That shows that society does not need the gallows for protection; and if it does not need it for protection, it has no right to it. These gentlemen will not contend, of course, that society has a right to take life from caprice, from whim, from taste, but only from necessity. If we show you that when it has been withdrawn from a crime, that crime has diminished, then,--I say, we show you a competent and sufficient argument why it should be abolished. We have got outside of the Bible now; we have got the experience of two hundred years in England, that every crime from which the penalty of the gallows was taken off has diminished; we have got the experience of Russia, of Tuscany, of Belgium, of Sir James Mackintosh in India, where they have given up the death penalty, yet murder did not increase. You say, these experiments were local, and for a short time; true, but they were all one way. Society has never tried the gallows but to fail. Now, all we ask of Massachusetts is, that when she has tried the one and not succeeded, she shall now try the other. We used to punish highway robbery with death. Then that crime was frequent; but things got to such a state that, as Robert Rantoul said, a man was more likely to be struck by lightning, sitting in his parlor in any town of the Commonwealth, than to be hung for highway robbery. We took off the penalty of death, and then highway robbery diminished; there were more cases before than since.

In the States that have abolished the death penalty, the result has been entirely satisfactory; and every humane man must rejoice at it. Take Michigan, and those States that have rescinded the penalty; they were [106] no worse off than Massachusetts. I say that this is a State pre-eminently fitted to try this experiment. We are the great Normal School of all civil government,--Massachusetts. We have the most moral people on the face of the earth; we have the best circumstances for an experiment in civil government; we have a people with wealth equally divided; we have common schools; we are a people with a high moral tone; we have a homogeneous population; it is easy to get a living here, and poverty, therefore, does not drive to crime, as in some other places,--our circumstances are all favorable to morality. We are in a better condition to try such an experiment than Michigan, far better than Belgium, Tuscany, or Russia; yet they tried it and were successful, and why will not we try it also? All the great lights of jurisprudence are on our side,--Franklin, Livingston, Rush, Lafayette, Beccaria, Grotius, -I might mention forty eminent names, all throwing their testimony against the gallows. Lafayette said, “I shall demand the abolition of the penalty of death, until you show me the infallibility of human testimony.” He thought it was enough to discredit the gallows, that men might be hung by mistake. There have been two or three scores of such cases in the history of jurisprudence.

Now, with all this experience on our side, with the fact that we are the very best government in the world to try the experiment, with the testimony of Lord Brougham--a man not biassed by any peculiar circumstances, by any religious fanaticism, by any sentimental enthusiasm — that this idea of deterring from offences by example is a failure; that education is the only thing; that the prison ought to be a moral hospital; that the man is to be taken possession of, and restrained by moral influences,--shall we be behind such a man [107] as Lord Brougham It seems that we ought not to be.

I will detain the Committee but a moment longer. I think I have thrown some remarks before you that go to show this: That this covenant with Noah is one not binding on this legislature; or if it is, that it is binding in its whole. And yet you will not for an hour think of receiving it as a whole, and obeying it as a whole; you would be the shame of Christendom if you attempted to obey it If it is not a statute to be obeyed wholly, then it is nothing. If Dr. Cheever may shape it one way, like a piece of wax, we can shape it another; if he can drive civil government through it, we can drive the abolition of the gallows through it. Then, gentlemen, as to the necessity of it. The whole current of legislation is to give it up. We have given it up in almost all cases, and we are safer than we were. No State that has abolished it has ever taken a backward step voluntarily. It was re-established in Tuscany by a foreign power, and is not executed even-there. I understand that the Grand Duke of Tuscany promised his sister never to obey the law forced upon him by Napoleon, and you see murderers walking in their parti-colored dress along the streets of Leghorn and Florence; yet Tuscany is the most moral and well-behaved country in Italy. So it is with our States. All experience points one way. The old barbarous practices have gradually given place to others more humane and merciful. Once a prisoner was not allowed to swear his witnesses; then they would not allow him counsel. Now he may swear his witnesses, and is entitled to counsel; yet the government is safe. Men used to say, “We cannot get rid of the .gallows. Why, murder is so rife in the land that if you don't have the very worst punishment man can devise, no man's life will be safe.” If this was so, why did n't you impale [108] the criminal, as in Algiers; or crucify him, as the Romans did? Why did n't you make the gallows as cruel as possible? If you wanted the terror of example, if you wanted the blood to freeze in the hearts of men, why did you not make the punishment as cruel as you could? That is not the spirit of the age. The question argued now is, what is the easiest mode of death? A writer in the London Quarterly maintains that death by the guillotine is the easiest, and that government ought to adopt the guillotine instead of the gallows. The question is not now how we shall most frighten men, but how we shall take life the easiest. It has even been proposed to give chloroform to the man about to be executed, from motives of humanity. If you want to frighten people, adopt the cruelest punishment you can invent; and yet, if you should do so, if you should take pains to make your punishments as severe and cruel as possible, the humanity of the nineteenth century would rebuke you. Unconsciously, without considering the logic hidden under it, without considering what inferences would be drawn from it, the efforts of physicians and of men of jurisprudence have been to find out the easiest mode of taking life. The French claim that the guillotine is the easiest, and therefore they adopt it. If you can come down one step, if you can give up the rack and the wheel, impaling, tearing to death with wild horses, why cannot you come down two, and adopt imprisonment? Why cannot you come down three, and instead of putting the man in a jail, make your prisons, as Brougham recommends, moral hospitals, and educate him? Why cannot you come down four, and put him under the influence of some community of individuals who will labor to waken again the moral feelings and sympathies of his nature?

Who knows how many steps you can come down? [109] We came down one when we gave up burning at the stake; we came down another when we gave up the tearing of the body to pieces with red-hot pincers; we came down another when we gave up the torture of the wheel. You cannot tolerate these things now. Society has been forced, by the instinct of humanity, against its logic, to put away these cruel penalties. Men have been crying out continually against this instinct of mercy which sought to make the dungeon less terrible; they feared to remove a cobweb from that dungeon's cruelty, lest the world should go to pieces. Yet the world swept it down, and is safer to-day than ever before.

Now we ask you to abolish the gallows. It is only one step further in the same direction. Massachusetts has got up to the wall. She has thrown it away for almost all offences; she only retains it for one or two. We ask you to take one more step in the same direction. Take it, because the civilized world is taking it in many quarters! Take it, because the circumstances of the time prove you may take it safely! Take it, because it is well to try experiments for humanity, and this is a favorable community to try them in.

These are the arguments, gentlemen of the Committee, on which we ask you to abolish the punishment of death in this Commonwealth.

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