The Abolitionists and Their Arguments

Nathaniel Lipscomb Kentish; Benjamin Suggitt Nayler; Edward Wardley; W H. Burford; John Camille Weale; David McLaren; Alfred Joseph Taylor; Frederick Lee—these names barely appear in the Australian historical record yet, collectively, they make up the most visible nineteenth-century abolitionist figures that existed outside of the colonial parliaments.

This section will closely follow the life and works of Alfred Joseph Taylor in Tasmania and Frederick Lee in New South Wales. Not only does it ensure our understanding of the abolitionist case can be made with greater precision but, in many ways, these two men should be elevated above the other names for their prominence and longevity in pursuit of total abolition.

Both the ideas of Lee and Taylor were captured for the historical record via the publication of their ideas in pamphlet form. Taylor's most substantial work on the issue was Capital Punishment: Reasons Why the Death Penalty Should Be Abolished; with Suggestions for an Efficient Substi­tute (1877). It was printed in Hobart and dedicated to the Speaker of Tasmania's House of Assembly. Something of a postscript appeared the following year with his Additional Notes on Capital Punishment (1878). A twentieth-century work by Taylor, The Death Penalty: A Pleafor the Aboli­tion of Capital Punishment (1912), has been excluded from this analysis. Lee, meanwhile, published his Abolition of Capital Punishment (1864) to announce his ideas on the issue. It was a published version of a lecture he delivered in person to the School of Arts in New South Wales in May of that year.

From the outset of their publications, Lee and Taylor both stress that capital punishment was not in lockstep with the progress of �civilisation'. Taylor, in his preface, informs the reader that this central idea is pursued in his work. Capital punishment, suggests Taylor, was once needed when man was obliged to �defend by force of arms and personal prowess his possessions, his family, his life' but not anymore.^[677] He writes:

I do not deny that there was a time when the infliction of a death penalty was a stern necessity... But as civilization has advanced—and still advances—with giant strides, so have our opportunities increased for providing other and more effectual means for the protection of society — means more efficient. more certain and attended with better results to mankind because [they are] less brutal and so less demoralising and debasing in their influence upon society... And I hold that it can be shown that the death penalty is no longer adapted to the present condition of society and that it is no longer expedient to enforce it.^[678]

Lee, early on in his work, makes a very similar point. Once upon a time, he writes, �mankind was almost in a state of nature' where the principles of lex talionis (�an eye for an eye; a tooth for a tooth') made perfect sense.^[679] Lee suggests that such forms of justice, like those found in the Hebrew Scriptures, �could not be tolerated in the nineteenth century, nor be upheld by any benevolent or civilised individual'.^[680] Later in his publication he repeats at length the familiar criticisms of the behaviour of the scaffold crowd (borrowing examples from London) and numerous reports of bungled hangings. He thought these accounts were akin to reading the tales of James Fenimore Cooper, a dramatist of Amer­ican pioneer life: �[W]e might almost imagine we were listening to the romantic tales by Cooper, of barbarities committed by North American Indians instead of atrocities perpetrated under the sanction of law, by a civilized nation in the nineteenth century'.^[681]

In addition to questioning the hangman's place in the �civilized' world, both sought to challenge the default assumption that capital punishment was sanctioned by the Bible—important given the centrality of religion in colonial life.

Both men shared a keen interest in international developments. Taylor, for instance, claimed that high mercy rates in Austria had caused a decrease in crimes; France's supposed reduction of capital crimes to just 13 (from a high of 113) saw no increase in murder, and; Tuscany's experiment with total abolition had been a great success.^[686] Similarly glowing reports from places as far as Russia, Prussia, Belgium, Switzer­land, Portugal and Sweden were all incorporated into his analysis. Lee, meanwhile, added examples from Michigan, New York and Saxe-Weimer (in modern-day Germany) as success stories. Lee goes on to quote the well-known English abolitionist MP, John Bright, who believed that in � no country where capital punishment has been abolished has there been an increase of crime'.^[687] What is curious about this line of argument, other than their insistence that the colonies have nothing to fear from total abolition, is that it shows Australian abolitionists had access to international news and information.

