Ohio History Journal

THE ANTI-GALLOWS MOVEMENT IN OHIO

 

By ALBERT POST

 

The criminal codes of colonial America were based on those

of England, but in the New World where the social structure and

traditions were less binding, these codes were modified by re-

ducing the number of capital crimes. In England, during the

eighteenth century, over two hundred felonies were capital, while

in the North American colonies the average number was about

twelve. With the publication in 1764 of the Essay on Crimes and

Punishments by the Italian reformer, Beccaria, the movement for

the abolition of the death penalty really got under way. Blackstone

in his Commentaries repeated many of Beccaria's arguments and

in this way a large part of the legal profession in America came

to hold liberal views regarding criminal law. Some, like Thomas

Jefferson and John Adams, read Beccaria carefully, for as early

as 1773 an English edition was printed in New York.

Before the American Revolution the usual method of punish-

ing criminals was by death, mutilation and fine; imprisonment

was uncommon because there were no prison systems, only in-

secure county jails. Largely owing to the influence of the Society

of Friends, Pennsylvania in 1790 became the first state to estab-

lish a modern prison system. In a short time New York followed

the lead set by Pennsylvania and other states did likewise. As

for Ohio, construction was begun on a state penitentiary in 1813

and the building was completed two years later. The establish-

ment of the state prison now made it possible to substitute im-

prisonment for crimes which formerly had been punished by

death and corporal punishment.

The first criminal code of the Northwest Territory, the Ma-

rietta code of 1788, listed only five capital crimes: treason, murder,

and arson, burglary, and robbery resulting in death.¹ In 1799,

 

1 Salmon P. Chase, ed., The Statutes of Ohio and of the Northwestern Territory

Adopted or Enacted from  1788 to 1833 Inclusive (Cincinnati, 1833-35), 1, 97-8.

(104)

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ANTI-GALLOWS MOVEMENT IN OHIO                105

 

arson of any type was added to the number of offenses meriting

death.

After Ohio achieved statehood the criminal code was revised

by an Act of January 15, 1805, which limited the death penalty

to treason, murder, rape, arson with prejudice to life, and maim-

ing with malice aforethought.²  Four years later the last offense

was dropped from the capital felonies.

In 1794, Pennsylvania led other states by differentiating be-

tween murder in the first degree and murder in the second degree.

Previously all murderers were treated alike and the criminal suf-

fered death if convicted. Under the new codes murder in the

first degree--murder committed purposely with deliberate and

premeditated malice--was punished capitally, while all other

murders were held to be murder in the second degree and to

deserve only imprisonment for life. In January, 1815, the very

year the state penitentiary was completed, Ohio reduced the list

of capital crimes from four to two. A distinction was made be-

tween the two degrees of murder and only murder in the first

degree punished by death; treason was the other capital offense.

Rape and arson jeopardizing life were reduced to crimes penalized

by imprisonment for life.³ By an act of 1824 the death penalty

was limited to murder in the first degree, and so it remained

during the next four decades notwithstanding strong efforts to

abolish capital punishment entirely.  It was realized that under

the Federal Constitution treason against an individual state was

a mere chimera, and it was useless to legislate against it, for there

could be no treason against Ohio which would not also be treason

against the United States.⁴

The first voice against the gallows in Ohio was raised by

Elisha Bates, a Quaker of Mt. Pleasant, who opposed all sorts

of violence. His monthly publication, The Moral Advocate, Bates

made the vehicle for his ideas.⁵ From 1821 to 1824 he wrote

occasional articles in opposition to the death penalty, but his

 

2 Ibid., 438-9.

3 Ibid., II, 856-7.

4 American Quarterly Review (Philadelphia), X (1831), 39.

5 Robert J. Leach, "Elisha Bates and the Mt. Pleasant Press, 1817-1827," Bulletin of

Friends' Historical Association (Philadelphia, 1940), XXIX, 17-29.

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106  OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

opinions reached an extremely small audience and had little in-

fluence.⁶ The arguments of Bates against the gallows were pre-

mature and not until about a decade after the demise of The Moral

Advocate did the state legislature seriously turn to the subject.

