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Boston's HistoriesESSAYS IN HONOR OF THOMAS H. O'CONNOR
Northeastern University PressCopyright © 2004 James M. O'Toole and David Quigley
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Chapter One"A Long Train of Hideous Consequences" Boston, Capital Punishment, and the Transformation of Republicanism, 1780-1805
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Massachusetts imposed the death penalty on more convicted felons in the two decades following the enactment of its constitution than during any other twenty-year period in its history. Between 1780 and the election of Thomas Jefferson to the presidency of the United States, seventeen men and one woman were legally executed in Boston and an additional sixteen men were put to death elsewhere in the Commonwealth. The hangings were in response to a postwar crime wave and to the widespread fear that the bonds meant to hold society together were not strong enough nor the people virtuous enough to sustain a republic. Confronted by a rising tide of violence, some people held firm to the conviction that the government must execute criminals to deter others from committing criminal acts in order to build an orderly, virtuous society. Others feared that aggressive state action would sacrifice individual liberty to the demands of political and legal order. The Republic must protect its citizens, but it also must fulfill the promise of republicanism and ensure equality before the law and justice for all.
Before the Revolution, Massachusetts's clergy played a major part in rationalizing capital punishment. Buttressed by religion, colonial executions engendered little public discussion. After 1780 the clergy's primacy gave way to the law, the courts, and the people. The courts initially responded to the challenge of maintaining order and achieving republicanism with an unbending enforcement of criminal laws. Within a relatively short time, however, popular opposition to capital punishment surfaced, and a heightened concern for the preservation of liberty strengthened the idea that an accused individual ought not to be punished before having been given every opportunity to establish his or her innocence.
The Massachusetts Constitution's Declaration of Rights was the starting point for change. Opponents argued that capital punishment was brutish, British, and beyond the powers delegated by the Constitution to the new republican government. Article 12 of the Declaration of Rights spelled out a defendant's right to due process, including a full explanation of the charges, a prohibition against self-incrimination, a right to confront the state's witnesses, a right to counsel, and the right to trial by jury. Article 26 forbade a magistrate or court of law from inflicting "cruel or unusual punishment." Article 29 held out to every citizen the right "to be tried by judges as free, impartial and independent as the lot of humanity will admit." Using these constitutional ideals, the Massachusetts Supreme Judicial Court (SJC) took the lead in protecting and expanding a defendant's rights, and in the process republicanism was transformed. For this reason, the debate surrounding Boston's postwar executions provides a window into the development of a liberal commonwealth. The rash of court-ordered executions was followed by a remarkable change in the law's purpose and practice. By the early nineteenth century the notion that the law's chief function was to be the guardian of liberty was firmly in place, reinforced by the popular belief that an unchecked use of the death penalty was un-American.
In 1780 the Reverend Samuel Cooper, a lifelong Bostonian, told the lawmakers gathered for the first meeting of the Great and General Court, "Nothing can render a commonwealth more illustrious, nothing more powerful, than fueling the sacred fire" of liberty. But the Boston town meeting worried that Massachusetts's new republican government would not be able to protect liberty or to prevent anarchy. In 1786 the meeting sent a circular to every Massachusetts town, warning of the imminent danger of "a state of anarchy," a turn of events "to be dreaded above all other calamities because there is no evil which it does not involve." Boston's anxiety did not deter lawyers from sprinkling high-flying rhetoric about the importance of liberty in their arguments before the court; nor did it prevent judges from responding in kind. James Neale urged Attorney General Robert Treat Paine to determine "points of liberty and justice" with an eye to the rights of all men, and in 1805 the SJC vowed to act "with that anxious regard for personal liberty and to prevent vexatious oppression."
Most men living through the tumultuous post-Revolutionary era linked attacks on government by unruly mobs and the increase in the incidence of theft and violent crime. Lawyers buttressed this popular perception by citing Sir William Blackstone's Commentaries on the Laws of England, the most important source of legal authority in Anglo-America. According to Blackstone, violent criminal acts violated "the laws of nature" and "the moral as well as the political rules of right," because they "endanger[ed] the subversion of all civil society." Governor John Hancock summarized this argument when he told the legislature the primary purpose of criminal law was to achieve "the good order of Government and the security of the people."
