Sunday, December 7, 2014

American Founders on Capital Punishment

By the time of the Founding, the cruelty of England's "bloody code" had been largely dispensed with [burning, beheading, and drawing and quartering remained legal in Britain until the 1800s], "cruel and unusual" punishments banned by the Eighth Amendment. For some Founders, a moral or religious opposition; others saw it as unnecessary as a question of utility, justice or prudence. The arguments back then are familiar to us today.

From a very interesting article over at The Daily Caller from death penalty skeptic Marc Hyden:

Portrait of Cesare Beccaria The 18th century Italian philosopher Cesare Beccaria heavily influenced the views of many of America’s founders, according to John Bessler, author of The Birth of American Law. Beccaria’s philosophy helped mold our nation’s criminal justice system as it shifted away from Britain’s “bloody code.” 

Beccaria, like many early American leaders, opposed capital punishment because he believed that the death penalty was neither useful nor necessary. He concluded that it served no deterrent and wasn’t imperative considering that alternative punishments could be implemented to replace the death penalty.

Any punishment that isn’t absolutely necessary is a form of tyranny, according to Beccaria. George Washington was likely well-versed in Beccaria’s philosophies as well.[According to Bessler,"In 1769, George Washington bought a copy of Beccaria's book, "On Crimes and Punishments," first published in Italian 250 years ago and translated into English in 1767"---TVD.]

And, as a general, Washington even pleaded with congress to limit capital crimes on multiple occasions. 

Even though Washington begrudgingly signed death warrants in his day, he said, “We should not introduce Capital executions too frequently.”  He was known for pardoning the guilty and granting clemency as a general and even into his presidency. 

Some probative quotes, drawn also from John Bessler's oft-quoted National Law Journal essay:
“I should not regret a fair and full trial of the entire abolition of capital punishments by any State willing to make it.”—James Madison

Portrait of William Bradford, 1872"The name of Beccaria has become ­familiar in Pennsylvania, his authority has become great, and his principles have spread among all classes of persons and impressed themselves deeply in the hearts of our citizens."—William Bradford, Madison friend and attorney general of Philladelphia, author of An Inquiry How Far the Punishment of Death is Necessary in Pennsylvania [1793]

“It is better 100 guilty Persons should escape than that one innocent person should suffer.”—Benjamin Franklin

“The Supreme Being alone possesses a power to take away human life, and that we rebel against his laws whenever we undertake to execute death in any way whatever upon any of his creatures.”—Dr. Benjamin Rush

"Beccaria and other writers on crimes and punishments had satisfied the reasonable world of the unrightfulness and inefficacy of the punishment of crimes by death."—Thomas Jefferson

“I shall ask for the abolition of the Penalty of Death until I have the infallibility of human judgment demonstrated to me.”—Lafayette

Unfortunately, even as one of the original authors of the French Revolution, the Marquis de Lafayette's sentiments didn't hold when it came to another "bloody code," what they came to call The National Razor--the guillotine--but that's another story.  In between lies our American Founding and our Eighth Amendment, which enjoyed neither the cruelty of cousin England nor the ritualized murder of the First Republic.

See also American Creation founder Brad Hart on this subject here.


Jonathan Rowe said...

Beccaria is a much neglected name on this website.

JMS said...

I "second" Jon's endorsement.

Tom – great post. Beccaria, following in the footsteps of Locke and Montesquieu, and championed by Voltaire and Condorcet, had a huge influence on significant American founders and early American legal reforms.

FYI - Best article (Sept. 2013, 18 pages) on the web I’ve found (and used in my Western Civ. class) about Cesare Beccaria’s Essay on Crimes and Punishments (and against torture) by historian Ada Palmer at . Good JSTOR article overview (from 1973, reflecting but not naming the Furman v GA Supreme Court ruling of 1972) of Beccaria’s pioneering efforts against capital punishment from Marcello Maestro at Maestro cites William Penn (whom Jefferson called, “the greatest lawgiver the world has produced; the first, either in ancient or modern times, who has laid the foundation of government in the pure and unadulterated principles of peace, of reason and right”), John Adams, who cited Beccaria in his opening statement as the defense lawyer in the famous Boston Massacre trial (1770), Benjamin Rush (Consideration of the Injustice and Impolicy of punishing Murder by Death (1792) in which he acknowledged “the Marquis of Beccaria has established a connection between the abolition of capital punishment, and the order and happiness of society.” Rush also answered objections citing the Bible as endorsing the death penalty), Thomas Jefferson (who cited Beccaria twenty-six times in his Commonplace Book), as legal reformers minimizing “cruel and unusual punishments” that did not fit most crimes except deliberate murder or treason.