On December 28, 1835, Carter B. Harlan of Clinton County

offered a House resolution that a select committee of three be

appointed in order to enquire into the expediency of bringing in a

bill for the abolition of capital punishment.⁷ In February, 1836,

the committee reported a bill for abolition, but, when it came up

for discussion a month later, the opponents of the bill were able

to postpone consideration.⁸ Early in the next legislative session

the postponed measure was brought to the attention of the House

by the committee on the judiciary. To this committee the whole

subject was one of expediency. Every organized community, the

committee declared, had the right inherently to inflict capital pun-

ishment for the commission of deliberate murder. Nor was there

any evidence that the people desired any change. But the com-

mittee admitted: "It cannot however be doubted, that very many

of the most intelligent and patriotic citizens of this State, are de-

cided advocates of the repeal of the law under consideration, and

the time may indeed be rapidly approaching, when its repeal will

be accomplished, with the approbation of a majority of the peo-

ple."⁹ In the opinion of the committee, however, the abolition

of the gallows was a threat to the security of the lives and prop-

erty of the citizens of the State, and the proposal to postpone the

question indefinitely was agreed to by the House. While the

House was going through this agitation, the Senate remained

silent.

By 1837, the subject of capital punishment had become im-

portant enough for Governor Joseph Vance to recommend the

abolition of the gallows and the substitution of imprisonment for

life in the state penitentiary. Although the Governor's views

were accorded a respectable hearing, the Senate judiciary com-

 

6 The Moral Advocate (Mt. Pleasant, Ohio), I (1821), 20; II (1822), 126-34;

III (1823), 120-3.

7 Ohio, House Journal, 1835, 328.

8 Ibid., 598, 845.

9 Ohio, House Journal, 1836, 126.

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ANTI-GALLOWS MOVEMENT IN OHIO                107

 

mittee refused to recommend any change in the law.¹⁰ On the

other hand, the House committee reported a bill for abolition but

the House refused to commit itself and by a vote of 33 to 29 post-

poned the measure until the next session.11

On December 4, 1838, in his annual message, Governor Vance

launched a second attack on the death penalty, that "antique relick

of barbarism." According to Vance, "The security of our State

Prison renders it almost as safe a depository of this grade of cul-

prits [murderers], as the grave itself."¹² Again the Senate judi-

ciary committee reported against the Governor's recommendation

and this time the House committee did the same.13

For a period after 1838 the legislature dropped the subject

of capital punishment entirely and not until 1844 was it revived.

Now it was the Senate that showed a greater friendliness toward

abolition. In February, 1844, a select committee of the Senate

offered its conclusions. In the words of the committee: "Being

satisfied that a very great proportion, if not a majority of our

citizens, have come to that conclusion, we think public opinion as

well as public policy demands, that we should so change the crim-

inal code, as to make it conform to the spirit of the age in which

we live."14 The select committee then brought in an abolition bill

which was referred to the judiciary committee. The latter, how-

ever, did not view the bill with favor and recommended indefinite

postponement. The only concession the enemies of the gallows

could obtain was to have the bill postponed until December of the

same year.

In the House the judiciary committee found the sentiment of

people against any change in the law using words almost dia-

metrical to those of the Senate committee:   "Believing, there-

fore, that a majority of the people do not desire a change in the

existing laws, and reflecting their will, as we are bound to do,

the committee ask to be discharged from the further considera-

tion of the subject. . . ."15 Unable to get an satisfaction from

 

10 Ohio, Senate Journal, 1837, 51.

11 Ohio, House Journal, 1837, 572-3.

12 Ohio, Documents of the Thirty-Seventh General Assembly, 1838, No. 1, 17.

13 Ohio, Senate Journal, 1838, 275; Ohio, House Journal, 1838, 117.

14 Ohio, Senate Journal, 1843, 522-6.

15 Ohio, House Journal, 1843, 152.

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108 OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

the judiciary committee, the friends of abolition forced through

the House the appointment of a select committee. On March 8,

1844, the committee, although recognizing the strength of the

argument against capital punishment, refused to accede to any

change and the House assented.16

Undoubtedly interest in the abolition of the gallows was in-

creasing during the latter half of the 1840's. The summer of 1845

saw D. Winder of New Paris in Preble County issue a pros-

pectus for a weekly paper to be known as the "New Paris Post,

and Western Anti-Hangman." Winder hoped to commence pub-

lication July 1, provided enough subscribers could be obtained

to justify the undertaking. On the subject of capital punishment

the editor expected "to treat our readers with communications

from some of the ablest pens in the United States, written ex-

pressly for our paper." The merits of the gallows, he continued,

would be viewed from every possible position of moral and po-

litical science and the western public would be presented with an

opportunity to scan the value of its immediate abolition.¹⁷ The

anti-gallows paper never saw the light of day.