Writing in 1788, lawyer and historian George Minot highlighted new attitudes about wealth as the root cause of social instability. "An emulation prevailed among men of fortune to exceed each other in the full display of their riches," he wrote. "This was imitated among the less opulent classes of citizens and drew them off from those principles of diligence and economy, which constitute the best support of all government." The Massachusetts legislature also emphasized the dark side of Boston's new prosperity. "Habits of luxury have exceedingly increased and we have indulged ourselves in fantastical and expensive fashions [and] the virtue which is necessary to support a Republic has declined," bemoaned the legislature in 1786. Judge Nathaniel Sargeant made explicit the connection between the decline of virtue, political instability, and theft: "Vicious persons [are] roving about the countryside disturbing peoples rest and preying upon their property," snarled the justice.
Modern historians searching for the causes of postwar Boston's political anxiety and its increased rate of crime and violence have identified the decline of civic virtue and the problems accompanying the emergence of liberal capitalism. William Nelson and Daniel Cohen focus, respectively, on the decline of the government's interest in imposing a set of community values and the rise of a consumer culture. Adam Hirsch ties many of these same changes to the invention of a prison system. This essay focuses on capital punishment in Boston and complements the argument made by the scholars named above. I argue that Massachusetts's post-Revolutionary experience with crime and capital punishment was formative. Specifically, the debate that swirled around capital punishment accelerated the process linking the protection of liberty to the elaboration of criminal due process. Changes made in the criminal law both contributed to and were affected by the transformation of republicanism and eventually gave rise to a major campaign to abolish the death penalty in Massachusetts.
Political controversy and strife pockmarked the 1780s, conditions that often led to discussion of capital punishment. Daniel Shays's western Massachusetts uprising was sandwiched between divisive debates over the shape and scope of the Massachusetts Constitution and of the United States Constitution. The collapse into anarchy predicted by Loyalists in 1776 did not occur when Massachusetts became an independent state primarily because town governments provided a practiced, steady hand of authority. Still, fear of impending chaos and the promise of republicanism created a clamor for a new state constitution. The people of Massachusetts had rejected constitutions in 1776 and 1778 chiefly because they had been drafted by the legislature. A town meeting of nearly one thousand Bostonians unanimously insisted that a constitution must be drafted by a specially elected convention. The Massachusetts legislature acquiesced to the voice of the people, and a constitutional convention gathered in Boston on September 1, 1779, for the "sole Purpose of forming a new Constitution." The delegates quickly and easily agreed that the "government to be framed by this convention, shall be a free Republic." John Adams filled in the details. His draft constitution and Declaration of Rights was sent to the people for their "candid Consideration." On June 15, 1780, the convention resolved that the people had accepted the constitution. Samuel Adams heaved a sigh of relief, saying that "never was a good constitution more needed than at this juncture."
No sooner was the Commonwealth launched, however, than the people of Maine rallied for separation from Massachusetts, and hard-pressed western Massachusetts farmers rose up in rebellion in the fall and winter of 1786-1787. To Bostonians the Maine convention was "odious, fraught with evil and danger," an ominous threat to the fragile republic. Maine separatists contented themselves with a resolution, but many Bostonians suspected western Massachusetts farmers of plotting rebellion in secret alliance with the British. A special Boston town meeting charged Samuel Adams with writing a circular to be sent to all the other towns condemning the westerners' "illegal steps" and raising the specter of "British emissaries residing among us." Wild rumors circulated that Captain Daniel Shays was raising an army to invade Boston. With the "universal good wishes of the people of Boston" General Benjamin Lincoln crushed the rebellion and restored order to the Commonwealth.
