THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Capital Punishment.---Debate in Continuation.
HOUSE OF REPRESENTATIVES.
MONDAY, March 10, 1873.[CONTINUED FROM PAGE 207 BOTTOM OF FIRST COLUMN.]
The following concurrent resolution was offered by Mr. Clarke in the Indiana House of Representatives, Monday, March 10th, 1873.
RESOLVED by the House of Representative, the Senate concurring therein, that human life is inviolable that the death penalty is vindictive to the criminal, demoralizing to society, inadequate as a remedy, and inimical to Christian civilization and therefore it should be abolished, and imprisonment substituted therefor.
Cries of "no," "no !" were heard in various parts of the House as the clerk finished reading the resolution, whereupon -
Mr. BAXTER rose and addressed the House, in substance nearly as follows :
Mr. Speaker : I hear the cry of no, no, no, proceed from several parts of the House. Surely the gentlemen who say "no," have not investigated this subject, or they would not offer such a hasty and inconsiderate protest. Reason, facts and experience all demonstrate that the gallows is utterly inefficient to restrain crime - nay more, that it actually stimulates criminal purposes. If there is any act of our government which evinces a spirit of barbarism, and which is opposed to good order, civilization and the genius of Christianity, it is that of hanging a person by the neck until he is dead.
What reason have the advocates of the gallows to offer in justification for this relic of barbarism? First, that justice demands that life shall be sacrificed for life; second, that the death penalty is necessary for the security of society; third, that execution deter others from committing murder.
Let us glance for a moment at these reasons : First then, these apologists for the gallows say, that justice demands "life for life." I answer, if taking away the murderer's life would restore his victim to society, or if it would serve as an act of restitution to the bereved family, then there might be some plea of justice for the death penalty. But it utterly fails in both these important purposes. Hence it does gross violence to society without producing any corresponding good, and therefore should be abandoned. If murder be wrong in the individual how can a judicial murder by the State be right? The offender almost invariably commits murder under the influence of the spirit of revenge for some supposed wrong. The State commits murder under the spirit of retaliation. If the former be morally wrong the latter certainly cannot be morally right. Again, if the State be justified in taking life for life ; by the same rule of action the State should burn the house of the incendiary, because he has destroyed his neighbors house, or when a man willfully and brutally maltreats and maims another, then the la* should employ its officers, in turn, to brutally maltreat and maim the offender. Does the law do this? No, why? Because such page: 573[View Page 573] a course would not only fail to answer the ends of justice, but it would degrade and demoralize society. Instead, however of pursuing such a foolish and suicidal course, the law wisely fines and imprisons the offender for these abuses. In this way the State is far more likely to secure the ends of justice. Why not apply similar treatment to the murderer ? If the rule holds good in the former instances why not in the latter ? Certainly it ought, and I am persuaded that such a policy would be more efficient in repressing crime than for the State to exact "life for life."
But again, I ask, have governments the right to take human life? They have not, for the reason that no man has the right to take his own life. All righteous governments derive their powers from the persons governed. As however none possess the inherent right to take away their own lives, so they cannot delegate such rights to others. How can they delegate to others what they do not themselves possess ? They can not. Hence legislators will have no right to enact laws to take away human life. To borrow the language of Dr. Benjamin Rush, "the power over human life is the sole prerogative of Him who gave it. Human laws, therefore, are in rebellion against the prerogative, when they transmit it to human hands."
A secend reason given by those who believe in capital punishment is, that of the right of self defence, that the security of society depends on the rigid enforcement of the death penalty. In answer. I reply, that society is by no means so dependant for its security. Were we living in a pastoral state, dwelling in tents and leading nomadic lives, there might be some force in the plea ; but in this age of the world's progress, when civilization and Christianity, have prepared the way for a higher mental and moral condition - when all the necessary restraints upon criminal action are within our keeping - when prisons, reformatories and asylums are co-existent with every government, the absurdity of hanging the criminal, as a protection to society, must be obvious to every thinking person.
It cannot therefore be successfully maintained, that the execution of the murderer is necessary to the protection of society, any more than it can be maintained that it is neeessary to execute the maniac, who may be far more dangerous to life than the ordinary murderer. We place the maniac within the walls of an asylum for the protection of society, as well as for the care which its sanitary measures afford. Hence as we do not hang the maniac, some feeling must actuate us other than self defence, when we consign the murderer to the gallows. To hang the criminal because you suspect he might repeat his crime under similar circumstances, would be to punish, not a crime, nor even the intention to commit it, but a possible liability to yield to a future temptation which may never assail him. I submit therefore, that it would be far more in accordance with right, reason, humanity and civilization, to treat the criminal as you treat the maniac. Instead of resorting to the barbarism of the gallows to hurry him out of the world, and most probably unprepared for the next, let the State place him under confinement, subject him to all those rules of physical, mental and moral discipline which would tend to root out the evil passions of his nature, and to supplant them with the nobler impulses of humanity and civilization. By this means he might ultimately be in a condition to offer some restitution to society for the great wrong he had done to it.