About the same time Winder was projecting his attack on the

death penalty, the citizens of Union County met at Liberty to dis-

cuss capital punishment and to petition the Governor for the com-

mutation of the sentence of death passed on Hosea Cook. After

some debate a resolution was adopted favoring the extinction of

the gallows and the commutation of Cook's sentence.18

In 1847, at Oberlin College, Amasa Walker was putting pub-

lications opposed to the death penalty into the hands of those most

likely to use them to the advantage of the cause. He found one-

third of the members of the Theological Seminary in favor of

abolition. "It is a cheering fact," Walker asserted, "that so many

of the young men here are converts to this humane and Christian

view of this question; for it may reasonably be expected that they

will exert a wide influence on society in after life."¹⁹

About 1849, a "Young Men's Anti-Capital Punishment So-

 

16 Ibid., 741-5.

17 The Hangman (Boston), June 18, 1845.

¹⁸ Ibid., June 25, 1845.

19 Prisoner's Friend (Boston), August 25, 1847.

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ANTI-GALLOWS MOVEMENT IN OHIO                  109

 

ciety" was formed in Granville, Licking County. It was composed

of thirty members, all pledged to labor for the downfall of the gal-

lows. An able lecturer who would lay the subject before the people

was greatly needed to strengthen the society. One member wrote

enthusiastically of the great heart of community which was

throbbing with intense vibrations and was sending the life-blood

of humanity through the political and moral system, thereby cleans-

ing man of that spirit of cruelty that had so long characterized his

actions.²⁰

Capital punishment did not pass unnoticed in the press. The

Western Law Journal of Cincinnati spoke up boldly against the

infliction of the death penalty, although it recognized the inertia

of custom.21 A Cleveland newspaper failed to see that strangling

a man aided society or reformed the criminal.²² When the first

annual meeting of the American Society for the Abolition of

Capital Punishment was held in Philadelphia in 1845, the Cleve-

land Herald rejoiced to note that the humanizing principle regard-

ing the death penalty was securing a firmer foothold in the minds

of the people.²3

In the state legislature the gallows continued to hold a place

of interest. On December 5, 1845, the Senate judiciary committee

reported a bill to abolish the death penalty, but the Senate recom-

mitted the measure.²⁴ In the House more progress was made.

After an abolition bill was introduced, it was referred to a select

committee of one--Clement L. Vallandigham. In February, 1846,

Vallandigham  reported the bill back to the House and recom-

mended its passage, only to have it defeated by a vote of 28 to 21.25

The session of 1846-47 was marked by a fierce parliamentary

struggle between the friends and foes of the gallows. It opened

with Joseph Williams of Coshocton County introducing a bill to

amend the criminal laws of the State so as to eliminate the punish-

ment by death in all cases. After some debate the measure was

 

20 Ibid., II (1850), 540.

21 Western Law Journal (Cincinnati), V (1848), 421; VII (1850), 403.

22 Cleveland Daily True Democrat, February 24, 1849, in Annals of Cleveland,

1818-1935 (Cleveland, 1937-1938), XXXII, Pt. 1, p. 22.

23 Quoted in ibid., XXVIII, Pt. 1, p. 43.

²⁴ Ohio, Senate Journal, 1845, 26, 48.

25 Ohio, House Journal, 1845, 81, 729, 734-5.

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110   OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

committed to the judiciary committee. On January 14, 1847,

Vallandigham, acting for the committee, recommended passage. A

motion to recommit was successful and a select committee of

three including Vallandigham was appointed. A slightly amended

bill was reported by the select committee; then Vallandigham was

chosen a select committee of one to consider the bill. Vallandig-

ham reported a modified measure but the opposition was able to

amend it by adding a provision providing for infliction of the

death penalty at the discretion of the court or the recommendation

of the jury. This actually defeated the anti-gallows bill and the

reformers pressed for postponement in order to avert a vote.

Vallandigham then managed to have the amended bill recommitted

to a select committee of which he was chairman. On January 29,

Vallandigham delivered a lengthy argument for abolition.²⁶ After

much commotion and numerous roll calls lasting, in one case, until

3 o'clock in the morning, on December 4, the bill, at the request of

its friends, was tabled rather than to have it face certain defeat.27

During the next session, the House refused to become in-

volved in heated debate and simply referred the abolition bill to

the judiciary committee where it remained.²⁸ In the Senate a

select committee was appointed. On January 26, 1848, the com-

mittee reported against dropping capital punishment from the

statute books.²⁹ The session of 1848-49 resulted in further at-

tempts to push the measure through. Although George D.

Hendricks on behalf of a select committee in the Senate came out

for abolition, the State Senate by a vote of 16 to 12 postponed

consideration.30 Conservatives cited Michigan, where the gallows

had been abolished, as an example, declaring that murders had

greatly increased in that state; opponents denied these allegations.31

The House simply tabled the bill.³²

Not until 1850 did it appear that success might be achieved.

After several test votes, on March 18, the Senate, voting 18 to 12,

 

26 Columbus Ohio Press, February 1, 1847.

27 Ohio, House Journal, 1846, 47, 55, 219, 255, 372, 400-1, 438-9, 480-90,

500; Ohio Press, February 2, 4, 5, 1847.