In the aftermath of the rebellion, Bostonians were divided about whether the insurgents should be executed. "A plenty of hemp," wrote the Independent Chronicle, "would certainly cause terror to evildoers and would have a direct tendency to promote good order in the community." It seemed as though that was the state's strategy. At Northampton on June 21, 1787, two convicted rebels, fifty-three-year-old Jason Parmenter and Henry McCulloch, aged thirty-six, walked to the gallows surrounded by more than one hundred militiamen. The "death parade" paused long enough to listen to a sermon preached by the Reverend Moses Baldwin before stopping at the gallows. Wearing nooses around their necks, Parmenter and McCulloch climbed the scaffold as the huge crowd stood silent. At the last moment Sheriff Efisha Porter read a reprieve, sparing the lives of the two men.
Boston attorney James Sullivan was responsible for saving the men's lives. He had argued for clemency before the Executive Council. "Peace and tranquility could be restored without sanguinary examples," he told the councilors. "Even Britain," Sullivan said, "whose sanguinary disposition daily gluts the grave with legal consignments," offered clemency in such cases. "Honestus" agreed. Merciful treatment of the Shaysites would be a "more eligible mode to restore our public tranquility than a severity of punishment." Samuel Adams thought differently. "In monarchies," he wrote, "the crime of treason and rebellion may admit of being pardoned or lightly punished; but the man who dares to rebel against the laws of a republic ought to suffer death." By using its ultimate power the state would reestablish civic virtue and buttress order in a fragile republic, concluded Adams, a voice in the wilderness.
Just one year following Shays' Rebellion, another political question divided Massachusetts. With one class often pitted against another, patriots were divided over whether to ratify the United States Constitution. Support for the Constitution came from commercial and professional classes in the coastal communities. In Boston these groups were joined by sailors, longshoremen, and artisans, who believed that only a strong national government would stimulate commercial prosperity, provide protection against inflationary paper money, and stamp out lawlessness. Farmers across the Commonwealth, on the other hand, were suffering through a postwar depression and feared that the proposed federal union would place even more power in the hands of a wealthy elite. But after six weeks of debate the Federalists managed to peel away enough anti-Federalist delegates so that Massachusetts ratified the United State Constitution by a slim margin. But while thousands of Bostonians celebrated the birth of national republicanism, other men and women broke open warehouses, accosted their fellow citizens on the town's streets, and sometimes, enraged with drink, committed murder.
Along with political instability, economic prosperity also contributed to Boston's escalating rate of violent crime. With the end of war, thousands of newcomers poured into Boston, rapidly pushing up the town's population from a low of 10,000 in 1780 to nearly 25,000 by 1800. In the process, the once ethnically homogenous community became far more diverse. Thousands of men and women from other states as well as immigrants from Europe, Canada, and the West Indies flowed into Boston. This remarkable growth spurt brought a building boom, employment opportunities, and upward mobility for many. For unskilled workers, however, low pay and the difficulty of finding steady work resulted in an extraordinarily high rate of transience and periodic unemployment. Some of these men and women at the bottom of the economic ladder turned to crime. For example, two-thirds of the 244 repeat offenders sentenced to prison from 1785 to 1798 whose occupations were listed in court documents were laborers. When Henry Tufts arrived at Castle Island prison in 1794 he described his fellows as "a motley crew, consisting of different kinds of people, as well black as white, and of divers nations and languages." They were, Tufts added, "the mere dregs of human nature; the refuse and offscouring of the whole globe."
Of course, neither crime nor punishment was a new phenomenon. Capital crimes and executions were not uncommon in prewar Boston. Thirty-six men and women-sailors, servants, African American slaves, pirates, and army deserters-were hanged on the Boston Common during the seven decades prior to the formation of the Commonwealth. Excluding the twenty-one men executed for piracy or desertion from the army, ten men were hanged for murder, four for burglary, and two for arson from 1705 to 1778. In the two decades after 1780 a very different pattern emerged: the rate of executions throughout the Commonwealth nearly doubled and the crimes for which men and women were put to death changed dramatically.
Excerpted from Boston's Histories Copyright © 2004 by James M. O'Toole and David Quigley. Excerpted by permission.
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