Friday, November 18, 2016

John Milton Binckley: “The Death Penalty" (1873), Part 5

[John Milton Binckley, “The Death Penalty.” The Lakeside Monthly. Vol. IX. January to June, 1873. Chicago: F. F. Browne and Company, 1873. Part 5: pages 334-335. Extra paragraph breaks made for easier reading.]

Say not this unseemly bandying of life without truth or reason, from which no Executive now escapes, is not the real " trial." It is; for we speak of the substance, and not the form. True, all this procedure presupposes a sentence of death, a verdict of guilt, a prolonged trial, an indictment, a finding of a grand jury, and a murder. 

But here is the point, viz.: When the murder was resolved on, the slayer began to weigh his chances at the test-trial; and where had he learned to locate that trial ? In the bosom of the Governor, conducted, if at all, by the newspapers. 

Let it be once understood that when a man kills, he has thereby provided for himself a speedy and decent death, and pardon implorers will feel it awkward to say that, after the party had executed that part of his will which cost his victim his life, he had changed his mind. '* You made your bed — now lie on it," might say the mildest Executive.

Should this principle go into statutory force, the jury would hardly fail to be come again the repository of the issue of life or death, which now it is not. "Tried by the country " (and by nothing else should any man lose his life ) would then become, as our law contemplates, a trial by the natural judgment and conscience of the community, guided and enlightened by the learning and wisdom of the law, rendered practicable by abstracting a few average citizens, and bringing them personally into court. On those citizens should be the responsibility, not of adjudging a fellow-man worthy of death, but of conserving life in society against the groundless appeals of a prisoner for immunity from the death denounced by himself upon himself. They should learn to feel that it is not they who pull the string that works the automatic sword, but the slayer himself who has pulled it. Their only function should be to keep the machine in order.

But how is it now ? The juryman is placed in a situation of exquisite impartiality between the parties, to wit: the murderer and the State, with neither of whom he is identified. Under these circumstances, he does not like to kill one for the sake of the other. Such is the hurtful fiction. The truth is, he is absolutely identified with society, and sits there to protect it.

The murder and the correlative death of the murderer should be foregone eventualities, which he might regret as much as he chose, but in which he could have no remorse, because no participation in the one death any more than in the other. His function should be simply to ascertain whether the first death happened as a fact by the hand of the accused, and whether the excuses offered for it were in fact true. 

But now lie is obliged to find a moral and legal conclusion of guilt or innocence, and he naturally shrinks from it. Let society at large do it for him in advance. His conscience is personal, but his duty is official. Be it, then, his sole office to find facts and not conclusions. 

Suppose the doctrine to have been made into a law, that his devotion to death is the man-slayer's mediate act by the killing, the juror's function would be only to find conclusions of fact. If, then, the form of the verdict corresponded, the most tender-hearted juror would seldom fail to be just. He would find that the prisoner did kill the deceased, and find that the first and the second and the third, and so on, of the excuses pleadable under the law, were or were not in fact true. 

If the first finding was affirmative and all the rest negative, the man's doom would be fixed, though the juror would have had no more share in it than the witnesses — not so much. Such a procedure would make it very hard to get a false or strained verdict either way, and the important consideration re mains to add, that the same simplicity of the logic of the prosecution, which would protect the jury from emotional influences, would likewise disqualify most of the reasons commonly urged as grounds of Executive clemency; the whole depending, at last, for its chief efficacy upon its fitness to enter the general mind as a palpable, intelligible connection between transgression and punishment, as different stages of the same thing, of which any man could see both ends every time he was tempted to kill.

That connection would then appear in its stern strength, as plain as the iron bolt that couples the hind part to the fore part of a wagon. It is now like the relation between balls on a billiard-table — subject to chance, experience, skill, and fraud. 

To put it all in a word or two : 1. Abolish revolting incidents of execution. 2. Remove obstructive fictions. 3. Ordain the truth that homicide in society is ipso facto potential suicide, subject to exceptions. 4. Men who think the ordinance too absolute need only to suffer their fellow-men to live on.

John M. Binckley.

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

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