28 Ohio, House Journal, 1847, 107, 161, 462.

29 Ohio, Senate Journal, 1847, Appendix, 115-22.

30 Ohio, Senate Journal, 1848-49, 81, 86, 135, 672; ibid., Appendix, 363-5.

31 Cincinnati Daily Ohio Statesman, March 22, 1849.

32 Ohio, House Journal, 1848-49, 92, 193.

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ANTI-GALLOWS MOVEMENT IN OHIO                    111

 

passed a bill which would substitute imprisonment for life in the

state prison for the death penalty.33 The bill was then sent to the

House where it was indefinitely postponed, 31 to 23; there the

matter ended for the time being.34

This was a severe blow to the reformers but they would not

admit defeat and carried the battle to the Constitutional Conven-

tion meeting at Columbus. On May 14, 1850, resolutions were

brought in requesting that an article abolishing the death penalty

be added to the Bill of Rights.³⁵ When the committee on juris-

prudence proved hostile to the measure, it was referred to a select

committee. Early in July, the committee reported an article to the

Bill of Rights: "Human life shall ever be held inviolate. The

true object of punishment being, in addition to the security of

society, to reform and not to exterminate mankind; human life

shall never be taken as a punishment for crime; but the highest

punishment inflicted for crime shall be imprisonment during life

in the State Penitentiary."³⁶

When the Convention moved to Cincinnati the capital punish-

ment question went along too. On December 6, a fierce debate

raged on the subject without settling the issue. The next day the

verbal conflict became more heated as arguments, religious, moral

and historical, were flung at each other by the various speakers.

The net result was to postpone consideration indefinitely.³⁷ A last

effort was made on January 15 to insert an anti-capital punishment

clause to Section 9 of the Bill of Rights but it went down in

defeat.38

After the Convention of 1850, interest in the abolition of the

gallows languished. In 1852 a resolution in the House of Repre-

sentatives instructing the judiciary committee to report on the

abolition bill was easily defeated by a vote of 46 to 28.³⁹ Three

years later a similar resolution in the Senate lost, 19 to 9, and

caused almost no interest.⁴⁰ In his annual message to the General

 

33 Ohio, Senate Journal, 1849-50, 268, 657, 662, 803, 885.

34 Ohio, House Journal, 1849-50, 779, 821.

35 Official Reports of the Debates and Proceedings of the Ohio State Convention

(Columbus, 1851), 51.

36 Ibid., 655.

37 Ibid., 696-703.

38 Ibid., 974. See also The Prisoners' Friend, III (1851), 258-60.

39 Ohio, House Journal, 1852, 631-2.

40 Ohio, Senate Journal, 1856, 47.

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112 OHIO ARCHAEOLOGICAL AND HISTORICAL QUARTERLY

 

Assembly in January, 1859, Governor Salmon P. Chase pointed

out the infrequency of convictions as compared to indictments and

suggested that it might be expedient to authorize the courts to

sentence at their discretion to death or imprisonment for life

murderers in the first degree.⁴¹ There the matter stood in 186O

when the approaching civil strife ended such humanitarian reform

activities.

But one important progressive modification regarding capital

punishment was successful. As early as 1834, Pennsylvania had

limited executions to the privacy of the walls or enclosed yard of

the prison. In addition, the persons admitted to witness the hang-

ing were kept down to a small number of official observers, a

clergyman and a few relatives of the culprit. In supporting this

reform, it was argued that public executions, attracting thousands

of spectators of all ages, were cheapening the value of human life

and were the scenes of brutalizing and depraving exhibitions, often

leading to robbery and even murder itself. In 1838, when David

McKisson was hanged at Ravenna, several thousand people, one-

third of them women and children, observed the spectacle.⁴²

A weak effort was made in the Ohio Senate to abolish public

executions even as early as 1835 and, when, in 1837, the Senate

passed a bill, the House refused to go along.43 In the House the

bill to abolish public executions could not pass because opponents

of the death penalty added a rider in favor of completely outlaw-

ing the gallows. Not until 1844, after almost ten years of struggle,

did the measure to end public executions become law. The vote

was overwhelmingly in its favor; in the Senate, 24 to 6, and in

the House, 48 to 10. The elimination of public executions was an

important achievement of the anti-gallows movement.

 

 

 

 

 

 

 

 

41 Ohio, Messages and Reports Made to the General Assembly and Governor for

the Year 1858, Pt. II, 88-9.

42 Cleveland Herald and Gazette, Feb. 12, 1838.

43 Ohio, Senate Journal, 1835, 286, 885; ibid., 1836, 683, 689; ibid., 1837, 440,

658.

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