But capital punishment forever precludes such a possibility. And right here let me remark, it is a remarkable fact, which a long course, of observation proves, that, as a general rule those criminals who have committed murder are governed with less trouble, and seem to be more susceptible of moral influence, than other felons. This may be accounted for by the fact that many murders are committed through sudden impulse, or when in a state of intoxication; whereas the majority of other felons have pursued a successive course of crime, and thereby have become hardened in their dispositions. We should never forget that many, very many of those unfortunate criminals, are the sad victims of a depraved education, hence they demand the commiseration and moral influence of our nobler manhood, rather than the vindictive spirit of a barbarous institution.
We build Houses of Refuge and Reformatories for the unfortunate "waifs of society,'* who have committed minor offenses, and apply to them all the sanitary, mental and moral influences we possess, to reform and elevate their character. In this labor we are developing a noble work of civilization and Christian morality.
Now, I submit, that if this course be right and proper towards the minor criminal, how much more does it become our duty as benefactors of the race, to extend even more protection, instruction and moral training, towards those who have been so unfortunate as to commit a greater crime ? But no, instead of carrying out our beneficient labor and spirit to its legitimate end, we suddenly stop short, and transform ourselves from the condition of angels of humanity and peace, to agents of darkness, cruelty and death. Is there any consistency, humanity, civilization or Christian philanthropy in this ? If there is I confess that I fail to see it.
page: 574[View Page 574]The third reason offered by the apologist for the gallows, is, that executions serve to deter people from commiting murder. Were this reason correct in principle, then executions to be more effective in detering crime, should be made as public as possible. But public execution are almost totally ignored. The time was when the unhappy culprit was dragged through the streets on a hurdle, accompanied by the officials; the clergy, a military escort, and preceded by a band of music, discoursing dead marches and funeral dirges, in order to render the performance all the more public and imposing - and many of the victims, after being hung by the neck until they were dead, were fastened to gibbets, and taken to the cross roads, there to remain to be gazed upon by every passer by, as a terror to evil doers. Why were these public exhibitions of barbarism abandoned ? Because they not only shocked public conscience, but because experience conclusively demonstrated, that instead of repressing crime they positively engendered it. Hence nearly every civilized nation has abandoned public execution. Dr. Livington well understood the subject, when he declared in the British Parliament, that "every execution brings an additional candidate for the hangman."
"Woe to society," declared Lepelletier, "if, in that multitude which gazed eagerly on an execution, is found one of those beings predisposed to crime, by his education and the perverseness of his propensity. His instinct, like that of the wild beast, awaits, perhaps only the sight of blood to awake; and already his heart hardened to murder, the moment he is quitting the spot wet with the blood which the sword of the law has shed." Innumerable are the instances where public executions have been attended with scenes of the most revolting brutality. The hanging of Dr. Pritchard at Glasgow, and of Muller in London, were each followed by about a dozen murders and foul attempts at murder. If my memory is correct, three murders occurred almost in sight of the gallows, at an execution in Kentucky some years ago. A man was executed in the State of Ohio for the murder of his wife, under circumstances of peculiar cruelty. The day on which the execution took place, another man man near the place of execution, murdered his wife in the same manner.
Thus it is abundantly demonstrated by facts and long experience, that the law of capital punishment, when executed can have no other effect upon the criminally inclined, than to arouse the bloody instincts, and to excite those baser propensities which are the dark precursors of bloody deeds. The very spirit of the gallows is infectious. Men have been known to return home from executions and deliberately hang themselves. The testimony is overwhelming, that the gallows ever incites to crime, and is, in no case, pro-motive of public virtue. As harshness and brutality in individuals begets a kindred spririt in their associates, so barbarism in a Government engenders crime and barbarism in the subject. This action is as certain to follow as the laws which govern the universe.
It is not therefore by capital punishment that you can deter and lessen crime. You may use all the hemp in Russia - you may hang and gibbet criminals at the corner of all your public thoroghfares, until their bodies decompose in the air, and still you will utterly fail by such a barbarous course to remove crime. Nay verily, by such a a course you will feed the appetite for blood and cruelty.
That noble and most eloquent advocate of human rights, John Bright, well says: "A deep reverence for human life is worth more than a thousand executions in the prevention of murder; and is in fact the great security for human life." As an evidence of the truth of this sentiment, the "Society of Friends " has taught for more than two centuries, the inviolability of human life, and as a result of this teaching, no member of that society has ever been known to commit murder.
