John Milton Binckley: “The Death Penalty" (1873), Part 2

[John Milton Binckley, “The Death Penalty.” The Lakeside Monthly. Vol. IX. January to June, 1873. Chicago: F. F. Browne and Company, 1873. Part 2: pages 329-331. Extra paragraph breaks made for easier reading.]

Nevertheless,** remedy must be in great degree legislative. The hideous cruelty of the criminal judiciary of old, even at the hands of judges like Sir Matthew Hale, developed that minuteness and refinement of technical casuistry known as quibbling, a perversion which sheer humanity upheld for ages, to avert the sanguinary and remorseless sentence of the law.

Hence it has been honorable to affect to treat as matter of reasonable defence sophistries of a grade to which counsel do not descend in civil causes. The custom in its day was but strategy of justice; but it has long survived its reason, and, therefore, its dignity, and ought to go down to the shysters faster than it is doing.

But to legislate a change of manners is not to be thought of. Yet any incident of a statute which should operate to withdraw the motive, would effect the improvement. Such might be an incident of a statute directly adapted to modify the judgment on error in capital cases. Let it be a mere proviso that judgment of reversal in a capital case shall be inoperative of course, thereby better guarding innocence than now; while, on the other hand, the disclosed certainty of his substantial guilt would end the prisoner's hopes, and with them the distressing suspense with which the public inevitably and morbidly sympathizes. Indirectly, as above remarked, it would dignify legal debate; and we hardly know anything that could more powerfully uphold the waning majesty of the law against the audacity of American crime.

Most of the suggestions, however, have been rashly levelled at the system of jurisprudence itself. But let an intelligent lay man take up an elementary treatise on procedure, in which he will find for every rule a reason and an example of it. He, far oftener than the professional reader, will fail to invent a way to dispense with them, for injustice would seem to have been unavoidable in any one of the instances cited for the rule, had a different one prevailed. But the jurist is able to discriminate between methods and principles, and the sociologist teaches him that the latter are phenomenal rather than statutory.

It takes something more, therefore, than the legislature to secure a statutory result in derogation of a system by whose principles the very meaning of its words is dictated. Within the practical sphere of legislative reform, however, lie a vast accumulation of impediments, mostly methods and regulations, which, if ever wise or humane, are utterly obsolete. Of these, it appears to the writer, the most odious is the method still in use for executing the capital sentence.

It is not conceivable that if left to the necessity of contriving a mode of taking life judicially, any community in Christendom would, in this age, invent hanging.

The most universal feeling in the presence of death is that of solemnity.

It is simply correlative between the living and the dying — solemnity in the witness, and mortality in the subject, are so inseparable that all human beings at once notice any exception.

Now, a dying man dangling by the neck from a rope, with legs and arms kicking and tossing in the air, is a spectacle which it is certain must have been expressly intended to exasperate this sense of solemnity. Hardly anything can be imagined so well fitted to that result. It was adopted, doubtless, under the mistaken notion that this unutterable mixture of disgust, horror, pity and sense of grotesquerie, would be the more instrumental in warning beholders.

But already the whole theory of deterring crime by horrible spectacles has been so exploded that the opposite and more enlightened opinion has long constrained a modified concealment of executions, with acknowledged good results.

Why retain, then, this hateful indignity to the human form, when the supposed use of its hatefulness has totally disappeared ? Decency among the rudest becomes a ruling sentiment on all occasions of solemnity.

Why this universal demand for ceremony, form, method, order, observance, etiquette, whether among the artless rustics of the field, the forecastle's reckless sailors, or the mine's lawless adventurers, whenever the dead are to be buried?

Is it only because all manner of men have been bred to decorum on certain occasions? Be it so, then; but how came such a custom to be as universal as the human race? It is because decency and gravity are strung in the same heart-string.

But hanging is all but the grossest indecency to which the body of man could be subjected. No man can be justly hung; but if one could, no other man's body escapes the insult.

But let us examine more particularly where the shoe pinches in this alarming evil of lax restraint of murderers.

Of course, whatever will make the designer of a murder more fearful of losing his own life, will arrest the evil. If this is correct, the criterion of all propositions is, whether they tend to ward that result? Doubtless, a variety of co-operating measures may be requisite; but they ought all to tend to increase the certainty that the punishment prescribed by the law will actually be experienced. If this certainty should ever become a clear, prevalent presumption in the general mind, it would even touch the doctrinal question itself. In proportion as his punishment appeared to him inevitable, the murderer's act would be a suicide as well as a homicide. And if there is any person whose conscience would be hurt by capital punishment inflicted by the murderer himself, he may coddle his remorse without our attempting to alleviate it.

If society constructs a machine for great and transcendent uses, but so operating that if a man chooses to pull a forbidden string, some automatic sword cuts his head off, it can have on its conscience the blood of no person who knowingly and voluntarily pulls that string.

But what is the difference between the metaphorical and the actual civil organism, except that the automatic attachment of the latter is so bungling and precarious that it only tempts the viciously foolhardy?

Now, the public conscience may well be and is disturbed at this defect. It is the botchery of the taking obvious to all men the interdependence between the crime and its penalty. How shall this be done?

First, by providing a method of execution solemnized by every decency that befits the appointed dissolution of a fellow-man. Let the murderer die with whatever rational dignity he may be able to command. Let him pass away in peace, with his faculties about him, without the detestable incongruities of a gallows-scene, which now drive him into savage hardihood, or else distract bystanders with the humiliating anguish of seeing a fellow-man bestially unable to consent to death.

We have no fancy for any particular way; for illustration, however, suppose it the prescribed order to conduct him early in the morning to his home, bring a guard around his house, leave him with his family and friends, without intrusion, until, at such moment before sunset as he should give the signal, a public officer, accompanied by a chaplain and a physician should enter, with due ceremony, present a fatal draught, and witness the act of the perishing man in decently lying down to sleep.

After the remains had been disposed for the coffin by the friends, as in natural death, a suitable roster of witnesses might enter and view the body. It might be better, too, that persons designated to perform any office which could bring them into the domicile should be habited in a prescribed costume.

**For this idea the writer is indebted to the experience and sagacity of a well-known criminal lawyer of Chicago, who, in reference to the question in Illinois, proposes that the appellate jurisdiction itself, and not merely the effect of a judgment of the Supreme Court, should be subjected to the limitation. Possibly the question on which that of jurisdiction would depend, viz.: the substantial guilt or innocence, would be of less convenient and satisfactory solution in the appellate court than in the forum of the trial had.

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