John Milton Binckley: “The Death Penalty" (1873), Part 3

[John Milton Binckley, “The Death Penalty.” The Lakeside Monthly. Vol. IX. January to June, 1873. Chicago: F. F. Browne and Company, 1873. Part 3: pages 331-333. Extra paragraph breaks made for easier reading.]

What would be the effect? Many, rashly undervaluing the reasons of the thing, will say it is "honoring" the murderer. But will it tend to deter murder? [T]hat is the question. We think it would, because juries, judges, governors and the public would conceive of the execution without those harrowing and dreadful incident: which now render a refined or a sympathetic man unwilling to permit anybody to be. The murderer himself, devoted to a decent death, in the very tokens of sympathy he might receive would realize his doom; for as a doomed and not a threatened man, he would be tenderly pitied, forgiven and favored as he ought to be. A man devoted to death is not necessarily a man to be saved from death if possible, even if he is guiltless. Brothers in arms, willing to die for each other, make no effort to keep each other out of appointed danger. It is not that the civilized heart of the age revolts, that a man — at least, a bad and dangerous man — should die, but that he should be passed through the barbaric and shameful gibbet - tableau, that abominable anachronism of our magistracy.

A second method of increasing a sense of the certainty of punishment is to solemnly enact, in the statute of murder, that in every case of homicide the person who did the killing shall be deemed and held to have devoted himself to death, and to have invoked the instrumentality of the law for the execution of his doom, by virtue of his act of murder; with provisions for the case of misadventure, sudden heat, etc. The indictment, then, should simply raise an issue of inquest as to the facts, and of judgment as to what might be adduced to rebut the statutory presumption that, by the killing, the prisoner had adjudged himself to death. This suggestion is novel, but not so radical as it may appear. It would leave a prosecution subject to every principle of procedure that now exists, except a few mischievous and perplexing fictions. One of these is, that the offence is against the State, or, as in England, against the Queen.

"Vengeance is mine," was said by the King of kings and of queens. The State has no warrant in modern ethics for assuming to restore the equilibrium of eternal justice disturbed by a murder. She is in no just sense vindicatory, but only conservative. She must protect the living, not avenge the dead. For this necessity, she may put a man to death. But that it is, after all, in execution of his own self-condemnation, is apparent from this: that if the State had neglected to make and provide a statute against murder, it could not pretend, legally, to the right to touch a hair of a confessed murderer's head.

It is, therefore, solely in virtue of its warning him that he cannot murder another without, by his own act, voluntarily procuring himself to be murdered, that the State acquires a right to use its machinery of justice; and not in virtue of the injury it has sustained at the hands of the murderer. This is but a corollary of the law itself, and therefore within the law to-day.

The practical operation of thus altering the issue in a capital case would cut off incidentally nearly all of that hitherto invincible cobwebbery which now renders the common sense of the facts and the sober logic of the law almost inaccessible to bench and bar, witnesses and spectators, in a murder trial.

The prisoner himself can have no clear idea of his crime, as against society. If to this charge were added the suggestion above mentioned for rendering a review inoperative unless it should touch the real question of guilt or innocence, we cannot but think a murder trial would almost necessarily result justly, and the sentence go into effect inexorably, because from the murder to the execution the whole public could see the rationale of the case.

But again, the solemn promulgation of the principle that on his own hands was his own blood, would strike the heart of the man compassing a murder with a now unknown terror of crushing simplicity. It would but formulate the truth as it stands to-day — unrecognized by law, and therefore obscured by fictions — in every conscience in the land. No man with bloody hands would hope to make head against that simple and awful truth. No longer could he count on that powerful and noble prompting of the heart of man to side with the weaker; for no longer would his case strike the public imagination with the purely illusory but affecting figure of a solitary and miserable man at war for his life with the huge and unfeeling State. It would then appear, what it really is, an inquiry into the truth of a case, of which ulterior results have been already determined by the party himself, unless investigation lifts the gloom lowering from the sky of natural justice.

A little reflection shows, then, that this innovation, great as might be its consequences, would be an innovation mainly of form, and that not a whit more than necessary to remove obstructions of the acknowledged truth of the matter, as the age sees it, everywhere but the very place where it is wanted — in court. But to abolish or seriously modify the jury system, while, to some, seemingly a comparatively slight change, could not be rated below a fundamental revolution of political government. The strange rashness in this matter seems to result from inattention to the nature of jury trial.

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