Both Lee and Taylor harboured concerns that innocent people had their lives cut short by the executioner—a fact that clearly motivated them to action. Lee's account is most interesting in this respect as he reprints personal correspondence with John Joseph Therry—one of the most prominent and high-ranking Catholic priests in New South Wales.^[689] Therry wrote that, over his four decades in the colony, he personally knew of�several cases' where innocents had been executed.^[690] However, Therry insisted that, through his endeavours, he had helped attain mercy for innocent men on at least two occasions.^[691] One of these men even sent Therry a deathbed letter thanking him for saving him from the gallows—Lee's pamphlet reprinted this note in full. Taylor uses similar examples gleaned from a dialogue he recently had with another well-travelled Catholic Priest, Julian T Woods.^[692] While pursuing missionary work in Australia, Woods claimed that he had counselled two old dying men who had confessed to crimes for which other inno­cent men had suffered at the gallows in their place.^[693] In his Additional Notes Taylor offers another four accounts from European jurisdictions, some of which detail exonerating evidence attained after the hanging had taken place.^[694] The wrongly imprisoned can regain their reputation and be compensated, says Taylor, but for the wrongly executed, �not all the riches which society commands' could remedy the mistake.^[695]

Lee and Taylor both spend long passages arguing how capital punish­ment fails to address the root causes of crime and, in doing so, reveal just what they thought of the criminal �type' in Australia.

In many cases the homicide is committed in consequence of a morbid craving for blood, an overwhelming impulse to take life, frequently combined with a suicidal tendency; probably an inflammatory action upon the brain, an irresistible influence, which impels the criminal to commit the crime, totally regardless of the consequences. Now, in dealing with the minds of men who generally commit crime, we must not measure them by our own standard.^[696]

Or, Taylor's summation of the criminal mind:

They are really and truly slaves to controlling passions, and placed in circumstances which will stimulate the most active impulses of their nature, will commit crimes of the deepest dye, having no thought at the time of the consequences to themselves of such actions. Hanging fifty such would not deter others governed by the same impulses...^[697]

Taylor later speculates that the desire for crime �borders upon disease and insanity' and is possibly a consequence of hereditary: �Do we think it unnatural that a bad tree should bear bad fruit?'^[698] Lee uses the term of �moral insanity' at one point to describe the desire to commit crime.^[699] They suspect that if the causes of wrongdoing are not environmental but hardwired into the criminal's very constitution then executions were ineffective at preventing crime. The punishment had to go deeper than mere spectacle. In fact, in both their works, they praise punishments that, above all else, aimed to reform the character of the individual. �I believe this idea of reformation to be a truly Divine idea,' writes Lee, �one that should pervade all punishments'.^[700]

Taylor and Lee, following their portrayal of the common criminal, saw the logical alternative to the death penalty as life imprisonment without release. But, to view abolitionists as soft-hearted humanitarians because of this suggestion is somewhat misleading. Abolitionists make the case that prison is a more effective punishment precisely because it was more miserable than hanging. Here is Lee sharing his thoughts on lifetime incarceration:

Why, in such an imprisonment there is a gibbet for every hour: no hope, reminding me of the Hell of Dante, over whose dread portals that sublimes of geniuses inscribes in his immortal poem, �Here Hope never enters’. No escape, a terrible doom which comprehends the forever, to wake day after day a hopeless captive... and at the close of each day’s work locked up like a wild beast in his den for twelve weary hours in a dark cell, a prey to his gloomy thoughts.^[701]

Both Lee and Taylor invoked the ideal of the nineteenth-century peni­tentiary in their texts—a place of strict discipline, endless labour, bouts of solitary confinement and enforced sobriety. Only such an enforced shift in lifestyle from vice to virtue could mend the �criminal class’ in Australia they contended. At different moments, they also anticipate the central criticism of this alternative—namely, that prison is more expensive than death. Lee laments that placing a cost/benefit analysis on a criminal’s life makes him �blush for humanity’ while Taylor goes out of his way to make the case that prisons are actually profitable institutions.^[702]