By the Pursian law it was forbidden to put to death a Roman citizen. This law continued in force two hundred years, and Montesquien says: "It was never observed that this step did any manner of prejudice to the civil administration." Was it a "morbid sensibility" that originated and perpetuated this law? The unrelenting sternness of the Roman character is too well known to admit this favorite suggestion of a sanguinary code. Cicero thus bears his testimony to the noble sentiment upon which the Pursian law was founded. "Far be from us the punishment of death - its ministers - its instruments. Remove them not only from actual operation on our bodies, but banish them from our eyes, our ears and thoughts; for not only the execution, but the appresension, the existence, the very mention of these things is disgraceful to a freeman, to a Roman citizen." How much more disgraceful then ought it to be to an American citizen with all the civilization of the past before his eyes ?
In Tuscany during twenty years, the punishment of death was altogether abolished by Duke Leopold. Bonaparte afterwards restored it. Our comparing these successive periods of twenty years each, in the first period capital punishment existing, in the second period abolished, and in the third again restored, as above mentioned, it is found that page: 575[View Page 575] fewer crimes and fewer murders were perpetrated in the middle twenty years, while no executions took place, than in either the preceeding or succeeding twenty years while the scaffold was in use.
When Sir James Macintash was Recorder of Bombay, capital punishments were suspended for seven years. The number of murders diminished during that period to six. Whereas, during the proceeding seven years, there had been eighteen convicted for murder, and twelve executions.
These facts are fully borne out by experience in our own country. In the State of New York where capital punishment is the law, it appears from the statement of the "New York Times," that in the city of New York there occurred one hundred and forty-one murders in three years. While in the State of Michigan, where imprisonment has been substituted for the gallows, and with a population fully as large as New York City, there have been only sixty murders in twenty-seven years. Rhode Island, Wisconsin and other places where capital punishment has been abolished, afford similar evidence.
Startling as these facts may appear to many of the members of this House, they are not at all surprising to those who have directed their attention to reformatory measures. Beccaria declared more than a century ago that, "it is the certainty rather than the severity of the punishment, which constitutes its efficiency." With the law of capital punishment on the statute book, it is almost impossible to convict and punish, even though we resort to exception and restrictions in impanneling a jury for the trial of murder, which we do not exact in the trial of any other crime. Men shudder at the consequence of a verdict for murder. And no wonder when we have the solemn fact staring us full in the face, that out of ten thousand executions, nearly five hundred of these have been proved by subsequent revelation of facts, to have been innocent victims of this most barbarous of practices. As a consequence, there is the notorious fact, that out of the one hundred and forty-one murderers committed in New York in three years only one was executed. On the other hand, we find, that in these States where imprisonment has been substituted for the gallows, conviction is a certainty in almost every instance. Surely then it is far more efficient for the prevention and suppression of crime to have imprisonment with certainty of conviction, than the gallows with an almost certainty of escape from punishment. Were I disposed to commit a murder, I would sooner select New York than Michigan to accomplish the deed of blood, simply because in the former State there are one hundred and forty cases, to one, that I should not be convicted and punished, whereas in Michigan conviction after murder amounts almost to a certainty.
Hence I contend that reason, experience and national policy alike demonstrate, that "the death penalty is demoralizing to society, inadequate as a remedy, and inimical to Christian civilization," and therefore should be abolished by every civilized community.
If our State wishes to restrain crime it must remove the causes which produce crime. It must close the run shop, the gambling saloon and the haunts of sensuality and vice. It must teach the rising generation lessons of industry and frugality. The people must be educated to a higher civilization - a civilization founded on Christian virtue. It is by refining and elevating the moral feelings by benificient laws and not by barbarizing the baser propensities of our nature with the use of the gallows, that a Government can remove crime from its borders. The more, therefore we keep before our minds, the noble spirit embodied in our State Constitution, that " the penal code should be founded on the principles of reformation and not of vindictive justice," the more surely will crime disappear from among us, and the more surely shall we advance in that career of moral purity and granduer which is the strongest bulwark of the progress, the prosperity and of the happiness of a free people. I shall therefore vote "aye" on the resolution before the House.
The resolution was rejected by a tie vote as follows:
YEAS - Messrs. Baxter, Billingsley, Bowser, Broaddus, Clark, Claypool, Cowgill, Crumpacker, Eward, Furnas, Goudie, Hardesty, Henderson, Hollingsworth, Johnson, King, Kirkpatrick, Mellett, Odle, Prentiss, Reeves, Riggs, Scott, Satterwhite, Stanley, Teeter, Thayer, Thompson of Elkhart, Troutman, Walker, Willard, Wilson of Blackford, and Woodard - 33.
NAYS.Messrs. Barker, Blocher, Branham, Brett, Butterworth, Cuathorn, Cobb, Durham, Eaton, Edwards of Lawrence, Ellsworth, Gifford, Givan, Glazebrook, Gregory, Gronendyke, Hatch, Hedrick, Heller, Jones, Kimball, Miller, Offutt, Ogden, Peed, Richardson, Shirley Tingley, Thompson of Spencer, Tulley, Whitworth, Wood and Mr. Speaker. - 33.
