Nella Fontaine Binckley: "Odds and Ends from an Artist's Life," Chapter III, Part 3

John Milton Binckley (circa 1831-1878)*

[Nella Fontaine Binckley, "Odds and Ends from an Artist's Life," Chapter III, part 3. From a transcription annotated by Patricia D'Arcy Binckley of typewritten original, February 25, 2005. Original "written some time after 1941 by Nellie F. Binckley, 1860-1950 or 51." Notes in brackets are mine, unless followed by the initials "P.D.B." Occasionally, additional paragraph breaks inserted for easier reading. 

Many thanks to William Myers, Mary Davy, Sally Young and Sue Davis for their ongoing research collaboration; specifically to William for providing a scan of the original document, and in turn many thanks to Peter Binckley and Patricia D'Arcy "Trish" Binckley (1951-2007), at the source.]

He [John Milton Binckley] had been an editor at various times. Before he was married, [September 15, 1859 -- P.D.B.] he had been the editor of the old National Intelligencer [italics added] in Washington, the forerunner I believe of the present Evening Star [italics added]. He told me his mother used, occasionally, to write an editorial. And I remember that he said his brother Phil [Philander Binckley] was the most intellectual man he had ever known. And he had known many. He knew Horace Greeley very well and Walt Whitman, whom he admired very much, and also the poet of the Sierras, Joaquin Miller. Dad wrote a very illegible hand, but boasted -- like Horace Greeley -- that the printers could always read it. 

Which reminds me of a story I read once of Greeley. In the early days, the [farmers] used to pay their subscriptions to the Tribune with farm produce which they brought to the office: butter, eggs, etc. One day a farmer brought in, with other things, a tiny chick. Some of the reporters there thought they'd play a joke on the compositor who always handled Greeley's manuscript and who bragged he could always read it. SO they inked the chick's feet, and put it on a sheet of paper and got a lot of marks. Then they gave it to the compositor, saying Mr. Greeley had just sent it in. The compositor set it up, and it read very well!

Another celebrity Dad knew was of a different kind. That was King Kalakauea of Hawaii. The dusky king was a genial fellow who liked to make trips to Europe; the crowned heads all entertained him at their palaces, treating him as one of themselves, and he was immensely popular. Dad [liked] him.

A friend of Father's, a tall fine looking man, used to come and see us. I remember Father telling us of his miraculous escape in the terrible Chicago fire, started by Mrs. O'Leary's cow, who immortalized herself by kicking over a lamp. I do not remember the details now. But somehow the gentleman was trapped in a big office building and went up on the roof. There was no way of escaping. Next door was a vacant lot where building operations had been started. There was a tremendous derrick standing there, not very far away. A rope attached to it hung down to the ground. The desperate man measured the distance with his eye. As it happened, he was a trained athlete. It was his only chance. He leaped across the gulf, caught the rope, and slid to the ground.

Father and Mother were a very devoted couple and our family life was tranquil. Dad was a great smoker and Mother let him smoke all over the house. We were brought up in an atmosphere of tobacco smoke. Yet neither of my brothers ever smoked for some reason.

One day when Grandmother was staying with us, we heard that a neighbor was sick. Grandmother went over at once and took charge till the lady was able to get up again. [Poor] grandmother was utterly flabbergasted when the lady asked for her bill. She had only followed the usual Southern custom among neighbors.

On September 29th [1875 -- P.D.B.] my sister was born and the doctor thought Mother should not go through another Chicago winter so soon after, as she was very sensitive to cold. So it was decided that Mother, George, the baby [May] and I should go south to [Abingdon, Virginia], where Grandmother was at the time. I was delighted, as I, too hate cold. 

Father had rather Spartan ideas about sleeping in a cold room and bathing in cold water. It was supposed to harden you, I imagine. But somehow I never hardened. I had the most awful colds all winter. In the South it was all right, but below zero! I never could understand how anybody could go to the Arctic regions from choice. I heard of a missionary who was sent to Greenland. Somehow he did not make any converts. So the church thought they'd better send out a younger man. When the ship got it, the resident missionary took the young man aside. "Son," he said, "I want to give you some advice. Don't preach 'em a hot Hell. That was the rock I spit on. They all wanted to go there. Preach 'em a cold Hell." Certainly that's the sort of Hell that would keep me in the straight and narrow. My brother Harvey stayed with Father. 

[Ellen/Nellie/Nella Fontaine Binckley (September 1, 1860-April 27, 1951). Family names and dates were whimsically tweaked by their owners during their lifetime, adding mystery and sometimes causing confusion. For Binckley's "Artist's Life," I'm opting for the full artist's signature name, Nella Fontaine Binckley. 

