John Milton Binckley: “The Death Penalty" (1873), Part 1

[John Milton Binckley, “The Death Penalty.” The Lakeside Monthly. Vol. IX. January to June, 1873. Chicago: F. F. Browne and Company, 1873. Part 1: pages 328-329. Extra paragraph breaks made for easier reading.]

SAYS Professor Huxley, "The science of Politics is in a very rudimentary and imperfect state. Politics, as a science, is not older than astronomy; but though the subject matter of the latter is vastly less complex than that of the former, the theory of the moon's motion is not quite settled yet." Most reflective men will accept this observation; indeed, it cannot be disputed, for nothing is scientifically settled which intelligent candor can question; and, in this light, polity can boast hardly an axiom.

Wherefore, the most established and venerable dogmas of civil well-being must be considered as but tentative, while the mysterious and profound problems of human nature daily evolve fresh aspects, and demand new and original adaptations. In the discussion, then, of such questions, how small the help we can derive from the most accredited systems!

Of late years, a feeling of uneasiness may be detected in the bosom of society, in every nation, on the subject of crime.

If a date be assignable, the beginning of this spirit may be ascribed to the promulgation, by Dr. Gall, of his system of Phrenology, which could not have failed to qualify then prevalent ideas of personal responsibility.

But far greater was the influence of later researches into the pathology of the brain and nervous system, which have at length determined the important law that the mind and body reciprocate disease, so that, without functional or organic derangement of the nervous organism, there is none mental or passional.

The effect of these things was to break up the rigidity of the ancient notion of willfulness; not because it and wretchedness, until, amidst a general differing of the doctors, the once discountenanced and still unstable theory of emotional insanity gained so wide-spread a hold on the quickening sympathy of mankind that it has already unsettled even the unyielding conservatism of the common law.

Again, the surprising success of juvenile reformatories, and of all species of education, in arresting incipient criminality, profoundly moves the public conscience with the suspicion that at least its inability to cope with the difficulties of the problem, if not its selfish neglect, lodges on society at large the badge of failure, rather than on the individual malefactor the brand of guilt.

We cannot but feel, with dismal and vague misgivings like these, that the defence of person and property against violence and spoliation must be justified upon concrete and palpable expediency, and no longer upon dogmatic condemnation.

And that position is at once the most conscientious and the most stern. It looks the facts in the face, and accepts the situation. And when a community or an individual once does that, whatever is done about it "means business," as the saying is. And, in this matter," business," indeed, must be had, or we are undone, whatever that may mean.

It is clear that great innovations are in progress in the matter of dealing with criminals.

It is remarkable with what spontaneous generality in England and America the ancient jury system is in question. When this shakes, nothing in what is called the Anglo-Saxon mind is stable any longer. It is not, perhaps, that the jury is reached a point that actually threatens to enfranchise crime. What then? Make laws against the sentiment of pity? Or, on the other hand, make a legislative exclusion of public sentiment from questions of life and death? [A]nd that, too, by way of an experiment which, it would be no exaggeration to say, would be as radical as a fundamental change of the seat of the sovereignty? But we will revert to this point.

The problem of the treatment of crime presents itself just now most prominently in the case of murder. The press teems with suggestions of reform, while the country laments the fearful insecurity of life and the demonstrated inefficiency of the existing means of repression and punishment. Legislation is everywhere invoked, but the most cursory examination of the remedies proposed would seem conclusive against the most of them. Some, indeed, are extravagant. For example, it having been frequently experienced that a murderer, justly convicted, obtained, first a prolonged respite, and afterwards a new trial, amidst a reaction of public feeling, and finally an acquittal, all by reason of mere technicalities, it is proposed to contravene this result by abolishing appellate jurisdiction and requiring an execution within a certain brief time after verdict, in all murder cases.

This monstrous invention only occupies the void of ignorance of the system it proposes to modify.

That system is "technical" just because it is a system. From the orbit of a planet down to the fit of a lady's thimble, whatever has a boundary has some exact line at which it is and across which it is not. This nice exactitude in law becomes "technical" in direct proportion to the vigor and strength of the system of which it is but the incident, yet a necessary incident.

Let us have an end of this stupidity about technicality. Without technicality the law is without definite boundaries, and without definite boundaries there are no boundaries. There is not room for a hair between Lake Michigan and the smallest sand of the shore it impinges on.

"Miserable," says the ancient maxim, "is that country whose laws are uncertain." But technicalities are their landmarks. It is, if possible, a still more puerile proposition to abolish the principle, peculiar to criminal prosecutions, of presumptive innocence if there be reasonable doubt, substituting therefor the ordinary rule of civil causes, determining according to the preponderance of evidence.

A man convicted, by force of statute, upon a mere leaning of the jury's or the judge's mind, would find himself the focus of an anxious and earnest sympathy that would certainly protect him even against the militia headed by the Governor. It would but in flame the very evil of the times, viz.: misplaced — not excessive, but misplaced — sympathy with a sufferer. Why misplaced, we will attempt to show further on.

[Many thanks to William Myers, Mary Davy and Sally Young for their ongoing research collaboration.]