A key argument for abolitionists in the colonial period harks back to some of Beccaria’s famous axioms. Namely, the death penalty, owing to its very severity, was unenforceable—or, at the very least, uncertain in its application. Lee and Taylor point to juries who have failed to convict on capital offences �in the very teeth of law and evidence’.^[703] Taylor writes: �[C]an anyone blame the man who would hesitate before returning a verdict, the penalty attached to which, if enforced, is unalterable?’^[704] Both men go on to provide evidence of jurymen who are hesitant in their duty. Lee, for example, relays a case in New South Wales where the criminal was indicted on two counts—one capital, the other not. Prior to delivering the verdict the head juror explicitly asked the judge if he would recommend mercy should the criminal be found guilty on the capital count. When the Judge did not grant him any assurances the foreman announced him guilty on the non-capital count alone.^[705] Given their confidential nature, abolitionists’ assertions of jury delib­erations will always be speculative. Lee himself, in an interesting aside, actually excused himself from jury duty when he was empanelled to sit on a capital case.^[706]

Taylor and Lee’s agitation did not start and stop with the publication of these pamphlets. As two leading abolitionists of the colonial period, they were very active in their own ways. It is likely that Taylor was first spurred to action in his twenties while following the case of the rapist Job Smith.^[707] Thereafter he wrote compulsively to his local newspapers about the ills of the death penalty. In 1879, for example, he provided Tasma­nians with specific information on wrongful convictions in England, the reimposition of capital punishment in Switzerland and a troubling capital case in New South Wales.^[708] He also antagonised other people sending in letters to the local newspapers on criminal cases, disagreeing with them on points of logic or fact.^[709] This constant barrage of letters was too much for Hobart’s Mercury. In 1879 it declared that Taylor was misusing their columns and aggravated their readership by �inflicting on them arguments from which their souls revolted’.^[710] The Mercury deter­mined that it would no longer allow �such dangerous doctrines’ and �distorted views’ to be published in its columns.^[711] It even blamed Taylor for the fact that a criminal (guilty of a capital crime in the newspaper’s opinion) had recently been released back into society. Unfazed, Taylor found other periodicals willing to carry his letters. Hobart’s Tribune, for one, was happy to oblige. The Tribune^,s Editor wrote the following note after Taylor’s falling out with the Mercury: �We are induced to insert Mr. Taylor’s communication, in the belief that no cause suffers through free discussion’.^[712] After the 1870s and early 1880s his correspondence on capital punishment slowed down but never entirely stopped. In 1915 he publicly advocated for the reprieve of a criminal—much to the chagrin of the Library of Tasmania’s Trustees. According to the historian Michael Roe, Taylor’s refusal to be silenced represented something of a test case for the ability of Australian civil servants to advocate for private beliefs in the public sphere.^[713]

In New South Wales Lee, less of a writer than Taylor, was a central figure in anti-capital punishment action in the last half of the nineteenth century. During the mid-1860s he gave many well-attended lectures in locations like temperance and church halls.^[714] It was common for notable citizens to come in person to listen to his talks. Lee’s published account of his lecture to the School of Arts examined above, for example, had two Members of the Legislative Assembly seated on stage while he delivered it.^[715] Between 1868 and 1872 he was involved in a dedicated abolitionist society in New South Wales (see below). During the 1880s, Lee helped organise petitions for mercy in the cases of William Rice (1884), Robert Hewart (1888) and Louisa Collins (18 89).^[716] On each of these occasions he formed part of a deputation to the Governor to advocate for clemency in person. To a lesser extent, through letters to Government Ministers and/or comments in the newspapers, he pressed for leniency in the cases of Ernest Buttner (1889), John Buttner (1889), John Makin (1893) as well as for Charles Montgomery and Thomas Williams (1894).45 He had mixed success in his endeavours. For instance, he advocated for clemency to be shown to the perpetrators of the infamous gang-rape of MaryJane Hicks at Mount Rennie in Sydney's then bushland in 1886.⁴6 Owing in part to his agitation, only four of the original nine youths originally sentenced to death were actually executed.^{[717] [718] [719] The first time he advocated on behalf of an individual criminal—that of Henry Manns in 1863—it was less successful. A total of 16,000 people signed a petition for mercy but to no effect. â€?I used every possible exertion' Lee recalled, but the Governor was fixated on making an example.[720]}