Grandmother = Jane Johnston Mitchell/Michel (1811-1892).
Mother = Mary Louisa/Louise Mitchell/Michel Binckley (1838-1930).
Dad/Father = John Milton Binckley (circa 1831-1878).

Philander H. Binckley (circa 1826-1898).
Walt Whitman (1819-1892) worked for John Milton Binckley as a clerk in the Attorney General's Office in 1867 and 1868. Several letters document their connection. Here is a link to one of them.
Joaquin Miller (1837-1913). 
Horace Greeley (1811-1872).
King Kalākaua (1836-1881).

George Sydney Binckley (1870-1941).
Mary "May" Binckley (1875-1969).
Harvey Mitchell Binckley (1864-1928).

*Portrait of John Milton Binckley via NYPL via Digital Public Library of America. Link here.]

Nella Fontaine Binckley: "Odds and Ends from an Artist's Life," Chapter III, Part 2

[Nella Fontaine Binckley, "Odds and Ends from an Artist's Life," Chapter III, part 2. From a transcription annotated by Patricia D'Arcy Binckley of typewritten original, February 25, 2005. Original "written some time after 1941 by Nellie F. Binckley, 1860-1950 or 51." Notes in brackets are mine, unless followed by the initials "P.D.B." Occasionally, additional paragraph breaks inserted for easier reading. 

Many thanks to William Myers, Mary Davy, Sally Young and Sue Davis for their ongoing research collaboration; specifically to William for providing a scan of the original document, and in turn many thanks to Peter Binckley and Patricia D'Arcy "Trish" Binckley (1951-2007), at the source.]

My two grandmothers visited us, and my education was not neglected. Grandmother Michel had started me in French and Latin when I was nine years old. Her own education had been very unusual for a woman of her day. She was an excellent Latin scholar, spoke French like a native, and also knew Spanish and Italian. When she was a girl, young ladies had been taught to be notable housewives, to sew and embroider, and were prepared to preside over a household with grace and dignity. They were sent to a finishing school, where they acquired some accomplishments and got a smattering of a few other things. Beyond that, nobody cared what was in their heads, if anything. It did not matter.

Grandmother never went to school a day in her life. It was then the custom among the landed gentry of Virginia to have their sons prepared for college at home by a tutor. She was the youngest of a large family and the only daughter. She had nine brothers. She studied with their tutor and studies whatever she wished. She didn't like English grammar, so never studied it, and spoke the most beautiful English I ever heard. But of course, one does not learn one's native tongue from a grammar.

When she was 13, her mother [Mary Wood Johnston -- M.J.B.] died and she went to live in Washington with her brother Edward and his wife. He was a lawyer [he was an educator/editor/librarian], and a very accomplished linguist. His wife [Marie Antoinette Estelle Costar (De Cressac Villagrand) Johnston (circa. 1802-1848)] was French, from Martinique [from Saint-Domingue/Haiti], and she never learned English, nor did her mother, Madame Villegrand [Joséphine Labarrière Costar, whose second husband was Jerome De Cressac Villagrand, Estelle's step-father],who lived with them. So nothing but French was spoken in their house. 

[Nella is probably conflating her grandmother Jane with her mother, Mary Louisa, who lived for a time with Edward in Washington City; Edward and Estelle were married in New York City on February 7, 1824. They moved to Columbia, South Carolina in the second half of the 1820s. By the time they moved to Washington City, in the early 1840s, Jane had been married to Harvey Mitchell/Michel for a decade. However, Jane may have stayed with them for a while in New York City or in Columbia.]   

Uncle Edward once had a lawsuit to conduct in Mexico. He [knew] no Spanish, but in six weeks he had learned to read, write and speak it fluently. 

On Grandmother's 14th birthday [November 26, 1825], Aunt Estelle gave her an exquisite necklace, tiny opals set in a delicate gold chain, with a small carnelian cross as a pendant. Grandmother gave it to Mother on her 14th birthday [February 16, 1852], and Mother gave it to me on mine [September 1, 1874].

When I was 10, I won a contest in a child's magazine for best translation of a French story -- my first appearance in print.

When Spring came and the snows melted, we were living in a lake. But when Summer got there it was beautiful. Most of the ground was virgin prairie, not yet uprooted by the prairie plough, and covered with wonderful wildflowers. But I didn't care much for prairies -- too monotonous. And such an awful lot of sky. I missed my beloved Peaks. 

