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)
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.
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.
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.
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.
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.
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.
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.
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.