A sculptor friend of Father's brought me a lump of clay and I used to model little heads. Mother wanted me to take it up seriously, but I loved color [too] much. In fact, I loved it so much that Father never allowed me to have any paints, as he feared I might neglect drawing. But I'm sure it would not have mattered, for I love line just as much as color. Father said that I must have my college education first, and then he'd give me my art education.

Dad and I were great chums. I adored him. I would never have dreamed of disobeying him. If he'd told me to jump out of the window, I'd have done it instantly. I was a biddable creature anyhow, having been born with an inferiority complex, and believing that everyone knew better than I did. And my upbringing tended to accentuate this, as Grandmother Michel had the old fashioned idea that children should be kept down and not be allowed to get above themselves, as she expressed it. She was devoted to me, but thought it her duty to sit on me occasionally.

Mother liked to go to bed early, but Dad liked to work at night, and [always] sat up more than half the night. He and I used to sit up till all hours talking. Finally, with a guilty glance at the clock, he'd say hurriedly, "Run along upstairs, honey," then add shamefacedly, "You needn't say anything to your mother about it." Dad was born a few centuries too late. He was a knight errant in spirit, always ready to help the weak and oppressed with no thought of himself. His motto was "Noblesse Oblige."

[Ellen/Nellie/Nella Fontaine Binckley (September 1, 1860-April 27, 1951). Family names and dates were whimsically tweaked by their owners during their lifetime, adding mystery and sometimes causing confusion. For Binckley's "Artist's Life," I'm opting for the full artist's signature name, Nella Fontaine Binckley. 

Grandmother = Jane Johnston Mitchell/Michel (1811-1892).
Mother = Mary Louisa/Louise Mitchell/Michel Binckley (1838-1930).
Father = John Milton Binckley (circa 1831-1878).
Grandma = Charlotte Stocker Binckley /aka Charlotta Stoker (February 19, 1788-November 25, 1877). 
Mary Wood Johnston = Mary Valentine Wood Johnston (May 8, 1769-June 17, 1825).

For French translation, see "Borrowing Trouble," translated by Nellie Binckley, St. Nicholas: Scribner's Illustrated Magazine for Girls and Boys. Conducted by Mary Mapes Dodge. Volume I (November 1873-November 1874). Scribner & Co., 1874. See page 430 (Volume 1, Number 7, May 1874). The French title was "Emprunt de Peine."]

Nella Fontaine Binckley: "Odds and Ends from an Artist's Life," Chapter III, Part 1

Union Block, 1870, Mt. Pleasant, Iowa (Wiki Commons)

[Nella Fontaine Binckley, "Odds and Ends from an Artist's Life," Chapter III, part 1. From a transcription annotated by Patricia D'Arcy Binckley of typewritten original, February 25, 2005. Original "written some time after 1941 by Nellie F. Binckley, 1860-1950 or 51." Notes in brackets are mine, unless followed by the initials "P.D.B." Occasionally, additional paragraph breaks inserted for easier reading. 

Many thanks to William Myers, Mary Davy, Sally Young and Sue Davis for their ongoing research collaboration; specifically to William for providing a scan of the original document, and in turn many thanks to Peter Binckley and Patricia D'Arcy "Trish" Binckley (1951-2007), at the source.]

When I was eight years old, we went to Norfolk. Lovely seagirt Norfolk, with its magnolia-lined streets! In the Spring the great white blossoms filled the air with their intoxicating fragrance. They are very sensitive flowers, and will not brook a touch. When friends send magnolias to one another, there is but one way to assure their arriving unspoiled. The big glossy dark green leaves with their brown undersides are gathered completely around the blossom, completely covering it, and tied with a ribbon. It doesn't mind its own leaves, but a touch from anything else makes a brown mark on the creamy whiteness of its petals.

We lived on Freemason Street, not very far from the sea wall at the end of the street. We children used to get down from the sea wall to the beach below and play there. We loved it. I don't seem to [remember] much about our life there. One thing I've always remembered. A neighbor, Miss Krutsch, [used] to play an exquisite thing on her piano. She was a musician. I was too young to think to ask her its name. Years after, I heard it played, and found it was a Mazurka by Chopin. 

The other thing that I remember was something that happened when we moved into a different house. Grandmother was with us at that time. She had had a first floor room before, but in the new house she was on the second floor at the back. She never cared for cats[,] and in the afternoon of the day we moved in, when the maid had got the beds made up in the bedrooms, Grandmother went to her room and to her disgust, saw a cat curled up in the middle of her bed. Forgetting that she was now upstairs, she caught up the cat and pitched it out of the open window. Then she remembered and was overwhelmed with horror and remorse. She crawled downstairs to giv orders for the mangled remains to be removed. Sitting placidly at the back door was the cat, putting her fur in order, all her nine lives evidently unimpaired.

Then later, [about 1872 -- M.J.B.] we went to the Northwest to live in Mount Pleasant, Iowa. It was all very different there. In the South, everyone had servants, but in Iowa there were none. All the ladies did their own work. I remember Mother saying how wonderful those Northwestern women were. There was a co-educational University there [Iowa Wesleyan University] and boys and girls came in from the country to study. The girls did all the cleaning, cooking, mending, washing and ironing for themselves and their brothers, and kept up with their studies besides. Some were so poor that brothers and sisters had to live in the same room, with a curtain across. The professor of Mathematics at the University was a young woman, but her chief claim to distinction in the town seemed to be the fact that she got her family wash out on the line on Mondays earlier than anybody else.

Mia and I had been very sorry to part, but we promised to write to each other. The Suverkrops went abroad a year or two after, and never came back to the United States. But Mia and I kept up our correspondence for many years, till she died in England in November, 1939. In her last letter she said, "Well, we're at war." Much as I grieved for the loss of a lifelong friend, I was thankful she was spared the horrors that followed. She had a house in London and a charming cottage in Herefordshire, on the river Wye. She sent me photographs of it. The cottage had been brought fro Norway. She died there. She had written me that the authorities would not allow her to return to her London house, on account of the war.

In the Northwest, Mother found it very difficult to get a ham she liked -- they were all so big and fat and porky. In Virginia, life is incomplete without a ham in the house. It's a standby. No Virginian housewife is every without one. But the hams there are always small and lean and thoroughly cured, often in the family's own smokehouse. It was awfully cold and snowy in Iowa, so later we went to Chicago.

But it was just as cold there. We didn't like Chicago. A pall of smoke hung over the city practically all the time. And a more than occasional hideous whiff from the Stockyards, when the wind happened to serve.

So Father rented a furnished house in the suburbs owned by the artist cousin who had made the sketch of The Cottage long before, and who lived in Chicago. His studio was the first one I had ever seen and I was fascinated. 

In our suburb, the streets were laid out with wooden sidewalks, but it was sparsely built up as yet -- only about one house to a block. It was right on the prairie, so the wind had a free sweep. (The wind was always blowing.)  And the mercury habitually sank down to the bottom of the thermometer. 

I remember Father and my two brothers went rabbit hunting one day when it was 32 degrees below zero. One evening I was sent out to mail some letters in the letter box at the corner. I put on a heavy cape with a hood, but did not bother to put on my mittens. The wiond blew my cape open and I put out my hand and pulled it back around me. When I got home I found blisters on my fingers as if I had touched a hot stove.  

[Ellen/Nellie/Nella Fontaine Binckley (September 1, 1860-April 27, 1951). Family names and dates were whimsically tweaked by their owners during their lifetime, adding mystery and sometimes causing confusion. For Binckley's "Artist's Life," I'm opting for the full artist's signature name, Nella Fontaine Binckley. 

Grandmother = Jane Johnston Mitchell/Michel (1811-1892).
Mother = Mary Louisa/Louise Mitchell/Michel Binckley (1838-1930).
Father = John Milton Binckley (circa 1831-1878).
Two brothers = Harvey Mitchell Binckley (1864-1928) and George Sydney Binckley (1870-1941). 

Euphemia/Mia Alberta Suverkrop (circa 1859-1939). Astonishingly, see "The Suverkrop Letters, 1842-1887," link here.

See also The London Gazette, page 629 (January 30, 1940): EUPHEMIA ALBERTA SUVERKROP, Deceased. Pursuant to the Trustee Act, 1925. ALL persons having claims against the estate of Euphemia Alberta Suverkrop late of "Braeside" Whitchurch [Symonds Yat, Ross] in the county of Hereford, and of 89, Sunderland Road, Forest Hill in the county of London, Spinster, who died on the 22nd day of October 1939 and whose Will was proved in the Principal Probate Registry on the 15th day of January 1940 by National Provincial Bank Limited, the executors named therein, are required to send written particulars of their claims to us, the undersigned, on or before the 31st day of March 1940, after which date the executors will distribute the assets of the deceased among the persons entitled thereto, having regard only to the claims of which the executors shall then have had notice —Dated this 26th day of January, 1940. STURTON and STURTON, 74, Great Tower Street, London, E.G. 3, Solicitors for the (004) Executors. Link here.]

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.]

John Milton Binckley: “The Death Penalty" (1873), Part 4

[John Milton Binckley, “The Death Penalty.” The Lakeside Monthly. Vol. IX. January to June, 1873. Chicago: F. F. Browne and Company, 1873. Part 4: pages 333-334. Extra paragraph breaks made for easier reading.]

Here is its peculiarity: It is a trial neither by arbitrators, nor by magistrates; neither by the king as an autocrat, nor by the law as a code; but by the country. To be sure, on all sides the jury is hedged in by the law; yet there is undoubtedly an element in the idea of a jury which is contradistinguished from ordained law. 

Trial by jury, in its essence, is a mixture of the judicial will with the undelegated will of the people. This is manifest from the whole history of jury trial in England, if critically studied, and of its analogue in northern Europe, and more anciently in Greece. 

The Athenian court, called the Heliaea (from alia, "multitude,") consisted of 6,000 of the people of the city, chosen out of the whole every year by lot. Of these 6,000, an abstract of a smaller number, down to fifty, was drawn expressly for each separate case, in a manner and by officials carefully prescribed by law, very much as jurymen are selected in our own time, from citizens named in the lists. They received three oboli per day for their services, sat upon wooden benches covered with rugs, and heard the advocates who argued before them from their designated places (bemata). 

Pettingall, Mitford, Mr. Justice Wilson, Sir William Jones, and others, have sufficiently demonstrated the antiquity of the idea of a jury, which we maintain. It is essentially the sovereign people sitting as a court, their recorded and delegated will being represented by the law and its officers, and their undelegated will by an impartial abstract from their own numbers.

The philosophy of it is, that average public sentiment, spontaneously arising, is a good ingredient in statutory administration. It is, in its lowest terms, as a British institution, a partnership court between the king's judge and what Americans call Judge Lynch. 

Long since the necessity for conciliating a justly suspicious commonalty by admitting them, with their prejudices and opinions, into a participation with magisterial government, has passed away; but, there has never yet ceased a most healthful agency for keeping jurisprudence from becoming a barren abstraction, and a court of justice from becoming an inscrutable nidus for corruption, in the necessity of having all essential business of both rendered intelligible to and brought under the vigilant scrutiny of the common people, as represented in the jury box.

A common law court, then, is composed as essentially of a jury as it is of judges. The people and the magistracy unite and agree in settling causes of action. It may be compared to the Roman Senate, tempered by the rabble, personified in their tribune. It was no legislature without the tribune any more than our senate would be a legislature without the lower house. Nor do we scruple to say that to abolish the latter would be no greater innovation than to abolish jury trial in the courts of the United States.

It is, therefore, not by grace of metonymy that we identify the jury and the people; it is the doctrine of the law. A jury is an "abstract of the country," and is presumed to be fairly representative of the average feeling, opinion and capacity of the country.

It is not a civil right to sit on a jury or to be eligible as a juryman. The law deems it a burden, from which a man may be "exempted," but to which no body can be promoted. So exclusively is it the country's right, not the individual's, that the right is not capable to vest in any individual. 

The greatest of forensic lawyers declared before the whole kingdom that the king, the cabinet, the army and navy, the judges, and even Parliament itself, in its omnipotence, were but guards, conservators and ministers around the British jury-box. If this was more eloquent than accurate, no jurist has ever said so. Those "guards" are the cup that holds, steady, shapely and even, the essential jury; but that jury has been dipped from the vast, changeful, some times stormy, sea of the people.

So far, then, from attempting to repress murder by tampering with the jury system, the opposite indication is strenuously demanded. The jury is now disburdened of its true, high and arduous function. 

After a homicide, the killer is to be tried "by the country," in the ancient, significant, and most apposite words of the pleadings. Well, then, how does the country try him ? The answer is, in the following manner, viz.: Such citizens as think fit resort to the chambers of the Governor, to supplicate mercy for a man whose life is imperilled. Who shall limit the resources of precatory appeal ? Heaven forfend the day that hinders any species of eloquence or art which pity evokes! 

Such is the trial. It is wholly ex-parte, besides being purely emotional. The contest between the firmness of an individual and the melting importunities of imploring men and women, bears hardly any analogy to a rational process for the decision of a judicial question. 

Accident has in it a potency greater than reason. But in any view, the firmness of any man's will against his heart is extremely subject to his state of body. A bite of old cheese costs one poor wretch his life, while a bland and genial cup of Oolong opens a gubernatorial countenance, thereby redoubling a petitioner's zeal, and a wife-killer is licensed to marry and kill again.

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

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.]

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.]

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.]